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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DELMAR KOSYLA, Defendant-Appellant.
    Second District
    No. 83—1099
    Opinion filed December 31, 1984.

      Judith A. Halprin, of Chicago, and G. Joseph Weller and Jan K. Dargel, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Marlene V. Newton, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Delmar Kosyla, was charged by information in Lake County with two counts of aggravated battery, one for injuring Mark Beese by shooting him with a gun, and one for striking Glenn Beese, Jr., with a baseball bat. (Ill. Rev. Stat. 1983, ch. 38, par. 12— 4(b)(1).) He was found guilty by a jury of the offense against Glenn Beese, Jr., but was acquitted of the shooting charge against Mark Beese. He was sentenced to 30 months’ probation, with six months’ incarceration in the Lake County jail.

The defendant contends (1) the court erred in proceeding on the second count of the information charging defendant with the aggravated battery of Glenn Beese because there was no evidence connecting him with that charge at the preliminary hearing and no finding of probable cause was made as to that count; (2) his guilt was not proved beyond a reasonable doubt; and (3) the court abused its sentencing discretion by including a jail term in his sentence of 30 months’ probation.

The charges arose out of a neighborhood brawl during the early morning hours of July 7, 1983. It involved various members of the Kosyla, Potts, and Beese families, as well as several of their respective friends. The three families all lived on Marydale Drive in a Lake Zurich subdivision. There was evidence that the relationship between the Pottses and the Beeses on the one hand, and the Kosylas on the other hand, had been hostile at times during the preceding 2V2 years.

The State presented evidence that on July 6, Mark Beese, Tom Carpenter, and Brian Post were at Horsing Around, a bar in Wisconsin. Mark worked there as the doorman and bouncer. At about 9 p.m., Mark received a call from Maria Monino, the daughter of Mrs. Potts. Maria was then the fiancee of Tom Carpenter, and was his wife at the time of trial. She told Mark that she had been in an altercation with Mr. Kosyla, the defendant’s father, and that he had hit her. She called for Mark because she did not want to upset her fiance. The three young men left Horsing Around about midnight after Mark got off work. They drove to the subdivision in Lake Zurich, and Mark parked his car at his house. The three of them then walked to Potts’ house to see Maria. It was about 1 a.m. when they arrived.

They saw Maria in her bedroom, and discovered she had two black eyes as the result of being struck by the defendant’s father. Mrs. Potts, Carpenter, Mark Beese, and Phillip Monino (Mrs. Potts’ son) testified they then heard rocks hitting the outside of the Potts’ house and/or the utility shed in the backyard. Tom Carpenter ran out of the house, followed by Mark Beese and Brian Post. In the street in front of the Potts’ property, they found the defendant, a friend of the defendant’s named Tim Anzalone, and the defendant’s two younger brothers, Shane and Zachary. The defendant was holding a three-foot-long, rounded object, which Mark Beese described at trial as a metal baseball bat. Anzalone was holding a two-foot-long pipe. As the two groups confronted each other, Mark’s older brother, Glenn Beese, Jr., ran toward the scene from the Beese house. The Beeses had been awakened by a phone call from Mrs. Potts during the rock-throwing incident.

Glenn Beese, Jr., observed Anzalone poised with the pipe raised, about to deliver a blow to Mark. He charged between them, and prevented Anzalone from landing the blow. As Glenn turned toward Mark to find out what was going on, he testified he was struck on the right shoulder and fell to the ground. Glenn testified he did not see who hit him but that, other than Anzalone, the defendant was the only one holding a long, shiny, metal-like object. After he was struck, Glenn testified he saw the defendant running toward the Kosyla house holding the same shiny object in his hand.

Glenn and the three others pursued the defendant’s group to the Kosyla house, but Glenn fell down again before reaching the gate at the entrance to the Kosylas’ driveway. Other evidence presented by the State concerned the shooting incident of which the defendant was acquitted, and for the most part it is not relevant to this appeal.

Although Lake County sheriff’s detective Braze testified at the preliminary hearing that Mark Beese told him he saw the defendant hit Glenn with the baseball bat, Beese testified at trial he did not see who hit Glenn, denied he told Braze that he saw the defendant hit Glenn, and denied he recanted such a statement on the morning of the preliminary hearing. Detective Braze’s testimony at trial was that Mark Beese told him he saw the defendant strike Glenn with a bat. After his recollection of his preliminary hearing testimony was refreshed with the transcript of that hearing, Detective Braze still did not recall Mark Beese changed his story about who hit Glenn. He recalled having a discussion with Mark the morning of the preliminary hearing, but did not recall Mark’s saying it was not the defendant who struck Glenn. Detective Braze also testified to the search of the Kosyla residence, at which time a baseball bat was observed in the kitchen, leaning up against the refrigerator. The bat was not taken, but a .22-caliber pellet pistol was collected.

Another witness for the State who testified concerning the battery of Glenn Beese was Fredericka Potts, Maria Monino’s mother. She testified she heard rocks being thrown on the roof of an aluminum shed in their backyard. She alerted the group downstairs in Maria’s bedroom, and called the Beese residence. She looked out her front window to the street, and testified she heard the defendant yell: “Come on over here, [obscenity deleted].” She went out on the porch and saw the defendant and another in the street; the defendant was wearing a white T-shirt and possibly jeans. He was holding a three-foot-long, round object, the exact nature of which she could not discern. The person with him was wearing dark clothing, and held a similar, long, round object, which was shorter in length than the one held by the defendant. She testified the lighting of the area at that time consisted of a floodlight on her garage that “goes right out to the road,” and porch and garage lights at the Mochockis’ house next door, and at the Kosylas’, which was next to the Mochockis’. She observed Glenn come running up the road and described what happened:

“A. [Fredericka Potts] I know one guy, Tim, I believe his name is Tim, I know him from the gas station, he came with the object raising it up like this towards Mark. First Glenn went up and kind of stood in front of him and prevented him from going after Mark. All I remember is Glenn Beese turning like this and Delmar Kosyla went from behind like this and struck, him over the shoulder.
Q. [Prosecutor] Okay. And what did he strike him with?
A. With the round object I had seen.
Q. And how many times did he strike him, did you see?
A. To my knowledge, twice.
Q. And where in relationship to your body did he strike him?
A. This side (indicating); the right shoulder, on the back here.”

During cross-examination, Mrs. Potts related her testimony concerning the above event twice more in approximately the same manner:

“A. [Fredericka Potts] I didn’t see anybody else doing anything. Only thing I could see was Glenn Beese being struck as he turned to prevent — see, Delmar was standing there and this friend of his, like I said to Mr. Ritacca [the prosecutor], came towards him with a round object and Glenn Beese went up and tried to prevent him from going up to Mark. He was coming after Mark—
Q. [Defense counsel] And it was at that point—
A. —and as he turned, that’s when Delmar took the baseball bat like this and struck him over the shoulder.”

In the second instance, Mrs. Potts testified:

“A. [Fredericka Potts] I told you I saw Glenn running up the road then I saw him in front and I saw somebody come towards him with a round object. It wasn’t Delmar. He tried — it looked to me like he was going after Mark. I noticed Glenn Beese tried to prevent him from going — he stood like this and as he turned, that’s when Delmar picked up the — had the baseball bat in his hand and he struck him.
Q. [Defense counsel] It was a baseball bat.
A. Well, no, it wasn’t a baseball bat, I said a round object, you know, I never said what it was.
Q. Then you saw him strike him again, right? You saw Delmar strike him twice.
A. Yes, right. Right. It was right after it.”

With regard to the two strikes by Delmar, Mrs. Potts testified the defendant struck Glenn once on the back of the shoulder and once again “more on the back.” Glenn Beese recalled being struck only once. Doctor Michael Parker testified he examined both Mark and Glenn Beese after the incident. As to Glenn, the doctor observed he had some scrapes, and some swelling and tenderness over the right shoulder, “specifically over the joint called the AC joint.” He also had some swelling and tenderness to the back of his right hand. Glenn received X rays, a prescription for pain and a sling. Cross-examination of the doctor dealt almost exclusively with his testimony concerning Mark’s gunshot wound, and none of the doctor’s testimony concerning Glenn’s injuries was either impeached or elaborated upon.

The defense presented was that of defense of self, others and home. The defendant’s mother, Joyce Kosyla, testified her family’s relationship with the Pottses and Beeses was very uncomfortable between January and July of 1983, and that she and her family had been threatened many times by mail and on the phone.

At 1 a.m. on July 7, she was in the living room of her home. Sixteen-year-old Zachary, 11-year-old Elizabeth, and five-year-old Steven were sleeping. The defendant, his brother Shane, and defendant’s friend, Tim Anzalone, were working on Mr. Kosyla’s van in their detached garage. She was about to turn off the television, when she heard something banging against the closed farm-type gate which they had at the end of their gravel driveway. Looking out, she saw Mark Beese pushing at the gate with what appeared to be a club, possibly a baseball bat. He was with Glenn Beese and two others whose names she did not know. She called the police and watched the defendant proceed toward the Beese group, against her wishes, saying he had to help Tim. She heard firecrackers going off, and saw the defendant headed from the house back in the direction of the driveway. She identified pictures of the driveway gate at trial, one showing a dent in'the top rail of the gate, and the other depicting in a bent condition a long bar that slides through the gate to lock and close the gate. She testified the gate and bar were in good condition prior to July 7.

When she observed the Beese group, she testified she heard Mark Beese yell: “You [obscenity deleted], Delmar, I’m going to kill you,” and that she heard the defendant yell to Tim: “Tim, let’s get in the house.” She said the defendant and Tim came into the house about four or five minutes after the defendant had told her that he had to help Tim. Although she said she called the police more than once during the incident, she testified the police did not arrive until IV2 to two hours later. The defendant and Tim told her they had thrown rocks and firecrackers at the Beese group.

Mrs. Kosyla also testified about an injury received by the defendant when he was at the Beese house about 10 months earlier, and about having received anonymous phone calls at various times. She recognized the voices of the anonymous callers to be either Mark Beese, Glenn Beese, Sr., or Phillip Monino (Mrs. Potts’ son), and the defendant had also heard some of these anonymous calls by listening in on an extension phone. Mrs. Kosyla said the calls were not “social calls.”

Although her attention was not directed solely to the presence of the boys in the garage, she did not hear them leave at any time. The last time the defendant came to the back door to ask her to give him a coke was about an hour before the incident.

The defendant testified on his own behalf and denied either shooting Mark Beese or striking Glenn Beese, Jr. Initially very close to the Beese family, the defendant claimed that relations with them had changed after he testified during the summer of 1982 about an automobile accident involving Mark Beese. After giving his testimony in that case, Mark confronted the defendant outside the courtroom and, in the presence of the other person involved in the auto accident, told him that he was going to kill him. The defendant was five feet nine inches tall and weighed 145 pounds; he admitted he was frightened of Mark Beese, who was six feet four inches tall and weighed 250 pounds or more. The defendant and Mark both were wrestlers, but Mark was in the heavyweight class. The defendant testified to several instances of conflict with members of the Beese family; one confrontation required him to get between nine and 12 stitches after being struck in the face and eye with a screwdriver by Mark.

On July 7, 1983, about 1 a.m., the defendant testified he was working in his family’s garage and his friend Tim was helping him on and off throughout the evening. He testified that he heard rocks hitting his van and someone trying to enter his driveway gate. Tim went to see what was happening, and when the defendant looked, he saw Mark Beese swing a bat at Tim’s head. Fearing for himself, his family and Tim, the defendant threw rocks from his gravel driveway at the group of people, including Mark, and he believed he did, in fact, hit Mark with some of the rocks. The defendant and Tim then went into the defendant’s house and stayed there.

On cross-examination, the defendant denied he told Officers Mulder and Braze that Tom Carpenter had brandished two large knives during the incident. On the occasion of the injury requiring stitches, the defendant testified he did not remember swinging a hammer at Mark Beese or picking up and throwing patio furniture at him. He stated Tim Anzalone was throwing firecrackers on and off all evening on July 7. He denied either he or Tim had anything in his hands that night. He testified he did not see Glenn get hit, and that he saw Tom Carpenter holding a long, but indiscernible, object. He testified that although he was afraid on July 7, using a gun on the Beese group had not crossed his mind. Contrary to the State’s evidence, the defendant testified that the Beese group did trespass onto the Kosyla property.

Defense witnesses Randall Ricci, Randall Manuel, David Kri-zanovic, and John Diener testified to several instances in which the defendant and, on occasion, the witness as well, had been attacked verbally and/or physically by Mark or other members of the Beese family, and that Mark’s reputation was one of violence. Randall Ricci and Randall Manuel testified that Glenn Beese, Jr., was also known to be violent.

Mrs. Mochocki, who lived in the house between the Pottses and the Kosylas, testified that on July 7 about 1 a.m. she heard someone in the group that Mark Beese was with say: “I don’t care who that [obscenity deleted] is he can’t go around hitting women.” She also testified she later heard three or four gunshots, and saw a split-second “afterglow” of the gunshot, which was pointing from the area of the Kosyla house toward the direction of the street. She testified she had been awakened by the noise coming from the group of people in front of her house, referring here to the group of people which included Mark Beese. She said the group was standing there, and was not moving in any direction until someone jumped over the Kosyla fence. When that happened, a couple of people in the Beese group proceeded to leave. She stated she did not hear firecrackers before she heard three shots, and that it was only a few minutes after someone jumped over the Kosyla fence that she heard the gunshots.

1. Propriety of Prosecution for the Aggravated Battery of Glenn Beese, Jr.

The defendant was originally charged by complaint filed on July 7 with the aggravated battery of Mark Beese in that he shot him with a gun. The preliminary hearing was held and probable cause was found. The only witness was Detective Thomas Braze of the Lake County sheriff’s department. He testified Mark Beese told him that one of the persons who was with the defendant produced a pipe and hit his brother, Glenn Beese, Jr., on the shoulder, causing him to drop to the ground. Mark said it happened when he was standing right there next to his brother. He said he was engaged in conversation with the defendant, and that there was some hollering going back and forth. After Glenn was hit, the defendant ran back to his house and came out with a gun, pointed the gun in the direction of the Beese group, and fired at least three times.

On cross-examination, the detective stated that he had told a newspaper reporter that it was Delmar Kosyla who struck Glenn Beese. He testified that report was based on his interview with Mark, but that as of the morning of the preliminary hearing, when he talked with Mark before the hearing, Mark changed his story and said that someone else other than the defendant struck his brother with a pipe. As noted earlier, at trial the detective did not recall testifying at the preliminary hearing that Mark had changed his story about who hit Glenn. The detective’s lack of recall is not as unlikely as it may seem, when it is considered that the preliminary hearing was being conducted on the basis of only the initial charge against the defendant for the shooting of Mark Beese. In any case, the State filed the two-count information charging the defendant with one count each of aggravated battery of Mark Beese and Glenn Beese, Jr.

The defendant contends he was deprived of his constitutional right to a probable-cause determination on count II of the information (charging the aggravated battery of Glenn Beese) because not only was no evidence presented at the preliminary hearing to support a finding of probable cause as to that charge, but there was in fact positive evidence to the contrary that someone other than he had struck Glenn Beese, Jr. Further, he contends the second charge cannot be considered to have arisen from “the same transaction or conduct of the defendant” which formed the basis for the first charge and for which probable cause was properly found to exist. He concludes it was error for the court to proceed with his prosecution on a charge which had not been properly commenced either by indictment or by information upon a finding of probable cause after a preliminary hearing.

The State correctly points out that the defendant’s argument is incorrectly premised on the fact the preliminary hearing was held after the two-count information was filed, whereas the fact is the second count was added about two weeks after the preliminary hearing was held.

The State argues the second count was proper under section 111 — 2(f) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1983, ch. 38, par. Ill — 2(f)). That section provides:

“Where the prosecution of a felony is by information or complaint after preliminary hearing, or after a waiver of preliminary hearing in accordance with paragraph (a) of this Section, such prosecution may be for all offenses, arising from the same transaction or conduct of a defendant even though the complaint or complaints filed at the preliminary hearing charged only one or some of the offenses arising from that transaction or conduct.”

The defendant argues that the two charges did not arise out of the same transaction or conduct of the defendant because they involved different victims, were separated by time and distance, and “even some of the eyewitnesses to the two events were different.”

It has been established that before prosecution for a felony by way of information may be commenced, a defendant is entitled to a probable cause determination. (Ill. Const. 1970, art. I, sec. 7.) Specifically, that section provides in pertinent part:

“No person shall be held to answer for a crime punishable by death or by imprisonment in the penitentiary unless either the initial charge has been brought by indictment of a grand jury or the person has been given a prompt preliminary hearing to establish probable cause.”

The purpose of a preliminary hearing is to insure that a person charged is not held in custody or to bail without a showing of probable cause; the constitutional right involved is the right not to be unduly detained. (People v. Anderson (1981), 92 Ill. App. 3d 849, 850; People v. Moore (1975), 26 Ill. App. 3d 1078.) Here the defendant was arrested pursuant to a valid warrant and held, on bond, pending the filing of an information after a preliminary hearing in which probable cause was found that the offense of aggravated battery against Mark Beese had been committed, and that the defendant committed it. The defendant does not contend he was unduly detained on the initial charge. Section 111 — 2 of the Code represents the codification of the constitutional mandate in article I, section 7. Ill. Rev. Stat. 1983, ch. 38, par. 111 — 2.

The court in People v. Redmond (1977), 67 Ill. 2d 242, cert. denied (1978), 434 U.S. 1078, 55 L. Ed. 2d 785, 98 S. Ct. 1272, sustained the validity of the provision of section 111 — 2 which is at issue here, subsection (f). The Redmond court held that neither the Illinois Constitution nor the due process clause required a probable cause determination for each separate charge where the subsequently charged offense arose from the same transaction or conduct. The defendant claims the two “incidents” which are the subject of the two aggravated battery charges were separate and distinct, they involved two different complainants, were separated by time and distance, and some of the eyewitnesses to the two events were different. Such considerations, however, are more apropos to the “one act/one crime” analysis which is undertaken in order to prevent prejudicing a defendant by carving more than one offense out of one act. (See People v. King (1977), 66 Ill. 2d 551, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273.) The focus of the preliminary hearing, however, is to determine whether the evidence presented shows conduct by the defendant for which he may reasonably be believed to be criminally responsible.

Although the State suggests it was “curious” the defendant did not object to joinder of the offenses in separate counts of the information as permitted by section 111 — 4 (Ill. Rev. Stat. 1983, ch. 38, par. 111 — 4), there is no authority for construing such a failure to operate as a type of waiver of the issue now sought to be raised, especially since the defendant raised the issue of the subsequent charge in the absence of a second preliminary hearing both before and after trial. The State’s analogy between sections 111 — 4(a) and 111 — 2(f) is not without some cogency, however.

Section 111 — 4(a) of the Code provides in pertinent part:

“Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or on 2 or more acts which are part of the same comprehensive transaction.” Ill. Rev. Stat. 1983, ch. 38, par. Ill — 4(a).

As noted by the State, the important factors to consider in determining whether offenses are part of the same comprehensive transaction for purposes of joinder are their proximity in time and location, and the identity of evidence which would be presented to prove each charge. (People v. Mikel (1979), 73 Ill. App. 3d 21, 27; People v. Freeland (1981), 103 Ill. App. 3d 94, 98.) In making the determination whether to join or sever offenses, there is necessarily some uncertainty as to the third factor, the identity of the evidence to be presented. In determining whether section 111 — 2(f) has been properly applied in a given case, however, there is less room for uncertainty, since evidence establishing probable cause for the initial charge has already been presented at the preliminary hearing.

We believe' a reasonable construction of the phrase all offenses “arising from the same transaction or conduct of a defendant” within the meaning of section 111 — 2(f) is that any offenses shown by the evidence presented at the preliminary hearing may be prosecuted even though such offenses were not initially charged at the time the preliminary hearing was held. Support for this construction is evident in the Redmond case, wherein the court reversed the circuit court’s dismissal of an attempted murder count filed against the defendant subsequent to his preliminary hearing, at which time he was charged only with aggravated battery. (People v. Redmond (1977), 67 Ill. 2d 242, cert. denied (1978), 434 U.S. 1078, 55 L. Ed. 2d 785, 98 S. Ct. 1272.) The Redmond court pointed to a provision in the California Penal Code similar to our section 111 — 2(f), noting it had been held constitutional, and the effect of that decision was construed in People v. Evans (1952), 39 Cal. 2d 242, 249, 246 P.2d 636, 640, to wit:

“ ‘The effect of the court’s declarations of the constitutional operation of the section was to approve the filing of an information charging a different but related crime shown by the evidence taken before the magistrate bearing on the transaction involved in the commitment order.’ ” (Emphasis added.) People v. Redmond (1977), 67 Ill. 2d 242, 249, cert. denied (1978), 434 U.S. 1078, 55 L. Ed. 2d 785, 98 S. Ct. 1272.

We find no merit in defendant’s argument that section 111— 2(f) should not be applied here because the preliminary hearing evidence showed Glenn Beese, Jr., was hit by someone who was with the defendant, not by the defendant himself. In context, the evidence presented at the preliminary hearing was sufficient to establish probable cause to believe the defendant was at least accountable for the other “someone’s” act of hitting Glenn Beese, Jr. (Ill. Rev. Stat. 1983, ch. 38, par. 5 — 2.) Further, it has been held that an accused may properly be charged as a principal even though the proof is that the accused was an accessory who aided or abetted the crime. People v. Williams (1975), 28 Ill. App. 3d 402; People v. Fowler (1974), 18 Ill. App. 3d 489.

In a somewhat analogous factual situation, the court in People v. King (1973), 14 Ill. App. 3d 995 (abstract of opinion), found the State proved beyond a reasonable doubt in an aggravated battery prosecution that the defendant was legally accountable for the conduct of the codefendant where, inter alia, the State established that the defendant engaged a member of a rival street gang in a conversation and led the conversation to an argument which culminated in the code-fendant’s shooting the rival gang member, where the defendant remained in the codefendant’s company after the shooting and pursued the victim and his companion, and where he fled the scene with the codefendant. As the preliminary evidence here showed, the defendant was engaged in conversation with Mark Beese, and there was some “hollering back and forth.” At that time, Mark Beese said that one of the people who were with the defendant produced a pipe and hit Glenn. Immediately thereafter the defendant ran back into his own house, came right back out with a gun in his hand and fired three times at the group composed of Mark and Glenn Beese, Tom Carpenter and Brian Post.

We conclude the defendant was not deprived of any constitutional right, and there was no error in his prosecution under the two-count information.

2. Reasonable Doubt.

Defendant contends he was not proved guilty beyond a reasonable doubt because the State’s evidence was contradictory, not credible, and conflicting. In particular, he asserts the testimony of Fredericka Potts, the only State witness to positively identify him as having struck Glenn Beese, Jr., was not credible in view of her admitted dislike of the defendant and the on-going neighborhood dispute, her testimony was contradicted by other State witnesses on crucial points, and her opportunity to clearly observe the incident was limited due to the lighting conditions in the area.

The defendant finds Potts’ testimony strikingly inconsistent with that of the other witnesses who were involved in the affray concerning where Glenn Beese was when he was struck, and refers to that part of the record where, defendant claims, “Mrs. Potts testified that Glenn was no more than two to three feet from the Kosyla property putting him at least 130 feet from her driveway.” Defendant acknowledges that while other evidence may support the conclusion that Glenn was at one time within a few feet from the Kosylas’ property and may have fallen down there, “Potts is the only witness to claim that he was struck there.”

The record shows the part cited by the defendant is taken out of context and that Mrs. Potts’ response was an obvious misunderstanding of the question. Potts’ testimony unequivocally and consistently was that the two groups faced each other in the street in front of her home, which was two doors from the Kosylas’ property. The Mochocki house was in between. Potts testified she looked out of her living room window toward the street, and that the living room window was about 20-25 feet from the street. She heard Delmar (the defendant) yelling words to the effect, “Come on over here, you [obscenity deleted].” She had a big floodlight on her garage which “goes out to the road”; the Mochockis had a big floodlight on their front porch and one on their garage in back. The “big light” from the Mochocki house that shined out into the street was a regular street light: “the kind you see on public streets.” The Kosylas’ porch light by the door and their garage light was on also. The Kosylas had “the same kind of light the Mochocki’s had.” The defendant was wearing a white T-shirt and the other person had on dark clothes. Potts then went outside on her front porch and had an unobstructed view from there out to the street where the defendant and the other person were standing. She saw the defendant holding a three-foot long round object. She testified she did not know what the nature of the object was, even though she did refer to it during her testimony on occasion as a baseball bat. Several other witnesses referred to the “round object” as a baseball bat, as well, but they all qualified their answer that they did not really know what the object was. Mark Beese was the only one who un-qualifiedly testified that the object the defendant was holding was a metal baseball bat.

Mrs. Potts testified Tom Carpenter was the first one who went out into the street in response to the defendant’s yells, followed by Mark Beese and Brian Post. She went back inside the house and called the Beeses. She then saw Glenn Beese coming running up the road toward his brother, Mark. She then testified to the striking of Glenn Beese, Jr., and testified at least twice more to the same sequence of events on cross-examination. At no time prior to her testimony about Glenn’s being struck did she indicate that the group was anywhere but in the street about 20-25 feet in front of her house. The colloquy on which the defendant bases his claim that Potts testified Glenn was struck two to three feet from the Kosylas’ house reads as follows:

“BY MR. RITACCA [Prosecutor]:
Q. Now, as a result of being hit with this round object, what if anything did Glenn do?
A. [Mrs. Potts] I noticed Glenn went down, kind of went down, tried to get up and fell again. Then I noticed he just fell. Got back up.
Q. Did you see Glenn walk toward the Kosyla house at that time?
A. Yes, he was on the corner of the entrance to—
Q. Okay. And approximately from where he got hit to the Ko-syla house is how far?
A. (No response.)
Q. In feet.
A. Oh, not more than two or three feet.
Q. Two or three feet?
A. That’s how far he went.
Q. And at this time where did you see Delmar go, if any place?
A. He jumped over the fence. They have like this steel gate which was closed, he jumped over it and ran in the house.”

In context, the colloquy suggests that the questioner and the witness were not quite understanding each other. Further, if indeed Glenn was struck two to three feet from the Kosylas’ house, Mrs. Potts’ further testimony that the defendant then jumped over the steel gate makes no sense, since the steel gate was at the end of the Kosylas’ driveway and he would have been moving away from the house rather than toward the house. The 130-foot dimension referred to by the defendant in his brief represents the approximate distance between where Mrs. Potts was in her front yard to the Kosyla house as she looked away from the street to her side toward the Kosyla house. Further, she testified consistently with several other State witnesses that the Beese group did not go all the way to the Kosylas’ property, but stopped short of there, placing them in the street in front of the intervening Mochocki property.

The group’s presence in the street at that location at the time the shots were fired from the direction of the Kosyla house toward the street was also corroborated by Mrs. Mochocki, a witness for the defense, and one of the neighbors who was uninvolved in the hard feelings existing between the Pottses and Beeses and the Kosylas. She clearly recognized Mark Beese as one of the people in the group in the street in front of her house, and heard one person in the group say, “I don’t care who that asshole is he cannot go around hitting women.”

Testimony of the State’s witnesses that the Beese group did not enter onto Kosyla property is in sharp contrast to the testimony of the defendant. He testified that the Beese group was trying to get through Kosylas’ driveway gate, and that Mark and the others in that group were on the Kosyla driveway moving in the direction of the house. Defendant further testified that he was afraid for himself, his house, and the other members of his family, and that he threw a handful of rocks at Mark before Tim “dragged” him back into the house, and that he did not go back outside. Defendant denied both the shooting of Mark and the striking of Glenn Beese. Mrs. Mochocki testified, however, that she heard three or four loud sounds and that after each such sound she saw “afterglow” of the shot which was pointing toward the street from the area of the Kosylas’ house. The Kosyla property was 50 feet from where she was looking out her window, and she testified that she had a clear view.

Although Mark Beese was unable to state at trial who struck his brother, the record indicates his attention was focused on his brother who, at the time he was struck, was turning toward Mark to seek an explanation of what was going on, and the defendant came up from behind Glenn and struck him. Glenn was also unable to testify who hit him. However, his testimony was that the defendant was standing a distance behind Tim Anzalone, that Anzalone dropped the pipe he was holding when Glenn intervened between him and Mark, and that he (Glenn) picked up the pipe and threw it to the side. With Anzalone thusly disarmed, Glenn’s further testimony that he saw no one else except the defendant holding a long, rounded object presents strong circumstantial evidence corroborative of Mrs. Potts’ direct testimony that it was the defendant who struck Glenn. Mrs. Potts had ample opportunity and ability to recognize the defendant, particularly since he was wearing a white T-shirt whereas Tim Anzalone was wearing dark clothing.

The fact of Mrs. Potts’ dislike for the defendant, although a factor to be considered in judging her credibility (People v. Quintana (1968), 91 Ill. App. 2d 95), was fully presented to the jury by defense counsel’s extensive, detailed cross-examination, and it was the jury’s province to weigh her testimony in light of that exposed bias. Although a reading of Mrs. Potts’ testimony contained what appears at times to be inherent contradictions, she nevertheless unwaveringly adhered to the same version of the sequence of events surrounding the striking of Glenn even under rigorous cross-examination.

That Mrs. Potts may have confused some of the details of the event may indeed be attributed to defense counsel’s strong cross-examination style. The court, in fact, commented twice in chambers about counsel’s cross-examination:

“THE COURT: If you do what I tell you, you won’t badger her. You are a very competent attorney, but you pounce on her. I don’t want to make it look like I’m on one side or the other out there, but — you are very competent, counsel, you are doing a good job, you broke a witness down. But please don’t be unprofessional about it. I expect you to do your job and to represent your client, and you know what I mean. You have really put this witness through it by your machine gunning questioning. I’ve let you get away with it so far, but if it continues — you must give her time to answer and you must use an ordinary tone of voice.”

Later, in denying defense counsel’s request to be allowed to impeach Mrs. Potts’ credibility with evidence of prior testimony which was given inconsistently by her in two other causes involving Mr. Ko-syla, the court commented in part:

“THE COURT: I don’t need any more, counsel. I’ve observed the witness and in the manner you question her, she could get confused.”

Mrs. Potts’ testimony that Glenn was struck twice and Glenn’s own testimony that he was struck once on the shoulder presents only a conflict in the evidence to be resolved by the jury. The number of blows amounts only to a discrepancy in a collateral matter, which does not render Mrs. Potts’ testimony improbable or incredible. People v. Winfield (1983), 113 Ill. App. 3d 818.

It is the general rule that minor inconsistencies and discrepancies in the testimony of a witness do not render the testimony unworthy of belief and affect only the weight to be given the testimony. (People v. Roper (1983), 116 Ill. App. 3d 821.) It is the jury’s prerogative to weigh testimony in light of its discrepancies and conflicts, to accept or reject as much or as little of the witness’ testimony as it pleases, and to draw reasonable inferences from that testimony. (People v. Hanna (1983), 120 Ill. App. 3d 602.) The jury’s determination in this regard should not be disturbed upon review unless it is so contrary to the evidence as to raise a reasonable doubt of the defendant’s guilt. (People v. Banks (1984), 121 Ill. App. 3d 279.) The basis for the jury’s determination here was not so restricted to Mrs. Potts’ direct testimony, but included considerable circumstantial evidence which corroborated it. The State may prove its case by circumstantial as well as direct evidence. People v. Daniels (1983), 113 Ill. App. 3d 523.

The evidence was not so unsatisfactory as to raise a reasonable doubt of the defendant’s guilt, and the jury’s verdict should remain undisturbed.

3. Excessive Sentence.

The defendant lastly contends the sentence imposed was excessive and constituted an abuse of discretion by the trial court. He argues there is no support for the court’s determination that it could not conclude that he would be unlikely to commit another crime. He notes that even though the general rule is that a judicial determination of the weight to be accorded the various sentencing factors will usually be upheld, nevertheless there must be support in the record for such a determination. (People v. Lewis (1980), 89 Ill. App. 3d 15.) As evidence his conduct would not be likely to recur, he points to the fact his family moved from Lake Zurich to Evanston and, further, since his conduct was apparently the result of the neighborhood dispute, his incarceration was not warranted for purposes of protection of the public. Nor was it, he argues, a particularly “serious” offense, in view of the fact the complainant failed to respond to and to return the victim-impact questionnaire, and the presentence report indicated the incident was the result of “mere youthful impulsiveness.” We note here that that characterization of the presentence report is misleading, since it was actually the prosecutor during argument who interpreted the presentence report as depicting the incident as nothing more than “mere youthful impulsiveness,” a characterization with which the prosecutor stated he did not agree. The defendant further notes in his argument that even the State concluded imprisonment would “devour and would pray [sic] on [defendant’s] spirit and body.” The defendant requests his jail sentence be vacated or, alternatively, that he be re-sentenced.

Aggravated battery is a Class 3 felony, the sentence for which may be probation including a possible jail sentence of up to six months, or a prison term of no less than two and no more than five years. (Ill. Rev. Stat. 1983, ch. 38, pars. 12 — 4, 1005 — 6—3(d) and 1005 — 8—1(a)(6).) The court did not abuse its discretion in sentencing the defendant to 30 months’ probation with a six-month jail term. The record, in fact, shows the court would have imposed a prison term of between two and three years, but for the State’s and the defendant’s requests for leniency. Further, although the judge stated he felt probation would probably deprecate the seriousness of the crime, he nevertheless acceded to the parties’ pleas and imposed probation, lawfully including as a condition, however, a six-month jail term. On this record, the six-month jail term appears to have been not much more than a palliative for the judge’s deep concern that probation alone was too lenient for this defendant.

As the State points out, the defendant has misconstrued the court’s comments. The court did not disallow the mitigating effect of the defendant’s move to Evanston on the potential for recurrence of the circumstances which resulted in the defendant’s conduct. Rather, the court stated it could not agree that the defendant’s character and attitude indicated it was unlikely he would commit another crime. Clearly, the trial court’s assessment of the defendant in that regard was the result of its observation of the defendant and his demeanor in court, and this court has neither the authority nor the means to second-guess the trial court in that regard.

The defendant asserts that because the court apparently considered, but discarded, the mitigating factor that the defendant would be unlikely to commit another crime, it must necessarily have completely ignored the statutory mitigating factor that the crime was the result of circumstances unlikely to recur.

Although nothing specifically in the record provides an indication that the defendant would be likely to commit another crime, the trial court’s judgment depends upon many factors including, inter alia, a defendant’s credibility, demeanor and mentality, and the assessment of those factors is uniquely within the province of the trial judge. (People v. Cozzi (1981), 93 Ill. App. 3d 94.) Additionally, it is clear the court was presented with evidence that the defendant and his family had moved, presumably making it unlikely that the animosity between the Beese, Potts, and Kosyla families would erupt again into physical violence. In the absence of any evidence the court ignored this mitigating factor, it is presumed the court did consider it. People v. Baker (1983), 114 Ill. App. 3d 803.

The record here shows not only a proper exercise of the trial court’s discretion, but an uncommonly good example of the effect the court’s aggravation-mitigation balancing process can have on the sentence ultimately imposed. The prime responsibility for striking the proper balance between the seriousness of the offense and the offender’s rehabilitation potential belongs to the trial court. People v. Bergman (1984), 121 Ill. App. 3d 100.

The trial court did not abuse its sentencing discretion, and where no abuse of discretion is shown, no alteration of the sentence imposed is permissible. People v. Rosa (1982), 111 Ill. App. 3d 384; People v. Cox (1980), 82 Ill. 2d 268.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

LINDBERG and SCHNAKE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MALCOLM FRAZIER, Defendant-Appellant.
    Second District
    No. 83—11
    Opinion filed December 28, 1984.

      Michael M. Melius, Public Defender, of Waukegan, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Marlene V. Newton, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Malcolm Frazier, was convicted by a jury in the circuit court of Lake County of the offense of involuntary manslaughter, and the trial court sentenced him to a five-year term of imprisonment.

On appeal, the defendant raises these four issues: (1) whether the trial court erred in refusing to instruct the jury with the second paragraph of the circumstantial evidence instruction (Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.02 (2d ed. 1981)); (2) whether the trial court erred in admitting in evidence a wooden stick and cumulative, graphic medical testimony; (3) whether he was proved guilty beyond a reasonable doubt; and (4) whether the five-year sentence was an abuse of the trial court’s discretion.

The defendant was charged with the offense of involuntary manslaughter following the death of his 18-month-old natural daughter, Tasha Teasley. Tasha died 10 days after she was brought to the hospital; the cause of death was determined to be traumatic subdural hema-toma — bleeding on the surface of the brain — as evidenced by multiple areas of subgaleal hemorrhage resulting from excessive multiple traumatic events to the head. The defendant explained that Tasha had been playing, jumping, and had fallen off the bed — which consisted of a mattress and box spring placed on the floor — and possibly had fallen onto a set of weights or an end table. In his statement to a North Chicago police officer concerning the incident, he admitted he had disciplined Tasha earlier that day for not eating her breakfast and her lunch by whipping her on the arms and legs with his hand and with an afro comb. During taping of his statement, he added that he had also angrily “backhanded” her during the day, knocking her to the floor, because she had “messed on herself.”

Witnesses at trial testified to Tasha’s overall bodily condition, noting numerous areas of new, red bruises and several scarred areas indicating prior injuries that had healed. Two medical witnesses testified Tasha’s injuries were compatible with the “battered child syndrome.”

Circumstantial Evidence Instruction

The defendant contends the evidence against him at trial was purely circumstantial, and the court erred reversibly in refusing his tendered instruction, which included the second paragraph of IPI Criminal No. 3.02, to wit:

“You should not find the defendant guilty unless the facts or circumstances proved exclude every reasonable theory of innocence.”

The main point in contention here is whether the defendant’s statements to the police and to a witness, Allan Friedman, are direct evidence. If so, then the court did not err in refusing to instruct the jury as provided in the second paragraph of IPI Criminal No. 3.02. The defendant argues that where an accused’s statement is in the nature of a confession, that is, it includes an admission of participation in the offense, then the statement is direct evidence. However, where the defendant’s statement is exculpatory, as here, it is not direct evidence. In support of that proposition he relies on People v. Garcia (1981), 95 Ill. App. 3d 792, and argues that the evidence shows he presented an “eminently reasonable theory of innocence” at trial; that Tasha fell and hit her head. He contends his theory was corroborated by evidence that a radiator, barbells and a table were observed located next to the bed in the apartment. Further, that his theory was corroborated by the testimony of Doctor Choi, who performed the autopsy on Tasha, and Doctor Paula Jaudes, a pediatrician, professor of pediatrics, and chief of the child negligence and abuse program at the University of Chicago and La Habida Children’s Research Center.

The State argues in response that any statements made by the defendant are to be considered direct evidence. (People v. Spataro (1978), 67 Ill. App. 3d 69.) It points out in People v. Garcia (1981), 95 Ill. App. 3d 792, cited by the defendant, that the court determined both paragraphs of the instruction should have been given, but it nevertheless affirmed the defendant’s conviction of involuntary manslaughter of his five-month-old son. It did not appear to the Garcia court that the instructional error denied the defendant justice or produced a guilty verdict, since there was no reasonable theory of innocence consistent with the evidence presented where the defendant’s explanation was that he and the child were sleeping on the couch and he awoke to find the child on the floor, injured.

“Circumstantial evidence is the proof of facts or circumstances which gives rise to a reasonable inference of other facts which tend to establish the guilt or innocence of a defendant.” (People v. Evans (1981), 87 Ill. 2d 77, 83; see also People v. Rhodes (1981), 85 Ill. 2d 241.)

The second paragraph of IPI Criminal No. 3.02 should be given “when the proof of guilt, as to each element of the offense, is circumstantial.” (People v. Evans (1981), 87 Ill. 2d 77, 83.) In affirming the reversal of the convictions of Evans’ codefendant, John Dorris, the court found the record revealed no direct evidence of fact upon which the jury could arrive at the conclusions advanced by the State to establish his accountability for Evans’ acts. “Direct evidence” is proof of the existence of a fact in issue without the necessity of inference or presumption, or evidence of a fact perceived by means of a witness’ senses. (People v. Stokes (1981), 95 Ill. App. 3d 62, 68; People v. Garcia (1981), 95 Ill. App. 3d 792, 796.) It has been held that, where the defendant offered explanations of how incidents occurred, any statements made by the defendant be considered direct evidence. (People v. Triplett (1980), 87 Ill. App. 3d 763, 770; People v. Spataro (1978), 67 Ill. App. 3d 69, 75; People v. Fletcher (1976), 40 Ill. App. 3d 537, 542.) The earliest of those cited cases, Fletcher, relied in turn on People v. Brown (1974), 56 Ill. 2d 312, rev’d & rem. on other grounds (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254. In that case, the court found the second paragraph of the instruction was properly refused where the defendant’s own statements provided direct evidence of his participation in the crime.

Accordingly, not just any statement or admission made by the defendant constitutes direct evidence. Where the exculpatory statements of a defendant do not establish participation in the crime or an element of the offense, they are not the “direct evidence” which obviates the need to give the second paragraph of the instruction. People v. McLaughlin (1984), 121 Ill. App. 3d 1080, 1085; People v. Garcia (1981), 95 Ill. App. 3d 792.

The offense of involuntary manslaughter involves four elements: (1) defendant must have done an act, (2) which caused the death of another, (3) and his act, which was such that it was likely to cause death or great bodily harm, (4) was performed recklessly. People v. York (1978), 57 Ill. App. 3d 243; Ill. Rev. Stat. 1983, ch. 38, par. 9 — 3.

“A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. ***” Ill. Rev. Stat. 1983, ch. 38, par. 4 — 6; see also People v. Fernetti (1983), 117 Ill. App. 3d 44.

The defendant here describes that he heard “the noise •*** sounded like something had fell [sic] *** sounded like she had — I don’t know what — caused the stand to fall down *** something like that. * * * When I came in [the living room area] again, she had knocked herself out.” A similar statement made in another case, in addition to medical testimony that the victim’s loss of consciousness would have occurred within minutes of the fatal head injury, caused this court to conclude there was sufficient direct evidence to warrant the trial court’s refusal to give the second paragraph of the instruction. (People v. Jenkins (1983), 117 Ill. App. 3d 33, 42.) This case presents even stronger facts warranting the same conclusion in that the defendant additionally admitted that he disciplined 18-month-old Tasha twice during the day in question by “whipping her with his hand and comb” on the arms and legs, and that he “backhanded” her, causing her to fall to the floor. Certainly the act of an adult “backhanding” an 18-month-old child so as to knock her to the floor is conduct which establishes a conscious disregard of a substantial and unjustifiable risk that the act was likely to cause great bodily harm, or even death.

We conclude the evidence against the defendant was not entirely circumstantial and, therefore, the court did not err reversibly in refusing the instruction complained of.

Prejudicial And Cumulative Evidence

The defendant contends the court admitted irrelevant and cumulative evidence which substantially prejudiced his right to a fair trial. Specifically, he charges it was error for the court to admit in evidence a three- to four-foot-long stick which testimony at trial showed had “some tape wrapped around it at one end, with some sort of braided plastic wire-like material on the end.” Additionally, he charges he was substantially prejudiced by the large quantity of cumulative testimony presented which detailed the child’s injuries. He points out that seven witnesses testified who described the injuries in detail, five of whom testified on. the same point — that the baby’s head was soft and mushy to the touch, “a particularly gruesome piece of evidence.”

As a general rule, the admission of evidence is largely within the discretion of the trial judge, whose determination will not be interfered with unless there has been an abuse to the prejudice of the defendant. (People v. Greer (1980), 79 Ill. 2d 103, 117; People v. Stocks (1981), 93 Ill. App. 3d 439.) Evidence is required to be relevant and material (People v. Miller (1977), 55 Ill. App. 3d 136, 139), and should be excluded where it would serve no useful purpose (People v. Lewis (1976), 38 Ill. App. 3d 995, 998), and “ ‘if it has no legitimate bearing upon, or relation to, any fact or issue in the case.’ ” (People v. White (1980), 90 Ill. App. 3d 1067, 1072.) Admissibility may also depend upon whether the probative value of the evidence outweighs its prejudicial effect to the defendant. (People v. Cruz (1979), 71 Ill. App. 3d 76.) “Physical” or “real” evidence, as opposed to merely demonstrative evidence, refers to some object which has a direct part in the incident in question. (Smith v. Ohio Oil Co. (1956), 10 Ill. App. 2d 67, 75.) Such evidence may be admitted, providing there is evidence to connect the object with the defendant and with the crime. (People v. Chatman (1981), 102 Ill. App. 3d 692; People v. Miller (1968), 40 Ill. 2d 154.) The supreme court has held that a weapon found upon a defendant suitable for the commission of the crime charged is proper evidence even though there is no showing that it was the actual weapon used. People v. Moore (1969), 42 Ill. 2d 73, 78, aff’d (1972), 408 U.S. 786, 33 L. Ed. 2d 706, 92 S. Ct. 2562; People v. Lopes (1974), 17 Ill. App. 3d 986, 992-93.

There was substantial evidence presented concerning fresh bruise marks on the child’s face and body, including one red bruise, four inches long, extending up the cheekline to the child’s temple and around her cheekbone. Multiple areas of subgaleal hemorrhage were attributed to excessive multiple traumatic events to her head. Although the defendant denied he hit Tasha with the stick, the evidence indicates it was as suitable for producing some of the injuries observed as was a belt, and he admitted he had at least on one occasion hit her with the flat side of a belt. He also admitted the stick was from his apartment, and that a friend had given it to him saying, “[J]ust in case somebody breaks in you can use the stick.” Doctor Jaudes testified the several hypopigmented loop-shaped marks on Tasha’s skin could have been caused by a belt or cord doubled over on itself, or by the stick at issue here.

We conclude the court did not abuse its discretion in admitting the stick, since it was connected with the defendant and was suitable for producing at least some of the injuries observed on the child’s head.

It is the general rule that a trial court has the power to exclude cumulative or repetitious testimony (People v. Godbout (1976), 42 Ill. App. 3d 1001), and the extent to which cumulative evidence may be received rests within the discretion of the trial court. People v. Lee (1980), 86 Ill. App. 3d 922, 937, rev’d on other grounds (1981), 87 Ill. 2d 182; People v. Nahas (1973), 9 Ill. App. 3d 570.

The defendant raises the issue of prejudice due to cumulative testimony in three areas: the testimony of various medical personnel, doctors, and a lay witness concerning Tasha’s injuries; testimony by Allan Friedman of the Department of Children and Family Services regarding his interview with the defendant; and the testimony of two police officers regarding the search of the defendant’s apartment.

As to these last two witnesses, their testimony was neither objected to at trial nor was the issue regarding their testimony raised in a post-trial motion and, as such, the issue has been waived and the defendant is barred from arguing this for the first time on appeal. (People v. Roberts (1979), 75 Ill. 2d 1.) Additionally, we note defendant’s post-trial motion only referred specifically to the cumulative testimony of the “doctors” and Allan Friedman, and the record shows the only objection made at trial and in the defendant’s post-trial motion was with regard to Mr. Friedman’s testimony. The defendant’s failure to object at trial or to move to strike testimony he considered cumulative at trial deprived the trial court of the opportunity to rule on any of the alleged errors at trial and, thus, operates as a waiver. (People v. Brown (1982), 107 Ill. App. 3d 576; People v. Carlson (1980), 79 Ill. 2d 564, 575-77.) Notwithstanding the lack of objection at trial, a reviewing court will grant relief if the trial error is so prejudicial that real justice has been denied or the verdict of the jury may have resulted from such error. People v. Carlson (1980), 79 Ill. 2d 564, 577.

Based on our review of the record, we conclude the testimony of the doctors and the lay witnesses concerning the child’s injuries, although overlapping at times, was not cumulative and its admission did not deny the defendant real justice. Although the fact of the injuries was not disputed by the defendant, the cause of the injuries was the issue in contention, and the State has a right to prove each and every element of the offense. (People v. Kuntz (1977), 52 Ill. App. 3d 804; People v. Christen (1980), 82 Ill. App. 3d 192.) The testimony of each of the witnesses now claimed to be cumulative was relevant to the identity, age, and physical condition of the victim, the method and manner of her death, the location and extent of her wounds, the degree and type of force required to produce such injuries and cause of death. Each of the witnesses’ testimony brought out an additional fact or facts in the case.

Notably, after having unsuccessfully objected to presentation of Allan Friedman’s testimony on the basis it would merely be cumulative and add nothing new to the case, defense counsel did not make a follow-up motion to strike after Friedman testified. The reason apparent for this in the record is that Friedman’s testimony included the “new fact” that the defendant admitted to having hit Tasha in the past, thus accounting for some of her bruises, and that he hit her with a belt in an attempt to toilet train her.

The State is permitted to bolster its case with corroborative evidence to the extent such evidence is otherwise relevant, and the possible prejudice of any unnecessary accumulation of repetitive testimony is a matter for the discretion of the trial court. People v. Robinson (1982), 104 Ill. App. 3d 20, 27, 29, cert. denied (1983), 459 U.S. 1228, 75 L. Ed. 2d 469,103 S. Ct. 1235.

In sum, we conclude the evidence claimed here by the defendant to have been cumulative and prejudicial was not, nor does the record show any abuse of the court’s discretion in admitting such evidence.

Corpus Delicti

Defendant contends the State’s evidence failed to prove that the child died by reason of criminal agency of the defendant and, thus, failed to prove the corpus delicti of the offense beyond a reasonable doubt. He argues the State’s evidence showed only that the child was injured while she was with the defendant and that the defendant had disciplined her. We believe the evidence at trial conclusively established his guilt beyond a reasonable doubt.

The term “corpus delicti,” literally “body of the offense,” means the fact that the crime charged has been committed by someone. (The Random House Dictionary of the English Language 327 (1967); 29 Am. Jur. 2d Evidence sec. 149 (1967).) To prove the corpus delicti in a criminal homicide, the State must prove the facts of (1) death, (2) caused by the criminal agency of another. (In re Thur (1980), 80 Ill. App. 3d 592, 596; People v. Wilbourn (1978), 56 Ill. App. 3d 1022, 1026; People v. Lueder (1954), 3 Ill. 2d 487, 489.) If the evidence is all or largely circumstantial, it should be sufficiently compelling to produce a moral and reasonable certainty that the crime was committed and that the defendant committed it. (People v. Younge (1980), 83 Ill. App. 3d 305, 308; People v. Mundorf (1968), 97 Ill. App. 2d 130, 134.) When the defendant elects to testify in his own defense, and when he elects to explain the death of the deceased, it is incumbent upon him to tell a reasonable story, or be judged by its improbability. People v. Williams (1978), 67 Ill. App. 3d 524, 529; People v. Neal (1968), 98 Ill. App. 2d 454.

The defendant testified concerning his disciplining of Tasha during the morning and early afternoon of the day in question, including the fact that he spanked her with his hand and with an afro comb. The record also shows he testified he hit her with the back of his open hand, causing her to fall on the floor; in his statement to Allan Friedman, regarding this incident, he said he “backhanded” Tasha and watched her fall backward. Further, he testified that this backhanding- occurred when he was upset and “just a little bit mad” with Tasha because she had “messed” on herself and was playing in it, which necessitated bathing her, and wiping off the rug. The defendant also told Friedman and testified at trial that he hit Tasha on one earlier occasion with a belt when he was trying to toilet train her.

The defendant’s testimony concerning the incident was that after he had bathed Tasha and cleaned the rug, he told her to go back into the living room area to play, which she did. The living room area contained her bed, which consisted of a king-size mattress and box springs placed on the floor. Positioned near her bed was a radiator, a set of barbells, a table, and a night stand. The defendant, meanwhile, went back to his room and lay down. He heard Tasha playing in the living room and then he heard a noise which “sounded like something had fell [sic]. Sounded like she had — I don’t know what — caused the stand to fall down ***. When I came in [the living room] again, she had knocked herself out.” He testified at trial that she had not fallen by the radiator or the barbells, but by the table. He testified her eyes were closing, and that he picked her up, shook her, called her name, and slapped her face a couple of times in an attempt to revive her. When she did not respond, he gave her mouth-to-mouth resuscitation and splashed water on her face. He then laid her down on the bed and went downstairs next door to tell his landlady that Tasha had fallen and hurt herself.

Doctor Choi performed the autopsy and determined that the cause of Tasha’s death was traumatic subdural hematoma as evidenced by multiple areas of subgaleal hemorrhage resulting from excessive multiple traumatic events to the head, all of which contributed to her death. If Tasha had been jumping up and down on her bed and had fallen off and hit an object or the floor, the expected injury — although of the type Tasha exhibited — would have been a single one, and that the chance was “remote” that such injuries occurred in a fall.

Doctor Jaudes expressed a similar opinion, in that it would seem unlikely that the trauma to the head would have been caused by a single event such as a fall. Further, if Tasha had struck a hard, stationary object as a result of the fall, it would be usual to expect a skull fracture, although such a fracture may not occur in very young children. Doctor Jaudes also testified that a subdural hematoma could be caused by a fist or a blow by the hand of an adult.

On the whole, the evidence is sufficiently compelling to produce a moral and reasonable certainty that the crime was committed and that the defendant committed it. Hence, the State sustained its burden of proof, and no reversal is warranted.

Sentencing

The defendant’s final contention is that the court abused its discretion in sentencing him to the maximum term available for one convicted of involuntary manslaughter, five years in the Department of Corrections. He points out the record shows that he had no prior criminal history, and the presentence report, which he characterizes as very positive in its tone, indicated that he was a suitable candidate for probation. The presentence report set forth numerous alternatives to imprisonment, including several community resources for therapy and rehabilitation assistance. No evidence in aggravation was presented, and the prosecutor’s argument in aggravation emphasized deterrence, the harm caused the very young victim, the difficulty in striking a balance between “the society interests in retribution and society’s interest in rehabilitation,” and the fact that even though “rehabilitation has fallen on [sic] disfavor within the last 10 years or so, I [the prosecutor] suppose it is something that cannot be ignored in a case like this.”

Actually, the picture painted by the presentence report and the testimony of the defendant’s mother is quite different from that drawn by the defendant.

The presentence report showed that the defendant had entered high school in 1976 and withdrew in 1977, due to poor grades and excessive absenteeism.

The defendant’s mother testified the only time in his life he ever worked was once when he delivered papers and once when he worked at the White Sox Park. The defendant told the probation officer his only employment was for a few weeks in a restaurant on 47th Street. Presumptively, this occurred at least two years ago, when he came to Waukegan.

The defendant argues that if granted probation he would have the support of his mother. We note the record shows she is a domestic worker who was released from an alcoholic rehabilitation program a short time after the death of Tasha. It was her testimony that she paid the defendant’s rent and that while he cared for Tasha during the day, that she, after her work as a domestic, came to the apartment, did the cleaning of the apartment and cooked for the defendant and Tasha.

It is not difficult to see how the trial judge could deny probation to the defendant with such a background, or, more aptly, lack of any background showing an ability to function as a citizen.

The trial judge noted in his summation at the sentencing that he considered the evidence at trial, the presentence report, the evidence in mitigation, the arguments as to sentencing alternatives, and he afforded the defendant the opportunity to make a statement in his own behalf, which the defendant declined.

In rhetorical response to the public defender’s query as to what useful purpose would be served by sending the defendant to the Illinois State Penitentiary, the trial judge pointed out such incarceration is for the purpose of punishment. In the rhetorical context this was stated, we do not believe, as is argued by the defense, that this meant that the trial judge discounted any and all other factors in imposing the sentence of five years’ imprisonment.

A sentence will not be reduced unless it is shown that the trial court abused its discretion. (People v. Cox (1980), 82 Ill. 2d 268.) The trial judge in the case at hand, noting the nature of the offense and the background of this offender, had ample justification for the term imposed. (People v. Perruquet (1977), 68 Ill. 2d 149.) We find no abuse of sentencing discretion.

The judgment and sentence of the circuit court of Lake County are affirmed.

Affirmed.

NASH, P.J., and SCHNAKE, J., concur.


author: JUSTICE WEBBER

text:
      In re A.L.J., a Minor (The People of the State of Illinois, Petitioner-Appel-lee, v. A.L.J., Respondent-Appellant).
    Fourth District
    No. 4—84—0322
    Opinion filed January 7, 1985.
    Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

On October 8, 1983, the circuit court of Champaign County adjudicated the minor delinquent and made him a ward of the court pursuant to section 4 — 8(2) of the Juvenile Court Act. (Ill. Rev. Stat. 1983, ch. 37, par. 704 — 8(2).) At the dispositional hearing, held on November 22, 1983, the court vacated the adjudication of delinquency and wardship and placed the minor on supervision for 12 months.

On January 25, 1984, a petition to revoke supervision was filed, alleging that the minor had committed the offense of theft. A hearing was held on this petition on March 21, 1984. The minor stipulated to the offense, and after the proper admonitions and procedures, the court accepted the stipulation, adjudicated the minor delinquent and made him a ward of the court. A dispositional hearing was scheduled for May 1, 1984.

A supplemental petition to revoke supervision was filed on March 23, 1984, alleging criminal trespass to land. As with the original petition, the minor stipulated to the offense, and the stipulation was accepted by the court at a hearing on April 6, 1984. The court used a different form of order on this occasion and made no findings other than that the order of supervision had been violated. A dispositional hearing on this matter was also set for May 1, 1984.

At the dispositional hearing, the court entered an order noting that it had “previously” adjudicated the minor delinquent and decreed wardship; it then committed the minor to the Department of Corrections. This appeal followed.

On appeal the minor first contends that the trial court committed error in making the finding of wardship at the adjudicatory hearing of March 21,1984. We agree.

Pursuant to Public Act 83 — 931, effective January 1, 1984, sections 4 — 8 and 5 — 1 of the Juvenile Court Act (Ill. Rev. Stat., 1983 Supp., ch. 37, pars. 704 — 8, 705 — 1) were amended. Section 4 — 8(2), dealing with the adjudicatory hearing stage of a juvenile proceeding, now states in pertinent part:

“(2) If the court finds that the minor is a person described in Section 2 — 1, the court shall note in its findings whether he is delinquent, addicted, requiring authoritative intervention, neglected or dependent, specifying which of Sections 2 — 2 through 2 — 5 is applicable. The court shall then set a time for a dispositional hearing *** at which hearing the court shall determine whether it is in the best interests of the minor and the public that he be made a ward of the court.”

Prior to this amendment, the determination as to wardship was to be made at the adjudicatory hearing (see Ill. Rev. Stat. 1983, ch. 37, par. 704-8(2)).

Section 5 — 1(1), dealing with the dispositional hearing stage of a juvenile proceeding, was amended to state in pertinent part:

“(1) At the dispositional hearing, the court shall determine whether it is in the best interest of the minor and the public that he be made a ward of the court.” Ill. Rev. Stat., 1983 Supp., ch. 37, par. 705 — 1(1).

Clearly, then, the court’s procedure in the present case was in contravention of both sections 4 — 8 and 5 — 1 of the Juvenile Court Act. We do not consider the court’s error to be harmless.

The trial judge in this case drafted what eventually became Public Act 83 — 931 as a part of his “1983 legislative package,” a series of 23 bills aimed at correcting his perceived deficiencies in the criminal and juvenile justice system. This “package” was dispatched to an unascer-tained number of representatives. Accompanying the draft of Public Act 83 — 931 was a “Statement of Legislative Intent,” an ex officio document prepared by the trial judge to aid the legislators in comprehending the nature and purpose of the proposed bill. In pertinent part it provides:

“[W]hen a juvenile is disputing a charge that he committed a crime, the parties are rarely, if ever, prepared to present the kind of aggravating and mitigating evidence normally presented at the [dispositional] stage.
* * *
To put it another way, the trial of a juvenile on a delinquency charge should be concerned solely with whether the state can prove his guilt beyond a reasonable doubt. If the state is able to do so, or the juvenile admits to committing the crime charged, then, but only then, should the court receive information concerning whether it would be necessary to *** make him a ward of the court and *** what would then be an appropriate disposition. An additional benefit to this procedure would be an opportunity for the trial court to order dispositional reports to be prepared by the probation office. In this way, prior to deciding whether a juvenile should be made a ward of the court, the court would have before it a detailed assessment of the juvenile and all facets of his life, as opposed to the groping ‘inquiry’ on the minor’s current status *** during the [adjudicatory hearing] in which the [minor’s] guilt or innocence is being determined.”

Since the minor, here, was denied the obvious benefits of the newly mandated procedures, we believe the trial court has committed reversible error.

We find it curious that the trial judge in this case was the chief proponent of Public Act 83 — 931 before the legislature, yet when the time came for its application, he reverted to the abolished procedure.

The minor also alleges that certain unreliable hearsay evidence was improperly considered at his dispositional hearing. Since we decided that the minor should receive a new dispositional hearing and since this evidence is unlikely to be presented a second time, we need not consider this contention.

Accordingly, the Champaign County circuit court’s determination of wardship and commitment of the minor to the Department of Corrections, Juvenile Division, is hereby vacated and the cause is remanded for a new dispositional hearing.

Vacated and remanded.

MILLS and TRAPP, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    RAYMOND DEAN LINDSEY, d/b/a Lindsey Auto Sales, et al., Plaintiff-Appellant, v. JIM EDGAR, Secretary of State, Defendant-Appellee.
    Fourth District
    No. 4—84—0341
    Opinion filed December 28, 1984.

      John J. Casey, of Casey & Casey, P.C., of Springfield, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Mark A. LaRose, Assistant Attorney General, of counsel), for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Pursuant to section 5 — 501(a) of the Illinois Vehicle Code, (Ill. Rev. Stat. 1981, ch. 951/2, par. 5 — 501(a)), the Secretary of State revoked the dealer’s licenses issued to the plaintiff, Raymond Dean Lindsey. Lindsey filed for administrative review, but the circuit court of Sangamon County affirmed the Secretary’s decision. Lindsey appeals, contending his conduct was not sufficient to justify revocation of his licenses.

Prior to 1984, section 3 — 118.1 of the Code provided, in part:

“Whenever a certificate of title is issued for a vehicle with respect to which a salvage certificate has been previously issued, the new certificate of title shall bear the initials ‘S.V.’.” (Ill. Rev. Stat. 1981, ch. 951/2, par. 3 — 118.1.)

In 1981, Lindsey participated in a scheme designed to “launder” Illinois titles bearing the initials S.V.

The facts are not in dispute. Lindsey repaired and sold used cars through Lindsey Auto Sales and Dean’s Hatch & Sunroofs. He purchased six vehicles that had salvage certificates and rebuilt them. He also applied for and received Illinois titles marked S.V. for each car. Lindsey assigned these titles to Missouri car dealers. In five of six cases, the Missouri dealer submitted the Illinois S.V. title to the State of Missouri and obtained a “clean” Missouri title, one not indicating the car had been salvaged. In the other instance, the Missouri dealer reassigned the title to a Kentucky dealer, who obtained a “clean” Kentucky title. The six cars, however, never left Lindsey’s possession. The Missouri and Kentucky dealers assigned their out-of-State titles back to Lindsey. Lindsey then resold the automobiles, giving the purchasers “clean” out-of-State titles. Lindsey sold five of the cars to other Illinois used car dealers. He sold the sixth car to his cousin. According to Lindsey, all the purchasers knew the vehicles had been damaged and repaired. In four instances, the purchaser or a subsequent assignee submitted the out-of-State title to the Secretary of State and received an Illinois title without the initials S.V. on it.

In 1982, Lindsey was indicted on six counts of mail fraud for his participation in “laundering” the titles. In a statement to a postal inspector, Lindsey estimated that removing the S.V. notation increased the value of a car $400 to $500. Lindsey also stated he gave the Missouri dealers about $50 per title to obtain the out-of-State titles. Finally, he conceded the deals were only paper transactions designed to circumvent Illinois law. A jury convicted him of the . Federal charges, and the Appellate Court for the Seventh Circuit upheld his conviction in United States v. Lindsey (7th Cir. 1984), 736 F.2d 433.

On March 31, 1983, the Secretary of State held a hearing to determine whether Lindsey’s licenses should be revoked under section 5 — 501(a). The relevant portions of that statute are as follows:

“The license of a person issued under this Chapter may be denied, revoked or suspended if the Secretary of State .finds that the licensee, *** has:
1. Violated this Act;
2. Made any material misrepresentation to the Secretary of State in connection with an application for a license, junking certificate, salvage certificate, title or registration;
3. Been guilty of a fraudulent act in connection with selling, bartering, exchanging, offering for sale or otherwise dealing in vehicles, bodies and component parts;
* * *
12. Violated the provisions of Chapter 4 of this Act, as amended;
13. Violated the provisions of Chapter 3 of this Act, as amended.” (Ill. Rev. Stat. 1981, ch. 951/2, par. 5 — 501(a).)

Lindsey maintains his conduct did not fall within any of the above proscriptions of section 5 — 501(a). The Secretary of State decided Lindsey’s conduct was sufficient to justify revocation of his licenses. On review, the trial court agreed.

As Lindsey notes, we are not bound by the Secretary of State’s decision. When the facts are not in dispute, their legal effect becomes a matter of law, and upon questions of law, the decision of an administrative agency does not bind the reviewing court. (Kensington Steel Corp. v. Industrial Com. (1944), 385 Ill. 504, 509, 53 N.E.2d 395, 397.) On the other hand, the Secretary’s interpretation of section 5 — 501(a) is not totally irrelevant. “The cardinal rule of statutory construction, to which all other canons and rules are subordinate, is to ascertain and give effect to the true intent and meaning of the legislature.” (People ex rel. Hanrahan v. White (1972), 52 Ill. 2d 70, 73, 285 N.E.2d 129, 130.) Statutory interpretations by administrative agencies express an informed source for ascertaining the legislative intent. Adams v. Jewel Cos. (1976), 63 Ill. 2d 336, 344-45, 348 N.E.2d 161, 165.

Generally, the interpretation of a statute must be grounded on the nature and object of the statute as well as the consequences which would result from construing it one way or another. (Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 21, 373 N.E.2d 1332, 1335.) The predominant purpose in licensing a trade or profession is to prevent injury to the public by assuring that the occupation will be practiced with honesty and integrity and by excluding those who are incompetent or unworthy. Ranquist v. Stackler (1977), 55 Ill. App. 3d 545, 551, 370 N.E.2d 1198, 1203.

With this purpose in mind, we turn to the Secretary’s findings in this case. The Secretary decided Lindsey had violated section 3— 118.1. His licenses, therefore, could be revoked under either section 5 — 501(a)(1) or (13). The Secretary first looked to the legislative background of section 3 — 118.1. Under the original bill, the word “rebuilt” was to appear on titles rather than the initials S.V. One purpose of the bill was to track titles of salvaged cars, which had been a major problem in “laundering” of titles to stolen cars. The bill also provided consumer protection by informing the purchasing public when a car had been rebuilt. To appease the rebuilder’s association, however, the Senate deleted the word “rebuilt” and substituted S.V. S.V. simply stands for salvage vehicle. At first, the House refused to concur with the Senate amendment. The House felt the bill’s consumer protection quality would be substantially weakened. After a joint committee voted to adopt the Senate amendment, the House accepted it. The House sponsor and other members, however, contemplated a campaign by the Secretary of State to inform the general public as to what the initials S.V. meant. Lindsey’s statement that an automobile’s value increased when its title had no S.V. designation makes it clear that the Secretary’s program was somewhat successful. The legislature recently amended section 3 — 118.1 to reinsert the word “REBUILT” for the initials S.V. Ill. Rev. Stat. 1983, ch. 95V2, par. 3— 118.1

From this background, the Secretary concluded the purpose behind the statute was consumer protection as well as crime prevention. Viewing Lindsey’s scheme as an intent to increase the value of his vehicles by concealing from potential consumers the fact that the vehicle had been rebuilt, the Secretary held Lindsey had violated section 3 — 118.1. Lindsey maintains he legally exchanged titles in his out-of-State transactions. He acknowledges that his entire plan was an attempt to evade the statutory S.V. requirement, but he contends his licenses cannot be revoked for merely violating the spirit of the statute. We disagree. Even if the letter of the law does not apply, a situation within the object, spirit, and meaning of the statute falls within it. (Department of Revenue v. Joseph Bublick & Sons, Inc. (1977), 68 Ill. 2d 568, 575, 369 N.E.2d 1279, 1282.) Lindsey’s scheme simply cannot be condoned.

The Secretary also held Lindsey was guilty of a fraudulent act in connection with dealing in vehicles. Thus, his license could be revoked under section 5 — 501(a)(3). Proof of his guilt is supplied by his conviction for mail fraud and by his own admission. Lindsey notes that for fraud to be actionable, there must be some injury. (Cole v. Ignatius (1983), 114 Ill. App. 3d 66, 448 N.E.2d 538.) The Secretary expressly found that no one had suffered any damage as a result of Lindsey’s scheme. Lindsey concludes he committed no fraudulent act because no one was defrauded.

The tort action for fraud remedies an individual’s injury. Hence, the individual must suffer some damage before he can receive compensation. Section 5 — 501(a), on the other hand, was designed to protect the public as a whole from unscrupulous car dealers. Lindsey’s conduct, along with his intent to deceive both the Secretary of State and future consumers, makes him unworthy to hold his licenses. Merely because the proper authorities uncovered Lindsey’s plan before anyone was actually injured makes Lindsey no less unworthy.

The Secretary further found Lindsey had made a material misrepresentation in connection with an application for title in violation of section 5 — 501(a)(2). Lindsey contends he made no false statement on any title application. A misrepresentation, however, may consist of the concealment of the truth as well as the assertion of what is false. When the failure to disclose a material fact is calculated to induce a false belief, the distinction between concealment and an affirmative misrepresentation is tenuous. (State v. Coddington (Ariz. App. 1983), 135 Ariz. 480, 481, 662 P.2d 155, 156.) Even if a statement is technically true, it may nonetheless be a misrepresentation where it omits qualifying material, because a half-truth may be more misleading than an outright lie. Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 195, 380 N.E.2d 1040, 1044.

Section 4 — 105(a)(5) of the Code prohibits a person from making a material false statement or concealing a material fact on title applications. (Ill. Rev. Stat. 1981, ch. 95V2, par. 4 — 105(a)(5).) The Secretary held Lindsey’s licenses could be revoked under section 5— 501(a)(12) for his violation of section 4 — 105(a)(5). Lindsey complains because he did not apply for any of the “clean” Illinois titles. He concludes he did not conceal any material fact on an application. He, however, had to sign his cousin’s application because he was the dealer in the transaction. His signature amounts to an assertion that the material facts behind the transaction had been revealed on the application. Section 3 — 118.1 makes the previous S.V. title material.

Finally, Lindsey argues neither section 5 — 501(a)(2) nor 4 — 105(a)(5) apply because the application did not specifically request the disclosure of previous S.V. titles. For a concealment to amount to a misrepresentation, it must have been done with an intent to deceive under circumstances creating an opportunity and a duty to speak. (Lagen v. Lagen (1973), 14 Ill. App. 3d 74, 79, 302 N.E.2d 201, 205.) Lindsey concedes he- acted with an intent to deceive. Moreover, his licenses created a duty to speak. Apparently, he argues he had no opportunity to reveal the previous salvage certificates. In light of the fact that his entire scheme was designed to avoid revealing this information, Lindsey’s argument seems particularly paltry. One cannot purposely act to suppress information and then claim he had no opportunity to disclose it.

The order of the Secretary of State revoking plaintiff’s licenses is affirmed.

Affirmed.

GREEN, P.J., and TRAPP, J., concur.


author: JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES ATWELL, Defendant-Appellant.
    Fourth District
    No. 4—84—0424
    Opinion filed December 28, 1984.

      Daniel D. Yuhas and Diana N. Cherry, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and Linda Welge, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

Atwell was convicted of driving while under the influence of alcohol and of driving while the alcohol concentration in his blood or breath was 0.10 or more.

We affirm one.

We vacate the other.

The only contested issues on appeal are whether the complaints stated a criminal offense and sufficiently informed defendant of the charges against him.

Both complaints were in the form of the uniform Illinois Citation and Complaint (Uniform Traffic Ticket), and were dated February 6, 1984. The first one charged defendant with “driving under influence” and cited section 11 — -501(a)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95V2, par. 11 — 501(a)(2)). The second complaint charged defendant with “driving with BAG in excess of .10” and cited section 11 — 501(a)(1) of the Illinois Vehicle Code (Ill. Rev. Stat 1983, ch. 951/2, par. 11 — 501(a)(1)).

I

Defendant argues that the first complaint was defective because it did not charge him with driving under the influence of alcohol or driving under the influence of any other drug. In People v. Featherstone (1974), 23 Ill. App. 3d 492, 318 N.E.2d 756, we reversed a conviction where the defendant had been charged with a violation of section 11— 501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1971, ch. 951/2, par. 11 — 501), by “ ‘driving while under the influence of intoxicating liquor or narcotic drug, *** then and there being under the influence of intoxicating liquor or narcotic drug.’ (23 Ill. App. 3d 492, 492, 318 N.E.2d 756, 757.) We cited with approval language from People v. Johnson (1974), 16 Ill. App. 3d 819, 307 N.E.2d 159, which noted that driving under the influence of alcohol and driving under the influence of a narcotic drug were two separate offenses which were set forth in different paragraphs of section 11 — 501. It was held in both Feather-stone and Johnson that the complaints were void for failing to set forth the nature and elements of the charge with certainty, as required by the sixth amendment of the United States Constitution and section 111 — 3(a)(3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. Ill — 3(a)(3)).

Similarly, in People v. Utt (1983), 122 Ill. App. 3d 272, 461 N.E.2d 463 (amended 1983, modified on denial of rehearing 1984), the court held that the uniform traffic citation charging the defendant with “driving while under the influence” and citing section 11 — 501(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95V2, par. 11— 501(a)) was defective. The court observed that section 11 — 501(a) included the offenses of operating a vehicle with an alcohol concentration in the blood or breath of 0.10 or more, operating a vehicle while under the influence of alcohol, operating a vehicle while under the influence of any other drug or combination of drugs, or operating a vehicle while under the combined influence of alcohol or any other drug.

The complaint in the present case does not suffer the inadequacy of the complaints in Featherstone, Johnson, and Utt. In those three cases, neither the description of the offense nor the statutory citation informed the defendant whether he was being charged with driving under the influence of alcohol, or of drugs, or of a combination of the two. In the present case, the complaint cited section 11— 501(a)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95V2, par. 11 — 501(a)(2)), which provides:

“(a) A person shall not drive or be in actual physical control of any vehicle within this State while:
* * *
2. Under the influence of alcohol.”

The citation to section 11 — 501(a)(2) was sufficient to inform defendant that he was being charged with driving while under the influence of alcohol.

The need to allow leeway in the preparation of uniform traffic tickets was recognized by the supreme court in People v. Tammen (1968), 40 Ill. 2d 76, 78-79, 237 N.E.2d 517, 518. The court stated:

“Inasmuch as the Uniform Traffic Ticket is only used for misdemeanors, is written by an arresting officer rather than a State’s Attorney and is generally written at the time the offense is committed, we believe that naming the offense and citing it is sufficient and will generally be understood by the person charged.”

In Tammen, the court held that a uniform traffic ticket charging the defendant with “drag racing” was adequate even though it did not state the nature and elements of the offense charged as required by section 111 — 3(a) of the Code of Criminal Procedure of 1963. See Ill. Rev. Stat. 1981, ch. 38, par. Ill — 3(a).

We find in the present case that the description of the offense, when read in conjunction with the statutory provision cited, sufficiently charged defendant with a criminal offense and apprised him of the nature of the offense.

II

Defendant next argues that the description in the second complaint, which stated “driving with BAG in excess of .10,” was inadequate because the abbreviation BAG is meaningless to the general public. Defendant relies on People v. Allen (1972), 8 Ill. App. 3d 176, 289 N.E.2d 467, wherein the defendant’s conviction for operating a motor vehicle while intoxicated was reversed because the complaint merely alleged a violation of “Section 11 — 501 I.V.C. by O.M.V.I.” (8 Ill. App. 3d 176, 177, 289 N.E.2d 467, 468). The court in Allen stated:

“Courts will not take judicial notice of abbreviations peculiar to particular trades or professions, and not known by the general public, or any other abbreviation not in general use. [Citation.] Abbreviations in criminal charges are not favored [citation], they are tolerated only when they are not disputable, well defined and well understood.” 8 Ill. App. 3d 176, 177, 289 N.E.2d 467, 468.

In the present case, the description of the offense, as it appears on the complaint, would have informed defendant that he was driving with something in excess of 0.10. A reading of the statutory provision cited in the complaint (Ill. Rev. Stat. 1983, ch. 95V2, par. 11— 501(a)(1)) would have informed defendant that the “something” was alcohol concentration. Section 11 — 501(a)(1) states:

“(a) A person shall not drive or be in actual physical control of any vehicle within this State while:
1. The alcohol concentration in such person’s blood or breath is 0.10 or more based on the definition of blood and breath units in Section 11 — 501.2.”

It is true that the abbreviation BAG is somewhat ambiguous because it may be construed as either “blood alcohol content,” “breath alcohol content,” or both. Defendant argues, therefore, that the description of the offense is inadequate because it does not specify whether the alcohol concentration of 0.10 or more appeared in his blood or breath. But the description would have been no more informative if the statute itself had been written word for word on the complaint, for section 11 — 501(a)(1), which describes a single offense, indicates that the offense occurs when the alcohol concentration is 0.10 or more, regardless of whether the concentration appears in the blood, breath, or both. We do not believe the complaint must show on its face the particular manner in which section 11 — 501(a)(1) is violated.

We conclude that the description of the offense, when read in conjunction with the statutory provision cited in the complaint, was sufficient to charge defendant with a criminal offense and apprise him of the nature of the charge against him.

Ill

Defendant argues that one of the convictions must be vacated because the two offenses were based on the same physical acts. See People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.

The State concedes that one of the offenses must be vacated and, since both are Class A misdemeanors, requests that the conviction for driving while under the influence of alcohol be vacated. Defendant does not object to this request.

The conviction for driving with an alcohol concentration in the blood or breath of 0.10 or more is affirmed. The conviction for driving while under the influence of alcohol is vacated.

Affirmed in part, vacated in part.

McCULLOUGH and TRAPP, JJ., concur.