{ "id": 3649161, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOMMY G. FLOYD, Defendant-Appellant", "name_abbreviation": "People v. Floyd", "decision_date": "1987-09-02", "docket_number": "No. 5\u201486\u20140040", "first_page": "80", "last_page": "89", "citations": [ { "type": "official", "cite": "160 Ill. App. 3d 80" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "368 N.E.2d 882", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809665 ], "opinion_index": 0, "case_paths": [ "/ill-2d/68/0149-01" ] }, { "cite": "457 N.E.2d 77", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "78" } ], "opinion_index": 0 }, { "cite": "119 Ill. 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App. 3d", "case_ids": [ 8499212 ], "weight": 2, "pin_cites": [ { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/138/0492-01" ] }, { "cite": "395 N.E.2d 601", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "605-06" } ], "opinion_index": 0 }, { "cite": "76 Ill. App. 3d 969", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3280182 ], "weight": 2, "pin_cites": [ { "page": "976" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/76/0969-01" ] }, { "cite": "419 N.E.2d 906", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill. 2d 400", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3045432 ], "opinion_index": 0, "case_paths": [ "/ill-2d/84/0400-01" ] }, { "cite": "435 N.E.2d 706", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "105 Ill. App. 3d 1109", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5470818 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/1109-01" ] }, { "cite": "440 N.E.2d 432", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "109 Ill. App. 3d 352", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5448189 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0352-01" ] }, { "cite": "497 N.E.2d 1138", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "1144" } ], "opinion_index": 0 }, { "cite": "113 Ill. 2d 256", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3173780 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0256-01" ] }, { "cite": "499 N.E.2d 413", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "419-20" } ], "opinion_index": 0 }, { "cite": "113 Ill. 2d 497", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3172942 ], "weight": 2, "pin_cites": [ { "page": "507-12" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0497-01" ] }, { "cite": "382 N.E.2d 227", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "231" } ], "opinion_index": 0 }, { "cite": "73 Ill. 2d 7", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5441461 ], "pin_cites": [ { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/73/0007-01" ] }, { "cite": "488 N.E.2d 261", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "pin_cites": [ { "page": "262-64" } ], "opinion_index": 0 }, { "cite": "109 Ill. 2d 369", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3125562 ], "year": 1978, "pin_cites": [ { "page": "374-76" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0369-01" ] }, { "cite": "105 S. Ct. 362", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "83 L. Ed. 2d 298", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "464 N.E.2d 223", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "227" } ], "opinion_index": 0 }, { "cite": "102 Ill. 2d 23", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3156739 ], "year": 1984, "pin_cites": [ { "page": "31" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/102/0023-01" ] }, { "cite": "404 N.E.2d 488", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "493" } ], "opinion_index": 0 }, { "cite": "83 Ill. App. 3d 547", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5552688 ], "pin_cites": [ { "page": "552-53" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/0547-01" ] }, { "cite": "431 N.E.2d 1350", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "1353" } ], "opinion_index": 0 }, { "cite": "103 Ill. App. 3d 992", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5479691 ], "year": 1980, "pin_cites": [ { "page": "995" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/0992-01" ] }, { "cite": "105 S. Ct. 360", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "83 L. Ed. 2d 296", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "469 U.S. 963", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12034269, 12034334 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/469/0963-01", "/us/469/0963-02" ] }, { "cite": "459 N.E.2d 269", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "272" } ], "opinion_index": 0 }, { "cite": "121 Ill. App. 3d 118", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3559618 ], "year": 1984, "pin_cites": [ { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0118-01" ] }, { "cite": "475 N.E.2d 606", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "612-13" }, { "page": "612-13" }, { "page": "612-13" } ], "opinion_index": 0 }, { "cite": "131 Ill. App. 3d 141", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3439482 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "148" }, { "page": "148-49" }, { "page": "147-49" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0141-01" ] }, { "cite": "487 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "1251" }, { "page": "1251" } ], "opinion_index": 0 }, { "cite": "140 Ill. App. 3d 42", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3531001 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "50" }, { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/140/0042-01" ] }, { "cite": "470 N.E.2d 293", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "103 Ill. 2d 541", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3151941 ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0541-01" ] }, { "cite": "453 N.E.2d 30", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "117 Ill. App. 3d 168", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3481012 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/0168-01" ] } ], "analysis": { "cardinality": 966, "char_count": 19659, "ocr_confidence": 0.778, "pagerank": { "raw": 1.364619305149766e-07, "percentile": 0.6369923497470316 }, "sha256": "c6ae11c6b918d20ce2647eb4bc7f8ce1e90171db0849221ba2e74cd789cbf8a5", "simhash": "1:2398a8bc7e5a8da7", "word_count": 3387 }, "last_updated": "2023-07-14T16:53:05.010141+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. TOMMY G. FLOYD, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE EARNS\ndelivered the opinion of the court:\nDefendant, Tommy G. Floyd, was convicted by a jury of the murder of his wife, Avinelle Floyd, and sentenced to 30 years\u2019 imprisonment by the circuit court of White County. In a previous disposition, we reversed defendant\u2019s conviction and remanded the cause for retrial. (See People v. Floyd (1983), 117 Ill. App. 3d 168, 453 N.E.2d 30, aff\u2019d (1984), 103 Ill. 2d 541, 470 N.E.2d 293.) On retrial, defendant was again convicted of murder in a jury trial and sentenced to 30 years\u2019 imprisonment. Defendant now appeals from his reconviction. We affirm.\nOn May 31, 1980, the office of the sheriff of White County received a report that an abandoned car believed to be owned by Avinelle Floyd was parked near Grindstone Creek Bridge. The sheriff and the two men who reported seeing the car went to the area and found Mrs. Floyd\u2019s body face down in the water underneath the bridge. Her jeans were down between her ankles and knees and her jean jacket and sweater were above her waist. According to the doctor who performed the autopsy, the cause of death was drowning.\nDefendant initially denied any involvement in the death of his wife. He told the authorities, along with family and friends, that on the night before Mrs. Floyd\u2019s body was found, he and his wife were returning from a tavern. When defendant started \u201cplaying around\u201d with her, she stopped the car and ordered him out. Defendant proceeded to walk home on his own. Mrs. Floyd was not there when he arrived. When she still had not returned the following day, defendant told everyone they had had a fight and that she would come home when she was ready. Defendant, however, agreed to help others look for her. Shortly after they stopped searching, defendant was informed by the sheriff that his wife\u2019s body had been found.\nTen days later, defendant admitted his involvement in Mrs. Floyd\u2019s death. His story was essentially the same up to the point of the drive home. Defendant stated that earlier that day, he had been working on his wife\u2019s car. After he finished the repairs, defendant suggested they test drive it. Once on the road, the two drove to Shawneetown and stopped at a bar. Mrs. Floyd had a beer and defendant had a glass of grapefruit juice. Because Mrs. Floyd wanted to hear a band, they drove on to the Levee Tavern, also in Shawneetown. There the two danced several dances and continued drinking beer and grapefruit juice. The Floyds left the tavern between 10 and 11 p.m. that evening. Once in the car, defendant tried to persuade her to have sexual relations with him but she refused. On the way to pick up the school bus she was to drive the next morning, Mrs. Floyd informed defendant she needed to urinate. Defendant turned onto a gravel road and stopped the car on Grindstone Creek Bridge. Mrs. Floyd got out and went to the rear of the car to go to the bathroom. Defendant followed her and, as she was trying to get dressed, again attempted to have sexual relations with her. In their struggles, they moved from the rear of the car to the driver\u2019s door. Defendant stated he did not know whether he hit her, struck her or grabbed her, but somehow they both fell off the bridge into the creek. The bridge had no guardrails. Defendant landed slightly to the north of Mrs. Floyd, who was lying face down in the water. Defendant jumped up, climbed out of the creek, shut the car door and proceeded to walk home. He did not look to see if his wife was dead or alive. Defendant later told the authorities that he may have held Mrs. Floyd by the back of the neck in the water but that he was only trying to get her to come to him. He also informed them that he was able to see bubbles coming up from around her head as he was leaving the creek. The next day, defendant, during another interview, stated that, \u201cI keep thinking I held her head under, but I didn\u2019t mean to hold it under too long.\u201d After defendant was informed there was a possibility that bond would not be allowed, he responded, \u201cI did it. You guys know I did it. I need to get out and see about the kids.\u201d At trial, defendant repeated essentially the same story but added that he fell on top and just to the north of his wife. After he got up out of the water, he did not see his wife move at all. He turned her around in the water, but she still did not move. He panicked and got out of the creek and walked home. After he returned home he drove to the garage to see if his wife had picked up her school bus yet. Once he realized she had not, he then threw his wet clothes into the Wabash River because they reminded him of what happened and later threw his boots in a garbage pile at work. Defendant testified he loved his wife and that he did not intentionally cause her to fall from the bridge or cause her head to be kept under water.\nOther testimony at defendant\u2019s trial revealed that the Floyds were in the process of getting a divorce. Mrs. Floyd had filed a petition for dissolution of marriage 10 days prior to her death. The two had, however, already reached a settlement agreement as to the division of their property and the custody and visitation of their children. Additional evidence revealed the Floyds were also experiencing financial difficulty prior to Mrs. Floyd\u2019s death. The second mortgage on their property already was in default and they had an additional one-year note due in May. After Mrs. Floyd\u2019s death, all loans and mortgages were paid in full through mortgage life insurance proceeds.\nDefendant argues on appeal the State failed to prove beyond a reasonable doubt the mental state required to sustain his conviction. We disagree.\nSection 9 \u2014 l(a((2) of the Criminal Code of 1961 states: \u201cA person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death: *** (2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another ***.\u201d (Ill. Rev. Stat. 1979, ch. 38, par. 9 \u2014 1.) There is no dispute that defendant\u2019s actions caused the death of his wife. The only issue is his intent. The State, however, need not prove defendant had the intent to murder; the State need only show that defendant voluntarily and willfully committed an act, the natural tendency of which was to cause death or great bodily harm. (See People v. Whitt (1986), 140 Ill. App. 3d 42, 50, 487 N.E.2d 1246, 1251; People v. Steffens (1985), 131 Ill. App. 3d 141, 148, 475 N.E.2d 606, 612-13.) This intent may be implied or inferred from the surrounding facts and circumstances, including defendant\u2019s words and actions, and from the character of the acts themselves. People v. Whitt (1986), 140 Ill. App. 3d 42, 50, 487 N.E.2d 1246, 1251; People v. Steffens (1985), 131 Ill. App. 3d 141, 148-49, 475 N.E.2d 606, 612-13.\nMrs. Floyd\u2019s body was found face down in approximately two feet of water. The autopsy revealed the cause of death was drowning. On the average, when a person\u2019s nose and mouth are submerged beneath water, unconsciousness results after approximately two minutes, brain death after five, and complete death after 10 minutes. None of the lacerations, abrasions or contusions on Mrs. Floyd\u2019s body were serious enough to have caused her death or rendered her unconscious upon entering the water. The pathologist who performed the autopsy testified Mrs. Floyd probably was conscious when she was first in the water and that the act of holding her head under water would be consistent with her death. Defendant claims her death was an accident, that he fell on top of her and she did not move. Defendant, however, could not have stayed on top of his wife in the water long enough to render her unconscious without deliberately holding her down, even if either were shocked or stunned temporarily from their fall. Moreover, defendant testified that he jumped up immediately. He did not pull his wife\u2019s face out of the water; he did not pull her up on the bank. He did nothing to check for any signs of life. Instead, he got out of the creek, picked up his belongings, shut the door of her car, and walked home. Instead of jumping in her car and getting assistance, defendant simply left. When asked about her whereabouts the next day, he denied any knowledge. And on his way to work, defendant disposed of the clothing he was wearing that night.\nDefendant further testified he saw bubbles coming up around Mrs. Floyd\u2019s head as he was leaving the creek. There are, however, no lights at the bridge. And, on the night of Mrs. Floyd\u2019s death, it had been raining and defendant already had turned off the car headlights before following his wife to the rear of the car. When the rescue workers found Mrs. Floyd\u2019s body the following evening, they had to use car headlights and flashlights to see under the bridge. Defendant could not have seen bubbles around his wife\u2019s head as he pulled himself out of the creek. More than likely, defendant felt or heard bubbles while holding her head under water. The fact that Mrs. Floyd suffered a laceration behind her left ear while defendant displayed a torn thumbnail, in addition to the presence of sand under Mrs. Floyd\u2019s fingernails, also give credence to the inference defendant deliberately held his wife\u2019s head under the water.\nThe jury, as judge of the credibility Of witnesses, is not required to believe defendant\u2019s exculpatory testimony. (People v. Cox (1984), 121 Ill. App. 3d 118, 123, 459 N.E.2d 269, 272, cert. denied (1984), 469 U.S. 963, 83 L. Ed. 2d 296, 105 S. Ct. 360.) The physical and medical evidence clearly does not support defendant\u2019s version of Mrs. Floyd\u2019s death. Moreover, all of defendant\u2019s actions subsequent to her death, flight from the scene, destruction of evidence, and his first false exculpatory story, demonstrate a consciousness of guilt. (See People v. Watson (1982), 103 Ill. App. 3d 992, 995, 431 N.E.2d 1350, 1353; People v. Kradenych (1980), 83 Ill. App. 3d 547, 552-53, 404 N.E.2d 488, 493.) Defendant\u2019s own statements, however, are the most convincing direct evidence of his voluntarily and willfully committing an act leading to the death of his wife. Defendant first told the authorities after admitting his involvement in Mrs. Floyd\u2019s death that he may have had her by the back of the neck in the water but that he was only trying to get her to come to him. Death or great bodily harm would certainly be the natural consequence of holding a person\u2019s head under water in order to force her to perform an act unwillingly. Defendant next told the authorities that he held his wife\u2019s head under the water but he did not mean to hold it under too long. Finally he stated, \u201cI did it. You guys know I did it ***\u201e\u201d When asked by a friend why he left his wife\u2019s car on the bridge, he answered he wanted the authorities to find her. \u201cI could have took the car and run it off in the backwater or hid it, *** no telling when they would have found her.\u201d Defendant\u2019s statements and actions certainly support the jury\u2019s verdict.\nMrs. Floyd died of drowning. Defendant was the only other person in the water with her. The evidence clearly supports the jury\u2019s verdict that defendant held her head under water knowing that such act created a strong probability of death or great bodily harm. Defendant was proved guilty beyond a reasonable doubt of the murder of his wife, Avinelle Floyd. See People v. Steffens (1985), 131 Ill. App. 3d 141, 147-49, 475 N.E.2d 606, 612-13.\nDefendant next argues that the introduction of a transcript of the testimony of a witness who testified in the first trial violated defendant\u2019s right of confrontation because the State failed to show due diligence in attempting to locate the witness for the second trial. We need not determine whether the State exercised due diligence because defense counsel failed to include this in a timely motion for a new trial. Failure to include an issue in a timely post-trial motion constitutes a waiver of that issue. (People v. Caballero (1984), 102 Ill. 2d 23, 31, 464 N.E.2d 223, 227, cert. denied (1984), 469 U.S. 963, 83 L. Ed. 2d 298, 105 S. Ct. 362.) Furthermore, we do not believe that the \u201cplain error\u201d doctrine should be applied here, as defendant urges, because it is not plainly apparent from the record that an error affecting substantial rights was committed. (See People v. Friesland (1985), 109 Ill. 2d 369, 374-76, 488 N.E.2d 261, 262-64; People v. Precup (1978), 73 Ill. 2d 7, 17, 382 N.E.2d 227, 231.) The substance of the testimony of the witness in question was merely cumulative of the testimony of other witnesses and, given defendant\u2019s inculpatory statements, the evidence could not be said to be closely balanced.\nDefendant further maintains that the failure to file a timely post-trial motion was a result of defense counsel\u2019s ineffectiveness. Because we believe that the outcome of the proceedings would not have been different had the testimony in question not been admitted, failure to include this argument in a timely motion for a new trial did not constitute ineffective assistance of counsel. Given the nature and substance of the testimony in question relative to the other evidence, even if the trial court had erred in admitting it, the error would have been harmless.\nDefendant also contends on appeal that the trial court erred in failing to submit the second paragraph of Illinois Pattern Jury Instructions, Criminal, No. 3.02 (2d ed. 1981), the circumstantial evidence instruction, to the jury as the evidence was entirely circumstantial. Without addressing whether the evidence was entirely circumstantial, we note that in People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413, our supreme court held that the second paragraph of the circumstantial evidence instruction was obscure and misleading and should no longer be used. (113 Ill. 2d 497, 507-12, 499 N.E.2d 413, 419-20.) As Bryant was the prevailing rule at the time this appeal was filed, it is dispositive of this issue. We can find no error in the trial court\u2019s failure to give the second part of the instruction.\nFinally, defendant contends that the trial court erred in considering the fact that he inflicted or attempted to inflict serious bodily harm or injury to his wife as a factor in aggravation.\nSection 5 \u2014 5\u20143.2(a)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 \u2014 5\u20143.2(aXl)) provides that a sentencing court may, in imposing a term of imprisonment, consider as a factor in aggravation the fact that the defendant\u2019s conduct caused or threatened serious harm. This allows a sentencing court to impose a more severe sentence, within the range provided for the crime in question, for those defendants whose conduct is more reprehensible. Defendant argues that because bodily harm is implicit in every murder it should not be considered as an aggravating circumstance.\nDefendant relies on People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138, a case decided subsequent to the imposition of defendant\u2019s sentence. In Saldivar, the defendant was convicted of voluntary manslaughter and sentenced to seven years\u2019 imprisonment. Relying on the reasoning of People v. Hughes (1982), 109 Ill. App. 3d 352, 440 N.E.2d 432, and People v. Andrews (1982), 105 Ill. App. 3d 1109, 435 N.E.2d 706, our supreme court held that\n\u201cin sentencing a defendant on a conviction for voluntary manslaughter it is permissible for the trial court, in applying the statutory aggravating factor that the defendant\u2019s conduct caused serious harm to the victim, to consider the force employed and the physical manner in which the victim\u2019s death was brought about.\u201d (People v. Saldivar (1986), 113 Ill. 2d 256, 271, 497 N.E.2d 1138, 1144.)\nApplying that test to the facts, the supreme court determined that the trial court improperly relied on the aggravating factor. The court focused not on the degree of harm or the gravity of the defendant\u2019s conduct, but on the end result, that is, the victim\u2019s death, a factor which is implicit in the crime of voluntary manslaughter and which could not, therefore, be considered as a factor in aggravation. (Cf. People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906.) Here, however, the trial court did not focus on the death of Mrs. Floyd when applying the statutory aggravation factor, but on the harm done to her in causing her death. The record indicates that the trial court\u2019s focus was on the gravity of defendant\u2019s conduct, i.e., the force employed and the physical manner in which his wife\u2019s death was brought about, factors clearly permissible under our decisions in Hughes and Andrews, and under our supreme court\u2019s later decision in Saldivar.\nDefendant also contends that the trial court erred in considering that his sentence was necessary to deter others from committing similar crimes. Section 5 \u2014 5\u20143.2(a)(7) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 \u2014 5\u20143.2(a)(7)) provides that a sentencing court may consider as a reason to impose a more severe sentence the fact that the sentence is necessary to deter others from committing the same crime. In People v. Thomas (1979), 76 Ill. App. 3d 969, 395 N.E.2d 601, on which the defendant relies, we questioned the validity of deterrence as an aggravating factor. (76 Ill. App. 3d 969, 976, 395 N.E.2d 601, 605-06.) But as w\u00e9 pointed out in People v. Simmons (1985), 138 Ill. App. 3d 492, 485 N.E.2d 1135, Thomas stands for the proposition that \u201cdeterrence of others could not be used to deny probation where deterrence was the sole aggravating factor.\u201d (138 Ill. App. 3d 492, 501, 485 N.E.2d 1135, 1142.) This is not the situation in this instance. Probation could not be considered and other significant aggravating factors were clearly present. Therefore, the trial court committed no error in considering deterrence as a reason to impose a more severe sentence in this case.\nThe trial court also considered as a factor in aggravation the fact that \u201c[h]e [defendant] appears to be a fairly intelligent person, somewhat articulate.\u201d As the trial court stated, \u201c[I]t\u2019s difficult to realize how a person of these capabilities and mental capacities could walk away from a factual situation as heard by the court during the course of the trial.\u201d While Section 5 \u2014 5\u20143.2(a) does not specifically mention individual circumstances of a defendant as a factor in aggravation, the list of aggravating factors found in that section is not exclusive. When considering aggravating or mitigating factors in imposing sentence, a trial court may properly consider nonstatutory aggravating factors. People v. Zehr (1986), 143 Ill. App. 3d 875, 879, 493 N.E.2d 727, 729; People v. Allen (1983) 119 Ill. App. 3d 845, 846, 457 N.E.2d 77, 78.\nHi comparing the various factors in aggravation and mitigation, we find that the trial court\u2019s decision to sentence the defendant to 10 years in excess of the minimum was both reasonable and justified, and not an abuse of discretion. See People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.\nFor the above mentioned reasons, we affirm the judgment of the circuit court of White County.\nAffirmed.\nHARRISON and WELCH, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE EARNS" } ], "attorneys": [ "Daniel M. Kirwan and Lori J. Lanciani, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "Thomas Sutton, State\u2019s Attorney, of Carmi (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOMMY G. FLOYD, Defendant-Appellant.\nFifth District\nNo. 5\u201486\u20140040\nOpinion filed September 2, 1987.\nRehearing denied September 29, 1987.\nDaniel M. Kirwan and Lori J. Lanciani, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nThomas Sutton, State\u2019s Attorney, of Carmi (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0080-01", "first_page_order": 102, "last_page_order": 111 }