author: JUSTICE HOPF

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT T. CROSSER, Defendant-Appellant.
    Second District
    No. 82 — 244
    Opinion filed August 9, 1983.

      William H. Snively, of Rockford, for appellant.
    Daniel Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPF

delivered the opinion of the court:

After a jury trial the defendant, Robert Crosser, was convicted of the offense of aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(1)). He was sentenced to a 30-month term of probation with the first 60. days to be served in the Winnebago County work-release program. The court also fined him $250 plus costs.

The defendant appeals and presents four assignments of error: (1) that the trial court improperly refused to give the jury the instructions on intoxication which the defendant tendered; (2) that the trial court erred when it prevented defense counsel from cross-examining the complaining witness regarding his pending civil lawsuit against the accused for damages arising from the defendant’s criminal conduct in this cause; (3) that the court below committed error when it refused a defense instruction concerning the jury’s consideration of evidence of the defendant’s reputation for truth and veracity; and (4) that the court improperly sentenced the defendant to serve 60 days in the work-release program as a condition of probation.

The events leading up to the charge in question began on Thanksgiving Day, November 27, 1980. At that time, defendant was married to Georgia Crosser for the second time; their first marriage had ended in divorce. Two or three months prior to November 1980, the defendant and his wife were experiencing marital problems which led to Georgia’s filing a petition for dissolution of marriage. She secured a court order barring defendant from entering the marital home in Rockford. However, Georgia did not always enforce the court injunction and allowed defendant to return to the house for the three days immediately prior to Thanksgiving Day. He left the home at 10 o’clock on Thanksgiving morning to visit his father-in-law.

The defendant visited his father-in-law and had a few beers there. At noon Crosser went downtown with a friend and visited a few bars. He drank beer all day until approximately 9 p.m. During that period he consumed approximately 15 to 18 beers. At 9 o’clock he summoned a cab to take him to his wife’s home.

Meanwhile, on Thanksgiving Day, Billy Keen, accompanied by two friends, went to the home of Georgia Crosser. Two girls were also present at Georgia’s residence, and they all ate, danced and drank during the afternoon. Keen did not inquire of anyone whether Georgia was married, but was under the impression that she was divorced.

At approximately 10 p.m. Keen and Georgia were lying on the couch “making out” when the defendant, after hollering and beating on the back door without response, entered the house after knocking the glass out of the fear door. When Crosser saw his wife and Keen on the couch, he threw a bottle at Keen which hit him in the head. The two men struggled until Crosser fell against the television set, split his head open, and lost consciousness for one-half to three-quarters of an hour. He was taken by ambulance to the hospital where he refused medical attention.

After the defendant was taken to the hospital, Keen and Georgia Crosser retired to the bedroom around midnight where, after engaging in sexual intercourse, they went to sleep. At approximately 2:30 the following morning, a friend of the defendant picked Crosser up at the emergency room and transported him to Georgia’s residence. Defendant entered the kitchen and from that vantage point observed Keen and Georgia lying on the bed. Crosser picked up a hatchet which was located on the kitchen table and proceeded to the bedroom. He hollered “What the hell is going on here,” but neither his wife nor Keen moved; the defendant then hit Keen in the head with the hatchet. Crosser left the house and went to the home of Grosser’s father-in-law at 3:30 a.m.

At approximately 5 or 6 a.m. the ringing of the telephone awakened Billy Keen, who was still asleep in bed. He was not aware that he had been injured, for he was still drunk. When he looked into the kitchen, he observed two police officers who informed him that he needed hospitalization because his head was split open. Subsequently, when he looked in the mirror, he saw a gash in his forehead, which was bleeding. He underwent surgery, was hospitalized for five days, and was still taking medication at the time of trial.

The following Monday the defendant gave the police a statement which was consistent with the substance of his testimony at trial as well as that which the victim preferred. In that statement he admitted that he had struck Keen in the head with the hatchet, but stated that he was “half drunk and mad” at the time he entered the house on Friday morning. That statement was read to the jury.

The defendant presented two character witnesses in his behalf who stated that the defendant had a good reputation for truth and veracity and that his reputation for being a peaceful and law-abiding person was also good.

Thereafter, the jury found the defendant guilty of aggravated battery. Judgment was entered on the verdict and defendant was sentenced to 30 months probation conditioned upon his serving the first 60 days in the county jail work-release program; in addition, the court imposed a fine of $250 plus court costs.

Defendant first contends that the trial court improperly refused to give the jury two tendered instructions on intoxication. One was an issues instruction on the defense of voluntary intoxication, which is contained in Illinois Pattern Jury Instruction (IPI), Criminal, No. 25.02 (1968). The other was an instruction on voluntary intoxication as set forth in IPI Criminal No. 24.02 (1968). Defendant maintains that he presented sufficient evidence of his inebriated condition to raise the defense of voluntary intoxication and to require that the court give these instructions at his request. We disagree.

Aggravated battery is a specific intent crime because it contains, as an element of the offense, the requirement that the criminal conduct must be performed knowingly or intentionally. (See Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(a); People v. Harkey (1979), 69 Ill. App. 3d 94, 96, 386 N.E.2d 1151; People v. Jones (1978), 67 Ill. App. 3d 477, 478, 384 N.E.2d 523.) Voluntary intoxication is a defense to a specific intent offense, such as the present one, if the condition of intoxication negates or makes impossible the existence of the mental state which is an element of the crime. (Ill. Rev. Stat. 1979, ch. 38, par. 6 — 3(a); see People v. Rosas (1981), 102 Ill. App. 3d 113, 429 N.E.2d 898; People v. Fuller (1980), 91 Ill. App. 3d 922, 927, 415 N.E.2d 502; People v. Jones.) In other words, the degree of intoxication which will absolve the defendant of responsibility for his criminal conduct must be so extreme that it suspended entirely the power of reason (People v. Moon (1982), 107 Ill. App. 3d 568, 572, 437 N.E.2d 823; People v. Nichols (1981), 96 Ill. App. 3d 354, 359, 420 N.E.2d 1166), or rendered the defendant wholly incapable of forming the requisite intent to commit the crime in question. (People v. O’Shaughnessy (1981), 102 Ill. App. 3d 966, 971, 430 N.E.2d 325.) The mere fact that the defendant was drunk or intoxicated does not constitute a defense of intoxication.

In the case at bar, the defendant testified that he drank 15 to 18 beers prior to 9 p.m. on November 27, 1980. In addition, his statement to the police contained the remark that he was “half drunk” when he returned to his wife’s home early in the morning on November 28. There was no evidence that the defendant drank after 9 p.m. and he did not testify he was drunk at the time he committed the aggravated battery. The evidence established that defendant knew what he was doing when he picked up a hatchet, and, rather than suffering from a lapse of memory, he was able to tell the police officers a few days later exactly what happened on the morning in question.

Based on the totality of these facts, the evidence does not indicate that the defendant was intoxicated at the time of the offense. However, even assuming for the sake of argument that he was inebriated, his drunken or intoxicated condition, by itself, was insufficient to justify the giving of the proposed instructions on intoxication. No evidence was introduced to establish that the defendant’s mental processes were so impaired that he was incapable of reasoning or of forming the requisite mental intent to commit the offense of aggravated battery. To the contrary, defendant’s own testimony and his statements to the police indicate that he engaged in knowing and purposeful conduct, and that his ability to recall the events of the evening was not impaired. See People v. Moon (1982), 107 Ill. App. 3d 568, 572, 437 N.E.2d 823; People v. Nichols (1981), 96 Ill. App. 3d 354, 359, 420 N.E.2d 1166.

Where, as in the case at bar, the evidence concerning the defendant’s drinking would not have justified a jury’s determination that the defendant was so intoxicated that he lacked totally the requisite mental state or the power of reason, no error will be found in the trial court’s refusal to give the instructions on intoxication which the defendant proffered. (People v. Moon (1982), 107 Ill. App. 3d 568, 572, 437 N.E.2d 823; People v. Williams (1973), 14 Ill. App. 3d 789, 794, 303 N.E.2d 585; People v. Reynolds (1963), 27 Ill. 2d 523, 526, 190 N.E.2d 301.) Thus, the trial court acted correctly in refusing defendant’s tendered instructions.

The defendant’s second contention is that the trial court impermissibly restricted his cross-examination of the complaining witness regarding Keen’s pending civil lawsuit against the accused for damages arising from defendant’s criminal conduct in this cause. The defendant maintains that he should have been able to elicit that testimony to establish the witness’ potential bias. Defendant’s offer of proof on this matter demonstrated that Keen had in fact filed a civil action against the defendant in which he sought an award of monetary damages for the injuries he sustained at the hands of Crosser. We agree that this evidence should have been admitted to establish Keen’s bias towards defendant.

The scope of cross-examination is generally within the trial court’s discretion; however, the widest latitude should be allowed the defendant for the purpose of establishing bias, motive, or interest on the part of a witness. (People v. Foley (1982), 109 Ill. App. 3d 1010, 1014, 441 N.E.2d 655; People v. Pizzi (1981), 94 Ill. App. 3d 415, 420, 418 N.E.2d 1024.) Cross-examination for this type of impeachment is a matter of right subject only to the trial court’s broad discretion to preclude repetitive or unduly harassing interrogation and to confine the cross-examination to a proper subject matter. (People v. Foley; People v. Phillips (1981), 95 Ill. App. 3d 1013, 1020, 420 N.E.2d 837.) However, because the evidence must potentially give rise to the inference that the witness has something to gain or lose by his testimony, the evidence of bias, interest, or motive must not be speculative, remote, or uncertain. People v. Foley; People v. Phillips.

Bias, in the form of hostility toward a party, may be shown by the fact that the witness has a lawsuit pending against that party. (Sullivan v. United States (D.C. App. 1979), 404 A.2d 153, 160; McCormick, Evidence sec. 40, at 79 (2d ed. 1972); Annot., 98 A.L.R.Sd 1060, 1063 (1980).) Where a witness in a criminal prosecution has a civil action pending against the accused, the witness cannot be said to be without an interest which might affect his credibility. (People v. Peltz (1908), 143 Ill. App. 181, 182; 98 C.J.S. Witnesses sec. 546, at 488 (1957); see also Feigl v. Terminal R.R. Association (1975), 30 Ill. App. 3d 55, 61, 332 N.E.2d 416, and Swanlund v. Rockford & Inter urban Ry. Co. (1922), 305 Ill. 339, 346-47, 137 N.E. 206, holding similarly in the context of civil proceedings.) In Illinois, the trial court properly exercises its discretion when it precludes the cross-examination of a prosecution "witness concerning a civil lawsuit arising from the incident in question where there is no indication that any civil action was actually filed or contemplated. (People v. Denby (1981), 102 Ill. App. 3d 1141, 1149-50, 430 N.E.2d 507; People v. Bradford (1979), 78 Ill. App. 3d 869, 877, 397 N.E.2d 863.) Similarly, the trial court also may restrict cross-examination of the complaining witness regarding the amount of damages he or she is seeking in a pending civil lawsuit against the defendant arising from the same incident. (People v. Jones (1979), 70 Ill. App. 3d 338, 346, 387 N.E.2d 1010.) In Jones, the court permitted cross-examination of the complainant concerning a related civil case filed against the defendant but refused to allow questioning on the amount of damages sought.

On the basis of these authorities, we conclude that the court below erred in refusing to allow defendant to question Keen during cross-examination regarding the civil action which Keen had filed against Crosser. However, we do not believe this error constituted reversible error. It is well established that an error committed in restricting the scope of cross-examination will rise to the level of reversible error only if the defendant manifestly suffered prejudice as a result of the limitation. (People v. Myers (1980), 92 Ill. App. 3d 229, 236, 415 N.E.2d 1108; People v. Larson (1980), 82 Ill. App. 3d 129, 143, 402 N.E.2d 732; People v. Hubbard (1973), 55 Ill. 2d 142, 151, 302 N.E.2d 609.) Here, it was the attack itself which generated whatever ill-will, interest, or bias the complainant might have harbored against the defendant. Because defense counsel was not prohibited from cross-examining Keen regarding the events leading up to the attack or the injuries the witness had suffered, no prejudicial error is manifest. (See Sullivan v. United States (D.C. App. 1979), 404 A.2d 153, 161; Commonwealth v. Colacino (1926), 89 Pa. Super. Ct. 269, cited in Annot., 98 A.L.R.3d 1060, 1073 (1980).) Furthermore, the error in rejecting the evidence in question was inconsequential given the fact that any bias on the part of the prosecuting witness was sufficiently manifested by his testimony and demeanor as a witness. See Oldham v. Commonwealth (1910), 136 Ky. 789, 794, 125 S.W. 242, 244.

Relying upon People v. Hrdlicka (1931), 344 Ill. 211, 176 N.E. 308, defendant next contends that the trial court improperly refused his tendered instruction stating that evidence of defendant’s good reputation for truth and veracity must be considered along with all the other evidence in the case. See IPI Criminal No. 3.16 (1968).

People v. Hrdlicka (1931), 344 Ill. 211, 220-21, 176 N.E. 308, is distinguishable and is of little support for what confronts us here. That case dealt with an instruction as to general reputation for honesty and integrity, and the court ruled that the trial court did not err when it refused an improper instruction.

It is generally held that evidence of a person’s good reputation or character is entirely proper and should be considered as part of defendant’s case where it has been placed in issue. The inquiry must relate to the defendant’s character with respect to the nature of the crime involved. Evidence of general reputation for a character not involved in the crime charged is not admissible. (People v. Jinkins (1967), 82 Ill. App. 2d 150, 156-57, 225 N.E.2d 657.) In the case before us truth and veracity is simply not involved as an issue in the crime of aggravated battery. People v. Griffith (1978), 56 Ill. App. 3d 747, 756-57, 372 N.E .2d 404.

The trial judge refused to give the proffered instruction because the renditions of the incident in question which both Keen and Crosser related at trial were consistent with each other and not conflicting. The court’s reasoning might possibly be in error, but as the defendant’s reputation for truth and veracity has not been properly called into question or placed in issue either by his impeachment or as an issue of the crime as charged, the refusal to grant the proffered instruction is correct. (People v. George (1978), 67 Ill. App. 3d 102, 108, 384 N.E.2d 377, cert. denied (1979), 444 U.S. 925, 62 L. Ed. 2d 181, 100 S. Ct. 262; People v. Griffith (1978), 56 Ill. App. 3d 747, 756-57, 372 N.E.2d 404.) Further, the evidence of defendant’s good reputation avails him nothing since his guilt in this case was clearly established. People v. Thornton (1978), 61 Ill. App. 3d 530, 534, 378 N.E.2d 198; People v. Griffith; People v. Jinkins (1967), 82 Ill. App. 2d 150, 156-57, 225 N.E.2d 657.

The defendant’s last assertion is that his good conduct since his arrest militated strongly against the trial court’s imposition of jail time as a condition of probation. In effect, the defendant maintains that the court below abused its discretion when it sentenced him to serve 60 days in the county work-release program as a condition of probation.

The law is well established that all penalties must be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. (Ill. Const. 1970, art. I, sec. 11; Ill. Rev. Stat. 1979, ch. 38, par. 1001 — 1—2.) Thus, a sentence will not be disturbed on review when it reflects both the seriousness of the offense and gives adequate consideration to the rehabilitative potential of the defendant. (People v. Carlson (1980), 79 Ill. 2d 564, 587, 404 N.E.2d 233; People v. Murphy (1978), 72 Ill. 2d 421, 439, 381 N.E.2d 677.) Also, rehabilitation and the seriousness of the offense are to be accorded equal weight in fixing punishment, and the prime responsibility for striking the proper balance between the two factors rests with the trial court. People v. Waud (1977), 69 Ill. 2d 588, 596, 373 N.E.2d 1.

Although reviewing courts, in appropriate circumstances, may reduce or modify sentences pursuant to Supreme Court Rule 615(b)(4) (87 Ill. 2d R. 615(b)(4)), our supreme court has firmly established and repeatedly emphasized that the trial court is normally the proper forum in which a suitable sentence is to be determined. The responsibility for imposing sentence is a matter within the trial court’s discretion; thus, that court’s decision with respect to sentencing is accorded great deference and weight and will not be disturbed on review absent an abuse of discretion. (People v. Willingham (1982), 89 Ill. 2d 352, 364, 432 N.E.2d 861; People v. La Pointe (1981), 88 Ill. 2d 482, 492-93, 431 N.E.2d 344; People v. Cox (1980), 82 Ill. 2d 268, 279-80, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882.) It is not the function of a court of review to serve as a sentencing court. Therefore, this court may not substitute its judgment for that of the trial court merely because it might have imposed a different sentence had that function been delegated to it. (People v. Waud (1977), 69 Ill. 2d 588, 596, 373 N.E.2d 1; People v. Perruquet (1977), 68 Ill. 2d 149, 156, 368 N.E.2d 882.) The task of weighing the various aggravating and mitigating factors is the function of the trial court. People v. Jackson (1981), 97 Ill. App. 3d 928, 929, 424 N.E.2d 83.

Although the defendant since his release on bond has completed a program for the treatment of alcoholism and has refrained from drinking for over a year the record also reveals other matters which weigh strongly in favor of the sentence the trial court imposed here. The record demonstrates that the defendant has a history of recent criminal conduct, including violence, a fact which the trial court noted when fixing sentence. The court also stressed that the defendant’s conduct in this case was most- serious, for he hit the sleeping victim in the head with a hatchet, causing a depressed skull fracture that necessitated surgery. Recognizing that the defendant had a good job and work record, the court emphasized that, while he was an appropriate candidate for probation, he would still have to serve some time in the county jail given the gravity of his conduct in this case. Based on this record, we find no abuse of the broad discretion entrusted to the trial court in sentencing matters.

Accordingly, the judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

SEIDENFELD, P.J., and LINDBERG, J., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY E. JENKINS, Defendant-Appellant.
    Second District
    No. 82 — 75
    Opinion filed August 10, 1983.

      James D. Sparkman, of Vella & Reedy, P.C., of Rockford, for appellant.
    Daniel Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Terry E. Jenkins, was convicted of the murder of Naunette Bartleson, following a jury trial, and sentenced to 20 years’ imprisonment. The issues raised for review are whether the defendant was proved guilty beyond a reasonable doubt, whether the jury was properly instructed concerning circumstantial evidence, and whether the prosecutor’s conduct deprived the defendant of a fair trial.

The defendant was charged with beating and killing Naunette Bartleson without lawful justification knowing that his acts in beating her created the strong probability of death or great bodily harm to her, in violation of section 9 — 1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)(2)). He was tried before a jury, and the following evidence was adduced.

According to the defendant, he and Sandra Bartleson and her 16-month-old daughter, Naunette, had moved into their home a few days before the injury occurred. On January 27, 1981, the defendant got off work at 3 p.m. and went home. Sandra left for work at 4 p.m. Naunette, who had been asleep when the defendant came home, awoke at 5 p.m. The defendant fed and bathed her, did some laundry, and called his sister to pick up the clothes to dry at her house. Between 7 and 7:30 p.m., he was playing with Naunette and chased her into the living room, where she fell on the floor and hit her face. He noticed a bruise under her right eye, which started swelling, and placed an ice pack on it. At about 8 o’clock his sister arrived. She picked up Naunette and noticed the bruise. Naunette seemed normal at the time. The defendant’s sister left at about 8:30. The defendant called Sandra at work to have her pick up the laundry at his sister’s house. At 10:15, Sandra called from his sister’s and spoke to him and Naunette. The defendant then gave Naunette a bottle of juice and told her to go into the living room. He remained in the kitchen. About five minutes later, he heard a loud thud coming from the living room and ran into the room. Naunette was on the floor, three or four feet from the television set. He picked her up and she was crying. She turned white and went limp, and the defendant ran to the bathroom with her and splashed water on her face to revive her. The water knocked her bangs back, revealing a bruise on her forehead. At about that time, Sandra walked in and asked what had happened. The defendant told her that Naunette had fallen and he thought she had knocked the breath out of herself. Naunette’s eyes were fluttering, and the defendant slapped her face very slightly to revive her. When he got no response, he slapped her on the back, but not very forcefully. As Sandra arrived, Naunette was gasping for breath. She appeared to have stopped breathing, and the defendant ran into the living room, laid her on the floor, elevated her feet, and gave her mouth-to-mouth resuscitation for 10 to 15 minutes. As he was moving to the living room, he told Sandra to call an ambulance.

The fire department received Sandra’s call at 10:41 p.m. Paramedics arrived at the defendant’s residence a few minutes later and observed Naunette unconscious on the floor. They noticed a bruise on the front portion of her head and on her right cheek. She was breathing, her pupils were fully dilated, and she was not responsive to painful stimuli. They asked the defendant what had happened, and he said that Naunette was running into the living room and fell. When the paramedic asked how far she had fallen and whether she had fallen off a couch or chair, the defendant responded that she had run into the living room and fallen. When another fireman questioned the defendant about what had happened, the defendant replied that Naunette was running across the floor and fell and added, “As a matter of fact, she fell twice.” Either the defendant or Sandra said that Naunette had been in her current condition for about 20 minutes. There were no signs of violence in the house or to the body of the defendant. The room was photographed with a tape measure held in front of the furniture, and the height from the floor to the seats and arms of the furniture ranged from 15V2 to 22 inches.

Naunette was taken to the hospital emergency room, where a doctor who examined her observed a bruise on the right side of her face and three or four bruises on her forehead that were not distinct. She was unconscious and appeared to have intercranial bleeding. In a brief conversation, the defendant told the doctor that Naunette had run across the uncarpeted floor and fallen, that she had bumped her head, that after about five minutes she had lapsed into unconsciousness, and that he had tried to revive her. The doctor testified that he was unable to judge the age of the bruises, and he did not recall having estimated their age to a police officer. A police officer testified that the doctor had said the bruises on the forehead and right cheek were at least a day old and were definitely not' fresh and that other bruises on the abdomen were older.

The defendant was interviewed by detectives at the hospital at about 12:30 a.m. on the night of the incident, after being advised of his rights. He related the events of the evening, including the first fall when Naunette was running across the floor and the thud he later heard before he found her lying on the floor. The defendant accompanied the detectives to the police station and repeated the same facts, adding more details, such as the phone call to his sister and the position of Naunette near the television set. He said he had drunk four or five beers during the course of the evening. He consented to having his house searched by the- police, and he furnished a written statement to the police.

The defendant’s sister’s testimony affirmed her visit to the defendant’s house on the evening of the incident. She noticed nothing unusual about the defendant or Naunette that evening, but she did see the bruise on Naunette’s right cheek. She offered to take Naunette home with her and have Sandra bring her back when she picked up the laundry, but the defendant said he would keep her.

Sandra’s testimony agreed with that of the defendant for the most part. She added that Naunette had whimpered and called “Mommy” when she spoke to her on the phone but that that was not unusual when she was away from the child. She testified that when she arrived home, found the defendant holding Naunette and sprinkling water on her face, and asked what had happened, he told her he thought Naunette had fallen and knocked her breath out. When Naunette’s eyelids began to twitch, the defendant said he thought she would be all right and Sandra thought so too. It was after the defendant carried Naunette into the living room and she stopped breathing and the mouth-to-mouth resuscitation was begun that Sandra called the ambulance, but she was uncertain whose idea it was. She denied that the defendant had told her not to call an ambulance. One of the detectives testified that on the night of the incident Sandra had said that, when she arrived home and the defendant told her that Naunette was unconscious and she went to call an ambulance, the defendant told her not to because the child would be all right and that she called the ambulance when the child stopped breathing. The detective also testified that on the morning after the incident Sandra had stated that, when she arrived home and asked what was wrong with Naunette, the defendant had answered that Naunette had held her breath until she passed out, and when she asked if Naunette was unconscious the defendant replied that she was all right. Sandra repeated those statements during a conversation in August 1981.

There was also testimony by the child’s babysitter, who cared for Naunette on the morning of the incident, that she observed no marks or bruises while changing Naunette’s diapers and clothes and washing her face and forehead. Other witnesses testified that five days before the incident Naunette had run into a kitchen table and hit her forehead and that two days before the incident Naunette had fallen onto the floor and struck the right side of her forehead.

Naunette died on February 2, 1981. Two pathologists testified that they had performed autopsies. They observed bruises on her face, chest, groin, and thigh, as well as a surgical incision closed with sutures on the right side of her skull, 8V2 inches long. There was an extensive fracture on the back of her head extending from the point where the spinal cord joins the brain toward the top of the head, as well as extensive bleeding under the skull, which produced swelling.

The surgical incision had been performed to relieve pressure on the brain. There was no bruising to the skin on the stomach, but there was blood in the abdominal cavity at the right side of the abdomen, indicating that Naunette had received a rapidly applied, penetrating, blunt impact. The blow appeared to have come from the front. Such abdominal damage rarely occurs as a result of resuscitation efforts; if it were caused by a hand, it would have been equivalent to some form of punch. The cause of death was severe brain injury with compression of the brain stem. The hemorrhage in the brain stem was caused by a single skull fracture, due to a severe blow to the back of the head, and it was consistent with contact by a flat or very blunt surface. The head injury would have caused unconsciousness within a few minutes and within no longer than 30 minutes after receiving the fracture. The skull injury could not have been caused by a child of Naunette’s size running across a wooden floor and falling.

The jury found the defendant guilty of murder. He was sentenced to 20 years’ imprisonment.

The first issue raised is whether the defendant was proved guilty beyond a reasonable doubt. The defendant argues that the evidence presented failed to prove the facts alleged by the State in the information — -i.e., “that he beat and killed Naunette Bartleson without lawful justification, knowing that his acts in beating Naunette Bartleson created the strong probability of death or great bodily harm to Naunette Bartleson.” The defendant posits that the medical testimony in no way contradicted his account of what happened, since he never professed to know what the child was doing at the time of the second fall. He asserts that his conversations with the authorities, which initially focused on the child’s fall while running and did not more fully recount the incident until later, were quite natural since that fall was the only one he witnessed, and he notes that he mentioned the second fall when first questioned. The defendant concludes that there was no evidence proving a physical act committed by him, and there was none indicating whether the alleged act was knowing or reckless. In addition, the defendant argues that all proof of guilt was circumstantial, that the State therefore had the burden of excluding every reasonable theory of innocence, and that the State did not meet that burden. He acknowledges that there was direct evidence of certain facts adduced at the trial but contends that it was not direct evidence of guilt. He notes that there was no medical testimony regarding the possibility that the child fell from a piece of furniture or establishing when the stomach injuries occurred. The State responds that there was sufficient evidence to dispel any reasonable doubt of guilt, that the evidence was not entirely circumstantial and the defendant’s proposed standard is incorrect, and that even if there were no direct evidence the State met its burden at trial.

We find that the State did meet its burden of proving the defendant guilty beyond a reasonable doubt, even assuming that the conviction was based on circumstantial evidence. A conviction may be based upon circumstantial evidence, and the manner of death and the means by which it was inflicted may be inferred from the circumstances proved. (People v. Huff (1963), 29 Ill. 2d 315, 320.) When the evidence finding a defendant guilty is entirely circumstantial, the facts proved must be consistent with the defendant’s guilt and inconsistent with any reasonable hypothesis of innocence. (People v. Evans (1981), 87 Ill. 2d 77, 83.) The guilt of the accused must be so thoroughly established as to exclude every other reasonable hypothesis. (People v. Lewellen (1969), 43 Ill. 2d 74, 78.) However, proof beyond a reasonable doubt does not mean that the State is required to establish guilt beyond the possibility of a doubt. (People v. Garcia (1981), 95 Ill. App. 3d 792, 797.) The jury need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances relied on to establish guilt so long as all the evidence taken together satisfies the jury beyond a reasonable doubt of the accused’s guilt, nor must the jury search for a series of possible explanations compatible with innocence and elevate them to the status of reasonable doubt. People v. Holsapple (1975), 30 Ill. App. 3d 976, 978.

Presence at the scene of an offense is insufficient, without more, to establish guilt beyond a reasonable doubt; and opportunity alone is not adequate to sustain a conviction unless the prosecution can show that no one else had the opportunity to commit the offense. (People v. Howard (1979), 74 Ill. App. 3d 870, 877.) Here, there was sufficient evidence that the defendant and no one else was with Naunette at the time the fatal injury occurred, given the testimony as to when the defendant was alone with her and the medical testimony that Naunette would have lost consciousness within a few minutes after the injury occurred. The question that remains is whether the defendant’s explanation was plausible.

The jury has a duty to resolve all facts and circumstances on a theory of innocence if that may be reasonably done. (People v. Smith (1979), 76 Ill. App. 3d 191, 196.) To prove guilt beyond a reasonable doubt, the jury need not disregard the inferences that flow normally from the evidence. (People v. Minish (1974), 19 Ill. App. 3d 603, 606.) To warrant a conviction of a crime on circumstantial evidence, the proof must be of a conclusive nature and tendency, leading on a whole to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime. People v. Donahue (1977), 50 Ill. App. 3d 392, 393.

Here, the defendant testified that he did not know how Naunette was injured; he simply heard a thud and found her lying on the floor. There was no medical opinion elicited as to whether Naunette’s fatal injury could have occurred from a fall from a piece of furniture to the floor, but there was testimony that the injury to the back of her head was consistent with contact with a flat or very blunt surface. Without more, this supports a reasonable theory of innocence. However, Naunette also sustained an abdominal injury that medical testimony indicated was inflicted from a rapidly applied, penetrating, blunt impact from the front, which could have been a punch. The injury was not discovered until the autopsy was performed, and there was no specific proof that the injury to the abdomen occurred during the time Naunette was with the defendant. Nor was there any testimony regarding whether the injury would have manifested any symptoms detectible by those observing Naunette. However, several witnesses observed that Naunette appeared normal on the day and evening in question until the time of her head injury. The jury quite reasonably could have inferred that so severe an abdominal' injury would have caused visible discomfort had it occurred earlier and that, since none was observed, the injury must have occurred near the time that the head injury occurred. In that case, the theory that Naunette was injured from a fall (the “thud”) would be less credible since the head injury was from contact with a flat surface from the back and the abdominal injury was from a penetrating blow to the front. Moreover, there were certain inconsistencies in the testimony that the jury could have resolved against the defendant, such as his alleged initial explanation to Sandra that Naunette had held her breath until she passed out, the conflict as to whether he hesitated to call an ambulance, and his failure early on to more thoroughly explain to the emergency personnel and doctors treating the child that there was a second fall that he did not observe. Given the' jury’s first-hand opportunity to assess the credibility of the witnesses and the cumulative inferences that may be drawn from the evidence presented, we will not disturb its verdict.

The second issue is whether the jury was properly instructed concerning circumstantial evidence. Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.02 (1968), which was tendered by the defendant, states in full:

“Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of [the] [a] defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.
[You should not find the defendant guilty unless the facts or circumstances proved exclude every reasonable theory of innocence.]”

Only the first paragraph was given to the jury, over the defendant’s objection.

In support of his contention of error regarding this instruction, the defendant reiterates his position that, while there was indeed direct evidence presented by the State, it was only circumstantial evidence of guilt and there was no direct evidence of guilt. Therefore, the defendant believes, it was reversible error for the court to refuse the second paragraph of the instruction, since his defense was that Naunette died as the result of an accidental fall and the instruction could easily have affected the jury’s decision. The State responds that the jury instruction issue was waived by the defendant in that the language in his post-trial motion challenging the exclusion of jury instructions was too general. The State argues that, even if the issue was not waived, the remainder of the instruction was not warranted since there was direct evidence and that, in any event, there was no reversible error since the jury was properly instructed as to the presumption of innocence and the State’s burden of proof.

The defendant’s post-trial motion raised as error, inter alia, “ft]hat the Court erred in giving instructions submitted by the State over the defendant’s objections.” As the defendant notes, the only jury instructions tendered by the defendant that were refused were the circumstantial evidence instructions and one other group of instructions, and the instructions regarding circumstantial evidence were specifically argued during the hearing on the post-trial motion. Since the court and the State were apprised of which jury instructions were put into issue by the post-trial motion, the issue was adequately preserved for review in this court and will be considered.

Circumstantial evidence is the proof of facts or circumstances that gives rise to a reasonable inference of other facts that tend to establish the guilt or innocence of a defendant. (People v. Evans (1981), 87 Ill. 2d 77, 83.) Direct evidence is proof of the existence of a fact in issue without inference or presumption; circumstantial evidence is indirect proof of the principal facts that can be inferred only from one or more circumstances directly established. (People v. Garcia (1981), 95 Ill. App. 3d 792, 796-97.) It is well settled that paragraph two of the circumstantial evidence instruction should be given when the proof of guilt, as to each element of the offense, is circumstantial and only when the evidence is entirely circumstantial. People v. Evans (1981), 87 Ill. 2d 77, 83; People v. Flowers (1982), 111 Ill. App. 3d 348, 357.

The State cites as direct evidence the medical testimony that Naunette’s head injury could not have been sustained in a fall, the defendant’s testimony that she fell while running, and testimony that the defendant was the only person with Naunette. Refusal to give the second paragraph of IPI Criminal No. 3.02 has been justified where admissions made by the defendant were viewed as direct evidence (People v. Fletcher (1976), 40 Ill. App. 3d 537, 542) and where the testimony establishing that the crime occurred was deemed sufficient direct evidence even though the evidence linking the defendant to the crime was entirely circumstantial (People v. Christiansen (1969), 118 Ill. App. 2d 51, 57). It has also been held, where the defendant offered explanations of how incidents occurred, that any statements made by the defendant be considered direct evidence. (People v. Spataro (1978), 67 Ill. App. 3d 69, 75; People v. Triplett (1980), 87 Ill. App. 3d 763, 770.) Here, there was direct evidence — testimony from the defendant himself — that the defendant and no one else was alone with Naunette immediately before she lost consciousness, and there was medical testimony that the loss of consciousness would have occurred within minutes of the fatal head injury. In addition, although the defendant maintained that he did not know exactly how the child was injured, he did by suggestion attribute the cause of her injury to the “thud” he heard, and he offered an explanation of innocence in that he was in the other room at the time. We hold that there was sufficient direct evidence to warrant the trial court’s refusal to give the second paragraph of the instruction.

We further note that, even had the full instruction been proper, there would be no basis for reversal. Failure to give the full instruction does not require reversal unless it appears that justice was denied or that the verdict resulted from such error, and courts of review are reluctant to find reversible error in the trial court’s failure to give that portion of the instruction. (People v. Edmondson (1982), 106 Ill. App. 3d 716, 720-21.) Moreover, there is authority that the language of the paragraph is essentially a restatement that defendants must be proved guilty beyond a reasonable doubt. (People v. Cross (1981), 100 Ill. App. 3d 83, 90.) Thus, if the jury is instructed that the State has the burden of proving the defendant guilty beyond a reasonable doubt, there is no reversible error. (People v. Edmondson (1982), 106 Ill. App. 3d 716, 721-22.) Here, the jury was so instructed. Additionally, failure to give the instruction has not been considered to be a denial of justice or a factor that would have influenced the jury in numerous cases where no reasonable theory of innocence was indicated by the record (People v. Edmondson (1982), 106 Ill. App. 3d 716, 722; People v. Garcia (1981), 95 Ill. App. 3d 792, 799; People v. Stokes (1981), 95 Ill. App. 3d 62, 67, 69; People v. Merkel (1974), 23 Ill. App. 3d 298, 302-03); however, where the record has reflected a reasonable theory of innocence, reversal has been warranted (People v. Evans (1981), 87 Ill. 2d 77, 83). In the present case, we have determined that the totality of the evidence reflects no reasonable theory of innocence that would lead us to conclude that the jury’s verdict resulted from the omission of paragraph two. Therefore, under no theory is the failure to include paragraph two reversible error here.

The last issue is whether the prosecutor’s conduct deprived the defendant of a fair trial. The defendant presents two different bases of alleged error in the conduct of the prosecutor during closing argument. The first concerns the prosecutor’s statements and physical demonstrations of his theory of how Naunette’s injuries were incurred. However, as the State points out, no objection was raised during these remarks. Failure to object at trial to portions of the argument now being complained of constituted waiver. People v. Edwards (1973), 55 Ill. 2d 25, 35, cert. denied (1974), 415 U.S. 928, 39 L. Ed. 2d 486, 94 S. Ct. 1438.

The second set of comments urged as prejudicial error, found in three transcript passages, concerns the prosecutor’s repeatedly stating to the jury that the defendant had said to Sandra, “Don’t call the ambulance.” The defendant objected to these remarks on the basis that the prosecutor was misstating the evidence as to whether Sandra testified that the defendant told her not to call the ambulance. The objections were sustained, and the court reminded the jury that it had heard the evidence and should remember what was said, that witnesses’ testimony could be impeached by prior inconsistent statements, and that the jury was the judge of the testimony. As the State notes, the act of promptly sustaining an objection to improper comments by a prosecutor and instructing the jury is usually viewed as sufficient to cure any prejudice. (People v. Baptist (1979), 76 Ill. 2d 19, 30.) In any event, we perceive no prejudice in these remarks. The prosecutor’s comments, while not an exact statement of the testimony, were simply argumentative, and there was an adequate basis in the evidence for the jury to return a guilty verdict even without believing that the defendant was opposed to calling an ambulance.

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

Affirmed.

LINDBERG and NASH, JJ., concur.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHIRLEY MAXINE FERNETTI, Defendant-Appellant.
    Third District
    No. 82 — 548
    Opinion filed August 5, 1983.
    Rehearing denied September 12, 1983.

      F. Stewart Merdian, of Lewistown, for appellant.
    Thomas J. Homer, State’s Attorney, of Lewistown (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendant Shirley Fernetti was convicted at a bench trial of the offenses of involuntary manslaughter (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3) and armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A — 3(a)), and sentenced to the minimum term of six years on armed violence. On appeal she claims that: (l)The evidence of guilt of armed violence predicated on involuntary manslaughter was insufficient to prove her guilty beyond a reasonable doubt; (2) the trial court improperly denied her plea of guilty to the charge of involuntary manslaughter; (3) the ' trial court abused its discretion in failing to declare a mistrial as a sanction for the prosecutor’s violation of a discovery order; and (4) the prosecutor denied her a fair trial by interjecting racial prejudice into the case. We affirm.

On December 28, 1981, defendant shot and killed her neighbor and friend Marguerite “Sue” Fernetti from a distance of 105 feet with a gun which defendant testified she believed to be an unloaded pellet gun, but which turned out'to be a loaded .22-caliber rifle. The events leading up to this tragic result are not in serious dispute between the parties. An issue raised by the defendant is whether her acts were reckless beyond a reasonable doubt and support a conviction of involuntary manslaughter.

In 1973, defendant married Dixie Fernetti and moved into his home in Hooty, Illinois, a small unincorporated town in Fulton County. Shortly after defendant’s marriage, decedent married Carl Fernetti and moved into the house adjacent to Dixie. Carl Fernetti had been raised by Dixie’s brother and sister-in-law, and had adopted the Fernetti name when he was 18.

Relations between the Femettis were cordial in the early years that Sue and Carl and defendant and Dixie lived there, but in 1979 discord developed over a boundary dispute between Carl Fernetti and Otto and Irma Wells, other Hooty residents. Apparently, Shirley and Dixie were partial to the Wells’ claim and were concerned that Carl would harass the Wells. Following the boundary dispute, Dixie ordered defendant to call the County Health Department and report Carl for burning garbage on his property. After this incident the husbands stopped speaking to each other, and Shirley was told by Dixie that Sue could not come over to their house. The friendship between Shirley and Sue continued, but only while Dixie and Carl were away at work. Testimony of several witnesses indicated that Shirley and Sue had at one time been good friends, especially after Sue had children, but that once the men began “feuding” the friendship became strained. For two years neither Carl nor Dixie spoke to each other.

On December 28, 1981, Dixie was unable to work due to inclement weather and instead he and defendant drove to Canton, Illinois, to purchase chrome treatment for antiques he was restoring. Before leaving Booty, Dixie noticed Carl Fernetti’s children and their dog in his yard and told them that they should keep the dog out of the yard, or he was going to call the dogcatcher. Upon their return, Dixie decided to work on antiques which were stored in a trailer adjacent to their home, and Shirley went inside to watch television with her 79-year-old mother who lived with them. In the meantime, Carl had returned home and was told that Dixie reprimanded the children for allowing the dog to run loose. When Dixie exited the trailer, Carl went outside and yelled to Dixie that if he had anything to say to his kids, he should say it to him. Dixie replied that he had not hollered at the children, and Carl retorted with curse words. The argument soon escalated and within minutes both men were on the ground fighting.

Defendant, who had been inside with her mother watching television and playing cards, looked out the kitchen window which faced the adjacent lot and saw Carl and Dixie on the ground. She told her mother that there was going to be a fight and the mother stated that she didn’t want to have anything to do with it, and walked into the living room. Shirley testified that she wasn’t going to watch the fight, but something kept pulling her back to the window. Moments later, Sue came out to see what was going on, and two other men who had heard the commotion walked over to the scene.

Defendant had been pacing back and forth in the house and was very upset. She testified that she saw Sue come out of the house and kick Dixie and that she thought the other men were going to help Carl. She screamed to her mother “they’re going to kill Dixie,” put on her coat, walked to the back porch where Dixie kept some guns, picked up a rifle and ran outside. She testified that when she went outside, Sue and the two men were standing fairly close to where Carl and Dixie were struggling. She yelled to Sue, “let it be a fair fight,” and Sue replied, “well if it isn’t big mother” and motioned for her to come over. Defendant yelled back, “Sue, I have a gun here,” and she replied, “well go ahead and shoot me.” Defendant pulled the rifle to her shoulder and shot Sue from a distance of 105 feet. The .22-caliber bullet hit Sue in the forehead causing her death. Defendant testified that when Sue fell she thought that she was just goofing off, but once she realized what had happened she was hysterical. She dropped the gun, ran to where Sue was lying, and then ran back into her house to call for help. On December 29, defendant was charged with murder, involuntary manslaughter, and armed violence.

The only matters which were the subject of conflicting testimony were whether the decedent merely pushed Dixie off of Carl, or kicked him. twice, and, most importantly, the extent of defendant’s knowledge of the gun. After the shooting, defendant gave lengthy statements to sheriff’s deputies and the State’s Attorney of Fulton County, including statements that she knew the gun she thought she picked up had been used by Dixie to shoot birds; she thought the projectile would go over the decedent’s head; she knew nothing of guns; and, she had picked up the gun to prevent Sue and the other men from intervening in the fight between Carl and Dixie.

At trial, defendant testified that she thought the gun she had picked up was an unloaded pellet gun which had been used by her husband to shoot birds. This testimony was corroborated by Dixie and defendant’s mother, both of whom testified that Dixie kept a pellet gun and a rifle on the back porch and that normally Dixie placed the pellet gun immediately to the right to the door. Dixie stated that on Christmas day he replaced the pellet gun with a .22-caliber rifle which he had also been using to shoot birds. Defendant likewise indicated that she thought Dixie normally kept the pellet gun to the immediate right of the door. A photograph of Dixie’s pellet gun and the .22-cali-ber rifle shows a remarkable similarity in appearance.

Other evidence supported the theory that the bullet had ricocheted off a tree standing several feet to the south of the bullet trajectory which the State’s witnesses had reconstructed. This theory was predicated entirely on the testimony of Dr. Robert Herbert, who had examined the site six months after the shooting. Other testimony tended to establish that the defendant was acting in defense of her husband. Defendant also presented testimony to support a defense of insanity, although she does not argue on appeal that the State failed to meet its burden of proving her sane beyond a reasonable doubt. Insofar as this evidence is relevant to our inquiry, it tended to show that defendant has severe nerve problems and is unable to perform ordinary tasks without shaking. Defendant’s treating psychiatrist related that defendant had a history of nervous tremors, and described her condition as an anxiety disorder with panic attacks.

To sustain the defendant’s conviction for armed violence based on the felony of involuntary manslaughter, the State was required to prove beyond a reasonable doubt that while armed with a dangerous weapon defendant recklessly performed acts likely to cause death or great bodily harm and which, in fact, caused the death of another without lawful justification. (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 3, 33A — 2.) An act is performed recklessly when a person consciously disregards a substantial and unjustifiable risk that circumstances exist, or that a result will follow, and such disregard constitutes a gross deviation from the degree of care which a reasonable person would exercise. Ill. Rev. Stat. 1981, ch. 38, par. 4 — 6.

The pointing of a gun, whether loaded or believed to be unloaded, as well as the reckless handling of a loaded gun, has been held sufficient evidence of a conscious disregard of a substantial and unjustifiable risk that death or great bodily injury would follow. (People v. Moczarney (1978), 65 Ill. App. 3d 410, 382 N.E.2d 544; People v. Bernbroy (1972), 4 Ill. App. 3d 522, 281 N.E.2d 389; People v. Rodgers (1971), 2 Ill. App. 3d 507, 276 N.E.2d 504; People v. Schwartz (1978), 64 Ill. App. 3d 989, 382 N.E.2d 59.) An accidental discharge of a gun, however, has been held insufficient proof to sustain a conviction of involuntary manslaughter. (People v. Spani (1977), 46 Ill. App. 3d 777, 361 N.E.2d 377.) The inquiry here is between an accidental and a reckless shooting. The element distinguishing the two and resulting in the imposition of criminal liability is the fact finder’s conclusion that the defendant’s conduct was not merely negligent but was reckless by reason of a gross deviation from the standard of care a reasonable person would exercise. Where an accused has fired a fatal shot while aiming at, or in the direction of the decedent, it is the province of the fact finder to decide if the killing amounted to reckless conduct or misadventure (People v. Kelly (1975), 24 Ill. App. 3d 1018, 322 N.E.2d 527), and its determination will not be lightly disregarded unless the verdict is palpably contrary to the weight of the evidence. People v. Post (1968), 39 Ill. 2d 101, 233 N.E.2d 565.

On the day following the shooting, defendant made statements later introduced at trial which indicated that she thought the gun was loaded and even had it been a pellet gun it would have done the same damage. Defendant stated on one occasion:

“[STATE’S ATTORNEY]: Well, when you pulled the trigger of the gun, what did you think would happen?

DEFENDANT: I just, at the time when I did it, I just figured it would go up over her head, you know, up in the air.

STATE’S ATTORNEY: What did you think would go up in the air? The bullet?

DEFENDANT: The bullet.”

These statements were later retracted by defendant’s testimony but, if believed, such responses would clearly demonstrate her conscious disregard of a substantial and unjustifiable risk that her actions would cause the death of Sue Fernetti. On cross-examination, defendant admitted she did not mention the fact she thought the gun was a pellet rifle when questioned by the sheriff’s office on the night of the shooting, and she also stated that she was aware the pellet rifle had been used by her husband to kill birds at a distance of 70 feet. Even if defendant thought she was aiming an unloaded pellet gun at decedent, her conduct would still be sufficient to support a conviction for involuntary manslaughter. As noted in People v. Schwartz (1978), 64 Ill. App. 3d 989, 994, 382 N.E.2d 59, 64, “the trier of fact could have properly determined that defendant acted recklessly in not checking the condition of the gun prior to the incident ***.”

In the light of the numerous statements by defendant showing her awareness of the general propensities of rifles, we cannot say that the trier of fact’s conclusion is unreasonable or palpably contrary to the evidence. Nor can we say that the verdict is palpably contrary to other evidence suggesting that defendant acted in defense of Dixie, and that the bullet ricocheted off a tree several feet to the south of the trajectory of the bullet reconstructed by the State.

Defendant admitted at trial that she was not intimidated by the decedent when she fired, and that Sue was not attacking or threatening Dixie. Neither Sue nor any person at the scene of the shooting had a weapon, and no one other than Carl was fighting Dixie. Defendant was not trying to prevent Carl from harming Dixie and, in fact, wanted the men to fight to release their suppressed animosities. The ricochet theory is at variance with testimony of one of the bystanders who stated that he saw defendant raise the gun to her shoulder in decedent’s direction and defendant’s own statement that she thought the bullet would go up over decedent’s head. Defendant was also asked if she pointed the gun at Sue to which she replied “I just — I must have, otherwise I wouldn’t have shot her if I hadn’t.”

At the pretrial conference in this case, the defendant tendered to the court a plea of guilty to count III of the information which charged her with involuntary manslaughter. The trial court denied the offer then, and a further tender of a plea made at trial since it was unacceptable to both the State and the trial judge. The apparent purpose of defendant’s offer was to foreclose the State from further prosecution on grounds of double jeopardy and to give the court the sentencing option of probation. Had defendant been convicted of involuntary manslaughter only, probation would have been an available option, but not so if she stood convicted of either murder or armed violence. Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3(c)(2).

The trial court premised its decision to refuse the plea on the ground that the State would be prevented from further prosecution of the greater charges on double jeopardy grounds if it accepted the plea to the lesser offense. Without expressing an opinion on whether the trial court’s assumption was correct, we find no merit to defendant’s belief that she is given the option of choosing the offense for which she is prosecuted.

Defendant appears to argue that there is both a constitutional and a statutory right to have a preferred plea accepted. Citing People v. Whitfield (1968), 40 Ill. 2d 308, 239 N.E.2d 850, defendant argues that she was entitled, as a matter of due process of law, to have the trial court accept her guilty plea.

Defendant’s reliance on Whitfield is clearly misplaced. Whitfield held that defendant’s counsel’s failure to inform him of a plea offer of the State was a violation of his right to make fundamental decisions of trial strategy. Whitfield did not hold that a defendant has a due process right to plead guilty, but only a right to be advised of the State’s offer to allow the defendant to plead guilty to agreed offenses.

Defendant’s contention as to due process is contrary to case authority. In Santobello v. New York (1971), 404 U.S. 257, 262, 30 L. Ed. 2d 427, 433, 92 S. Ct. 495, 498, the court stated:

“There is, of course, no absolute right to have a guilty plea accepted. Lynch v. Overholser [(1962)], 369 U.S. 705, 719, [8 L. Ed. 2d 211, 220, 82 S. Ct. 1063]; Fed Rule Crim. Proc. 11. A court may reject a plea in exercise of sound judicial discretion.”

See also United States v. Jackson (1968), 390 U.S. 570, 20 L. Ed. 2d 138, 88 S. Ct. 1209; People v. Morgan (1973), 14 Ill. App. 3d 232, 302 N.E.2d 152; People v. Boyd (1978), 66 Ill. App. 3d 582, 384 N.E.2d 414, appeal denied (1979), 75 Ill. 2d 591.

Defendant cites section 113 — 4 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 113 — 4) and contends:

“Illinois guarantees the right of a defendant to plead guilty to an offense for which he or she is charged.”

Section 115 — 2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 2) details the prerequisites for accepting a guilty plea, but nowhere requires the court to accept a plea. The material portion of this section states that “(a) [b]efore or during trial a plea of guilty may be accepted when: ***.” The standard of reviewing a trial court’s refusal to accept a guilty plea is simply whether the refusal was an abuse of discretion. People v. Boyd (1978), 66 Ill. App. 3d 582, 384 N.E.2d 414.

In People v. McCollough (1974), 57 Ill. 2d 440, 313 N.E.2d 462, and People v. Rhodes (1967), 38 Ill. 2d 389, 231 N.E.2d 400, it was held that the State’s Attorney has the discretion to charge the most severe offense violated by a person’s acts in a single transaction despite the fact that several statutory offenses are applicable to the same conduct and provide different penalties. Section 3 — 3 of the Criminal Code of 1961 also grants the State broad charging discretion. The section provides:

“(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.” Ill. Rev. Stat. 1981, ch. 38, par. 3 — 3.

Defendant’s suggestion that these authorities do not address the question here, i.e., whether a defendant has a right to plead guilty, overlooks the point made by McCollough and Rhodes. These cases clearly hold that a person can be prosecuted for the greatest offenses violated by his conduct and defendant’s attempts to eliminate this option of the State is contrary to the rationale of these decisions.

Supreme Court Rule 402 (87 Ill. 2d R. 402) refers to the circumstances under which the trial court may “accept a plea of guilty” and in subparagraphs (d) and (e) provides that where the prosecution and the defendant have agreed upon the terms of a guilty plea, the trial court may accept the plea or decline to do so. The Committee Comments to the Rule clearly reflect the interpretation that the trial court -may concur, concur conditionally, or decline to accept the terms of the agreed plea. We find no rationale which suggests that the legislature intended to create a statutory right requiring the acceptance of a preferred plea of guilty as to a charge chosen by a defendant.

We find no abuse of discretion in the trial court’s refusal to accept defendant’s guilty plea which had as its purpose the placing of a bar to further prosecution for offenses believed by the prosecutor to have been committed by defendant.

Defendant next argues that the trial court erred in failing to declare a mistrial for the prosecutor’s violation of a discovery order.

At trial and prior to the defendant’s examination of Dixie Fernetti, the prosecutor informed the court that he possessed a statement made by defendant’s husband the day following the shooting. In the statement defendant’s husband related that he might have shown defendant how to use the bolt action pellet rifle sometime before the shooting. Counsel for the defendant immediately moved for a mistrial, claiming surprise and prejudice in light of the fact that the defense was premised on defendant’s lack of knowledge of weapons. The motion was denied, but counsel was given a chance to talk with Dixie and defendant before direct examination proceeded. Defendant claims that the trial court abused its discretion in denying her motion for mistrial. The State argues that counsel has shown no prejudice, but concedes that the discovery order was violated.

The determination of the proper sanction to invoke when a discovery violation has occurred is within the trial court’s discretion, and a reviewing court will not interfere with the court’s sanctions in the absence of prejudice. (People v. Wilken (1980), 89 Ill. App. 3d 1124, 412 N.E.2d 1071.) The proper sanction to apply in a given case for a violation of the discovery rules should be fashioned to meet the circumstances of the case with due regard to the prejudicial nature of the testimony and with the ultimate object to compel discovery. People v. Jackson (1977), 48 Ill. App. 3d 769, 363 N.E.2d 392.

The statement at issue was consistent with Dixie’s trial testimony that he was not sure if he had shown defendant how to use the pellet gun and was immaterial in any event since the issue at trial was not whether the defendant knew how to use the gun but her knowledge of the capabilities of the weapon. Defendant’s lack of knowledge of the particular weapon does not vitiate to any extent her testimony indicating that the gun was a powerful weapon, and that she knew this fact. In view of defendant’s opportunity to review the discovery material prior to the direct examination of the witness, its minimal probative value, and no evidence of prosecutorial bad faith in its nondisclosure, we cannot say the trial court abused its discretion in granting a short recess, rather than declaring a mistrial.

At the outset of the prosecutor’s cross-examination of defendant’s psychiatrist, the prosecutor asked Dr. Colen if he had ever used a former name. The witness responded that his former name was spelled Cohen. Defendant’s objection to this questioning was overruled and she now argues that this line of inquiry interjected racial prejudice into the case and denied her a fair trial. In reply, the State strenuously denies that it had a motive to discredit the witness’ race.

It cannot be doubted that the court and jury should receive information of the present name of a witness so as to enable them to identify the witness and remember his testimony (People v. Berlin (1979), 75 Ill. 2d 266, 388 N.E.2d 412), but where the prosecutor introduces a witness’ prior name to discredit his testimony by injecting ethnic innuendoes, it is clearly improper. Several decisions have condemned the interjection of ethnic comments into a case, some so outrageous as to require a new trial. See People v. Grizzel (1943), 382 Ill. 11, 46 N.E.2d 78; People v. Lurry (1979), 77 Ill. App. 3d 108, 395 N.E.2d 1234; People v. Turner (1977), 52 Ill. App. 3d 738, 367 N.E.2d 1365.

At bar, the questioning of the witness was not an apparent reference to his Jewish race, and in a bench trial the presumption has long been followed that the court considers only proper argument and evidence unless the record demonstrates otherwise. (People v. Pagan (1972), 52 Ill. 2d 525, 288 N.E.2d 102.) Nothing in the record persuades us that the trial court was influenced by the witness’ race in considering his testimony. The situation here is indistinguishable from People v. Harris (1945), 391 Ill. 358, 63 N.E.2d 398. In Harris, defendant was cross-examined with reference to whether he had ever gone by the name of Lester Cohen. The argument that this cross-examination interjected racial prejudice into the proceedings was dismissed by the supreme court as without merit.

Finally, defendant argues that the trial court’s findings in mitigation were contrary to the evidence offered at the sentencing hearing. We agree, but find no prejudice here. Had the court found the evidence to support all of the factors in mitigation listed in section 5 — 5—3.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.1), no different result would obtain since the sentence defendant received was the minimum provided by statute. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1.) Defendant was not eligible for the sentencing options of probation, periodic imprisonment or conditional discharge since she stood convicted of a Class X felony (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3), and any error in the trial court’s findings on the factors in mitigation could not have prejudiced her.

Defendant’s conviction of armed violence and her sentence thereon are affirmed.

Affirmed.

WEBBER, P.J., and MILLER, J., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY P. ROHMAN, Defendant-Appellant.
    Third District
    No. 82 — 556
    Opinion filed August 17, 1983.
    Robert Agostinelli and Sue Augustus, both of State Appellate Defender’s Office, of Ottawa, for appellant.

      Bruce W. Black, State’s Attorney, of Pekin (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant, Gregory R Rohman, was convicted of two counts of reckless homicide and one count of driving while under the influence of intoxicating liquor following a bench trial. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3(a);- ch. 95½, par. 11 — 501(a).) He was sentenced to three years’ imprisonment for each count of reckless homicide and 364 days’ imprisonment for driving while under the influence of intoxicating liquor, the sentences to run concurrently.

On appeal, the defendant challenges the propriety of his sentences. He asserts the trial court abused its discretion in sentencing him to the maximum three-year term of imprisonment for reckless homicide and the maximum 364 days for driving under the influence of intoxicating liquor. He also contends the trial court erred in not advising him of an option to elect treatment under the Dangerous Drug Abuse Act. (Ill. Rev. Stat. 1981, ch. 91½, par. 120.1 et seq.) He requests vacation of his sentence and remandment to the trial court for resentencing or in the alternative, the imposition of less than maximum term sentences by this court under the authority of Supreme Court Rule 615 (87 Ill. 2d R. 615).

At approximately 11 p.m. on September 11, 1981, the defendant “clipped” a vehicle in front of him on Route 26 in Tazewell County. In the back seat of the vehicle “clipped” by the defendant’s automobile were Rebecca Kaufmann and her three-week-old son, Curtis. Twenty-one-year-old Jeffrey Kaufmann, husband of Rebecca and father of Curtis, was in the front seat. Jeffrey’s uncle, Ron Kaufmann, was driving the automobile. As a result of the impact the Kaufmann automobile burst into flames, killing Jeffrey and Curtis Kaufmann and severely burning Rebecca and Ron Kaufmann. The Kaufmann automobile had just pulled out of the Grandview Trailer Park into the south bound lane of Route 26, also known as Spring Bay Road.

The defendant, an admitted drug and alcohol addict, had consumed at least eight beers on the date in question. He failed a field sobriety test administered shortly after the accident. In the opinion of six Illinois State police officers who investigated the accident, the defendant was intoxicated at the time of the collision. An examination of the defendant’s car after the accident revealed the steerage linkage was intact, although there was no power steering fluid in the fluid line. The brakes were badly worn, but the car had some braking power.

At the defendant’s sentencing hearing, the trial court heard the testimony of Elizabeth Alsup-Crawley, a representative of Treatment Alternatives to Street Crimes (TASC). Her opinion, based on a two- to four-hour interview with the defendant and review of two evaluations of the defendant done by Lutheran General Hospital in 1974 and by the Central Illinois Narcotics and Drug Evaluation in 1982, was that the defendant could be rehabilitated following long and intensive treatment. Another psychological evaluation before the court was prepared by Michael A. Campion, Ph. D., and Steven A. Hammon, M.A. The Campion-Hammon report suggested serious reservations about the defendant’s potential for rehabilitation.

The defendant’s history of heavy and prolonged drug and alcohol abuse was made known to the court, as were the defendant’s failed attempts to rehabilitate himself. In addition, the court considered the defendant’s prior criminal record, consisting of theft in 1971, battery in 1973, disorderly conduct in 1975 and driving while license suspended and unlawful possession of a hypodermic needle in 1977.

Each of these factors, in addition to the nature and circumstances of the offense, was considered by the trial judge in sentencing the defendant. The judge’s remarks allude to a number of the factors considered:

“*** You drove recklessly. In addition to that, you failed to keep your car in a safe operating condition, and in addition to that, you drove while you were intoxicated, and even though you didn’t intend it, as a result, two persons were killed and two very seriously injured, and you are going to have to live with it. You exposed yourself to that situation, and that is what happened, and I am surprised that this sort of an accident hadn’t happened a long time ago to you. You have had a long history of drugs and alcohol abuse, and you have had plenty of time to cure yourself, if you are ever going to do it, but you failed to do it. For these reasons and those stated by the State, you are not a good risk for probation and you should be sentenced to imprisonment. Imprisonment is necessary for three reasons: One, to deter others from committing the same crime; two, to protect society from any further criminal conduct as you have just been found guilty of; and three, probation in this case would deprecate the seriousness of your conduct and would be inconsistent with the ends of justice.”

Considerable discretion is accorded the trial judge in matters of sentencing. Where no abuse of that discretion is shown, a reviewing court will not substitute its judgment for that of the trial court, even if the reviewing court might have imposed a different sentence. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882; People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Kerans (1982), 103 Ill. App. 3d 522, 431 N.E.2d 726.) The imposition of maximum sentences in the instant case was not at variance with the spirit of the law or improper.

The defendant contends that his sentence must be vacated and a new sentencing hearing held because the trial court did not advise him of an option to elect treatment under the Dangerous Drug Abuse Act. (Ill. Rev. Stat. 1981, ch. 91½, par. 120.1 et seq.) Section 120.10 of the Act provides:

“If a court has reason to believe that an individual convicted of a crime is an addict or the individual states that he is an addict and the court finds that he is eligible to make the election provided for under Section 8, the court shall advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by a licensed program designated by the Commission.” (Ill. Rev. Stat. 1981, ch. 91½, par. 120.10.)

This section has been interpreted to mean that when there is reason to believe an eligible defendant is an addict, he must be advised of his option to elect treatment. (People v. Chaput (1981), 100 Ill. App. 3d 982, 427 N.E.2d 595.) A circuit court’s discretion to offer a convicted defendant a chance to receive treatment under the Act arises if the defendant is eligible according to section 8 of the Act and there is reason to believe the defendant is an addict. (People v. Melson (1976), 36 Ill. App. 3d 71, 343 N.E.2d 258.) When a circuit court is required to exercise its discretion trader the Act, the record must show that the court has indeed exercised its discretion. (People v. Dill (1974), 23 Ill. App. 3d 503, 319 N.E.2d 240; People v. Smith (1974), 23 Ill. App. 3d 387, 319 N.E.2d 238.) However, this requirement does not mean that the Act’s provisions need be specifically referred to; rather, the record must reveal that the trial judge was cognizant of the Act and considered it in sentencing the defendant. People v. Edwards (1976), 44 Ill. App. 3d 353, 358 N.E.2d 372.

It is clear that the defendant in the case at bar was not advised by the lower court of his right to elect treatment as an addict under the Act. It is equally clear that the court was aware that the defendant was an addict. The defendant admitted as much and the evaluation before the court revealed the defendant’s long-term addiction to both alcohol and drugs. However, the defendant did not file a petition to elect to receive treatment under the Act. Thus, the court need not have exercised its discretion in deciding whether the defendant qualified under the Act. (People v. Kuesis (1980), 83 Ill. 2d 402, 415 N.E.2d 323.) Even if, however, the defendant had petitioned to elect treatment, the defendant would have had to qualify under section 8 of the Act.

Section 8 of the Act provides in pertinent part:

“An addict charged with or convicted of a crime is eligible to elect treatment under the supervision of a licensed program designated by the Commission instead of prosecution or probation, as the case may be, unless (a) the crime is a crime of violence, *** (c) the addict has a record of 2 or more convictions of a crime of violence, *** (f) the addict elected and was admitted to a treatment program on two prior occasions within any consecutive two-year period.” (Ill. Rev. Stat. 1981, ch. 91½, par. 120.8.)

The State contends the defendant was not eligible for treatment under the Act because (1) he elected and was admitted to a treatment program on two prior occasions within a consecutive two-year period and (2) he was convicted of a crime of violence.

In the spring of 1974, the defendant voluntarily underwent treatment for his drug problems at Lutheran General Hospital in Park Ridge, Illinois. He remained in the hospital three weeks and completed the program. Two and one-half years later, on October 1, 1976, the defendant entered the Zeller Mental Health Center for treatment of depression and drug dependence. He remained at the Center for six weeks. In 1977, he attended the Stonehedge Methadon Clinic in Peoria, Illinois, completing a 21-day detox methadon treatment program. The treatments at Zeller and Stonehedge were within a two-year period. This fact precludes the defendant’s eligibility under section 8(f) of the Act, unless the language of section 8 is interpreted, as the defendant so urges, to mean that the election and admission to a treatment program under subsection (f) must have occurred after the individual making the election was charged with or convicted of a crime. This issue appears to be one of first impression. Neither party to this appeal has cited to authority for their respective positions, and we have been unable to locate case law directly on point. Thus, we look to the language of the statute to determine the defendant’s eligibility.

We disagree with the defendant’s argument that the election and admission to “a treatment program” under section 8(f) of the Act must have occurred after the defendant was charged with or convicted of a crime to disqualify the defendant from electing treatment under the Act. As we read the statute, any entry by an individual into a voluntary treatment program on two prior occasions within any consecutive two-year period disqualifies that individual from eligibility for treatment under the Act. We believe this interpretation is a fair reading of the plain and obvious meaning of the language in the statute. In addition, we believe our interpretation supports the strong legislative policy favoring the prevention of drug abuse and encouraging treatment and rehabilitation of drug addicts as expressed in section 2 of the Act. That policy must be balanced against the equally laudable goals of protecting society against the consequences of an addict’s actions and punishment for wrongdoing. (Ill. Rev. Stat. 1981, ch. 91½, par. 120.2; People v. Teschner (1980), 81 Ill. 2d 187, 407 N.E.2d 49.) The defendant in the instant case attempted on three previous occasions to rehabilitate himself. That he was unable to do so is indeed unfortunate, for him and for the members of the Kaufmann family. The defendant has failed at his attempts to cure his problem. Evaluations of the defendant express grave doubts about his ability to adhere to a treatment program for a sufficient length of time to produce positive results. In the meantime, his addiction and resulting behavior have been the cause of immense tragedy. Interpreting the Dangerous Drug Abuse Act in a manner which eliminates the possibility of treatment for this defendant under the Act appears to this court both reasonable and prudent.

Because we find the defendant ineligible for treatment under section 8(f) of the Act (Ill. Rev. Stat. 1981, ch. 91½, par. 120.8(f)), we will not address the issue of whether the defendant’s conviction of reckless homicide is a conviction of a crime of violence under the Act. (Ill. Rev. Stat. 1981, ch. 91½, pars. 120.3 — 8, 120.8(a).) Any comments we might choose to make on this issue would be merely obiter dieta, and such is not needed.

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

Affirmed.

STOUDER, P.J., and ALLOY, J., concur.