{ "id": 5481114, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERNESTO GARCIA, Defendant-Appellant", "name_abbreviation": "People v. Garcia", "decision_date": "1981-12-30", "docket_number": "No. 79-2025", "first_page": "779", "last_page": "785", "citations": [ { "type": "official", "cite": "103 Ill. App. 3d 779" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "361 N.E.2d 861", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "46 Ill. App. 3d 899", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2975398 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/46/0899-01" ] }, { "cite": "411 N.E.2d 1047", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "89 Ill. App. 3d 395", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5540495 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0395-01" ] }, { "cite": "394 N.E.2d 72", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "75 Ill. App. 3d 487", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3276248 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/75/0487-01" ] }, { "cite": "415 N.E.2d 1202", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "92 Ill. App. 3d 322", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5533340 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/92/0322-01" ] }, { "cite": "427 N.E.2d 955", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "100 Ill. App. 3d 1033", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5496660 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/100/1033-01" ] }, { "cite": "422 N.E.2d 627", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "85 Ill. 2d 261", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5470220 ], "weight": 2, "pin_cites": [ { "page": "278" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0261-01" ] }, { "cite": "418 N.E.2d 6", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "93 Ill. App. 3d 1071", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3135770 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/93/1071-01" ] }, { "cite": "364 N.E.2d 577", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "49 Ill. App. 3d 553", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5638979 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/0553-01" ] }, { "cite": "427 N.E.2d 229", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "100 Ill. App. 3d 901", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5495716 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/100/0901-01" ] } ], "analysis": { "cardinality": 713, "char_count": 14311, "ocr_confidence": 0.854, "pagerank": { "raw": 1.5008455191895734e-07, "percentile": 0.6656345601616156 }, "sha256": "263d193eebebdd450e15386750716fb3d4d8ef1e8f965d8437a9abedfeebe872", "simhash": "1:fbc6eccf3e0b98b9", "word_count": 2385 }, "last_updated": "2023-07-14T15:16:39.830915+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERNESTO GARCIA, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McGILLICUDDY\ndelivered the opinion of the court:\nFollowing a jury trial the defendant, Ernesto Garcia, was convicted of three counts of aggravated battery and one count of armed violence. The defendant was found not guilty of attempt murder. The trial court merged the three counts of aggravated battery into the armed violence count and entered judgment on this latter count and sentenced the defendant to six years imprisonment.\nOn appeal the defendant contends (1) that he was not proved guilty of armed violence beyond a reasonable doubt since the State did not prove beyond a reasonable doubt that he did not act in self-defense; (2) that the trial court erroneously denied his motion to dismiss the charge of armed violence; (3) that the trial court improperly limited cross-examination; (4) that he was denied a fair trial because the trial court limited his closing argument; and (5) that certain evidence was improperly excluded.\nRamon Rios, age 20, testified that on November 7,1978, he lived with his family at 1845 North Sawyer in Chicago. At approximately 3 p.m., he drove Ruban Granica, a friend from high school, to the apartment of Ruban\u2019s estranged wife, Ebby. Ramon went to the door and spoke to Ebby\u2019s son. Thereafter, Ebby and her two children entered Ramon\u2019s car, and Ramon drove them to the home of Ebby\u2019s parents which was located on the same block as Ramon\u2019s home.\nThe following evening at approximately 7 p.m., Ramon was at the home of his brother-in-law who also lived on the 1800 block of North Sawyer. Ramon\u2019s girlfriend (now his wife), Theresa Reibeling, joined him. Subsequently, the couple left the house and began walking home. Ramon observed the defendant, Ebby, and a third man approach them. Ramon and Theresa stopped two or three steps south of a gangway. After asking \u201cAre you Ramon?\u201d the defendant pulled a revolver from his waistband.\nRamon pushed Theresa to the side and ran east into the gangway. Ramon heard one shot and brushed against both sides of the gangway. He heard a second shot which hit him in the right upper shoulder and exited through his chest. Ramon fell and the defendant ran. The wound resulted in scarring and the partial loss of the use of Ramon\u2019s right arm. Ramon exhibited the entrance and exit scars to the jury.\nRamon denied gesturing as if he were reaching for a gun before the defendant shot him. He stated that he did not own a gun and was not a gang member. Ramon stated that he knew members of the Imperial Gangsters gang and that he had travelled with them. He explained that he meant that he had accompanied gang members on grammar and high school trips. On cross-examination, Ramon agreed that \u201ctravel\u201d also meant \u201cto get high with someone and get in trouble with someone.\u201d\nTheresa Reibeling Rios corroborated her husband\u2019s testimony concerning his encounter with the defendant.\nOfficer John Carney of the Chicago Police Department testified that he wrote in his report concerning the shooting that Ramon and Theresa were sitting in front of his brother-in-law\u2019s house when approached by the defendant.\nEvelyn Garnica, also known as Ebby, testified that on November 7, 1978, Ramon and her husband came to her apartment and forced her and the children into Ramon\u2019s car. Ramon drove them to Ebby\u2019s mother\u2019s house. Ruban and Ebby argued, and Ruban hit her. Subsequently, upon Ebby\u2019s request, Ruban drove her and the children to a doctor\u2019s office. They argued and when Ebby attempted to get out of the car, Ruban slapped her and took her jewelry. Ebby informed the defendant, her boyfriend, of these events.\nThe defendant testified that when Ebby told him what Ramon and Ruban did to her, he bought a gun. The following evening the defendant, Ebby and Rlas Manfreddy went to Ramon\u2019s home to inquire of Ruban\u2019s whereabouts. The defendant observed Ramon and Theresa sitting on a neighbor\u2019s porch. The defendant approached Ramon and asked if Ramon had gone to the defendant\u2019s home. Ramon responded, \u201cyes, so what\u201d and pulled down the zipper on his sweater. Ramon put his hand inside the sweater. The defendant believed that Ramon was reaching for a gun. The defendant pulled out his gun and shot Ramon. Ramon then ran. The defendant also ran and accidentally pulled the trigger on his gun a second time. The defendant subsequently turned himself in to the police.\nThe defendant\u2019s version of the shooting was corroborated by Ebby and Manfreddy.\nThe parties stipulated that if a Dr. Raquero was called as a witness, he would testify that Ramon sustained a gunshot wound in the right shoulder with an entrance in the uppermost aspect of the right arm posteriorly on the deltoid area and the wound exit was localized in the anterior chest.\nI\nThe defendant first argues that the State failed to prove beyond a reasonable doubt that he did not act in self-defense. The issue of self-defense is a question of fact to be resolved by the trier of fact. This factual finding will not be disturbed on review unless it is so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt of guilt. People v. Perez (1981), 100 Ill. App. 3d 901, 427 N.E.2d 229; People v. Chapman (1977), 49 Ill. App. 3d 553, 364 N.E.2d 577.\n, The defendant contends that the fact that the bullet entered Ramon\u2019s body under the right arm pit corroborates his claim that Ramon turned his right shoulder toward the defendant and appeared to reach for a gun. However, the record does not indicate that the bullet hit Ramon under the right arm pit. It was stipulated that Dr. Baquero would testify that the bullet entered the posterior of the right arm. We cannot say that this testimony is inconsistent with Ramon\u2019s claim that the bullet hit him as he ran down the gangway. Furthermore, the jury had the opportunity to examine the precise locations of the scars and was in the best position to determine whether the location of the scars was consistent with Ramon\u2019s testimony.\nThe defendant also argues that Ramon and Theresa\u2019s testimony was impeached by the police report which indicated that they were on the steps of Ramon\u2019s brother-in-law\u2019s house when the incident occurred. He also points out a few minor contradictions in their testimony. However, slight testimonial discrepancies do not destroy the credibility of a witness but go to the weight of that testimony. People v. Schultz (1981), 93 Ill. App. 3d 1071, 418 N.E.2d 6.\nThe defendant additionally contends that Ramon lied about his association with the Imperial Gangsters. Ramon stated that he travelled with gang members on school trips. On cross-examination Ramon agreed that travel also meant \u201cto get high with someone and get in trouble with someone.\u201d Although defendant. contends this testimony shows that Ramon \u201cdeliberately lied,\u201d one could reasonably conclude that Ramon simply agreed that travel has more than one meaning.\nThe jury heard conflicting testimony concerning the circumstances surrounding the shooting. Ramon and Theresa testified that the defendant produced a revolver and shot Ramon as Ramon fled down a gangway. The defendant, Ebby and Manfreddy testified that the defendant shot Ramon after Ramon gestured as if he were reaching for a gun. After hearing the conflicting testimony and evaluating the parties\u2019 credibility, the jury rejected the defendant\u2019s claim of self-defense. We cannot say that such a conclusion was so unreasonable as to raise a reasonable doubt of guilt.\nII\nThe defendant next contends that the trial court erroneously denied his motion to dismiss the charge of armed violence. A person commits armed violence when, while ar\u00edif\u00e9d with a dangerous weapon, he commits any felony defined by Illinois law. Ill. Rev. Stat. 1979, ch. 38, par. 33A\u20142.\u2019\nThe defendant contends that the armed violence charge, which was based on the felony of aggravated battery, constituted a double enhancement of the penalty for battery. The defendant relies on People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, in which the defendant was charged with armed violence in that while armed with a dangerous weapon, he committed an aggravated battery in violation of section 12\u20144(b)(1) of the Criminal Code of 1961. That section states that a person commits the felony of aggravated battery if he uses a deadly weapon while committing a battery. (Ill. Rev. Stat. 1979, ch. 38, par. 12\u20144(b)(1).) In Haron, our supreme court noted that pursuant to section 12\u20144(b)(1), the offense of battery, a misdemeanor, was enhanced to the offense of aggravated battery, a felony, because of the use of a deadly weapon. The court refused to apply the armed violence statute because:\n\u201cOur review of the language of the statute and the authorities leads us to conclude that the General Assembly did not intend that the presence of a weapon serve to enhance an offense from misdemeanor to felony and also to serve as the basis for a charge of armed violence. In our opinion the requirement of section 33A\u20142 that there be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate offense which is a felony without enhancement by the presence of a weapon.\u201d 85 Ill. 2d 261, 278.\nThe instant case is clearly distinguishable from Har\u00f3n. Here the armed violence charge was based on aggravated battery as defined in section 12\u20144(a) of the Criminal Code of 1961, which states that a person commits the felony of aggravated battery if, in the commission of a battery, he intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement. (Ill. Rev. Stat. 1979, ch. 38, par. 12\u20144(a).) Such an act is always a felony regardless of whether the defendant uses a deadly weapon. Thus, the armed violence charge in the instant case was based on the commission of a felony, and it did not constitute a double enhancement of the penalty for a battery. Therefore, the defendant\u2019s motion to dismiss that charge was properly denied. See People v. Ross (1981), 100 Ill. App. 3d 1033, 427 N.E.2d 955.\nIll\nThe defendant next contends that the trial court improperly limited cross-examination on several occasions. The scope of cross-examination rests within the sound discretion of the trial judge whose restrictions will not be reversed except in a case of a clear abuse of discretion. People v. Hiller (1980), 92 Ill. App. 3d 322, 415 N.E.2d 1202.\nThe defendant first asserts that the trial court improperly prevented Ramon from stating the contents of a conversation he had with Ruban prior to trial. We believe that the court\u2019s ruling was proper since the questions were designed to elicit hearsay testimony.\nThe defendant\u2019s next objection concerns Ramon\u2019s testimony that as he ran down the gangway, his right shoulder touched one house and his left shoulder touched the other house. Defense counsel asked Ramon, \u201cDid you tell that to my representative this afternoon when we interviewed you?\u201d The State\u2019s objection to this question was sustained by the trial court.\nDefendant contends that he was entitled to impeach Ramon by showing the omission of this matter from his earlier statement. A witness\u2019 failure to state a particular fact under circumstances rendering it incumbent upon him to, or likely that he would state such fact, if true, may be shown to discredit his testimony as to such fact. (People v. Svoboda (1979), 75 Ill. App. 3d 487, 394 N.E.2d 72.) We do not believe that Ramon\u2019s failure to describe the manner in which he ran down the gangway in an interview with defendant\u2019s representative impeached his credibility. It is unlikely that Ramon would have mentioned this detail unless the representative specifically asked him about it. Thus, no prejudicial error occurred in this regard.\nDefendant also objects to the following limitation. On cross-examination, Ramon gave two different answers to a question. On redirect Ramon clarified his answer, and on recross, Ramon stated that he had not understood defense counsel\u2019s question. Counsel then asked, \u201cWhat didn\u2019t you understand about the question?\u201d \u201cIs there a particular word you didn\u2019t understand?\u201d The State objected to these questions, and the trial court sustained the objections. In view of the slight probative value provided by the information sought by defense counsel, we cannot say that the court\u2019s ruling was an abuse of discretion.\nFinally, the defendant contends th\u00e1t the trial court improperly limited his attempt to show Theresa\u2019s bias. The trial court sustained objections to the following questions: \u201cIsn\u2019t it true that because of what you think Ernie did, you hate him?\u201d and \u201cYou would like to see Ernie punished wouldn\u2019t you?\u201d The, reason for the court\u2019s ruling was that the questions were argumentative, and we believe that this conclusion was proper.\nIV\nThe defendant also argues that he was denied a fair trial because the trial court limited his closing argument. In his argument defense counsel attempted to define reasonable doubt. The trial court told him that \u201cThe Court will instruct the jury on the law. Confine yourself to the evidence.\u201d\nBecause there is no better definition of reasonable doubt than the words themselves, the concept of reasonable doubt needs no explanation. (People v. Jenkins (1980), 89 Ill. App. 3d 395, 411 N.E.2d 1047.) It is improper for an attorney to attempt to define this concept. (People v. Amos (1977), 46 Ill. App. 3d 899, 361 N.E.2d 861.) Thus, the trial court properly directed counsel to refrain from such an attempt.\nV\nThe defendant\u2019s final argument is that the trial court erroneously prevented him from testifying that Ruban had previously threatened him. Although the court did sustain an objection to a question concerning the threat, defendant was later allowed to testify that he carried a gun because Ruban had threatened him. Thus, there is no factual basis for this argument.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nRIZZI, P. J., and WHITE, J., concur.", "type": "majority", "author": "JUSTICE McGILLICUDDY" } ], "attorneys": [ "George M. Zuganelis, of Chicago, for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr, Adrienne Noble Nacev, and Mark A. Graf, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERNESTO GARCIA, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 79-2025\nOpinion filed December 30, 1981.\nGeorge M. Zuganelis, of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr, Adrienne Noble Nacev, and Mark A. Graf, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0779-01", "first_page_order": 801, "last_page_order": 807 }