author: Mr. JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PEDRO RODRIQUEZ et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 79-2001, 79-2002 cons.
    Opinion filed September 11,1981.

      James J. Doherty, Public Defender, of Chicago (Robert Guch, Assistant Public Defender, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Richard F. Burke, and Barry A. Gross, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE WILSON

delivered the opinion of the court:

Following a bench trial, defendants were convicted of murder (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1) and sentenced to prison terms of 20 to 35 years. On appeal they argue that they were not proved guilty beyond a reasonable doubt because (1) the prosecution witnesses contradicted themselves and each other; (2) defendant Luis stabbed the victim in self-defense; and (3) even if the stabbing was not justified, Luis’ acts constitute no more than voluntary manslaughter. Defendants further argue that the court imposed excessive penalties because of defendants’ failure to admit guilt; consequently, they must be resentenced. We affirm.

The record before us contains the evidence adduced at defendants’ two trials. The first, a jury trial, ended in March of 1979 when the jurors were unable to reach a verdict and the court declared a mistrial. In the fall of 1979, defendants were tried before the bench and found guilty. To avoid the confusion of reciting each witness’ testimony from both trials, we will focus on the primary discrepancies in the witnesses’ versions of the incident as they become relevant to the reasonable doubt issue. The following fact summary, therefore, is an overview which does not attempt to catalog every conflict in the evidence.

On October 16, 1977, Antonio Vasquez-Rodriquez (Tony), an off-duty bartender, was fatally stabbed in a Chicago tavern. The prosecution’s eyewitnesses were Inez Graciani, the bartender on duty that night, and Luis Rodriquez (Indigo), a friend of Tony’s who occasionally helped tend bar. According to Inez and Indigo, the incident began when defendant Luis intervened in Tony’s attempt to prevent a man named Pachuco from pushing other patrons in the bar. There was a scuffle, during which Luis told his brother, Pedro, to stab Tony. Luis stood behind Tony, holding him while Pedro stabbed him in the chest. Indigo testified that Luis also stabbed Tony in the back.

Juan Luquis, the tavern owner, noticed the disturbance when he came out of the bathroom. He picked up the telephone but Luis, holding a knife, told him not to call the police or “the same thing” would happen to him. Luquis testified that he then watched Pedro kick Tony, who was lying on the floor, in the face, saying, “Johnny, you have a dirty bartender working here.” Pedro and Luis left the tavern shortly thereafter and Luquis ran after them, firing his gun.

When police arrived, Tony was dead. They found a white-handled knife on the floor. The police interviewed all of the tavern patrons concerning the incident.

Two days later, police officers knocked on the door of defendants’ apartment. Defendants jumped out of a window to escape, but the police captured and arrested them.

At the trial, the pathologist testified that Tony had died from stab wounds. He identified three stab wounds in Tony’s chest, one in the left leg and another in Tony’s back. There were other minor wounds on Tony’s chin and finger.

Juan Luquis, the tavern owner, testified that two weeks before the incident, defendant Pedro was arguing with another patron in the bar when Tony, who was tending bar, intervened. Pedro was ejected from the bar and allegedly threatened Tony, “Don’t worry, I’ll get you.”

After the prosecution rested, defendants related their version of the stabbing. Pedro, who testified that he was not involved in the fight, said he saw his brother and Tony on the floor and noticed that Luis was bleeding from the neck. A few seconds later, Pedro and Luis fled the tavern when Luquis ran to them with a gun. Pedro testified that when he and Luis jumped from the window of their apartment when the police arrived, they had thought their pursuers were people from the tavern. Pedro further denied that Tony had been involved in the incident that took place two weeks prior to the stabbing, when Pedro had argued with a customer.

Luis testified that he and Pedro were in the tavern when Pachuco entered and started pushing people. Tony came from behind the bar and started hitting Pachuco. Luis then stepped in to ask Tony to stop the beating. He testified that Tony, who appeared drunk, pulled a knife on him and stabbed him in the neck. Luis then grabbed Tony’s knife hand, twisting it behind Tony’s back. In so doing, Luis cut his hand. He believed that twisting Tony’s arm probably caused Tony to stab himself in the back before dropping the knife. Luis grabbed Tony to prevent him from retrieving the knife and Tony began hitting him in the face. The two men fell on the floor. Tony sat astride Luis and put his hands around Luis’ neck. Luis then grabbed the knife and stabbed Tony in the chest, fearing for his life. Luis corroborated Pedro’s account of their arrest following their attempt to escape through the window of their apartment. He explained that the police did not announce their office and that he and Pedro feared that Tony’s relatives were pursuing them.

Dr. Michael Schaeffer testified for the defense. On the basis of certain tests, he believed that Tony was under the influence of alcohol at the time of death.

Following closing arguments, the court found both defendants guilty as charged.

Opinion

Defendants contend that the prosecution failed to prove them guilty beyond a reasonable doubt, primarily because of contradictions in the witnesses’ testimony. Under the applicable law, conflicts in the evidence are to be resolved by the fact-finder, and the reviewing court will not reverse a conviction unless the evidence is so improbable as to raise a reasonable doubt of a defendant’s guilt. (E.g., People v. Yarbrough (1977), 67 Ill. 2d 222, 367 N.E.2d 666.) The conviction may be based solely on the credible testimony of a single witness. (People v. Yarbrough; People v. Mays (1979), 74 Ill. App. 3d 145, 392 N.E.2d 106.) In the pending case, the determinative question is whether the omissions and contradictions in the witnesses’ testimony destroy their credibility.

Defendants theorize that the three main prosecution witnesses, Inez, Indigo, and Luquis, all friends of Tony, altered or fabricated their accounts of the stabbing to place sole blame for Tony’s death on defendants. To support this thesis, they argue that the two eyewitnesses, Inez and Indigo, failed to tell investigating officers at the time of the occurrence that they had witnessed the stabbing. Instead, they jointly planned a version of the occurrence that would “frame” defendants of their friend’s murder. As a result, defendants imply, the witnesses were unable to give clear, consistent testimony as to the stabbing. As further support for this theory, defendants point to the prosecution witnesses’ testimony that Tony had drunk only 1-2 beers on the night of the incident and was not intoxicated. The toxicologist, in direct contrast, gave his opinion that Tony had drunk approximately 9-12 drinks and had been under the influence of alcohol. For the above reason, defendants urge us to hold that the prosecution’s witnesses totally lacked credibility.

While we acknowledge that there were discrepancies in the prosecution witnesses’ testimony, we do not believe they are significant enough to raise a reasonable doubt of defendants’ guilt. Many of the contradictions involve minor points or collateral issues, such as whether Tony was standing behind the bar or in front of it when Pachuco entered the tavern and started pushing people. Similarly, Inez’ and Indigo’s possibly mistaken testimony that Tony was not drunk does not mean that their accounts of the stabbing are unbelievable. Inez testified she served Tony only two drinks, but she would not necessarily be aware of other liquor he may have consumed before her arrival, or while she was tending to other customers. Moreover, Tony’s intoxication is not a material issue in the case, except as it might have affected his behavior that night. The ultimate factual question before the court, rather, was defendants’ mental state or intent as they killed Tony. Murder, self-defense, and voluntary manslaughter require different states of mind, as defined by statute. (See Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1 (murder), par. 9 — 2 (voluntary manslaughter), par. 7 — 1 (self-defense).) The key evidence bearing on defendants’ mental states is the eyewitness testimony that Pedro stabbed Tony in the chest while Luis restrained him from behind. The court also noted that the physical evidence regarding the stab wounds was consistent with this version of the incident.

Admittedly, the record reveals some confusion as to the exact sequence of events. For example, Inez testified at the first trial that just before the stabbing, a customer called her over. When she turned back to Tony and Luis she saw Pedro pick up a white-handled knife and stab Tony. At the second trial, however, she testified that she responded to the customer’s call just after witnessing the stabbing. Indigo testified at the first trial that he saw both defendants approach Tony, while at the second trial he said that Luis approached defendant alone and Pedro came over later.

We disagree with defendants that these and similar conflicts in the witnesses’ testimony raise a reasonable doubt of defendants’ guilt. It is unrealistic to expect witnesses to a sudden, violent stabbing to describe it with “stop action” accuracy. The exact positions of the parties and the precise sequence of their actions would be difficult for anyone to recreate perfectly. Hence, we find the internal inconsistencies in Inez’ and Indigo’s testimony to be minor in view of their positive statements that they witnessed defendants restrain and stab the victim.

Defendants further argue, however, that not only did the witnesses contradict themselves, but they also contradicted each other. Inez testified she saw only Pedro stab Tony while Luis restrained him; Indigo testified he saw both Pedro and Luis stab Tony. Also, Inez saw Pedro bend over to pick up a knife; Indigo did not observe this.

Again, we find these inconsistencies to be insubstantial and explainable. Both witnesses viewed the occurrence from different positions and one could easily have observed or recalled details that the other did not. Indeed, Indigo testified he did not watch closely until he heard Luis say, “Stab him.” Thus, it was not until that point that his attention was aroused, whereas Inez might have been watching the two men a few seconds earlier. The differences between their accounts of the events, therefore, do not discredit either or both witnesses. In fact, the likelihood of their collaboration on a made-up version of the events would probably be stronger had their testimonies been identical in every detail.

Citing People v. King (1973), 10 Ill. App. 3d 652, 295 N.E.2d 258, defendants next contend that the witnesses’ credibility was severely impeached because they failed to immediately inform police that they had observed the stabbing. In King the complaining witness accused defendant of rape several months after the incident occurred. When she finally contacted the police, she failed to tell them that she had seen her assailant, at the lounge where she worked, several times before and after the incident. In describing her assailant, moreover, she did not mention that he had a heavy mustache. The appellate court reversed defendant’s conviction, holding that the complaining witness’ testimony was too doubtful under the circumstances and that her trial testimony was discredited by her failure to inform the police of seeing her assailant several times before and after the incident.

In contrast to the facts of King, the pending case does not involve a serious question of defendants’ identity as the victim’s assailants. Nor does it involve a lengthy delay between the time of the incident and the witnesses’ cooperation with police. Both Inez and Indigo spoke to investigators and had identified defendants within two days of the stabbing. Inez, who speaks and understands only Spanish, talked to the police on the night of the slaying through an interpreter. Thus the resulting police report was the officer’s summary of what a third party related on behalf of Inez. The trial court, in considering her failure to tell the officers that she witnessed the stabbing, noted that witnesses may be initially reluctant to become involved in a criminal investigation. The court went on to find Inez’ trial testimony believable, because it was related under oath, subject to cross-examination, and was corroborated by other evidence. Similarly, although Indigo failed to immediately inform police that he saw the stabbing, he identified defendants from photographs and in a lineup within two days after the incident. We believe, therefore, that the trial court properly considered the witnesses’ behavior on the night of the stabbing in its evaluation of their testimonies, along with all the other circumstances.

Defendant Luis next contends that his actions constituted self-defense or, at most, voluntary manslaughter. Both theories rest on Luis’ version of the stabbing, that Tony was the knife-wielding aggressor. Luis focuses on the evidence that his neck was cut during the incident, apparently believing that this is persuasive evidence supporting his defense. We disagree. In a struggle involving a knife it is not unlikely that the aggressor would be wounded as well as the victim. The trial court considered all of the evidence, as well as a determination or reenactment of the stabbing and concluded that Luis had not acted in self-defense. Of course, had the trial court believed defendant Luis’ testimony, it could have found his actions to be justified by a reasonable fear for his life. Alternatively, the court could have found his belief unreasonable or that he acted under provocation in the heat of the battle and found him guilty of voluntary manslaughter under subsection (a) or (b) of section 9 — 2 (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 2(a), (b)). For us to reverse defendants’ convictions or reduce them to voluntary manslaughter, however, we would have to ignore the trial court’s factual findings, based on two eyewitnesses’ testimonies, that Luis restrained Tony while Pedro stabbed him. We have carefully considered the record and all arguments and conclude that defendants were proved guilty of murder beyond a reasonable doubt.

Defendants finally argue that their sentences were based on an improper factor and must be vacated so the case can be remanded for resentencing. They contend that the trial judge erroneously emphasized their failure to admit guilt when he stated that “[o]ne of the first steps toward rehabilitation is remorse. * ° * The court has observed no remorse.”

We disagree that the court erred. In People v. Carter (1980), 85 Ill. App. 3d 818, 407 N.E.2d 584, we reaffirmed the principle that a court, in imposing a sentence, may properly consider a defendant’s failure to show a “penitent spirit.” Cf. People v. Sherman (1977), 52 Ill. App. 3d 857, 368 N.E.2d 205; People v. Moffett (1977), 55 Ill. App. 3d 939, 371 N.E.2d 364.

In the pending case, the trial court heard arguments in mitigation and aggravation, and concluded, after considering “the nature of the charge, the background of the defendants and the evidence,” that sentences of 20-35 years imprisonment were proper. This was not an abuse of discretion; therefore, we cannot alter the sentence. See People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

For the foregoing reasons we affirm the trial court’s judgment.

Affirmed.

LORENZ and MEJDA, JJ., concur.

       The transcript reveals that Indigo and Inez were unsure of defendants’ names and referred to them as “the big one” and “the little one.” Indigo had transposed their names at the preliminary hearing, but both he and Inez accurately identified the defendants in court. Confusion over the names, therefore, does not discredit the witnesses’ identification of defendants.


source: Caselaw Access Project

author: Mr. JUSTICE GOLDBERG

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICO JOHNSON et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 79-1843, 79-1844 cons.
    Opinion filed September 14, 1981.
    Ralph Ruebner and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Dean C. Morask, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

After a bench trial, defendants Rico Johnson and Gary Moore were found guilty of armed robbery, armed violence and attempt rape. Defendants were sentenced to concurrent terms of 12 years and 8 years respectively. Defendants appeal.

The single issue presented by defendants is directed to the conviction for armed robbery. Defendants urge Johnson was armed with a sawed-off air rifle which was not demonstrated to be loaded and was not used in a manner capable of causing death or great bodily harm. Consequently defendants request that the cause be remanded for a new sentencing hearing.

The complainant and her 5-year-old daughter drove into the garage behind their home about midnight. Defendant Johnson confronted them. He asked complainant the time. She said she did not know. Johnson’s right hand came up under his coat. Complainant saw a black object protruding from his coat. It was a circular metal object with a central hole. It looked like a gun barrel. Complainant saw an inch of it. Johnson said, “This is a gun. Now be quiet and you won’t get hurt.” Defendant Moore appeared and also told complainant to be quiet and she wouldn’t get hurt. Johnson entered the front seat of the car and Moore pushed complainant into the rear seat. Moore ripped the complainant’s clothes, opened his own trousers and otherwise treated complainant so that counsel for defendants raise no point on the conviction for attempt rape.

As Johnson drove out of the garage, complainant opened the car door and fell to the ground. She ran across the street to a police car standing there. The police gave chase. Another police car came to assist. Complainant’s daughter was found crying on the floor of the front seat. Police traced footprints of Moore and Johnson in the snow and apprehended them. Moore’s trousers were unzipped. Complainant identified both men. In court, complainant identified a gun as being similar to the object she had initially seen in Johnson’s possession.

The police did not know if the gun in question was operable and they did not check it for ammunition. The police inventory describes the weapon as a “Hy-Score Air Rifle .22 Cal. B.B. gun” with a sawed-off stock and barrel. The State points out that defense counsel at trial referred to the gun as “a large weapon, approximately 2 * * * feet” in length. In argument the prosecutor told the trial court the weapon was “a very heavy object” with “solid wooden stock” which could have been used as a bludgeon.

The pertinent statute on robbery provides that the offense of armed robbery is committed when a defendant who “carries on or about his or her person, or is otherwise armed with a dangerous weapon” commits the offense of simple robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2(a)). Able counsel for defendants cite the latest decision of the Supreme Court of Illinois on the definition of a dangerous weapon (People v. Skelton (1980), 83 Ill. 2d 58, 414 N.E.2d 455). However, counsel for defendants also urge that two other and earlier decisions of the supreme court differ from Skelton (People.v. Robinson (1978), 73 Ill. 2d 192, 383 N.E.2d 164; and People v. Dwyer (1927), 324 Ill. 363, 155 N.E. 316). Our analysis of these three authorities convinces us that they are entirely consistent and do not differ. We conclude all three of these decisions require that the judgment appealed from be affirmed.

We find that Skelton most amply and ably sets out the pertinent legal principles which are applicable here. Skelton involved a robbery with a gun about 4% inches long, light in weight, constructed of hard plastic with a thin metal cylinder. The supreme court held the character of this device was such as to require the conclusion its use in committing a robbery did not constitute an armed robbery. The supreme court pointed out this device did not fire blank shells or give off a flash as did pistols used by starters in athletic contests. (Skelton, 83 Ill. 2d 58, 66.) Thus, it could not be held a dangerous weapon as were starter’s pistols in two decisions by this court (People v. Ratliff (1974), 22 Ill. App. 3d 106, 317 N.E.2d 63; and People v. Trice (1970), 127 Ill. App. 2d 310, 320-21, 262 N.E.2d 276). The supreme court cited Robinson and Dwyer and classified weapons into two types as follows (Skelton, 83 Ill. 2d 58, 66):

“In the great majority of cases it becomes a question for the fact finder whether the particular object was sufficiently susceptible to use in a manner likely to cause serious injury to qualify as a dangerous weapon. Where, however, the character of the weapon is such as to admit of only one conclusion, the question becomes one of law for the court. (People v. Robinson (1978), 73 Ill. 2d 192, 202; People v. Dwyer (1927), 324 Ill. 363, 365.)”

Significantly, the supreme court pointed out that the device in Skelton was “entirely too small and light in weight to be effectively used as a bludgeon 9 9 (83 Ill. 2d 58, 66.) In this regard, the court cited People v. Hill (1977), 47 Ill. App. 3d 976, 978, 362 N.E.2d 470, appeal denied (1977), 66 Ill. 2d 633, in which this court held an unloaded air pistol was a dangerous weapon. In the case before us, precisely as in Hill, the device used by these defendants was quite capable of readily being used as a bludgeon so that it was properly classified as a deadly weapon, although “not in fact used in that manner during the commission of the particular offense.” Skelton, 83 Ill. 2d 58, 66.

We find unanimity in considering Skelton, Robinson and Dwyer. In Robinson, the supreme court affirmed guilt of armed robbery. There a complainant was seized by the defendant who pressed an object to her throat. This caused a slight cut. Defendant threatened to kill complainant if she spoke. Complainant never saw the object but “thought it was either a small knife or a fingernail clipper.” (73 Ill. 2d 192, 196.) A fingernail clipper was found in defendant’s car. In determining whether robbery of the complainant constituted armed robbery the supreme court held (73 Ill. 2d 192, 202):

“Under the circumstances of this case, we believe the nature of the weapon and its potential for doing harm were questions of fact for the jury to decide.”

The Robinson court then cited Dwyer for the same classification of weapons as set forth in Dwyer and later in Skelton. The Dwyer court held (324 Ill. 363, 365):

“Where the weapon in question and the manner of its use are of such character as to admit of but one conclusion, the question whether or not it is deadly is one of law for the court to determine, but when the character of the weapon is doubtful or the question depends upon the manner of its use it is a question for the jury to determine from a description of the weapon, from the manner of its use and the circumstances of the case. [Citations.]”

Applying this classification to the instant case, we find a uniform result from either alternative. We would classify the weapon in the case at bar as being a deadly weapon as a matter of law because of its potential for use as a bludgeon. In our opinion, this weapon and the manner of its use in the instant case admit only one conclusion; that the weapon is deadly as a matter of law. Alternatively, let us assume the character of the weapon is doubtful so that the manner of its use is an issue for determination by the trier of fact. We would then be obliged to affirm the factual result reached by the trial court to the effect that the device here was a deadly weapon. Definitely we cannot say that the evidence does not support this factual determination beyond reasonable doubt.

For these reasons the judgments appealed from are affirmed.

Judgments affirmed.

McGLOON and O’CONNOR, JJ., concur.


author: Mr. JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HARRY KELLER et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 79-1534, 79-1820 cons.
    Opinion filed September 4,1981.

      James J. Doherty, Public Defender, of Chicago (Emily Eisner and Aaron L. Meyers, Assistant Public Defenders, of counsel), for appellant Harry Keller.
    Edward M. Genson, of Chicago (Jeffrey B. Steinback, of counsel), for appellant Jonas McGhee.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, James S. Veldman, and Kevin W. Horan, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Defendants were indicted for six counts of theft, three counts of possession of a stolen vehicle, and two counts of possession of motor vehicle component parts. (Ill. Rev. Stat. 1977, ch. 38, par. 16 — 1(d)(1), and ch. 95JÍ, pars. 4 — 103(a), 4 — 103(d).) Defendants filed pretrial motions to suppress evidence, the hearings of which were held simultaneously with defendants’ trial by the court. Following the presentation of the State’s case and argument, the motions to suppress were denied. Defendants’ motions for directed findings were also denied and defendants rested without presenting evidence. The court found both defendants guilty of all counts and sentenced each defendant to an extended term of 10 years for each theft count and 6 years for possession of stolen vehicles and stolen vehicle components, the sentences to run concurrently.

On appeal, defendants contend: (1) the trial court erred in denying their motions to suppress evidence; (2) they were not proved guilty beyond a reasonable doubt; (3) they were denied fair trials by the conduct of the trial court; and (4) they were improperly sentenced to extended terms.

The evidence presented by the State established the following. On May 4, 1978, at approximately noon, Chicago Police Officers Walls and Pubins were driving in an unmarked squad car near 58th and Ada in Chicago when they saw three men walking from an open commercial garage building at 5821 South Ada. The garage had previously been under police surveillance, and Officer Walls was aware that the owner or lessee had vacated the garage about a month earlier. The three men exited the garage and were standing on the sidewalk. One of the men, known to Officer Walls as Robert Wilson, yelled “police,” and the three ran into the garage. Defendants were identified at trial as the other two men.

The officers drove their squad to the garage door, which was 8 to 10 feet open, and saw the three men run to the rear of the garage. Officer Pubins stood at the front door of the garage and could see a van, a truck, and three cars and motors on the floor of the garage. One of the cars was an Oldsmobile and had its door open and its seats were missing. Another car did not have a front bumper nor its front quarter panels. Officer Pubins saw the three men exit the rear of the garage. Meanwhile, Officer Walls had run through a vacant lot to the rear of the building and saw the rear doors to the garage swing open and the three men run from the garage. Officer Walls grabbed Keller, but McGhee and Wilson jumped a fence and ran toward the front of the garage. As he ran, Wilson dropped a set of keys, one of which fit the front door lock. The garage keys were recovered by Walls. Officer Walls yelled to Pubins that the two men were coming. Pubins saw the two near the front of the garage and ordered them to stop and put their hands on the exterior wall of the building located next door.

Officer Walls arrived at the front of the garage with Keller, saw the others, and ordered Keller to also place his hands on the wall. In response to Officer Walls’ inquiry as to what he was doing in the garage, Keller asked “what garage?” When Officer Walls stated the garage that Keller had run out of, Keller said that he was never in a garage. Other officers arrived and Walls went to the garage to see if any other persons were inside.

From the back door of the garage, Officer Walls could see an Oldsmobile and engines and transmissions in the garage. He entered the garage and saw several late model cars in various stages of dismantlement. He also smelled burnt transmission fluid. Three vehicles which were not totally dismantled were checked by their serial numbers and found to be stolen. They were a 1978 Cougar, a 1976 Pontiac, and a 1978 Oldsmobile. Seven transmissions were found with their identification numbers burned off. Tools and cutting torches were found throughout the garage. The van and a truck in the garage, however, were not stolen. Neither were any of the defendants’ fingerprints found in the garage. After Officer Walls saw the defaced motor numbers, defendants were placed under arrest. The odor of burnt transmission fluid was detected on defendants after their arrests.

Stipulations were entered which established that the three cars found in the garage had been stolen and that the owners did not give consent to any of the three men to possess their cars. Stipulations were also entered which established that the two motor transmissions found in the garage were from two cars which had been recently stolen and which none of the three men had a right to possess.

After the State’s presentation of evidence, defendants rested without presenting evidence in their own behalf. Following argument, defendants’ motions to suppress evidence were denied. The court found defendants guilty as charged and imposed sentences. Defendants appeal.

Opinion

I

Defendants first contend that the trial court erred in denying their motion to suppress evidence. They argue that the entry and search of the garage were without probable cause, and no exigent circumstances existed to justify dispensing with the warrant requirement. The State maintains that defendants lack standing to challenge the admissibility of the stolen vehicles and vehicle parts since they failed to establish a legitimate expectation of privacy. Alternatively, the State submits that even if defendants have standing, the officers properly stopped the fleeing defendants and acted reasonably in investigating the immediate area for the purpose of insuring the officers’ safety and discovering possible criminal behavior.

The standard for appellate review of a motion to suppress is whether the trial court’s ruling was manifestly erroneous. (People v. Brown (1980), 88 Ill. App. 3d 514, 410 N.E.2d 505; People v. Williams (1974), 57 Ill. 2d 239, 311 N.E.2d 681, cert, denied (1974), 419 U.S. 1026, 42 L. Ed. 2d 302, 95 S. Ct. 506.) At trial, defendants sought to suppress evidence of the stolen vehicles and vehicle parts on the ground that Officer Walls entered and searched the garage without probable cause and without a warrant. Their motion was denied on the ground that the garage was a commercial building and that therefore no fourth amendment violation occurred. The court further found that the officers properly pursued the fleeing defendants through the garage and that it does not take much to recognize a car half-dismantled. The court continued that after defendants were detained that “the officers, any officer worth his salt because of exigent circumstances existing, they go into the building. There is probable cause. They have to go inside * * * and explore at that time and determine what is contained in the garage * ° e.”

The State concedes that the court “may have inartfully renderéd [its] finding on the ground of exigent circumstances,” but nevertheless maintains that the motion to suppress was properly denied. Furthermore, the State on appeal does not contend that a search of a garage does not come under the purview of the fourth amendment. In any event such a contention would be untenable. Since the fourth amendment protects people, not places, what a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. Accordingly, the protection afforded by the fourth amendment has been applied to homes, business offices, and stores as well as public telephone booths. (See Katz v. United States (1967), 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507; United States v. Rosenberg (7th Cir. 1969), 416 F.2d 680.) With regard to the court’s finding that the officers pursued defendants into the garage, the evidence adduced at trial plainly establishes that neither officer entered the garage until after defendants were stopped and detained outside the garage.

It is well settled that a police officer, in appropriate circumstances and in an appropriate manner, may approach and stop an individual for a reasonable period of time in order to investigate possible criminal behavior, provided that the officer’s decision to stop is based on specific and articulable facts which, when combined with rational inferences from those facts, reasonably warrant an investigative intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 20-21, 20 L. Ed. 2d 889, 905-06, 88 S. Ct. 1868,1879-80; People v. Grice (1980), 87 Ill. App. 3d 718, 410 N.E.2d 209; Ill. Rev. Stat. 1977, ch. 38, par. 107 — 14.) In determining whether a stop is reasonable, an objective standard is used, namely, whether the facts available to the police officers warrant a man of reasonable caution to believe that the action taken was appropriate. (Terry v. Ohio; People v. Grice.) However, a mere suspicion or hunch is not sufficient. (People v. Jackson (1979), 77 Ill. App. 3d 117, 395 N.E.2d 976.) Numerous decisions have held that flight in the face of approaching officers provides the specific and articulate facts necessary to justify an investigatory stop. E.g., People v. Jackson (1981), 96 Ill. App. 3d 1057, 422 N.E.2d 195; People v. Beacham (1980), 87 Ill. App. 3d 457, 410 N.E.2d 87; People v. Montgomery (1977), 53 Ill. App. 3d 298, 368 N.E.2d 752.

In the instant case, Officers Walls and Pubins observed three men exit from the garage which Walls had understood to be vacant. After exiting, the three men stood on the sidewalk when one of them, Robert Wallace, yelled “police” and the three ran into the garage. Defendants’ flight, coupled with Walls’ understanding that the garage had been vacated a month earlier, amply supported the inference that criminal activity was afoot and justified the officers’ initial detention of defendants for questioning. Compare People v. Beacham.

After stopping defendants, Walls questioned Keller as to what he was doing in the garage. Keller asked “what garage” and, upon further inquiry, stated that he was never in the garage. While arguably defendants’ flight, when considered in conjunction with Keller’s vague and unresponsive answers, may have established probable cause for defendants’ arrest (compare People v. Holdman (1978), 73 Ill. 2d 213, 383 N.E.2d 155; People v. Cribbs (1972), 8 Ill. App. 3d 750, 291 N.E.2d 326; People v. Beall (1976), 42 Ill. App. 3d 452, 355 N.E.2d 756), Walls’ testimony unequivocably establishes that defendants were not arrested until after he saw the defaced motor numbers.

Under the fourth amendment all warrantless searches and seizures are unreasonable except those conducted within a few narrowly defined situations where the circumstances justifying the search outweigh the privacy right. (Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564,91 S. Ct. 2022; Katz v. United States (1967), 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507.) Accordingly, warrantless searches have been justified if they are incident to a lawful arrest (Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685,89 S. Ct. 2034); when it is conducted with probable cause under exigent circumstances (Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826); when it involves a vehicle (Chambers v. Maroney (1970), 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975); or when it is made for administrative purposes to satisfy a special governmental need and necessity outweighs the invasion entailed. (Camara v. Municipal Court (1967), 387 U.S. 523, 18 L. Ed. 2d 930, 87 S. Ct. 1727; see also United States v. Richards (5th Cir. 1981), 638 F.2d 765, 770.) However, it is not constitutionally permissible for the police, absent an emergency, to arrest an individual outside his home and then proceed to conduct a search inside. Vale v. Louisiana (1970), 399 U.S. 30, 26 L. Ed. 2d 409, 90 S. Ct. 1969; Shipley v. California (1969), 395 U.S. 818, 23 L. Ed. 2d 732, 89 S. Ct. 2053.

Relying on Rakas v. Illinois (1978), 439 U.S. 128, 59 L. Ed. 2d 83, 99 S. Ct. 1035, the State initially argues that defendants have no standing to assert a violation of their fourth amendment rights since they failed to show a legitimate expectation of privacy in the garage. The State, however, failed to raise this issue in the trial court at the suppression hearing and has therefore waived this right to challenge the standing of defendants. (People v. Holloway (1981), 86 Ill. 2d 78, 426 N.E.2d 871; People v. Brown (1980), 88 Ill. App. 3d 514, 410 N.E.2d 505; People v. Zeller (1977), 51 Ill. App. 3d 935, 367 N.E.2d 488.) Since we hold that the State has waived the issue of standing, we do not reach the applicability of United States v. Salvucci (1980), 448 U.S. 83, 65 L. Ed. 2d 619, 100 S. Ct. 2547, decided subsequent to the trial court’s ruling herein and which overruled the automatic standing rule of Jones v. United States (1960), 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725.

The State next argues that Officer Walls’ observation prior to entering the garage amounted to plain view and that therefore it was proper for the officers to enter the garage, seize the items and make further observations. The State’s argument is premised on Walls’ testimony that after Kellér stated that he was never in the garage, Walls went to the rear of the garage to see if anyone else was in the building. From there he could see an engine and transmissions in the back, an Oldsmobilte and two trucks. The major flaw in this argument is that plain view, standing alone, is never enough to justify a warrantless seizure. (People v. Rinaldo (1980), 80 Ill. App. 3d 433, 399 N.E.2d 1027; People v. Pakula (1980), 89 Ill. App. 3d 789, 411 N.E.2d 1385; People v. Eastin (1972), 8 Ill. App. 3d 512, 289 N.E.2d 673.) Plain view is not an exception to the warrant requirement but rather is intended to serve only as a means of satisfying the requirement of probable cause. (People v. Pakula.) Consequently, without the simultaneous existence of one of the true exceptions which justify dispensing with the warrant requirement, the warrantless search of evidence in plain view is impermissible. See People v. Pakula; People v. Rinaldo.

Furthermore, the mere presence of automobiles and automobile parts in a garage does not give rise to probable cause that they were stolen. These items are common place in auto-body repair shops and automotive service centers. Considering Officer Walls’ testimony that he did not arrest defendants until after he observed motors with their identification numbers burnt off, smelled the odor of burnt transmission fluid and found a black bag, cutting torches and other tools (all of which he discovered after he entered the garage), and it is apparent that Walls did not consider his initial “observation” sufficient probable cause to arrest defendants. These additional discoveries do not even remotely fall within the doctrine of plain view since they were the result of a thorough search and were not an inadvertent finding.

Nor can the warrantless search be justified on the basis of exigent circumstances. While warrantless entries into private premises are permissible when there is a compelling need for official action and no time to secure a warrant (People v. Annerino (1981), 97 Ill. App. 3d 240, 422 N.E.2d 923; People v. Lewis (1979), 75 Ill. App. 3d 259, 393 N.E.2d 1098), no such emergency existed in the instant case. The State’s argument that an immediate search was necessary to insure their safety is without merit. Defendants were unarmed and already in custody. The officers initially had seen only three individuals exit the garage and then flee back into it. The officers successfully stopped and detained these same three individuals. The fact that the officers were outside the building undercuts any claim that they feared for their personal safety. Additionally, while Walls testified that when he first looked into the garage he was able to see numerous cars and parts, there is not .the slightest suggestion that he detected the presence of an accomplice hiding in the garage. At the point Walls initially peered into the garage, there is no indication that he suspected that the parts were stolen. In any event, absent a clear and present danger that pertinent evidence would be destroyed, the possibility that a confederate was still at large does not justify a warrantless entry. (People v. Vogel (1978), 58 Ill. App. 3d 910, 374 N.E.2d 1152.) Furthermore, the police, should not be able to create their own exigent circumstances by arresting an individual outside and then assert the possibility that a third person may destroy evidence to justify a search of the premises. See Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034; Vale v. Louisiana (1970), 399 U.S. 30, 26 L. Ed. 2d 409, 90 S. Ct. 1969.

It is also significant to note that the evidence seized in the instant case was of a very durable nature. The arrival of additional officers also minimized the possibility that the automobiles and parts would be destroyed or removed. Any danger of destruction could have been readily thwarted by stationing these additional officers at the building’s three entrances until a search warrant was obtained. In light of the ability of the police to eliminate the risk that any evidence would be destroyed or removed, there were no exigent circumstances to justify the warrantless entry.

Finally, the search in the present case cannot be justified on the basis it was incident to a lawful arrest for several reasons. First, it is undisputed that defendants were not arrested until after the search of the garage enabled Walls to discover that the motor numbers had been burnt off. It is axiomatic that an incident search may not precede an arrest and serve as part of its justification. Sibron v. New York (1968), 392 U.S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889; People v. Grogan (1978), 63. Ill. App. 3d 711, 380 N.E.2d 485.

Second, defendants were stopped and detained outside the garage. Even assuming that this initial stop amounted to an arrest, which it did not, the officers would not be justified in subsequently searching the garage. Once an individual is under arrest and is in custody, a search made at another place is simply not incident to the arrest. (People v. Eastin (1972), 8 Ill. App. 3d 512, 289 N.E.2d 673; see also Preston v. United States (1964), 376 U.S. 364, 11 L. Ed. 2d 777, 84 S. Ct. 881.) Third, under Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685,89 S. Ct. 2034, a search incident to an arrest may not extend beyond the arrestee’s person and the area within his immediate control and from which he might gain possession of a weapon or something that could be used as evidence against him. (See also People v. Jackson (1978), 57 Ill. App. 3d 720, 373 N.E.2d 729.) Since defendants were stopped and detained outside the garage, the State cannot reasonably contend that the garage was still within defendants’ immediate control.

Accordingly, we find that the trial court erred in failing to grant defendants’ motion to suppress the evidence.

II

In view of our determination that evidence of the stolen vehicles and vehicle parts should have been suppressed, there is no evidence upon which to sustain defendants’ conviction. Accordingly, we find it unnecessary to consider defendants’ further contentions.

For the reasons stated, we reverse defendants’ convictions.

Reversed.

LORENZ and WILSON, JJ„ concur.


author: Mr. JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE VARELA, Defendant-Appellant.
    First District (1st Division)
    No. 80-245
    Opinion filed September 14,1981.

      James N. Karahalios, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Mark E. Thompson, and Peter J. Vilkelis, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

George Varela and Eloy Ortiz were charged by indictment with armed robbery and three counts of aggravated battery. After a jury trial, both were found guilty of armed robbery and sentenced to seven years in the Illinois Department of Corrections. Defendant Varela appeals.

On appeal, defendant argues that (1) pretrial identification procedures were suggestive and evidence of the identification was therefore admitted improperly; (2) the State failed to lay the proper foundation for the admission of a weapon and analysis results of stains thereon; (3) he was not proved guilty beyond a reasonable doubt; (4) the trial court erred by failing to strike from the presentence report all arrests not resulting in convictions; and (5) his trial counsel was incompetent.

We affirm.

Complainant Earnest Mackey testified that while sleeping in his car on the early morning of February 13, 1978, he was awakened by the sensation of a person’s hand in his pocket. Mackey struggled with his assailant and was cut by a knife on his nose, hand and left cheek. When the assailant backed away, Mackey exited from his car and saw the assailant and another man who had been standing nearby. The two men approached a red Chevrolet. Mackey noted the auto’s license number on a piece of paper.

Mackey drove his car to a nearby corner. He stopped a squad car, told the policemen he had been robbed of about $150 and described his assailants and the car to which they had walked. The policemen directed Mackey to a hospital and proceeded to the area where the incident occurred. Mackey had been at the hospital for approximately 10 minutes when one of the officers arrived and asked Mackey to accompany him outside. Mackey was taken to the squad car. He identified two men in the back seat as the perpetrators of the crime.

At trial, Mackey identified defendant as the man who attacked him. He testified that at the time of the attack, defendant was approximately 5 feet 7 inches tall and weighed 145 pounds. His hair was black and he wore a black leather jacket and brown pants. The other man, whom Mackey identified as co-defendant Eloy Ortiz, was 19 or 20 years old, stood 5 feet 10 inches tall and weighed approximately 165 pounds. Ortiz wore a gray coat and light pants. Mackey gave similar descriptions to police after the incident.

Officer Julio Lucotti testified that he and his partner were stopped by Mackey on the morning in question. They travelled to the area where Mackey said he had been robbed and observed the auto which Mackey had described. A man whom Lucotti identified as Eloy Ortiz was standing at the rear of the car. Ortiz appeared to be pushing the car out of the snow. Another man, identified by Lucotti as defendant Varela, was seated in the driver’s seat. Ortiz was wearing a gray jacket and tan pants. Varela wore a black jacket. When Varela was ordered out of the car, Lucotti saw a knife on the floor. He identified people’s exhibit No. 1 as the knife. When Ortiz was searched, the officers recovered $157. The money was inventoried. Later when the police examined Ortiz’ jacket, they noticed wet, red stains.

The parties stipulated to the results of tests performed by May Ann Mohon, a serologist employed by the Chicago Police Department. The tests indicated that Mackey had type “O” blood and that the coat was stained with type “O” blood. The knife was stained with human blood in too small an amount to determine the type.

Defendant testified that he had been at a party on the day and at the time in question. Ortiz had asked him to help push a car out of the snow. While doing this, police officers arrived and asked defendant if he had any knowledge of a robbery in the area. Defendant replied in the negative. Defendant further testified that he did not have a knife in the car and did not participate in the robbery.

First, defendant contends that evidence of Mackey’s identification of his assailants at the hospital was improperly admitted. He maintains that a single suspect show-up such as that in the case at bar is unnecessarily suggestive and cites People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, as authority for this proposition.

While the court in Manion recognized the suggestive nature of show-up procedures, it did not establish a per se exclusion of the identification evidence. It held that show-ups are permissible and justified where prompt identification was necessary for police to determine whether to continue their search. In fact, an officer has a duty to ascertain whether the victim can identify suspects in custody as those who committed the offense. Manion, citing People v. Elam (1972), 50 Ill. 2d 214, 278 N.E.2d 76.

Evidence of show-up identifications is admissible if it is reliable under the totality of circumstances. (Manson v. Brathwaite (1977), 432 U.S. 98,53 L. Ed. 2d 140,97 S. Ct. 2243; People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313.) In assessing reliability, the following factors must be considered: the witness’ opportunity to view the criminal, the witness’ degree of attention, the accuracy of the witness’ prior description, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Manion, 67 Ill. 2d 564, 571, 367 N.E.2d 1313, 1317, citing Neil v. Biggers (1972), 409 U.S. 188, 199, 34 L. Ed. 2d 401, 411, 93 S. Ct. 375, 382.

Upon examining the record in this case, we conclude that Mackey’s identification at the hospital was reliable. He was able to view his attacker while struggling in the car. The car’s dome light was on. He further observed the men as they crossed the street after the incident. The street was well lit. Mackey apparently paid close attention since his descriptions were very accurate. He identified the accused immediately upon confronting them and the confrontation took place within one hour of the armed robbery. Because the identification was reliable, it was properly admitted.

Second, defendant contends that the blood-stained knife and the serologist’s analysis of the stains were improperly admitted. He argues that no evidentiary foundation was laid linking the knife and stains to defendant or the crime.

The foundation for the admission of evidence may be established through identification by a witness or through establishment of a chain of possession. (People v. Hagen (1978), 63 Ill. App. 3d 944, 380 N.E.2d 954, citing People v. Pagliara (1977), 47 Ill. App. 3d 708, 365 N.E.2d 72.) Here, the foundation was laid through the former means. Mackey testified the knife appeared to be the one used during the robbery. Officer Lucotti testified that he recovered the same knife from the car in which Varela was seated. After the robbery Mackey saw defendant approach this same car. In People v. Jones (1961), 22 Ill. 2d 592, 177 N.E.2d 112, it was held that similar evidence established the relevancy of a weapon and sufficiently connected the weapon to defendant and the crime so as to permit the admission of the weapon into evidence. For these reasons, we find that the knife was properly admitted in the case at bar.

We further find that the serologist’s analysis of the stains on the knife was properly admitted. As noted above, the knife was linked to the defendant and the crime. Mackey had been cut by the knife several times. The analysis of the stains revealed the presence of human blood. Despite the fact that the stains could not be classified according to blood type, we nonetheless find that the test results were relevant and therefore admissible.

Third, defendant argues that he was not proved guilty beyond a reasonable doubt because Mackey’s testimony was not credible. As evidence of incredibility, defendant points to the short period of time during which Mackey viewed his assailants, the absence of blood on his own clothing, and the presence of blood on the clothing of co-defendant Ortiz, whom Mackey stated was at the rear of his car during the robbery.

As noted previously in this opinion, Mackey had an adequate opportunity to view his assailants, and his descriptions given to police immediately thereafter were accurate. Furthermore, the absence of blood on Varela’s clothing does not raise a reasonable doubt of his guilt on the armed robbery conviction. The jury was instructed on accountability. The evidence presented at trial was sufficient to establish defendant’s guilt of armed robbery under this theory. The credibility of witnesses is a matter for the jury’s determination. (People v. Caliendo (1980), 84 Ill. App. 3d 987, 405 N.E.2d 1133.) In this case, we find no reason to usurp this function.

Fourth, defendant contends that arrests not resulting in convictions should have been stricken from the presentence report. He argues the inclusion of this information had a prejudicial effect and he is therefore entitled to resentencing.

The general rule is that prior arrests cannot be considered in determining the sentence. (People v. Williamson (1979), 69 Ill. App. 3d 1037, 388 N.E.2d 240; People v. Kennedy (1978), 66 Ill. App. 3d 35, 383 N.E.2d 255.) Here, however, the record clearly discloses that defendant’s prior arrests were not considered. During arguments on this matter the trial court stated, “I certainly don’t consider a previous arrest a matter in aggravation.” Thus, defendant’s sentence was not based on incompetent evidence and resentencing is not required. People v. Kirkwood (1980), 82 Ill. App. 3d 252, 402 N.E.2d 677.

Defendant also contends that he was denied effective assistance of counsel. He cites the following instances as evidence of incompetency: (1) the failure to file a post-trial motion, (2) failure to object to the identification procedures, (3) failure to object to the introduction of the knife into evidence, and (4) the stipulation to the analysis of the blood stains on the knife.

Initially, we note that a post-trial motion was filed by defendant’s counsel on behalf of both defendant and co-defendant. Thus, counsel was not incompetent in this regard. Furthermore, we have considered on their merits the issues concerning the identification procedures, the admission of the knife, and the analysis of the blood stains thereon and have found them to be without merit. Since motions to suppress or objections on these matters would have failed, counsel cannot be branded as incompetent. People v. Townsend (1977), 47 Ill. App. 3d 789, 365 N.E.2d 110, citing People v. Johnson (1970), 45 Ill. 2d 501, 259 N.E.2d 796.

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

Judgment affirmed.

GOLDBERG and O’CONNOR, JJ., concur.


author: Mr. JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARNELL DAVIS, Defendant-Appellant.
    First District (1st Division)
    No. 80-992
    Opinion filed September 14, 1981.
    Ralph Ruebner and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr and Iris E. Sholder, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE O’CONNOR

delivered the opinion of the court:

Following a bench trial, defendant was convicted of attempt murder, two counts of aggravated battery, and intimidation. (Ill. Rev. Stat. 1979, ch. 38, pars. 8 — 4, 9 — 1, 12 — 4(a) and (b)(1) and 12 — 6(a)(1).) He was sentenced to a term of 6 years in the Illinois Department of Corrections. The issue on appeal is whether the aggravated battery convictions arose out of the same incident as the attempt murder conviction, mandating reversal of the aggravated battery convictions. Stated otherwise, the issue is where the accused inflicted multiple wounds on his victim in succession, has he committed one criminal act or multiple offenses. No question is raised regarding the identification of defendant as the assailant.

The victim testified that he heard two rapid gunshots and felt a burn on the left side of his face and his left forearm where he was wounded. Defendant argues that the aggravated battery convictions and the attempt murder conviction arose out of the same incident or course of conduct and that both convictions for the lesser included offense of aggravated battery must be vacated.

The State concedes that one of the aggravated battery convictions should be vacated as a lesser included offense of attempt murder. But it argues that the other conviction may stand as a separate act of aggravated battery.

The general principle governing this case was enunciated by our supreme court in People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, cert, denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273:

“Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. ‘Act,’ when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.”

In general, “[t]he interval of time between acts is an important consideration in determining whether or not the acts are ‘a series of incidental or closely related acts’ for the purposes of applying King.” (People v. Connor (1980), 82 Ill. App. 3d 652, 660, 402 N.E.2d 862.) If the acts giving rise to aggravated battery and attempt murder convictions are “closely related,” a conviction for only one offense is proper and the conviction of the lesser included offense of aggravated battery must be vacated. People v. Connor.

In People v. Connor, the defendant was convicted, inter alia, of aggravated battery and attempt murder. He had fired two bullets striking the victim in the head and then hit her in the back with a third shot as she tried to run away. The court held that the shots were closely related and, under People v. King, vacated the aggravated battery conviction. In People v. Brock (1978), 64 Ill. App. 3d 64, 68, 380 N.E.2d 1102, the victim was shot once in the chest and again in the neck as he crawled away. Again the court held that the two shots arose from a single incident and vacated his conviction for aggravated battery as a lesser included offense of the attempt murder conviction. In People v. Williams (1978), 62 Ill. App. 3d 966, 975, 379 N.E.2d 1268, defendant, who shot his robbery victim three times in the back of the head, was convicted, inter alia, of aggravated battery and attempt murder. The aggravated battery conviction was reversed because the shooting constituted a single act of the defendant which could not be used to support convictions for more than one offense. Similarly, in People v. Walker (1975), 26 Ill. App. 3d 955,960, 326 N.E.2d 63, the defendant was convicted of aggravated battery and attempt murder where he shot a police officer in the head, then, as the officer sought aid, pursued him and shot him in the left foot. The appellate court found that the same action of shooting the officer had resulted in both convictions and vacated the aggravated battery conviction.

Conversely, in People v. Mays (1980), 81 Ill. App. 3d 1090, 1101-02, 401 N.E.2d 1159, we upheld three convictions based on charges of aggravated battery for causing great bodily harm, aggravated battery causing permanent disability, and aggravated battery with a deadly weapon. The defendant there shot at the victim several times, grazing him under the neck with three bullets, and, when the victim fell, shot him twice more. The victim sustained two wounds reflective of one injury in the left sub-mandibular region, the left side of his neck was grazed, and the bridge of his nose was injured. We stated that it appeared from the record that all three aggravated battery convictions arose “ ‘from a series of * * * closely related acts’ encompassed in the conduct of pulling the trigger to the gun at least three separate times.” Under the test of People v. King, we therefore reasoned that the offenses were based on separate acts, and each required proof of a different element. However, in Mays there was not a consideration of the element of time between each instance when the victim was shot.

Another important factor in considering whether the acts give rise to one or multiple offenses is whether any act or event intervened between the successively inflicted injuries. Thus, in People v. Myers (1981), 85 Ill. 2d 281, 288-89, 422 N.E.2d 620, our supreme court upheld two convictions (one for attempt murder and one for armed violencé based on aggravated battery), where defendant stabbed his victim twice in the neck, but committed an intervening act of violence on a third person. This court in People v. Childs (1978), 62 Ill. App. 3d 924, 926, 379 N.E.2d 721, upheld two aggravated battery convictions and an attempt murder conviction, but vacated a third aggravated battery conviction as based on the same act as the attempt murder. The defendant in Childs shot his victim in the face, then gagged and robbed him, shot him a second time in the face, then took his coat and shoes which were lying nearby. The defendant then told the victim he was going to kill him, ostensibly to prevent discovery of the crime, and shot him again in the back of the head. We held that each shooting constituted an offense which was clearly divisible from the others, separated as they were by a time interval during which defendant performed other tasks related to his criminal objective. However, in People v. Smith (1978), 59 Ill. App. 3d 480, 493, 375 N.E.2d 941, we reached the opposite result. There, defendant shot each of three victims once, and he later shot the second victim again. He was convicted of two counts of murder based on the first and third victims and aggravated battery and attempt murder of the second victim. We vacated the aggravated battery, holding that the same actions of the defendant resulted in both the aggravated battery and the attempt murder conviction.

The above discussion suggests that the decisions previously reached concerning the applicability of multiple convictions under the facts presented have not been uniform. However, we believe that the time interval between the injuries inflicted and the presence of intervening events are of considerable significance. See People v. Cross (1980), 84 Ill. App. 3d 868, 873, 406 N.E.2d 66.

Further, in the instant case, we find the prosecutorial intent as reflected by the text of the multi-count information filed to be one additional factor of significance. The single attempt murder information charges that defendant attempted to kill the victim by shooting him with a gun. The aggravated battery charges are based on his shooting the victim both in the arm and left cheek. All three charges encompass the same acts. See People v. Lerch (1972), 52 Ill. 2d 78, 81, 284 N.E.2d 293.

We conclude that the two injuries defendant inflicted on the victim by rapidly shooting him twice in succession without any intervening acts or events constitute parts of the same physical act and, under People v. King, therefore are required to vacate both aggravated battery convictions as lesser included offenses. The attempt murder conviction is affirmed.

The judgment of the circuit court is affirmed in part and vacated in part.

Affirmed in part, vacated in part.

GOLDBERG and McGLOON, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLEOTHA COX, Defendant-Appellant.
    First District (1st Division)
    No. 80-1276
    Opinion filed September 14,1981.

      James J. Doherty, Public Defender, of Chicago (Mary Ann Wilson and Suzanne M. Xinos, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Joel A. Stein, and Constantine.N. Bastounes, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE O’CONNOR

delivered the opinion of the court:

After a jury trial, defendant Cleotha Cox was found guilty of aggravated battery and armed violence based on the underlying felony of aggravated battery (great bodily harm) and sentenced to concurrent sentences of 7 years for the armed violence conviction and 5 years for the aggravated battery conviction. On appeal, defendant contends that the trial court erred (1) in refusing to allow the defense to perfect impeachment by omission of Barbara Haynes; (2) in denying the defense the introduction of a certified copy of a misdemeanor theft conviction for the purpose of impeaching Barbara Haynes; and (3) in refusing jury instructions tendered by the defense dealing with the theories of self-defense and accident.

Barbara Haynes testified that in the late evening hours of August 23, 1978, she was visiting her mother, Emma Haynes, at 3900 West Roosevelt Road in Chicago, Illinois. At that time, Barbara Haynes saw and spoke to defendant Cleotha Cox outside a pool room located at 3902 West Roosevelt Road. Barbara Haynes had known defendant for 3 or 4 years and had lived with him for 3 years at 4425 North Clifton Street. After their relationship ended in May 1978, defendant moved to 920 South Independence Avenue, where he was living on August 23,1978.

Upon seeing defendant, Barbara Haynes told him she wanted to be left alone. Defendant told her that she was no good and began to talk about her. Barbara Haynes then “patted her behind” to him. Defendant grabbed her and told her “not to be telling him to kiss my behind.” Defendant then pushed her up against some burglar bars and they began to strike each other. During the struggle, Barbara Haynes bit defendant’s left hand. Barbara Haynes was knocked down in a vacant lot nearby. While she was lying on the ground in the lot, defendant took a tire iron from his car.

Emma Haynes had witnessed the argument between defendant and her daughter and called the police. The police arrived and told everyone to go home.

At approximately 2 p.m. the next afternoon, Barbara Haynes testified that she and her current boyfriend, Charles Burns, went into the pool room located at 3902 West Roosevelt Road. She and Burns played a game of pool. Defendant then entered the pool room and in a loud voice asked Burns if Barbara Haynes was his lady. Barbara Haynes testified that defendant then brushed up against Burns on his way to the washroom. Barbara Haynes went upstairs to tell her mother of defendant’s presence. When she came back to the pool room, defendant and Burns were having an argument. The owner of the pool room, Pierce Johnson, told defendant and Burns to take their argument outside. Burns, Barbara Haynes and defendant then left the pool room.

Barbara Haynes and Burns walked to the corner of Roosevelt Road and Springfield Street, where they saw defendant standing on Springfield Street. Barbara Haynes testified that defendant approached Burns and touched him on the shoulder. The two men began arguing and started to struggle. Defendant then pulled out a pistol from his right pocket. Burns raised his left hand to block the shot. The gun discharged, and Burns was shot in the wrist. After this shot was fired, defendant grabbed Burns around the neck with his left hand. While holding Burns in a headlock, defendant had the gun in his right hand and pointed towards Burns’ face and throat. While Burns’ hands were at his side, two more shots were fired, striking Burns in the neck. After these shots were fired, Burns was released and fell to the ground. Barbara Haynes further testified that defendant then knelt on one leg and pointed the gun at Burns’ head. At this point Barbara Haynes shouted, “Don’t shoot him anymore.” Defendant then ran across a vacant lot to his car. Defendant was subsequently arrested near the corner of Springfield and Fillmore Streets.

Defense counsel attempted to introduce Barbara Haynes’ 1974 conviction for misdemeanor theft. The trial court ruled the evidence inadmissible.

During cross-examination, defense counsel attempted to impeach Barbara Haynes’ testimony by asking her if she had told the police about the facts she had just testified to on direct examination. A side bar was had to determine the scope of the foundational questions defense counsel would be permitted to ask in his attempt to impeach the witness. The court stated that while the area defense counsel was attempting to inquire into was somewhat remote to the legal issues before the court, the inquiry would be helpful in determining defendant’s state of mind and therefore allowed defense counsel latitude in his attempt to impeach Barbara Haynes.

Defense counsel then asked Barbara Haynes if she told Officer Franklin about defendant brushing up against the victim in the pool room and about defendant touching the victim’s shoulder on the street. Barbara Haynes was asked if she told Officer Franklin that defendant knelt down and pointed the gun at Burns’ head after defendant had shot Burns. She was also asked whether she told Officer Franklin that defendant held the victim in a headlock. She replied that she did not recall what she told Officer Franklin except for the fact she did tell him about the headlock.

Defense counsel then asked her if she mentioned these facts to any other police officers. She replied that she did not recall whether she told the police about the brushing or touching incidents, but she did recall that she mentioned the headlock incident to Officer Franklin and the kneeling down incident to someone at the police station. Subsequently, the State called Officer Franklin to testify. Defense counsel declined to question him when given the opportunity for cross-examination.

Prior to the defense beginning its case-in-chief, the State made a motion in limine to prevent the defense from calling Officer McElrath for the purpose of perfecting an impeachment of Barbara Haynes’ testimony. The State argued that the foundational questions asked of her referred specifically to Officer Franklin. The State also argued that unless defense counsel called all the officers she spoke to it would raise an unfair inference that if she did not say something to McElrath she did not say it at all.

After argument, the court allowed McElrath’s testimony to be heard first outside the presence of the jury. Officer McElrath testified that Barbara Haynes told him that defendant brushed up against the victim in the pool room and that the two men argued there. He further testified as follows:

“Q. During the course of your conversation with Barbara Haynes that day, Officer, did she at any time tell you that after the first shot was fired Mr. Cox got Mr. Burns in a headlock and that the other shots were fired after that?
A. No, sir, I don’t recall her telling me that.
Q. Officer, did she at any time during the course of your conversation with her tell you that after the shots had been fired Mr. Cox knelt down on one knee and pointed the gun at Mr. Burns and that she begged Mr. Cox not to shoot him anymore?
A. No, sir, I don’t recall her telling me that either.”

McElrath was not questioned as to the touching incident. On cross-examination, the officer testified that his report, which did not include these matters, was just a summary and not based on a detailed question and answer session. He further testified that Barbara Haynes spoke about the incident with other officers that day and also that it was possible that she told him about the headlock and defendant getting down on one knee but that he just did not recall.

After voir dire examination of McElrath, the court stated that McElrath’s testimony as to the brushing and arguing incidents was not impeaching because he testified that she did in fact tell him about these incidents. The court also stated that the question of whether she told anyone about the headlock was not asked of her on cross-examination, hence it could not be asked of McElrath in the jury’s presence. The record shows that defense counsel did ask her if she told Officer Franklin or any other police officer about the headlock, but she was never asked if she told Officer McElrath about it.

On direct examination in the presence of the jury, the court allowed defense counsel to question Officer McElrath only as to whether Barbara Haynes told him about defendant kneeling down and pointing the gun. McElrath again testified that he did not recall what she told him and he also stated that his police report did not indicate whether Barbara Haynes saw defendant kneel down.

Chicago Police Officer John Rawski testified that pursuant to a radio broadcast he apprehended defendant’s vehicle as it was traveling northbound on Springfield Street at a high rate of speed. Upon stopping the vehicle, the officer saw defendant’s bloodstained pants leg and waistband. Defendant was searched and a gun was recovered, along with three expended shells and two live rounds.

After the shooting, the police arrived at the scene. Chicago Police Officer Everett Franklin testified that he responded to a flash message at 2:15 p.m. on August 24, 1978, pertaining to an injured man in the vicinity of 3900 West Roosevelt Road. Upon reaching the scene, he observed Burns, bleeding from the mouth and leaning on Barbara Haynes. Franklin attempted to speak with Burns; however, Burns was incoherent due to the nature of his wounds. After speaking with Barbara Haynes, a radio message was dispatched to locate defendant. No questions were asked of Franklin on cross-examination.

Burns testified that he knew about the previous argument between defendant and Barbara Haynes. When Burns saw defendant in the pool room, they got into an argument. Burns testified that after a verbal exchange defendant brushed up against him. Defendant, Barbara Haynes and Burns then left the pool room and Burns and defendant “got to tussling.” Burns stated that defendant pulled out a gun and Burns threw his left hand up, trying to grab the weapon. Defendant grabbed Burns behind the neck and shot him through the throat, the gun discharging three times. Burns fell to the ground and heard Barbara Haynes tell defendant not to shoot anymore.

Emma Haynes testified that she saw defendant and Barbara Haynes having a physical altercation in the early morning hours of August 24, 1978, and called police. Later that day, at 2 p.m., she was at home when Barbara Haynes came to her apartment. A short time later, Emma Haynes went downstairs. After an argument between the two men, defendant reached into his pocket, pulled the gun and, when Burns tried to grab it, the gun discharged and defendant grabbed Burns around the neck with his left arm, shooting him. She observed Burns fall to the ground and defendant kneel down and put the gun to Burns’ head.

Defendant testified that when he approached Barbara Haynes at 3900 West Roosevelt Road on August 23,1978, she “patted her behind” to him. After he asked her why she was doing that, she began to scream and cuss. He stated that Barbara Haynes grabbed his collar and tore his shirt off. Defendant pushed her down and Barbara Haynes bit his left thumb. While Barbara Haynes was on the ground, he began to strike her. However, his right hand hit the concrete instead, whereupon Barbara Haynes released him. The next day his right hand was swollen and he “couldn’t bear to touch anything hardly with it.”

Defendant further testified that on the afternoon of August 24, 1978, he left his home to go to see a doctor at a clinic. He stopped off to see his friend Pierce Johnson, owner of a pool room at 3902 West Roosevelt Road. He saw Barbara Haynes and Burns in the pool room, standing at the end of the pool table. He observed Burns pick up a billiard ball and walk towards defendant while looking at defendant and Johnson. Burns eventually put the ball down and left with Barbara Haynes. Defendant stated that he stayed in the pool room for another 3 to 4 minutes, talking to Johnson, who told him not to get into any trouble.

Defendant testified that after leaving the pool room he saw Burns, Barbara Haynes and Emma Haynes about 40 feet off the corner of Springfield Street. Defendant walked up to Burns and asked him if Barbara Haynes was his girlfriend. Burns replied that she was. Defendant then said that he would like Barbara Haynes “to stay out of his face or start messing.” Burns stated that Barbara Haynes could do anything she wanted to do. Defendant said that he wished to be left alone. Defendant testified that at this point Burns said, “Look, we can get it on now” and started moving around as if he wanted to box. Defendant told Burns that he did not have anything against him and that there was no reason for them to be fighting. Defendant then pulled a gun out of his pocket. He waved the gun across his body with his finger on the trigger hoping Burns would walk away.

Defendant testified that something drew his attention away from Burns and, while he looked off, the victim grabbed for the gun in defendant’s right hand and the gun went off. The two men scuffled and the gun was about waist high when it went off again. Burns had both hands on defendant’s right hand each of the three times the gun discharged. When Burns began “loosening up” after being shot, defendant grabbed the back of Burns’ neck and pulled it back because it had rolled over. He then released Burns, put the gun in his back pocket and fled the scene. Throughout the scuffle, defendant held the gun with his finger on the trigger.

Pierce Johnson testified that after defendant’s arrival in the pool room, Burns and Barbara Haynes entered and began to shoot a game of pool. During the game, someone shouted “What are you looking at?” and defendant replied, “You all.” Johnson testified that Barbara Haynes left the pool room and Burns picked up a billiard ball and a cue stick and started toward the door with them. Johnson then told Burns and Barbara Haynes to leave and they did so.

Defendant first contends that the trial court erred in refusing to allow the defense to perfect impeachment of Barbara Haynes by omission when it (1) limited Officer McElrath’s testimony concerning the omitted statements of Barbara Haynes and (2) instructed the jury to disregard certain cross-examination questions asked of Barbara Haynes.

We find that the trial court did not err in refusing to allow the defense to perfect the impeachment of Barbara Haynes through the testimony of Officer McElrath because a proper foundation had not been laid for such impeachment.

The latitude to be afforded in cross-examination of witnesses rests largely in the trial court’s discretion and, absent a showing of abuse of that discretion, its determination will not be disturbed on appeal. (People v. Brown (1980), 91 Ill. App. 3d 582, 414 N.E.2d 1165.) “Before a witness may be impeached by a prior inconsistent statement, it is required that a proper foundation have been established by directing the attention of the witness to the time, place and circumstances of the statement, as well as to the substance of the statement in order to avoid unfair surprise and to give the witness an opportunity to explain.” (People v. Smith (1980), 78 Ill. 2d 298, 304-05, 399 N.E.2d 1289.) However, in People v. Henry (1970), 47 Ill. 2d 312, 265 N.E.2d 876, the formal foundation requirements were relaxed because those requirements were substantially satisfied. In Henry, the witness was asked whether she had had a prior conversation with the impeacher specifically regarding the statement she had given to the police during their investigation of the subject crime. There, the witness was alerted to the substance of the remark and to the identity of the person to whom it was allegedly made and therefore the purposes of the foundation requirements were satisfied.

However, in the instant case Barbara Haynes was only asked if she had mentioned certain facts regarding the incident to Officer Franklin. Because she was not asked about any conversation she had with Officer McElrath, there was no foundation laid for impeachment of Barbara Haynes through the testimony of Officer McElrath. (People v. Ellis (1976), 41 Ill. App. 3d 377, 354 N.E.2d 369.) Furthermore, despite the lack of foundation for Officer McElrath’s testimony, the trial court did allow the officer to be questioned concerning defendant kneeling and pointing the gun at Burns’ head.

We find that the trial court gave defense counsel wide latitude in his attempt to impeach Barbara Haynes and that the court did not err in refusing to allow defense counsel to perfect the impeachment of Barbara Haynes through Officer McElrath.

Defendant also argues that the trial court erred by instructing the jury to disregard certain cross-examination questions asked of Barbara Haynes. Specifically, defendant claims that the jury was erroneously instructed to disregard questions asked of her regarding whether she had told Officer Franklin that defendant brushed up against Burns and whether defendant touched Burns on the shoulder just before the shooting. We disagree.

During cross-examination of Barbara Haynes, she stated that she did not recall whether or not she told Officer Franklin that defendant brushed up against Burns and whether defendant touched Burns on the shoulder just before the shooting.

If the witness states that he cannot remember making the statement, the prior statement must be proved. (L. D. Brinkman & Co.-Midwest v. National Sponge Cushion Co. (1979), 76 Ill. App. 3d 683, 394 N.E.2d 1221; Rigor v. Howard Liquors, Inc. (1973), 10 Ill. App. 3d 1004, 295 N.E.2d 491; People v. Williams (1969), 105 Ill. App. 2d 25, 245 N.E.2d 17; Dunkelberger v. Hopkins (1964), 51 Ill. App. 2d 205, 200 N.E.2d 905; Cleary and Graham, Handbook of Illinois Evidence §613.3 (3d ed. 1979).) Here, defense counsel did not ask Officer Franklin any questions on cross-examination and did not call Franklin in order to prove up Barbara Haynes’ alleged omissions. Because defense counsel did not introduce evidence to prove up her alleged omissions, the trial court properly struck the cross-examination regarding the issue and instructed the jury to disregard it. See Danzico v. Kelly (1969), 112 Ill. App. 2d 14, 250 N.E.2d 801.

Defendant’s second contention is that the trial court erred in refusing to allow his impeachment of Barbara Haynes with her prior conviction for misdemeanor theft; she had been convicted in 1974. The trial here took place in April 1980.

People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, sets forth the fundamental rule of impeachment of a witness by a prior conviction. It requires that the conviction be for an offense punishable by imprisonment in excess of one year, or, alternatively, that the offense involve dishonesty or false statement regardless of the punishment. A prior misdemeanor theft conviction is admissible for purposes of impeachment. (People v. Spates (1979), 77 Ill. 2d 193, 395 N.E.2d 563; People v. Jackson (1979), 79 Ill. App. 3d 698, 398 N.E.2d 959.) However, it is the province of the trial court to weigh the probative value of a conviction for misdemeanor theft against the potential for unfair prejudice which might result and, in the appropriate case, refuse to admit evidence of a conviction. (People v. Spates.) The various factors to be considered are: the nature of the crime, the nearness or remoteness in time of the conviction to the present trial, the subsequent career of the person, and whether the crime was similar to the one charged. (People v. Montgomery.) The balancing of considerations must necessarily differ when the witness to be impeached in a criminal trial is not the defendant. People v. Thomas (1978), 58 Ill. App. 3d 402, 374 N.E.2d 743; People v. Jacobs (1977), 51 Ill. App. 3d 455, 366 N.E.2d 1064.

Here, the trial court did not weigh the probative value of the evidence and the danger of unfair prejudice. The trial court did not exercise its discretion because it considered the misdemeanor theft conviction inadmissible for purposes of impeachment. The Illinois Supreme Court had not yet decided Spates. However, applying the discretionary test of Montgomery to the facts here, we find that the probative value of the conviction is not substantially outweighed by any prejudice to the witness. She is not on trial for any crime, and the jury would use her conviction only to question her credibility. On these facts, the decision by the trial court to exclude Barbara Haynes’ prior misdemeanor theft conviction was an abuse of discretion.

However, this is not a case where during the course of the trial the credibility of the witness sought to be impeached by a prior conviction is repeatedly pitted against that of the defendant. (See People v. Thomas.) Barbara Haynes was not the only eyewitness and her testimony and that of Burns and Emma Haynes did not differ substantially regarding the incident. Thus, although the exclusion of Barbara Haynes’ prior conviction for misdemeanor theft was error, we find that error harmless beyond a reasonable doubt.

Defendant’s final contention is that the trial court erred in (1) refusing defendant’s tendered IPI instruction regarding the issue of self defense and (2) refusing two instructions tendered by defendant regarding the issue of accident.

Defendant tendered Illinois Pattern Jury Instruction, Criminal, No. 24.06 (1968), which states: Justifiable use of force is an affirmative defense (Ill. Rev. Stat. 1979, ch. 38, par. 7 — 14; People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31) which requires that defendant must present some evidence thereon unless the State’s evidence raises the issue. (111. Rev. Stat. 1979, ch. 38, par. 3 — 2; People v. Bratcher.) In addition, a defendant has the right to have the jury instructed on the law applicable to a particular set of facts even if there is only slight evidence relating to defendant’s theory of the case. People v. Kalpak (1957), 10 Ill. 2d 411, 140 N.E.2d 726; People v. Carmack (1977), 50 Ill. App. 3d 983, 366 N.E.2d 103; People v. Kucala (1972), 7 Ill. App. 3d 1029, 288 N.E.2d 622.

“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.
However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.”

Because the affirmative defense was not raised by the State’s evidence, defendant had to present some evidence to raise the issue of self defense. However, even if defendant’s version of the incident is accepted, we find that no evidence of self defense was presented. Defendant stated that Burns began to move around as though he wanted to box; he also stated that Burns was unarmed and did not strike defendant. In addition, defendant testified that he pulled out his gun to scare Burns away. Defendant presented no evidence that during the scuffle he fired the gun because he believed that amount of force was necessary to prevent injury to himself. Because no evidence of self defense was presented at trial, the trial court properly refused to instruct the jury on the issue. People v. Bratcher.

Defendant also tendered the following two instructions, both of which the trial court refused:

“If from your consideration of all the evidence you find that on each occasion the gun discharged either by accident or as the result of acts performed by someone other than the defendant then you should find the defendant not guilty.
If from your consideration of all the evidence you find that on each occasion the gun discharged either by accident or as the result of acts performed by someone other than the defendant, then you should find that the firing of the gun was not an act performed by the defendant, and that the results of the gun being fired were not knowingly and intentionally caused by the defendant.”

An instruction on misadventure or accident simply tells the jury that the defendant must be found not guilty if the requisite mental state is lacking to establish the particular crime with which the defendant is charged. (.People v. Witherspoon (1973), 55 Ill. 2d 18, 302 N.E.2d 3.) This is an inverted way of instructing the jury as to the elements of the crime and instructing the jury that the burden of proving beyond a reasonable doubt every material allegation of the offense rests upon the State. (People v. Witherspoon.) Because the jury in the instant case was properly instructed as to the State’s burden in proving the elements and the requisite mental states of the crimes charged before defendant could be found guilty, the instructions regarding accident or misadventure were not required. People v. Witherspoon; People v. Nutall (1980), 91 Ill. App. 3d 758, 415 N.E.2d 628; People v. Kelly (1975), 24 Ill. App. 3d 1018, 322 N.E.2d 527.

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

Judgment affirmed.

GOLDBERG and McGLOON, JJ., concur.