author: JUSTICE LUND

text:
    CHAD SISK, a Minor, by Cindy Sisk, his Mother and Next Friend, et al., Plaintiffs-Appellants, v. MARLA LEWIS, Adm’r of the Estate of Kingsley Lewis, Deceased, Defendant-Appellee.
    Fourth District
    No. 4 — 92—0871
    Opinion filed June 3, 1993.

      Kenneth C. Goetz, of Nessler Law Offices, of Lincoln, for appellants.
    Roger W. Thompson, of Lincoln, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

On July 17, 1992, plaintiff Cindy Sisk, individually, and on behalf of her son Chad Sisk, a minor, filed a two-count complaint in the circuit court of Logan County against defendant Marla Lewis as administrator of the estate of Kingsley Lewis. Count I sought recovery for injuries to plaintiff’s minor son, and count II sought recovery for Cindy Sisk under the family-expense statute.

The claims resulted from a motorcycle accident on July 2, 1990. Kingsley Lewis died August 2, 1991, and while his will had been filed, no probate proceedings were commenced. No special administrator was appointed when the complaint was filed.

On September 18, 1992, more than six months after Lewis’ death and more than two years after the date of the accident, plaintiff filed a motion for appointment of a special administrator under the authority of section 2 — 1008(b) of the Code of Civil Procedure (Code) (111. Rev. Stat. 1991, ch. 110, par. 2 — 1008(b)). Defendant objected and moved to dismiss, contending the statute of limitations had expired because at the time the complaint was filed no special administrator or personal representative of decedent’s estate existed. Defendant contends that filing of the July 17, 1992, complaint was a nullity and the September 18, 1992, motion filing was beyond the two-year period of limitations as provided by section 13 — 202 of the Code (111. Rev. Stat. 1991, ch. 110, par. 13 — 202) and more than six months after the death of Lewis (111. Rev. Stat, 1991, ch. 110, par. 13— 209(b)). Section 13 — 209(b) allows for filing after the two-year period of limitations if the person to be sued dies within the two-year period and the action is commenced “within 6 months after the person’s death.” (111. Rev. Stat. 1991, ch. 110, par. 13-209(b).) Here, the six-month period ended before expiration of the two-year period.

The trial court dismissed plaintiff’s action with prejudice, stating no “relation back” existed and the period of limitations had expired. Only now does plaintiff suggest the applicability of section 13 — 211 of the Code, which provides:

“If the person entitled to bring an action, specified in Sections 13 — 201 through 13 — 210 of this Act, at the time the cause of action accrued, is under the age of 18 years, or is under a legal disability, then he or she may bring the action within 2 years after the person attains the age of 18 years, or the disability is removed.” (111. Rev. Stat. 1991, ch. 110, par. 13-211.)

Count I is brought on behalf of a minor, and an action on his behalf may be commenced within two years after he attains 18 years of age. Defendant agrees in her brief that limitations have not barred this action on behalf of the minor, and a reversal is required as to count I. On return to the trial court, a special administrator should be appointed under the authority of section 2 — 1008(b) of the Code so that Cindy, in her representative capacity as next friend of Chad, can proceed on count I of the complaint.

Count II presents a different problem. At the time of filing, records in the office of the circuit clerk would show the absence of estate administration. The complaint was filed naming a nonentity, administrator Marla Lewis, as defendant. That nonentity status apparently continues to this day. After the two-year limitations period had expired (remember Kingsley Lewis died more than six months before the end of the two-year period), the plaintiff sought the appointment of a special administrator. Cindy asks for relation-back treatment, citing Lindsey v. Special Administrator of the Estate of Phillips (1991), 219 Ill. App. 3d 372, 579 N.E.2d 445, Stringer v. Estate of Jasaitis (1986), 146 Ill. App. 3d 270, 496 N.E.2d 1196, and Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121, 302 N.E.2d 64. Stringer cited Pavlov v. Konwall (1983), 113 Ill. App. 3d 576, 447 N.E.2d 982, as authority for its decision.

We find these cases different from the present one. In the cited cases, an amended complaint was filed. In Lindsey our court adopted Stringer and required a relation-back treatment. Here we have the filing of a complaint within the two-year period which lists a nonentity as the only defendant; then, after the limitations period ran, a motion was filed asking the person listed as administrator be appointed special administrator.

In Halberstadt, plaintiff’s first complaint included a count alleging the violation of the Structural Work Act (Work Act) (HI. Rev. Stat. 1965, ch. 48, par. 60 et seq.). An amended complaint filed within the statute of limitations alleged negligence, but deleted the Work Act allegation. Years later, after the limitations period had run, plaintiff sought to amend by adding the Work Act count. The supreme court held the right to amend under section 46 of the Civil Practice Act (Act) (111. Rev. Stat. 1971, ch. 110, par. 46 (now section 2 — 616 of the Code (735 ILCS 5/2 — 616 (West 1992))) included the right to add the Work Act allegation. In that case, proper defendants had been made parties before the limitations period had run.

In Pavlov, the original complaint was filed two days before the limitations period had run and a special administrator was appointed on motion of plaintiff’s lawyer, one not authorized to bring the motion. After the limitations period had run, an authorized person moved for the appointment of the same special administrator and the appointment was again made. Citing section 46 of the Act (now section 2 — 616(b) of the Code), the Pavlov court rejected the view that plaintiff’s original filing was a nullity and that the amended complaint filed after the limitations period must be dismissed. Instead, the court held a relation-back doctrine was included in section 46 of the Act and was applicable to the existing facts.

The Stringer opinion, citing at length from Pavlov, applied the relation-back doctrine where the complaint was filed one day before the special administrator was appointed. The widow of defendant successfully contested the original appointment and was herself named special administrator, but only after the limitations period had run.

The Lindsey opinion sets forth a comedy of errors which took place in the trial court. The statute has been changed since the initial filings in Lindsey, and the limitations period is now two years or six months after decedent’s death, whichever coinés last. While we continue to agree with Stringer, we do not believe the same result is proper in the present case.

Plaintiff’s complaint was filed against a nonentity. An attempt at appointing a special administrator was not made until after the statute of limitations had run. All cited cases are factually different. Here, as we have said, a check with the Logan County circuit clerk’s office would have easily determined the absence of a personal representative of decedent’s estate.

In Stringer the court emphasized, “The first complaint was not directed against a dead person but against the estate of the decedent and the person whom the plaintiff reasonably believed was the administrator.” Stringer, 146 Ill. App. 3d at 272, 496 N.E.2d at 1198.

The Pavlov, Stringer, and Halberstadt opinions applied the relation-back doctrine, which was included in what is now section 2 — 616 of the Code to ensure that the technical rules of pleadings did not “prevent the cause from being decided on its merits in furtherance of justice.” Stringer, 146 Ill. App. 3d at 273, 496 N.E.2d at 1199.

Here, we do not have a technical mistake. With a minimum of effort, the nonexistence of an estate personal representative would have been discovered.

Section 13 — 209(b) of the Code provides:

“If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, and is not otherwise barred, an action may be commenced against his or her personal representative after the expiration of the time limited for the commencement of the action, and within 6 months after the person’s death.” (111. Rev. Stat. 1991, ch. 110, par. 13 — 209(b).)

Section 2 — 1008(b) of the Code provides in part:

“If the death of a party to a personal action is suggested of record and no petition for letters of office for his or her estate has been filed, the court, upon motion and after such notice to the party’s heirs or legatees as the court directs, and without opening of an estate, may appoint a special administrator for the deceased party for the purpose of prosecuting or defending the action. If a legal representative is appointed for the estate before judgment is entered, and his or her appointment is suggested of record in the action, the court shall order that the representative be substituted for the special administrator.” 111. Rev. Stat. 1991, ch. 110, par. 2 — 1008(b).

While section 13 — 209(c) of the Code does not apply to the facts of this case, section 13 — 209(c)(4) does indicate a legislative intent for the appointment of a personal representative and the filing of the complaint in that order. Section 13 — 209(c)(4) of the Code provides:

“In no event can a party commence an action under this subsection (c) unless a personal representative is appointed and an amended complaint is filed within 2 years of the time limited for the commencement of the original action.” (111. Rev. Stat. 1991, ch. 110, par. 13 — 209(c)(4).)

In Lindsey, we said:

“In cases such as the one before us, the better practice would be to first proceed with the appointment of the special administrator. This appointment would then be followed with the filing of a complaint listing the special administrator as a party-defendant. It appears in cases where the special administrator is to be plaintiff, such a procedure would be mandatory.” Lindsey, 219 Ill. App. 3d at 377, 579 N.E.2d at 448.

We conclude under the facts in this case that justice does not require the application of the relation-back doctrine. The trial court was correct in refusing to appoint a special administrator for purposes of defending against Cindy. The trial court order denying the appointment of a special administrator to defend against the action of Cindy Sisk in her individual capacity (count II) is affirmed. The order denying the appointment as to the action on behalf of the minor (count I) is reversed.

Affirmed in part, reversed in part, and remanded.

STEIGMANN, P.J., and McCULLOUGH, J., concur.


source: Caselaw Access Project

author: JUSTICE SLATER JUSTICE BARRY,

license: Public Domain

text:
    CINDY McCUEN, Indiv. and as Mother and Next Best Friend of Jennifer McCuen, et al., Minors, et al., Plaintiffs-Appellees, v. PEORIA PARK DISTRICT, Defendant-Appellant.
    Third District
    No. 3 — 92—0229
    Opinion filed June 3, 1993.
    Rehearing denied July 13, 1993.

      BARRY, J., concurring in part and dissenting in part.
    David B. Collins, of Quinn, Johnston, Henderson & Pretorius, of Peoria (Charles D. Knell, of counsel), for appellant.
    Janssen, Maher, Wertz & Miller, of Peoria (Mark E. Wertz, of counsel), for appellees.
   JUSTICE SLATER

delivered the opinion of the court:

Defendant Peoria Park District brings this appeal pursuant to Supreme Court Rule 308(a) (134 Ill. 2d R. 308(a)) for resolution of the following questions certified by the circuit court of Peoria County:

(1) “Is a local governmental entity immune from liability for negligent acts arising from a hayrack ride pulled by two mules which it operates on its own property under 111. Rev. Stat., ch. 85, paragraph 3-106?” and

(2) “Is a local governmental entity immune from liability for negligent acts arising from a hayrack ride pulled by two mules which it operates on its property under 111. Rev. Stat., ch. 85, paragraph 3— 109?”

This case arises from an accident in defendant Peoria Park District’s W.H. Sommer Park on July 4, 1989. According to the pleadings of record, on that date plaintiff Jennifer McCuen was celebrating her birthday with friends and participating in the park’s “country birthday party” and mule-drawn hayrack ride. While defendant’s employee was engaged in harnessing the mules, they suddenly bolted and ran off with the driverless hayrack, causing several riders to fall or jump off, injuring themselves. On July 2, 1990, the injured plaintiffs brought suit against the governmental entity alleging negligence and willful and wanton misconduct. Defendant moved to dismiss the complaint. The trial court denied the motion with respect to the negligence counts and granted in part and denied in part the motion with respect to the willful/wanton counts. Defendant moved for Rule 308(a) certification, and that motion was granted with respect to the negligence counts.

The statutory bases for defendant’s motion to dismiss plaintiffs’ negligence claims are contained in the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (111. Rev. Stat. 1991, ch. 85, par. 1 — 101 et seq.).

Section 3 — 106 of the Act provides:

“Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.” 111. Rev. Stat. 1991, ch. 85, par. 3 — 106.

Section 3 — 109 provides in pertinent part,

“(a) Neither a local public entity nor a public employee is liable to any person who participates in a hazardous recreational activity, including any person who assists the participant, or to any spectator who knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury to himself or herself and was voluntarily in the place of risk, or having the ability to do so failed to leave, for any damage or injury to property or persons arising out of that hazardous recreational activity.
(b) As used in this Section, ‘hazardous recreational activity’ means a recreational activity conducted on property of a local public entity which creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to a participant or a spectator.
‘Hazardous recreational activity’ also means:
(3) Animal racing, including equestrian competition, *** rodeo ***.” 111. Rev. Stat. 1991, ch. 85, pars. 3 — 109(a), (b).

It is well established that because the Act is in derogation of common law, it must be strictly construed against the local public entity. (Kirnbauer v. Cook County Forest Preserve District (1991), 215 Ill. App. 3d 1013, 576 N.E.2d 168.) With respect to the immunity granted by section 3 — 106, the question is whether that section extends to the operation of a hayrack ride.

Plaintiffs do not dispute that the hayrack and mule team were “public property” and were being used in the park for recreational purposes. Instead, plaintiffs argue that their complaint is not grounded on “the existence of a condition” of the property. Plaintiffs’ complaint charges that defendant’s employee was negligent in his operation of the ride and handling of the mules. It does not allege that “property” was improperly maintained or defective. Plaintiffs assert that section 3 — 106 does not immunize the defendant from all negligent acts, but only from negligence from failure to maintain its property. We agree.

The primary rule of statutory construction is to ascertain the intent of the legislature. (Annen v. Village of McNabb (1990), 192 Ill. App. 3d 711, 548 N.E.2d 1383.) The best indicator of that intent is the language of the statute itself. (Beghr Willowbrook Venture v. Village of Willowbrook (1991), 217 Ill. App. 3d 614, 576 N.E.2d 853.) When the statute is clear and unambiguous, courts will give the language its plain and ordinary meaning and will not read exceptions into the statute. Beghr Willowbrook Venture, 217 Ill. App. 3d at 617, 576 N.E.2d at 855.

In our opinion, a plain reading of section 3 — 106 indicates that immunity is afforded only when liability is “based on the existence of a condition” of the property. That is, there is no liability for injuries caused by defective, unsafe or negligently maintained public property intended for recreational use absent willful and wanton conduct. Here, plaintiffs’ complaint is not based on the existence of a condition of the hayrack or mules. Plaintiffs have not alleged that the property involved was defective, unsafe or negligently maintained. Plaintiffs simply allege that defendant’s employee failed to use reasonable care in the operation of the ride and handling of the mules. If the legislature had intended to provide immunity for all acts of negligence which take place on recreational property, it could have done so. Instead, it limited immunity to instances where the liability is based on a condition of the recreational property itself. In order to grant immunity to the defendant, we would have to ignore the “condition of the property” language of section 3 — 106. This we cannot do.

Our decision is supported by the case law interpreting section 3— 106. Nearly all of the cases in which immunity was granted under this section involved unsafe or defective conditions of the public property itself. (See, e.g., Davis v. Chicago Housing Authority (1990), 136 Ill. 2d 296, 555 N.E.2d 343 (charging negligent maintenance and operation of playground); Annen v. Village of McNabb (1990), 192 Ill. App. 3d 711, 548 N.E.2d 1383 (alleging failure to maintain restroom in park); Jarvis v. Herrin City Park District (1972), 6 Ill. App. 3d 516, 285 N.E.2d 564 (charging failure to maintain, inspect and repair slide in park).)

The only case which appears to apply section 3 — 106 in the absence of an allegation of liability based on a condition of public property is Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 565 N.E.2d 654. In Burdinie, plaintiff claimed damages for injuries allegedly resulting because the municipal defendant’s employee, a swimming instructor at the public pool, negligently instructed plaintiff, a nonswimmer, to jump into the pool’s shallow end. Plaintiff jumped, struck his head and was injured. Plaintiff’s complaint contained no allegation of a faulty pool or recreational facility, only allegations of negligent conduct on the part of the public entity’s employee.

The Burdinie court first addressed those sections of the Act which it found to be relevant to plaintiff’s complaint. Concerning section 3 — 106, the court stated that “[sjection 3 — 106 applies to situations where an unsafe condition exists on municipally controlled property intended for recreational use.” (Burdinie, 139 Ill. 2d at 512, 565 N.E.2d at 660.) However, the court did not point to any unsafe condition which made section 3 — 106 applicable. In fact, the court noted that plaintiff’s complaint did not allege an unsafe condition in or around the pool. Nevertheless, the court held that because plaintiff failed to allege willful and wanton conduct on the part of the municipal employee, his complaint failed to “state a cause of action under section 3 — 106.” Burdinie, 139 Ill. 2d at 513.

In light of the Burdinie court’s statement that section 3 — 106 applies to situations where an unsafe condition exists on recreational property, it appears that section 3 — 106 should have been found to be inapplicable in Burdinie since no unsafe condition was involved in that case. This inconsistency may be attributable to what appears to be some confusion in the Burdinie opinion concerning the difference between failing to state a cause of action and barring an action based on governmental immunity. At four different points, the Burdinie opinion states that plaintiff’s complaint failed to “state a cause of action under [the Act].” However, it is well settled that the Act does not impose duties, but only confers immunities. (Vessey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 583 N.E.2d 538; Havens v. Harris Township (1988), 175 Ill. App. 3d 768, 530 N.E.2d 284.) In Porter v. City of Urbana (1980), 88 Ill. App. 3d 443, 445, 410 N.E.2d 610, 612, the court stated:

“The Tort Immunity Act is not a catalog of duties or a source of rights; it does not create new liabilities where none already exist. [Citation.] Thus, we must look to other statutes and to the common law to determine whether the complaint states a cause of action.” (Emphasis added.)

In light of the above authority, we fail to see how a complaint can “state a cause of action” under the Tort Immunity Act. In any event, we believe our decision here is supported by the majority of the case law and the general proposition enunciated by the Burdinie court that section 3 — 106 applies to situations where an unsafe condition exists on municipally controlled recreational property.

Accordingly, we hold that the answer to the first certified question is no — that is, a local governmental entity is not immune from liability under section 3 — 106 for negligent acts arising from a hayrack ride pulled by two mules which it operates on its own property.

With respect to the second certified question, we do not hesitate to agree with the trial court in its decision that the mule-drawn hayrack ride involved in this case is not the type of “hazardous recreational activity” for which a public entity is granted immunity under section 3 — 109 of the Act. The risks assumed by participants in animal racing, equestrian competition and rodeos, which the Act specifically enumerates among such activities (111. Rev. Stat. 1991, ch. 85, par. 3— 109(b)(3)), cannot rationally be compared to the ride plaintiffs embarked upon in this case. Accordingly, we answer the second certified question in the negative, because we hold that section 3 — 109 of the Act has no applicability to the recreational activity involved in this case.

Having determined that defendant is not immune from liability for acts of negligence by virtue of section 3 — 106 or section 3 — 109 of the Act, we affirm the order of the circuit court of Peoria County denying defendant’s motion to dismiss the negligence counts of plaintiff’s complaint and remand this cause for further proceedings.

Affirmed and remanded.

McCUSKEY, P.J., concurs.

JUSTICE BARRY,

dissenting in part and concurring in part:

In my opinion, my colleagues’ technical reading of the immunity granted by section 3 — 106 cannot withstand analysis. While it is true that most of the cases tested under section 3 — 106 involve unsafe or defective physical aspects of the public entity’s property itself (see e.g., Davis v. Chicago Housing Authority (1990), 136 Ill. 2d 296, 555 N.E.2d 343 (charging negligent maintenance and operation of playground); Jarvis v. Herrin City Park District (1972), 6 Ill. App. 3d 516, 285 N.E.2d 564 (charging failure to maintain, inspect and repair slide in park)), governmental immunity has prevailed as well under section 3 — 106 where the injured plaintiff charged only negligent conduct by defendant’s employee in the use of public property. Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 512, 565 N.E.2d 654, 660.

Contrary to my colleagues’ assessment, I do not believe that our supreme court was confused, inconsistent or in error when it determined that the injured plaintiff in Burdinie was precluded from recovery against the municipal defendant by virtue of the immunity granted by section 3 — 106 of the Immunity Act. In Burdinie, plaintiff claimed damages for injuries allegedly resulting because the municipal defendant’s employee, a swimming instructor at the public pool, negligently instructed plaintiff, a nonswimmer, to jump into the pool’s shallow end, whereupon plaintiff jumped, struck his head and was injured. The court stated that section 3— 106 “applies to situations where an unsafe condition exists on municipally controlled property intended for recreational use” and “contemplates liability only if the municipality or municipal employee acts in a ‘willful and wanton’ manner.” (139 111. 2d at 512, 565 N.E.2d at 660.) Because plaintiff’s complaint was framed in terms of negligence only, our supreme court ruled that it did not state a cause of action under section 3 — 106.

It is apparent to me that the Burdinie court correctly interpreted the term “condition” as alluded to in the statute to mean not only a defective, unsafe or negligently maintained aspect of public property, but an employee’s negligent conduct or acts in connection with the use of such property as well. This interpretation is consistent with the Burdinie court’s prefatory statement that “[tjhere is no municipal liability *** for negligence resulting in injuries occurring on public property intended for recreational purposes, unless the local public entity is guilty of willful and wanton conduct (111. Rev. Stat. 1989, ch. 85, par. 3 — 106).” (139 Ill. 2d at 506-07, 565 N.E.2d at 658.) As in the case on appeal today, there was no allegation in Burdinie of a faulty pool or recreational facility, only allegations of negligent conduct on the part of the public entity’s employee. It is my opinion that in rejecting plaintiff’s negligence counts pursuant to section 3 — 106, the Burdinie court left no doubt but that the term “condition” embraced the employee’s negligent conduct, which created the situation making the injury possible on public recreational property, as well as the physical attributes of such property.

Further, my colleagues’ narrow interpretation of “condition” violates the cardinal rule of statutory construction that force, effect and meaning should be given to the entire statute so as to render the statute a harmonious, consistent and symmetrical whole (82 C.J.S. Statutes §346 (1953)). By my view, the majority pits unsafe physical attributes of a public recreation area or facility caused by negligence (the first clause of section 3 — 106) against willful or wanton conduct of a public entity or employee (second clause) and illogically determines that a public employee’s negligent conduct (presumably only to the extent that it does not physically affect the entity’s property) is not subject to the immunity granted by the statute. I cannot believe that this result was contemplated by the legislature.

By contrast, applying a broader interpretation to the term (as was done in Burdinie) makes sense of the entire section. I would hold that the immunity afforded in the first clause includes negligent conduct in the creation of a “condition,” and this conduct was intended by the legislature to be parallel to and contrasted with willful and wanton conduct in the creation of an unsafe condition in the second clause. Otherwise stated, a “condition” created by the negligence of a public recreational proprietor or its employee is not actionable by virtue of governmental immunity (first clause of section 3 — 106), but such immunity is not available if the “condition” is caused by “such local entity or public employee[’s] *** willful or wanton conduct” (second clause). 111. Rev. Stat. 1991, ch. 85, par. 3-106.

Finally, as I see it, my colleagues’ holding defeats legislative goals of encouraging the development of parks and other recreational areas (Beckus v. Chicago Board of Education (1979), 78 Ill. App. 3d 558, 397 N.E.2d 178) and protecting local public entities and employees from negligence liability arising from the operation of such public facilities (111. Rev. Stat. 1991, ch. 85, par. 1 — 101.1). On June 30, 1986, during the House debates on article I of Senate Bill 1200, amending the Tort Immunity Act, Representative Greiman poignantly observed, “This Amendment puts kids back in the parks. It puts Saturday’s heroes back in the high school football playing field. And yet, it makes sure that communities will still be liable for wanton and willful conduct that disregards, with conscious indifference, the safety of its citizens.” (84th Ill. Gen. Assem., House Proceedings, June 30, 1986 (House Conference Committee Report on Senate Bill 1200).) Senate President Rock similarly addressed practical concerns in explaining the purpose of the legislation: “[W]e set up a joint Senate committee between the Committees on Local Government and Insurance and asked them to go out and hold some hearings and find out, if they could, the extent of the problem with respect to the affordability and availability of liability insurance particularly as it related to local governments, because all of us were aware and somewhat appalled that counties and park districts and municipalities were confronted with the fact that-they were uninsurable or that the insurance that was offered to them was unaffordable. *** Article I is the Tort Immunity Act and the local governments and their representatives insofar as I know are pleased and well they should be, because their problem is addressed and responded to.” (84th Ill. Gen. Assem., Senate Proceedings, at 78-80, June 30, 1986 (Senate First Conference Committee Report on Senate Bill 1200).) (Article 1 of Senate Bill 1200 was enacted into law as Public Act 84 — 1431, effective November 25, 1986.) Obviously, the “loophole” that the majority creates in the statute today will effectively destroy the protections that the local governments and the State legislators thought they had achieved for the benefit of local governments.

I would hold that the answer to the first certified question is yes — that is, a local governmental entity is immune from liability for negligent acts arising from a hayrack ride pulled by two mules which it operates on its own property under section 3 — 106. 111. Rev. Stat. 1991, ch. 85, par. 3 — 106.

I agree with the majority’s resolution of the second certified question.


author: PRESIDING JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRELL McGEE, Defendant-Appellant.
    Fifth District
    No. 5 — 91—0878
    Opinion filed June 7, 1993.

      Daniel M. Kirwan and Stanley P. Stasiulis, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    William Haine, State’s Attorney, of Edwardsville (Norbert J. Goetten, Stephen E. Norris, and Rebecca Sanders, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

Terrell McGee was originally tried before a jury for armed robbery and unlawful possession of a weapon by a felon. Prior to that trial, Judge Edward Ferguson granted a defense motion in limine and prohibited evidence of defendant’s refusal to appear in a lineup and defendant’s response to that request. The court subsequently declared a mistrial due to a hung jury.

The case was set for retrial before Circuit Judge Charles Romani, and defendant waived his right to a jury trial. Defense counsel presented the same motion in limine that was presented in the first trial, and the motion was denied. Defendant was convicted of armed robbery and sentenced to 20 years’ imprisonment. He appeals, raising one issue: whether Judge Romani erred in denying the motion in limine. We affirm.

Defendant asserts that the State’s failure to appeal the order granting defendant’s motion in limine in the first trial via Supreme Court Rule 604(a) (134 Ill. 2d R. 604(a)) amounted to an abandonment of that issue and that the court at the second trial was estopped from reconsidering the motion.

Before addressing defendant’s issue, we must address the State’s contention that the defendant has waived any alleged errors by not asserting them in a written post-trial motion for a new trial.

Ordinarily, a defendant must object to an error at trial and include the objection in a post-trial motion in order to preserve it for review on appeal. (People v. Mullen (1990), 141 Ill. 2d 394, 401, 566 N.E.2d 222, 226.) Section 116 — 1 of the Code of Criminal Procedure of 1963 requires that a written motion for a new trial specifying the grounds therefor shall be filed by the defendant within 30 days following the return of the verdict. (725 ILCS 5/116 — 1 (West 1992).) The filing of a post-trial motion is applicable to a bench trial as well as a jury trial. (People v. Enoch (1988), 122 Ill. 2d 176, 187-88, 522 N.E.2d 1124, 1130; People v. Johnson (1991), 214 Ill. App. 3d 1087, 574 N.E.2d 225.) However, the plain error rule may be invoked when a defendant has not properly preserved an error for review, where the evidence is closely balanced, or where the alleged error may have adversely affected the defendant’s right to a fair and impartial trial. (People v. Mullen (1990), 141 Ill. 2d 394, 566 N.E.2d 222; People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) In this case the evidence objected to tends to implicate the defendant as the perpetrator of the armed robbery. Given the nature of the evidence objected to and the possibility that if erroneously admitted it could have prevented the defendant from receiving a fair trial, we will consider the issues defendant has raised on appeal.

Defendant relies on People v. McBride (1983), 114 Ill. App. 3d 75, 448 N.E.2d 551, and People v. Circella (1972), 6 Ill. App. 3d 214, 285 N.E.2d 254, for the proposition that the State’s failure to appeal under Rule 604(a) constitutes a bar to further consideration of the propriety of the trial court’s ruling by another judge of that court in a later proceeding. McBride and Circella relied on People v. Taylor (1971), 50 Ill. 2d 136, 277 N.E.2d 878, as authority for this rule. Taylor states:

“At that time, section 114 — 12(b) of the Code of Criminal Procedure (111. Rev. Stat. 1963, ch. 38, par. 114 — 12(b)) provided that if a pretrial motion to suppress evidence is granted, the evidence suppressed under such order shall not be admissible in evidence against the movant at any trial." (Emphasis added.) (Taylor, 50 Ill. 2d at 138, 277 N.E.2d at 879-80.)

We believe Taylor, the underpinning for McBride and Circella, can be distinguished because it is based upon evidence excluded under section 114 — 12:

“Motion to Suppress Evidence Illegally Seized, (a) A defendant aggrieved by an unlawful search and seizure may move the court for the return of property and to suppress as evidence anything so obtained on the ground that:
(1) The search and seizure without a warrant was illegal; or
(2) The search and seizure with a warrant was illegal because the warrant is insufficient on its face; the evidence seized is not that described in the warrant; there was not probable cause for the issuance of the warrant; or, the warrant was illegally executed.” 725ILCS 5/114 — 12 (West 1992).

A Rule 604(a) appeal involving a section 114 — 12 suppression of evidence is based solely on the misconduct of the government in obtaining that evidence. Under such circumstances it is understandable that the supreme court would take a more draconian attitude toward the State’s responsibility to appeal from such an order. Taylor, People v. Williams (1990), 138 Ill. 2d 377, 563 N.E.2d 385, and the series of cases cited therein all involve rulings based on section 114 — 12. In cases that do not come under section 114 — 12, but which instead deal with material that is excluded on an evidentiary basis such as hearsay or relevancy, we do not feel the same approach is warranted. Instead, we conclude that in such cases a less stringent rule is appropriate. We note that in the instant case the basis of the appeal could not have been section 114 — 12, the provision invoked in Taylor. Instead, the State’s appeal would have been based on the provision in Rule 604(a) allowing for an interlocutory appeal from an order the substantive effect of which results in dismissing a charge for suppression of evidence:

“In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114 — 1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence.” (Emphasis added.) 134 Ill. 2d R. 604(a).

In the civil arena it is generally recognized that a new trial is a trial de novo, and the subsequent trial judge is not bound by findings of her or his predecessor. (Jones v. Petrolane-Cirgas, Inc. (1989), 186 Ill. App. 3d 1030, 542 N.E.2d 1186; In re Application of Kane County Collector (1985), 135 Ill. App. 3d 796, 482 N.E.2d 161; Travelers Insurance Co. v. Robert R. Anderson Co. (1983), 112 Ill. App. 3d 812, 445 N.E.2d 1189.) Likewise, in a criminal context, there is support for the proposition that on a new trial an action should be tried de novo. (See People v. Brown (1991), 222 Ill. App. 3d 703, 713, 584 N.E.2d 355, 362; People v. Boose (1980), 85 Ill. App. 3d 457, 460, 406 N.E.2d 963, 965.) We see no reason to abandon this general rule, but some limitation may be warranted. The trial judge in the second trial should not cavalierly reverse rulings imposed in the first trial. The trial judge has the right to review the order if she or he believes it is erroneous, and she or he is obligated to do so if changed circumstances make the prior order unjust. (Cf. Balciunas v. Duff (1983), 94 Ill. 2d 176, 446 N.E.2d 242; Peoples Gas Light & Coke Co. v. Austin (1986), 147 Ill. App. 3d 26, 497 N.E.2d 790.) A prior order should be amended or reversed only after careful consideration, particularly where there is evidence of “judge shopping” by the party who has received an adverse ruling. See People v. DeJesus (1989), 127 Ill. 2d 486, 494, 537 N.E.2d 800, 804.

Contrary to defendant’s assertions that defense counsel may have been ineffective for submitting a new motion in limine at the second trial, we find that, given the procedural posture of the new trial following the mistrial in this case, defense counsel acted properly in submitting a new motion in limine. Furthermore, we cannot find that the State abandoned its right to maintain a position with regard to the motion in limine at the second trial. It has not been alleged, nor is it evident in the record, that this is a case of “judge shopping.” On the contrary, given the fact that the first trial resulted in a mistrial due to a hung jury, it appears merely fortuitous that the State was given a “second chance” to contest the pretrial motion in limine. As to whether Judge Romani properly exercised his authority in denying the motion in limine, we turn to the issue of whether the ruling on the merits of the motion was proper.

During pretrial proceedings before Judge Romani, defendant advised the court that he wished to proceed without a jury.

Defendant argues that because of Judge Romani’s ruling defendant waived his right to a jury on retrial. Based on the record, we find this argument to be without merit.

Section 103 — 6 of the Code of Criminal Procedure of 1963 (725 ILCS 5/103 — 6 (West 1992)) states that an accused has a right to a jury trial unless he or she understandingly waives that right. Trial courts have the duty of insuring that a defendant’s waiver of his right to a jury trial is made expressly and understandingly. (People v. Steiger (1991), 208 Ill. App. 3d 979, 981, 567 N.E.2d 660, 661.) There is no set formula for determining whether this waiver was made knowingly and understandingly; therefore, the determination necessarily turns on the facts of each case. People v. Frey (1984), 103 Ill. 2d 327, 332, 469 N.E.2d 195,197.

Once the defendant expressed his desire to proceed without a jury, the trial court engaged defendant in the following discourse:

“THE COURT: You want a bench trial?
DEFENDANT McGEE: I believe I want a Bench Trial.
THE COURT: So you are requesting at this time to waive your right to a Jury Trial?
DEFENDANT McGEE: Yes.
THE COURT: Mr. McGee, I am going to explain a few things to you so you understand, so we have this on the record. You have a right to have a Jury Trial, you know that?
DEFENDANT McGEE: Yes.
THE COURT: That is a Jury of twelve people.
DEFENDANT McGEE: Yes.
THE COURT: And when the evidence is presented to those twelve people, the verdict must be unanimous and must, in other words, for them to find you guilty, all twelve would have to go guilty. For them to find you not guilty, all twelve would have to go not guilty. Do you understand that?
DEFENDANT McGEE: Yes.
THE COURT: Now, in a Non-Jury Trial, there is a Judge. One person, that is a Judge. So there is only one vote. You understand that?
DEFENDANT McGEE: Yes.
THE COURT: The Judge could find you guilty, find you not guilty, there is only one person. Do you understand that?
DEFENDANT McGEE: Yes.
THE COURT: You are charged with Armed Robbery, and you understand what you are charged with? You understand the charge?
DEFENDANT McGEE: Yes, sir.
THE COURT: Do you understand the penalties? You could be sentenced to prison anywhere from six to thirty years if convicted?.
DEFENDANT McGEE: Yes.
THE COURT: If you have got a prior Class X, you could get an exhanced [sic] penalty, but the minimum, that would be six to thirty. But if convicted, you understand the minimum sentence is six?
DEFENDANT McGEE: Yes.
THE COURT: Have you discussed this with your Attorney about waiving a Jury? Have you talked to him about it?
DEFENDANT McGEE: Yes, sir.
THE COURT: Mr. Hunt?
MR. HUNT: Did I do anything to suggest that you waive this Jury Trial? Or was that your idea?
DEFENDANT McGEE: It is my own idea.
MR. HUNT: And I didn’t do anything to try to force that idea on you, did I?
DEFENDANT McGEE: No, you didn’t.
MR. HUNT: You made that choice of your own free will?
DEFENDANT McGEE: Yes.
THE COURT: Okay. Do you have any questions about anything I have just said to you, Mr. McGee?
DEFENDANT McGEE: No, I don’t have no questions.
THE COURT: Again, you understand that by waiving your right to a Jury Trial, that there will only be one person making the decisions instead of twelve?
DEFENDANT McGEE: Yes, I feel that the basics of this case are that the Judge, you know, I need the Judge, you know, than the Jury, [sic] because Jurors from the street [sic] and they don’t know, they don’t know, you know.
THE COURT: Are you waiving your right to this Jury Trial? Are you doing this freely and voluntarily?
DEFENDANT McGEE: I am doing this freely.
THE COURT: Are you doing it on your own?
DEFENDANT McGEE: Yes.
THE COURT: No one has forced you to do this?
DEFENDANT McGEE: No, they have not.
THE COURT: Has anyone threatened you, tell you, Mr. McGee, you have got to waive a Jury Trial? Anybody threaten you?
DEFENDANT McGEE: No.
THE COURT: Anybody promise you anything to get you to waive a Jury Trial?
DEFENDANT McGEE: No.
THE COURT: So you are doing this on your own?
DEFENDANT McGEE: Yes.
THE COURT: You made this decision on your own?
DEFENDANT McGEE: Yes, sir.
THE COURT: Mr. Rybak?
MR. RYBAK: I have nothing.
THE COURT: Okay. Then on the record, Mr. McGee, your waiver of Jury Trial will be granted. We will proceed Non-Jury tomorrow. We are not going to start today.”

Contrary to defendant’s assertion, there is nothing to demonstrate that a reason for defendant’s choosing to proceed with a bench trial was the court’s denial of defendant’s motion in limine.

Defendant also contends that the denial of his motion in limine was error because evidence of his refusal to participate in the lineup was irrelevant and prejudicial. Defendant maintains that his refusal to submit to the lineup was not relevant to any issue at trial and that the prejudice to him outweighed any probative value.

We begin with the premise that the admission of identification evidence from a lineup does not violate a defendant’s fifth amendment privilege not to be compelled in a criminal case to be a witness against himself. (United States v. Wade (1967), 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926; see also Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826.) As a general rule, because the identification procedure of a lineup is not protected by the fifth amendment, there is no right to refuse to participate and the act of refusal is not itself a compelled communication. United States v. Wade (1967), 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926; see also South Dakota v. Neville (1983), 459 U.S. 553, 74 L. Ed. 2d 748, 103 S. Ct. 916.

Notwithstanding the fact that participation in a lineup is not protected by the fifth amendment, defendant argues that the prejudicial impact of evidence that he refused to participate constitutes reversible error. Defendant cites People v. Townes (1985), 130 Ill. App. 3d 844, 474 N.E.2d 1334, and People v. Kennedy (1975), 33 Ill. App. 3d 857, 338 N.E.2d 414, as cases recognizing the prejudicial impact of such evidence. In Townes, the court held that the admission of evidence of defendant’s refusal to comply with a search warrant to compel the taking of body specimens was error. The court found that the probative value of the evidence was greatly impaired because the search warrant was served immediately after defendant’s arrest and defendant later submitted to the tests. In Kennedy, the defendant refused to give a voice exemplar. The court found that because defendant had been expressly advised that he had the right to remain silent and that anything he said could be used against him, it would be reasonable to conclude that defendant believed the voice sample would tend to establish his guilt. While Townes and Kennedy illustrate instances where the prejudicial impact of evidence outweighs its probative value, they are distinguishable from the case at bar.

In the present case defendant was in custody, charged with a narcotics offense, at the time he was asked to participate in the lineup on this armed robbery charge. Officer Waldrup had the jailer bring the defendant out of his cell and line up with four other participants. Defendant signed a lineup identification warning form which provided in part:

“1. Although you do not have a right to refuse to appear in a line-up, you do have a right to have a lawyer present when witnesses) to the crime view the line-up.
4. I do not ask for a lawyer at the line-up and I am willing to appear in the line-up without a lawyer there to represent me.”

Defendant inquired why the other four individuals had not been given a warning form to sign. Officer Waldrup informed the defendant that he was a suspect in an investigation. Then, according to Waldrop’s testimony:

“He [the defendant] immediately responded to that that [sic], [‘]I haven’t been selling any dope.[’] He was there on a narcotics charge, and I told him that it was not a narcotics investigation, that it was an armed robbery investigation. At which time he blew up, became extremely upset and basically cursed at me and said he isn’t going to participate in a physical line-up.”

After defendant was informed that he was a suspect in an armed robbery that took place at a certain location, he refused to participate, retorting, “f*** [expletive deleted] that, I ain’t going to be in no lineup.”

It is within the discretion of the trial court to decide whether evidence is relevant and admissible, and its determination will not be reversed absent a clear abuse of discretion resulting in manifest prejudice to the defendant. (People v. Hayes (1990), 139 Ill. 2d 89, 130, 564 N.E.2d 803, 820.) Here, the trial court denied defendant’s motion in limine but ruled that it would not allow the State to refer to any statement that defendant made regarding dope because that was evidence of another offense. As for the evidence that was admitted, the State submits that the defendant’s refusal to participate in the lineup evidenced a consciousness of guilt. (See M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §801.3, at 572-76 (5th ed. 1990).) Unlike Townes and Kennedy, given the circumstances in this case, we cannot find that the probative value of the evidence was outweighed by any prejudicial impact it may have had. Whether the probative value of evidence is outweighed by its prejudicial effect is a matter left to the sound discretion of the trial court. (People v. Illgen (1991), 145 Ill. 2d 353, 375, 583 N.E.2d 515, 524.) We cannot say as a matter of law that the probative value of the refusal-to-participate evidence was substantially outweighed by the danger of unfair prejudice.

As a final matter, defendant submits that the admission of his statement, “f*** [expletive deleted] that, I ain’t going to be in no line-up,” is lacking in probative value. Defendant did not object to the admission of this statement at trial, nor was this issue included in a post-trial motion. Therefore, we conclude that the issue whether it was error to admit this statement is waived. See People v. Friesland (1985), 109 Ill. 2d 369, 488 N.E.2d 261.

For the reasons stated, we affirm the judgment of the circuit court of Madison County.

Affirmed.

WELCH and RARICK, JJ., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES SMITH, Defendant-Appellant.
    Fifth District
    No. 5 — 91—0820
    Opinion filed June 7, 1993.

      Daniel M. Kirwan and Michelle A. Zalisko, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Charles Grace, State’s Attorney, of Murphysboro (Norbert J. Goetten, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Charles E. Smith, was convicted after a bench trial in the circuit court of Jackson County of residential burglary, criminal sexual assault, theft (under $300), and aggravated criminal sexual assault. He was sentenced to four years’ imprisonment for the residential burglary, to be served consecutively with his sentence of 10 years’ imprisonment on the aggravated criminal sexual assault. Defendant was also ordered to pay restitution of $535 for the criminal sexual assault. No sentence was imposed on the theft conviction. Defendant appeals his convictions, arguing: (1) the court erred in denying his motion for appointment of an expert witness; (2) the State failed to prove him guilty beyond a reasonable doubt of aggravated criminal sexual assault; (3) the aggravated criminal sexual assault statute is unconstitutional; (4) because there was only one sexual assault and because criminal sexual assault is a lesser-included offense, one of his convictions must be reversed; and (5) the trial court erred in finding defendant guilty of any charges when the victim could not identify her assailant. We affirm in part and vacate in part.

At defendant’s bench trial, the victim testified that in the early morning hours of September 8, 1988, she was awakened by someone falling on top of her in her bed. The assailant told her not to scream and pulled the covers over her head. He asked her if she had any money to which she replied she had some in her purse in the kitchen. The assailant turned on the light above her bed and brought her purse into the bedroom. The victim’s purse contained four $20 bills and three $1 bills. The assailant then turned off the light, undressed, and urinated on the floor. He pulled the covers off the victim, pulled off her underpants, and got on top of her. The assailant asked her several times, “You don’t want me to kill you, do you?” After the sexual assault, the assailant made her face the wall. He then turned on the light again and got dressed. She asked him how he had gotten into her house. The assailant informed her he came through the front window. Once the assailant left, the victim called the police. The victim had not been able to see her assailant’s face, but she did notice he was wearing a black jacket and baseball cap.

At approximately 1 a.m. on September 8, 1988, a Carbondale police officer encountered a black man in the area of the victim’s house. The man identified himself as Charles Smith and gave the officer information concerning people fleeing from a truck. At approximately 3:50 a.m. the same morning, the officer responded to a call at the victim’s house for a sexual assault and burglary. In searching the victim’s house, the police found latent fingerprints on the lower part of the frame of one of the front windows, on the lamp above the victim’s bed, and on a wine bottle recovered from the freshly mowed yard. The fingerprints matched those of defendant.

Defendant denied assaulting the victim. He told the police he had been at his girlfriend’s house from 1 a.m. until 9 a.m. the day of the assault. The girlfriend did not confirm defendant’s story, however. She informed the police defendant arrived at her house between 3:30 and 4 in the morning asking for a ride home. She noticed defendant had some $20 bills and $1 bills in his possession and was wearing a black shirt, black pants, and a cap. The victim’s home was 2>xk blocks from that of defendant’s girlfriend. The girlfriend called a cab for defendant, a fact confirmed by a dispatcher for Yellow Cab.

Other evidence recovered from the crime scene included hair fragments found in the victim’s purse and on her bed sheets which matched defendant’s hair standards. Analysis of semen stains did not eliminate defendant as the assailant, but because of the large percentage of people who could have donated the semen, the trial court refused to consider the evidence. Lastly, lab reports indicated both the victim and defendant tested positive for the same strain of gonorrhea. The victim testified that to the best of her knowledge she did not have gonorrhea prior to the assault. The trial court found defendant guilty of residential burglary, criminal sexual assault, theft (under $300), and aggravated criminal sexual assault based on bodily harm through the use or threat of force and the transmittal of a sexual disease.

Defendant first argues on appeal the trial court erred in denying his motion for appointment of an expert witness and for DNA testing. Defendant believes such a request was crucial to his defense because the State’s expert would testify that the tested seminal material could have originated from defendant. The trial court denied defendant’s request because of a Cook County circuit court ruling barring the use.of DNA evidence on the grounds the FBI’s data base for African-American males is faulty. The court commented that if the test results proved unfavorable to defendant he would employ the Cook County ruling in an effort to exclude the evidence. The court further found defendant’s motion to be untimely, having been filed one day before the scheduled trial date. The State claimed the DNA testing procedures would have required a minimum delay of six to eight months.

It is true that a person accused of an offense must be given a full opportunity to present a defense and offer witnesses to establish said defense. (People v. Kegley (1988), 175 Ill. App. 3d 335, 339, 529 N.E.2d 1118, 1120.) Illinois has long recognized that an indigent defendant may be entitled to funds to hire an expert witness where expert testimony is deemed critical to a proper defense. (People v. Clankie (1989), 180 Ill. App. 3d 726, 730, 536 N.E.2d 176, 179; Kegley, 175 Ill. App. 3d at 339, 529 N.E.2d at 1120; see also People v. Watson (1966), 36 Ill. 2d 228, 234, 221 N.E.2d 645, 648.) Such entitlement is established when the defendant demonstrates the expert services sought are necessary to prove a crucial issue in the case and when the defendant’s financial inability to obtain his own expert will prejudice his case. (Clankie, 180 Ill. App. 3d at 730, 536 N.E.2d at 179.) This does not mean, however, appointment of an expert witness is automatic once such entitlement is shown. The right to such assistance may be waived when not presented in a timely fashion. (Clankie, 180 Ill. App. 3d at 730, 536 N.E.2d at 179.) Additionally, the defendant must identify a specific expert and give the trial court an estimate of the fees involved. Failure to do so justifies denial of the defendant’s request. (See People v. Hebel (1988), 174 Ill. App. 3d 1, 34, 527 N.E.2d 1367, 1388; see also People v. Winfrey (1973), 11 Ill. App. 3d 164, 166, 298 N.E.2d 413, 414.) Here defendant did neither. Defendant specified no expert or testing laboratory and presented his request one day prior to the scheduled trial date. Under such circumstances, we cannot say the trial court erred in denying defendant’s request. More importantly, the trial court determined that DNA testing was not crucial to defendant’s case when at least one other court has found the data base for African-American males to be faulty and the court already had excluded the State’s use of seminal comparisons. A trial court possesses a wide area of discretion in allowing expert testimony which it feels will aid in the understanding of the issues in a particular case. (See People v. Mack (1989), 128 Ill. 2d 231, 250-51, 538 N.E.2d 1107, 1116; see also Presswood v. Morris (1979), 70 Ill. App. 3d 513, 516, 388 N.E.2d 844, 847.) Expert testimony obviously would not be helpful in resolving the question of the assailant’s identity in this instance if the court believes such testing procedures are not trustworthy. (See People v. Lipscomb (1991), 215 Ill. App. 3d 413, 432, 574 N.E.2d 1345, 1357.) Additionally, the court eliminated the need for DNA testing by refusing to accept the State’s evidence with respect to the seminal material. Ultimately, we are not to reverse a trial court’s decision pertaining to the appointment of a State-paid expert unless such decision constitutes an abuse of discretion. (Clankie, 180 Ill. App. 3d at 730-31, 536 N.E.2d at 179.) We find no abuse of discretion in this instance.

Even assuming defendant should have been allotted money for DNA testing, any error in the trial court’s refusal in this instance was harmless. (See Hebel, 174 Ill. App. 3d at 35, 527 N.E.2d at 1389.) Defendant’s guilt was proved beyond a reasonable doubt. Defendant’s fingerprints were found at the scene of the assault on the window frame through which the assailant entered the victim’s house and on the lamp above the victim’s bed which the assailant turned off and on at least twice. The victim had not known defendant prior to being attacked, and defendant offered no explanation for the presence of his prints in her home. Obviously the fingerprints could have been impressed only at the time the offense was committed. (See People v. Rhodes (1981), 85 Ill. 2d 241, 249-51, 422 N.E.2d 605, 608-09.) Clearly defendant was proved guilty beyond a reasonable doubt even without reference to other circumstantial evidence implicating defendant as the assailant (i.e., clothing, time and vicinity of offense, denominations of money stolen, hair samples, and presence of same strain of sexually transmitted disease). The trial court’s refusal to appoint an expert to conduct DNA testing under such circumstance, if error at all, constituted nothing more than harmless error.

Defendant next argues on appeal he was not proved guilty beyond a reasonable doubt of aggravated criminal sexual assault by causing bodily harm to the victim in transmitting a sexual disease when there was no proof the victim did not have the disease prior to the assault. We disagree.

A criminal conviction will not be set aside on review unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276; People v. Meador (1991), 210 Ill. App. 3d 829, 830, 568 N.E.2d 1386, 1387.) The relevant inquiry is whether, after viewing the evidence, whether it be direct or circumstantial, in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Campbell (1992), 146 Ill. 2d 363, 374, 586 N.E.2d 1261, 1266; People v. Geneva (1990), 196 Ill. App. 3d 1017, 1025, 554 N.E.2d 556, 562.) It is not our function to substitute our judgment or retry defendant; resolution of factual disputes and the assessment of the credibility of witnesses are for the trier of fact. (Meador, 210 Ill. App. 3d at 830, 832, 568 N.E.2d at 1387, 1388; Geneva, 196 Ill. App. 3d at 1026, 554 N.E.2d at 562.) The trial court here resolved the matter against defendant; we cannot say the trial court erred.

Aggravated criminal sexual assault occurs when an individual commits criminal sexual assault and causes bodily harm to the victim. (111. Rev. Stat. 1991, ch. 38, par. 12 — 14(a)(2).) “Bodily harm” includes sexually transmitted diseases. (111. Rev. Stat. 1991, ch. 38, par. 12 — 12(b); see also People v. Rodarte (1989), 190 Ill. App. 3d 992, 999, 547 N.E.2d 1256, 1260.) Here the victim testified unequivocally and without contradiction that she did not have gonorrhea before the assault but was infected with the disease afterward. Tests conducted on defendant after the assault revealed he was infected with the same strain of gonorrhea. Although the medical expert could not determine who had the disease first, the trial court logically could infer that defendant transmitted the disease to the victim during the criminal sexual assault. We cannot say such evidence is so unsatisfactory as to justify a reasonable doubt of defendant’s guilt in this instance.

Defendant further contends the aggravated criminal sexual assault statute, with the aggravating factor being the transmission of a sexual disease, is unconstitutional because there is no requirement that the defendant knowingly or intentionally transmit the disease or act with culpable intent. What defendant refuses to recognize is that the evidence establishes he had the intent to commit criminal sexual assault against the victim and that he is responsible for the consequences of his criminal acts.

We initially note statutes are presumed constitutional, and any doubt should be decided in favor of the law’s validity. (People v. Haywood (1987), 118 Ill. 2d 263, 271, 515 N.E.2d 45, 49.) Moreover, it is the province of the legislature to define offenses and determine the penalties required to protect society’s interests. (People v. Terrell (1989), 132 Ill. 2d 178, 216, 547 N.E.2d 145, 161.) The legislature has determined that an individual who commits criminal sexual assault and, in so doing, transmits a sexually transmitted disease to his victim should be punished more severely than one who does not. We cannot say such a determination is unreasonable or irrational. Implicit in the offenses of criminal sexual assault and aggravated criminal sexual assault is a mental state of intent to commit, or knowledge of committing, an act of sexual penetration. (Terrell, 132 Ill. 2d at 209, 547 N.E.2d at 158.) And, when a defendant knowingly or intentionally engages in criminal activity, he should be held responsible for the consequences of his acts, even when the consequences of those acts are wholly unexpected. (People v. Harris (1980), 90 Ill. App. 3d 703, 705, 413 N.E.2d 499, 501; People v. Rickman (1979), 73 Ill. App. 3d 755, 759-60, 391 N.E.2d 1114, 1117-18.) The responsibility surely does not rest with the victim. Consequently, it is immaterial that defendant may not have known he was transmitting, or that he may not have intended to transmit, a sexual disease to the victim. Defendant also suggests the aggravated criminal sexual assault statute may be constitutionally over-broad. A statute is overly broad, however, if it may reasonably be interpreted to prohibit conduct which is constitutionally protected. (See People v. Klick (1977), 66 Ill. 2d 269, 273, 362 N.E.2d 329, 331; see also People ex rel. Difanis v. Barr (1980), 83 Ill. 2d 191, 209, 414 N.E.2d 731, 739.) A defendant’s conduct in committing sexual assault clearly is not constitutionally protected. Consequently, we find the aggravated criminal sexual assault statute to be constitutional and defendant to have been properly convicted of violating it.

For his fourth point on appeal, defendant contends the State failed to prove him guilty beyond a reasonable doubt of criminal sexual assault. Defendant claims the evidence was insufficient to prove he actually used force or the threat of force to commit an act of sexual penetration against the victim. Again, we disagree. The evidence supports the trial court’s finding that the offense, including use of force, was proved beyond a reasonable doubt.

The victim testified she was home alone asleep in her bed when she was awakened by a man falling on top of her ordering her to be quiet. When she attempted to look at him, the assailant shoved her face into a pillow and said: “You don’t want me to kill you, do you?” The man repeated this same question several times throughout the assault. The victim testified she was frightened of her assailant.

There is no definable standard fixing the amount of force which the State is required to prove to establish a criminal sexual assault; the degree of force and the amount of resistance depend upon the facts of the particular case. (People v. Robinson (1989), 199 Ill. App. 3d 24, 30, 556 N.E.2d 1204, 1208; People v. Schmitt (1981), 99 Ill. App. 3d 184, 188, 424 N.E.2d 1267, 1270.) Resistance is not necessary under circumstances where it would be futile or would endanger the victim’s life or where the victim is overcome by superior strength or fear. (Geneva, 196 Ill. App. 3d at 1027, 554 N.E.2d at 563; Schmitt, 99 Ill. App. 3d at 188, 424 N.E.2d at 1270.) The element of force does not depend for its proof on actual physical damage to bodily tissue. (Geneva, 196 Ill. App. 3d at 1027, 554 N.E.2d at 563; People v. Leonhardt (1988), 173 Ill. App. 3d 314, 321-22, 527 N.E.2d 562, 567.) The circumstances of the assault here clearly show defendant used force or the threat of force to commit the act of sexual penetration. We therefore hold defendant was proved guilty of criminal sexual assault beyond a reasonable doubt. This does not end the inquiry, however.

Defendant also contends there was only one sexual assault; consequently, one of his convictions must be reversed as criminal sexual assault is a lesser-included offense of aggravated criminal sexual assault. The State counters defendant has waived any error by failing to object at trial or raise the issue in his post-trial motion. We reject the State’s position. Under the holdings of People v. Davis (1992), 229 Ill. App. 3d 869, 594 N.E.2d 423, appeal allowed (1992), 146 Ill. 2d 636, 602 N.E.2d 462, and People v. Johnson (1990), 200 Ill. App. 3d 1018, 558 N.E.2d 607, a conviction on a lesser-included offense is “void” if there also was a conviction for the greater offense, and an objection to the conviction for the lesser-included offense can be raised at any time. (Davis, 229 Ill. App. 3d at 870, 594 N.E.2d at 424; Johnson, 200 111. App. 3d at 1021-22, 558 N.E.2d at 609.) We therefore must address defendant’s contention.

Defendant was convicted of both criminal sexual assault and aggravated criminal sexual assault on the basis of a single act of sexual penetration. The offense was enhanced because during the course of the assault, defendant caused the victim bodily harm through the transmission of a sexual disease. There was, however, only one single physical act. When a defendant is convicted of two offenses, one of which is a lesser-included offense of the other, and where a single physical act was the basis for both convictions, only one of the convictions can stand. (People v. Donaldson (1982), 91 Ill. 2d 164, 170, 435 N.E.2d 477, 479.) Under the circumstances presented here, criminal sexual assault is a lesser-included offense of aggravated criminal sexual assault. (See Geneva, 196 Ill. App. 3d at 1029, 554 N.E.2d at 564; People v. Boyer (1985), 138 Ill. App. 3d 16, 19, 485 N.E.2d 460, 462.) We therefore must vacate defendant’s conviction for criminal sexual assault.

Defendant’s final contention on appeal is the evidence against him is so unsatisfactory that the trial court erred in finding him guilty of any charges. We conclude, however, the evidence establishes defendant’s guilt beyond a reasonable doubt. Without detailing all of the evidence again, we note the trier of fact need not search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt. (Campbell, 146 Ill. 2d at 380, 586 N.E.2d at 1268.) The evidence against defendant was more than sufficient to establish guilt. First, defendant’s fingerprints were found in the immediate vicinity of the crime under such circumstances as to establish beyond a reasonable doubt that they were impressed at the time the offense was committed. (Campbell, 146 Ill. 2d at 386, 586 N.E.2d at 1271; Rhodes, 85 Ill. 2d at 249, 422 N.E.2d at 608.) Additionally, the trial court found the testimony and comparisons of the State’s fingerprint experts to be credible and trustworthy. Second, defendant was in the vicinity of the crime at the time of the offense. Defendant was seen near the victim’s house at approximately 1:16 a.m. Between 3:30 and 4 a.m., defendant arrived at his girlfriend’s house, SVz blocks away from the vietim’s, dressed in black and carrying some twenties and ones. The police were dispatched to the victim’s house at approximately 3:50 a.m. The victim described her assailant as being dressed in black and informed the police the assailant also had taken $83 (all in twenties and ones) from her wallet. Both the victim and defendant had the same strain of gonorrhea after the assault, a disease the victim testified she did not have prior to the assault. Third, analysis of seminal matter and hair found at the victim’s house, while not conclusive, revealed defendant could not be eliminated as the assailant. We conclude the trial court properly found defendant guilty of all charges.

For the aforementioned reasons, we affirm defendant’s convictions and sentences imposed for residential burglary, theft (under $300), and aggravated criminal sexual assault entered by the circuit court of Jackson County. We vacate defendant’s conviction for criminal sexual assault.

Affirmed in part; vacated in part.

WELCH and LEWIS, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONNIE TUCKER, Defendant-Appellant.
    Fifth District
    No. 5 — 91—0416
    Opinion filed June 2, 1993.

      Daniel M. Kirwan and Janet Gandy Fowler, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Ronnie Tucker, was charged with first-degree murder (HI. Rev. Stat. 1989, ch. 38, par. 9 — l(aXl)) in the shooting death of Stanley Barber. Following a jury trial in which defendant was found guilty of the offense charged, defendant was sentenced to 45 years in the Department of Corrections. On appeal, defendant contends that the trial court erred in sentencing him to 45 years in prison. In a supplemental brief, defendant further contends that the trial court committed reversible error when instructing the jury. We affirm.

I

On August 7, 1990, defendant began drinking alcoholic beverages with his friend, Calvin Jones, at about 1 p.m. The two continued to drink until approximately 12 a.m. on August 8, 1990. Defendant was intoxicated and fell asleep on Jones’ living room floor. Jones left to pick up his brother and also attempted to get more liquor. When Jones returned home, he found the victim sitting on his front porch crying. The victim wanted a ride to his girl friend’s home, but Jones refused and told the victim to stay at his home. The victim declined the invitation and left on foot.

Defendant woke up shortly thereafter and asked Jones to take him to his grandmother’s house. Jones agreed, and both got in Jones’ car. Jones also decided to give the victim a ride and picked him up around the corner. Defendant was lying down in the back seat when Jones stopped to pick up the victim. The victim got into the front seat. Defendant and the victim began arguing. According to Jones, he was driving over a bumpy area and heard a “pop” and turned to see the victim bleeding from the head. The victim died from a gunshot wound to the head. Jones saw that defendant had a semiautomatic pistol. According to Jones, the first thing defendant said after the shooting was “Fuck that nigger.” There was also some discussion between Jones and defendant that the shooting had been a mistake and that defendant had not meant to do it. Jones stopped his car, and defendant opened the front passenger door. The victim fell out of the car, and Jones and defendant left the victim on the side of the road. The two then proceeded to burn Jones’ car. Defendant also burned his clothes.

Debra Jones, Anthony Jones, and Darnell Jones, relatives of Calvin Jones, all testified that defendant told them not to tell the police that he, defendant, had been at the Jones residence on the evening before the victim’s murder. Based upon the foregoing evidence, defendant was convicted of first-degree murder.

A presentence investigation was conducted. The report indicated that defendant was 24 years old at the time of the murder and was unmarried. The report further indicated that defendant was previously convicted of unlawful use of a weapon, possession of cannabis, and failure to possess a firearm owner’s identification (FOID) card. At the sentencing hearing, defense counsel noted that defendant just received a four-year prison sentence for unlawful possession of a controlled substance. The State recommended a 45-year prison sentence while defense counsel recommended the minimum 20-year prison sentence. Defense counsel argued that the incident was not premeditated, that defendant was intoxicated at the time of the shooting, and that defendant did not deny that he was the shooter. Defendant did not take the stand in his own defense. Defendant’s theory was that the shooting was an accident.

Ultimately, the trial court sentenced defendant to 45 years in the Department of Corrections and stated its reasons for the sentence as follows:

“THE COURT: All right. This Court, having due regard to the nature and circumstances of the offense and to the history, character and condition of the defendant, is of the opinion that imprisonment is not only necessary but mandated by law for the protection of the public, and that probation or discharge would deprecate the seriousness of the defendant’s conduct and would, in fact, be illegal in this particular case. In reaching this decision as the basis for the Court’s sentence, I find that the defendant’s conduct was certainly causing the death of the individual, that the defendant has a history of prior delinquency and criminality.
MR. STURGEON [defense attorney]: Excuse me, Your Honor, he did not have any history of delinquency.
THE COURT: All right. I’ll strike delinquency. Criminality, and the prior misdemeanor offenses for the possession of weapons. The Court notes that the defendant was on bail, having made bail in this particular situation, as a matter of fact, at the time of this particular offense from a prior pending charge, and he has subsequently been sentenced on that charge. The Court does not necessarily adopt the State’s theory of this case that this was a premeditated offense in the sense that it was preplanned, because I don’t think that either of the parties anticipated the presence of the victim in this case at the time that it happened. And the Court takes note that the defendant was, in fact, under the influence of alcoholic liquors at the time of this offense. It certainly did not arise to the level of a defense and does not in any way excuse or tend to excuse the defendant’s conduct, although it is an element of mitigation to this offense. The Court is aware and recalls the testimony and the evidence in this case of tape recordings concerning this defendant’s efforts to avoid detection, his incredulity that the State had enough evidence to convict him, and does not find that the defendant is in any way repentant or was repentant for his conduct. The Court also finds and recalls the comment when questioned by his companion of the evening stating that he should not have done this, the defendant’s answer was why. His attitude conveys to this Court a callous disregard of human life and I reject your apology, sir, at this point, it’s a little late in the game.
I find that society needs to be protected from you, Mr. Tucker, and accordingly I’m going to sentence you for a period of forty-five yearsf’] incarceration to the Illinois Department of Corrections ***.”

II

Defendant first contends that the trial court erred in sentencing him to 45 years in the Department of Corrections. Specifically, defendant argues that the trial court erred in finding as a factor in aggravation that defendant’s conduct caused the death of the victim because “serious harm is implicit in the crime, and cannot be considered in aggravation.” (People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138.) Defendant contends that even though he did not object to the consideration of this factor at the sentencing hearing, the issue is not waived because it is plain error pursuant to Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). Defendant further contends that he presented clear evidence in mitigation which was not given its due consideration by the trial court. Therefore, the trial court abused its discretion in sentencing defendant to an excessive term. The State replies that the trial court properly considered the nature and circumstances of the case when it sentenced defendant. The trial court did not impose a longer sentence merely because the crime resulted in death. The trial court considered several aggravating factors as well as mitigating factors. Accordingly, the trial court’s remark concerning defendant’s conduct causing the death of the victim was harmless error at best. We agree with the State.

Supreme Court Rule 615(b)(4) grants reviewing courts the power to reduce a sentence imposed by the trial court (134 Ill. 2d R. 615(b)(4)). The rule does not address the scope of such power or the circumstances under which such a reduction would be warranted; however, the general rule established is that a sentence is a matter of judicial discretion, and absent an abuse of such discretion, the sentence may not be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.) In order to modify a sentence within statutory limits, it must appear to a reviewing court that the sentence imposed is a clear departure from the spirit and purpose of the fundamental law and the requirement of the constitution that the sentence be proportionate to the nature of the offense and measure possibilities for rehabilitation. (People v. Plantinga (1985), 132 Ill. App. 3d 512, 522, 477 N.E.2d 1299, 1306.) Moreover, and contrary to defendant’s assertions in this case, the degree of harm caused the victim “may be considered as an aggravating factor in determining the exact length of a particular sentence, even in cases where serious bodily harm is arguably implicit in the offense for which a defendant is convicted.” (Emphasis in original.) (People v. Saldivar, 113 Ill. 2d at 269, 497 N.E.2d at 1143.) People v. Andrews (1982), 105 Ill. App. 3d 1109, 435 N.E.2d 706, explains such a situation as follows:

“In this regard, although the consequences are identical, a defendant who tortures his victim to death should expect to receive a more severe punishment than a defendant who did not physically participate in terminating the victim’s life but who is guilty of murder on the theory of accountability. Therefore, we conclude that in a conviction for murder it is not impermissible for the sentencing court to consider the force employed and the physical manner in which the victim’s death was brought about.” 105 Ill. App. 3d at 1113, 435 N.E.2d at 708.

In the present case, the fact that the victim died does not serve as a factor to increase defendant’s sentence, and we do not believe the trial court’s determination as to the length of sentence was based upon the fact that the victim died. As the State points out, it is not reversible error for a sentencing court to point out that the victim died in a murder case. “It is unrealistic to suggest that the judge sentencing a convicted murderer must avoid mentioning the fact that someone has died or risk committing reversible error.” (People v. Barney (1982), 111 Ill. App. 3d 669, 679, 444 N.E.2d 518, 525.) Here, a review of the record shows that the trial court made a single remark about the crime resulting in the victim’s death. The trial court listed factors in aggravation, including the facts that defendant had a prior history of criminality and that defendant was in no way remorseful for his actions. The trial court also properly considered factors in mitigation, such as the fact that the State had not proved that the crime was premeditated and the fact that defendant was under the influence of alcohol at the time of the murder.

The range of sentence for a conviction of first-degree murder is between 20 and 60 years’ imprisonment. (111. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1.) Here, the 45-year prison sentence was well within that range, being 15 years less than the maximum permissible sentence. After reviewing the record, we do not believe that an impermissible factor contributed to the length of defendant’s sentence (Peo pie v. Barney, 111 Ill. App. 3d at 679-80, 444 N.E.2d at 526), nor do we believe that the trial court abused its discretion in sentencing defendant.

In a supplemental brief, defendant also contends that the trial court committed reversible error by giving the final paragraph of Illinois Pattern Jury Instructions, Criminal, No. 26.01Q (2d ed. Supp. 1989) (hereinafter IPI Criminal 2d (Supp. 1989)), which read as follows:

“If you find the State has proved the defendant guilty of both first degree murder and involuntary manslaughter, you should select the verdict form finding the defendant guilty of first degree murder and sign it as I have stated. Under these circumstances, do not sign the verdict form finding the defendant guilty of involuntary manslaughter.” IPI Criminal 2d No. 26.01Q, at 367-68 (Supp. 1989).

Defendant contends that this instruction misstates the law because first-degree murder requires a finding that a defendant acted intentionally whereas involuntary manslaughter involves a finding of a reckless mental state. The jury’s finding that a defendant simultaneously acted both intentionally and recklessly is logically and legally inconsistent. (People v. Hoffer (1985), 106 Ill. 2d 186, 478 N.E.2d 335.) Defendant contends that even though his attorney tendered the instruction now in question, the error is not waived but should be considered as plain error. In the alternative, if plain error is not found, the defense attorney’s actions in this regard amounted to ineffective assistance of counsel. We disagree.

Defendant is correct that murder and involuntary manslaughter have inconsistent mental states. (People v. Hoffer (1985), 106 Ill. 2d 186, 478 N.E.2d 335.) Hoffer involved a jury trial in which the defendant was charged with murder, voluntary manslaughter, and involuntary manslaughter. The jury in that case returned verdicts finding defendant guilty of all three offenses. (106 Ill. 2d at 189, 478 N.E.2d at 337.) The Hoffer court deemed the mental state necessary to sustain a conviction for involuntary manslaughter to be less culpable than, and mutually inconsistent with, the mental states necessary to sustain a conviction for murder. (106 Ill. 2d at 194-95, 478 N.E.2d at 340.) The Hoffer court reasoned that because “the jury concluded that the defendant killed another, intentionally or knowingly (murder, voluntary manslaughter)^] while simultaneously finding that defendant recklessly but unintentionally caused the death of the victim (involuntary manslaughter),” a new trial on all counts was required. (106 Ill. 2d at 195, 478 N.E.2d at 340.) It must be noted that Hoffer dealt with murder as defined in section 9 — 1 of the Criminal Code of 1961 prior to enactment of the new murder provisions effective July 1, 1987. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1.) However, the subsequent offense of first-degree murder incorporated substantially all of the law previously applicable to murder, thereby making the Hojfer analysis applicable to the subsequent murder statute. People v. Summers (1990), 202 Ill. App. 3d 1, 13, 559 N.E.2d 1133, 1140.

In an attempt to resolve the problem of logically or legally inconsistent verdicts as explained in Hoffer, the Illinois Supreme Court Committee on Pattern Jury Instructions in Criminal Cases (Committee) extensively modified its instructions. The Committee explained that extensive modifications to instruction No. 26.01 were designed to avoid such confusion in criminal cases. (IPI Criminal 2d ch. 26.00, Introductory Note, at 317 (Supp. 1989).) Nevertheless, it has been determined that in a case such as the one presented here, where a jury is dealing with greater- and lesser-included offenses (murder and involuntary manslaughter), with the lesser-included offense having a less culpable mental state of recklessness, the last paragraph of IPI Criminal 2d No. 26.01Q (Supp. 1989), the paragraph complained of here, should not be given. People v. Summers (1990), 202 Ill. App. 3d 1, 559 N.E.2d 1133.

In Summers, the defendant was convicted by a jury of the first-degree murder of his 19-month-old stepson. The jury was instructed on both murder and involuntary manslaughter, including the last paragraph of IPI Criminal 2d No. 26.01Q (Supp. 1989), the same instruction complained of here, instructing the jury that if it found the defendant guilty of both first-degree murder and involuntary manslaughter, it should only sign the verdict finding defendant guilty of first-degree murder. The defendant argued that the instruction misstated the law, and the Summers court agreed, following the Hojfer analysis. (Summers, 202 Ill. App. 3d at 12, 559 N.E.2d at 1140.) The Summers court then noted the changes made by the Committee in light of Hojfer but found that the last paragraph of IPI Criminal 2d No. 26.01Q (Supp. 1989) went too far. Specifically, the Summers court stated:

“The Committee’s goals are laudable and it has otherwise achieved them through its promulgation of the series of instructions for IPI Criminal 2d Nos. 2.01 and 26.01 in the 1989 supplement. However, the present case provides an instance where the modifications go too far. Thus, in cases like the present one, in which the jury has before it not only greater and lesser offenses, but a lesser offense having the less culpable mental state of recklessness, the last paragraph of IPI Criminal 2d No. 26.01Q (Supp. 1989) should not be given. The court’s giving of that last paragraph in the present case was, therefore, error.” (Emphasis in original.) (202 Ill. App. 3d at 14, 559 N.E.2d at 1141.)

We adopt the Summers court’s reasoning as our own. Furthermore, like Summers, we find that the error caused by the court’s giving of the last paragraph did not rise to the level of plain error. See Summers, 202 Ill. App. 3d at 14-16, 559 N.E.2d at 1141-43.

Here, defendant tendered the instruction in question, thereby waiving the error. However, an error is not waived by a defendant even if it was the defendant who caused the instruction to go to the jury, if it so affects the defendant’s substantial rights that it rises to the level of plain error. (People v. Sanders (1984), 129 Ill. App. 3d 552, 562-63, 472 N.E.2d 1156, 1164.) The plain error rule allows a reviewing court to consider a trial error not properly preserved for review in two instances: (1) where the evidence in a criminal case is closely balanced in order to preclude the possibility that an innocent man is wrongly convicted, or (2) where the error is so fundamental and of such magnitude that the defendant was denied a fair trial. Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)); People v. Herrett (1990), 137 Ill. 2d 195, 209, 561 N.E.2d 1, 7-8.

As previously stated, the Summers court found the error in the instructions to be harmless because the trial court immediately after giving the instruction explained the proper procedure for the jury to follow; namely, if the jury found the defendant guilty of murder, it could not also find him guilty of involuntary manslaughter, or if the jury found defendant guilty of involuntary manslaughter, the jury could not also find him guilty of murder. (Summers, 202 Ill. App. 3d at 16, 559 N.E.2d at 1143.) The prosecutor also explained in closing argument that the offenses were mutually exclusive. (202 Ill. App. 3d at 16, 559 N.E.2d at 1143.) Moreover, the record in Summers contained no indication that the jury found that the State had proved the defendant guilty of both offenses. (202 Ill. App. 3d at 16, 559 N.E.2d at 1143.) Likewise, in the instant case, we believe the instructions were clarified for the jury.

Here, the prosecutor in closing argument explained the difference between an act that is knowing and intentional (murder) and an act that is reckless (involuntary manslaughter). The prosecutor asked for a verdict of guilty on first-degree murder, contending that the facts in this case showed an intentional rather than a reckless act. The defense attorney argued that the victim was accidentally shot and explained further, “[W]e’re not here on murder, if we’re here on anything it’s involuntary manslaughter.” There is nothing in this record to suggest that the jury found defendant guilty on both the murder and involuntary manslaughter charges. Contrary to Hoffer, where three guilty verdicts were returned, only one guilty verdict was returned here. We believe that the jury understood the difference between murder and involuntary manslaughter and that the error caused by giving the last paragraph of IPI Criminal 2d No. 26.01Q (Supp. 1989) does not rise to the level of plain error.

Defendant’s final contention is that defendant’s counsel rendered ineffective assistance of counsel when he offered IPI Criminal 2d No. 26.01Q (Supp. 1989). We disagree.

Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, sets forth a two-prong test to determine whether a defense counsel’s performance constitutes ineffective assistance. First, a defendant must show that his counsel’s performance fell below an objective standard of reasonableness. Second, a defendant must show that, but for defense counsel’s error, the outcome of the trial would have been different. A court need not decide the first prong (the performance component) before analyzing the second prong (the prejudice component). (People v. Gaines (1984), 105 Ill. 2d 79, 92-93, 473 N.E.2d 868, 876.) In the instant case, there is overwhelming evidence of defendant’s guilt. The record justifies the jury’s verdict on the first-degree-murder charge. Moreover, as previously discussed, we believe the jury was adequately apprised of the law in the instructions, and we do not believe that submission of IPI Criminal 2d No. 26.0 IQ (Supp. 1989) in toto prejudiced defendant within the meaning of Strickland.

For the foregoing reasons, the judgment and sentence of the circuit court of St. Clair County are affirmed.

Affirmed.

CHAPMAN, P.J., and WELCH, J., concur.