{ "id": 3513364, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BERTHA FLORES, Defendant-Appellant", "name_abbreviation": "People v. Flores", "decision_date": "1988-03-17", "docket_number": "No. 86\u20142435", "first_page": "284", "last_page": "294", "citations": [ { "type": "official", "cite": "168 Ill. App. 3d 284" } ], "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": "495 N.E.2d 1141", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1143" } ], "opinion_index": 0 }, { "cite": "145 Ill. App. 3d 477", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3536011 ], "pin_cites": [ { "page": "479-81" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/145/0477-01" ] }, { "cite": "447 N.E.2d 1029", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "113 Ill. App. 3d 818", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3625027 ], "pin_cites": [ { "page": "837" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0818-01" ] }, { "cite": "108 Ill. 2d 581", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "480 N.E.2d 1293", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "134 Ill. App. 3d 684", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3636135 ], "year": 1985, "pin_cites": [ { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/134/0684-01" ] }, { "cite": "418 N.E.2d 48", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "93 Ill. App. 3d 1099", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3135065 ], "pin_cites": [ { "page": "1103-04" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/93/1099-01" ] }, { "cite": "356 N.E.2d 1274", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1277" }, { "page": "1277" } ], "opinion_index": 0 }, { "cite": "43 Ill. App. 3d 283", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2725295 ], "weight": 2, "pin_cites": [ { "page": "287" }, { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0283-01" ] }, { "cite": "108 S. Ct. 646", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 602206 ], "weight": 5, "pin_cites": [ { "page": "653" }, { "page": "654" }, { "page": "655-56" } ], "opinion_index": 0, "case_paths": [ "/us/484/0400-01" ] }, { "cite": "98 L. Ed. 2d 798", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 602206, 11300959 ], "weight": 5, "pin_cites": [ { "page": "811-12" }, { "page": "812" }, { "page": "814" } ], "opinion_index": 0, "case_paths": [ "/us/484/0400-01", "/us/347/0396-01" ] }, { "cite": "61 Ill. 2d 598", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "333 N.E.2d 525", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "30 Ill. App. 3d 86", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2624381 ], "year": 1975, "pin_cites": [ { "page": "90-91" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/0086-01" ] }, { "cite": "434 N.E.2d 1127", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1975, "opinion_index": 0 }, { "cite": "91 Ill. 2d 22", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3092982 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "28" }, { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0022-01" ] }, { "cite": "177 N.E.2d 881", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "32 Ill. App. 2d 340", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5231506 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-2d/32/0340-01" ] }, { "cite": "171 N.E.2d 56", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "pin_cites": [ { "page": "59" } ], "opinion_index": 0 }, { "cite": "21 Ill. 2d 46", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2729195 ], "year": 1961, "pin_cites": [ { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/21/0046-01" ] }, { "cite": "464 N.E.2d 685", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "124 Ill. App. 3d 243", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3427746 ], "pin_cites": [ { "page": "248" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/124/0243-01" ] }, { "cite": "487 N.E.2d 1040", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "139 Ill. App. 3d 443", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3567885 ], "year": 1984, "pin_cites": [ { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0443-01" ] }, { "cite": "409 N.E.2d 442", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "445" } ], "opinion_index": 0 }, { "cite": "87 Ill. App. 3d 819", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3178416 ], "pin_cites": [ { "page": "822" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/0819-01" ] } ], "analysis": { "cardinality": 1047, "char_count": 22779, "ocr_confidence": 0.764, "pagerank": { "raw": 1.0841095315175096e-07, "percentile": 0.5632494404113908 }, "sha256": "7c98f4a11993607db8affe6799aa40c2585c595b6b6652e904cc30ba0ccc9206", "simhash": "1:1b2e52987cc73e5d", "word_count": 3771 }, "last_updated": "2023-07-14T19:02:50.417384+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. BERTHA FLORES, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McMORROW\ndelivered the opinion of the court:\nFollowing a bench trial, defendant Bertha Flores was convicted of aggravated battery of a child (111. Rev. Stat. 1985, ch. 38, par. 12\u2014 4.3) and sentenced to four years\u2019 imprisonment. Defendant argues on appeal that: (1) her conviction must be reversed because the State failed to prove her guilty beyond a reasonable doubt and did not show that she was 18 years old or older, (2) she is entitled to a new trial because the preclusion of a material defense witness abridged her sixth amendment right to compulsory process or constituted an abuse of discretion, and (3) she is entitled to a new sentencing hearing because the trial court sentenced her based on improper considerations. We affirm.\nBackground\nOn July 8, 1984, while defendant was bathing her six-week-old daughter, Cecelia Flores (Cecelia), the child was severely burned, on over 40% of her body, on her upper thighs, arms, chest, abdomen, sides, and back. She suffered life-threatening partial deep thickness burns (formerly referred to as second degree burns) over approximately 30% of her body.\nDefendant testified that she put Cecelia in the kitchen sink to bathe her. She supported Cecelia with her left hand and bathed Cecelia with her right hand. There was one faucet in the sink and no plug, stopper, or anything to keep the water in the sink. The water flowed from the faucet into the sink and down the drain except for a \u201clittle bit\u201d of water that accumulated in the drain.\nDefendant\u2019s testimony indicated that Cecelia was held under the faucet so the \u201cstream hit in the chest\u201d or the shoulder. The water was almost always hitting Cecelia. As defendant was shampooing Cecelia, about halfway through the bath, she heard a noise like air inside the faucet. The water pressure surged for almost a minute, then resumed normal flow. Defendant felt no change in the water\u2019s temperature. She explained she did not feel the water\u2019s temperature because while the water was hitting the baby\u2019s chest, her left hand was supporting the child from behind and her right hand was bathing the child. When she felt the water falling on the baby\u2019s chest, defendant stated it \u201cdidn\u2019t feel too hot [but] possibly for the baby it was too hot.\u201d Defendant testified that Cecelia was crying a little more than usual, but she always cried \u201cviolently\u201d and moved her hands during her bath. The difference \u201cwasn\u2019t too great.\u201d However, as defendant began to dry Cecelia, she noticed the skin on her daughter\u2019s arm \u201cwas pulling.\u201d Defendant called to Jose Flores (Jose), Cecelia\u2019s father, and told him Cecelia had been burned. Cecelia\u2019s skin was \u201cinflating and blowing up\u201d not only on her arm but on her chest. Jose took defendant and Cecelia to Columbus Hospital.\nAfter the staff of Columbus Hospital gave Cecelia preliminary treatment, they transferred her to the burn unit at Wyler\u2019s Children\u2019s Hospital. Before transferring Cecelia, Dr.' Sumidhra Kommareddy spoke with defendant for 30 to 45 minutes through an interpreter. Defendant stated to Dr. Kommareddy that she put Cecelia into a \u201cbathtub [that] was full of hot water.\u201d Defendant claimed she did not know the water was too hot and that as soon as she realized it she immediately pulled Cecelia out of the water. Dr. Kommareddy concluded that defendant\u2019s account of Cecelia\u2019s bath was inconsistent with the distribution of Cecelia\u2019s bums. If Cecelia had been immersed in a bathtub of hot water, she would have burned not only her stomach and chest but her hands and legs as well.\nDr. Kommareddy admitted that she did not understand or speak Spanish and had to speak with defendant through an interpreter. According to defendant, the interpreter spoke a different type of Spanish than she spoke and translated haltingly, stopping often to think while interpreting. Defendant denied using the word \u201cbathtub.\u201d She asserted that the interpreter misunderstood her statement about where she bathed Cecelia and translated it inaccurately.\nAt Wyler\u2019s Children\u2019s Hospital, Dr. Lawrence Gottlieb, co-director of Wyler\u2019s Bum Unit, supervised Cecelia\u2019s treatment. Dr. Gottlieb stated that Cecelia\u2019s injury was \u201cconsistent\u201d with a scald bum. He explained that water heated to 150 degrees could inflict bums such as Cecelia\u2019s in one second, while water heated to 120 degrees would inflict such bums in one to two minutes. A hot bath would not have burned a child on the chest and stomach without also burning her legs, according to Dr. Gottlieb. Therefore, he concluded it was \u201cimpossible\u201d for Cecelia\u2019s burns to have been caused by immersion in a hot bath. Dr. Gottlieb testified that Cecelia\u2019s bums were most likely the result of water falling onto her.\nAlthough Cecelia\u2019s back was \u201cclearly burned\u201d on both sides, there was a patch of unburned skin on her back running diagonally from her upper right shoulder to her lower left back. Dr. Gottlieb thought that could indicate an arm holding the child. However, because there were bums above and below the unburned skin, he concluded that \u201cwithout question\u201d the arm would \u201chave been burned or hot at least.\u201d While it is \u201cplausible\u201d that someone could have held Cecelia from behind as the water was scalding her and not receive any injuries, that person would have had to feel the change in temperature, according to Dr. Gottlieb. Also, there would have been \u201cimmediate crying and screaming and a lot of pain, and [the burn] would be noticed right away, or within a few minutes.\u201d\nWyler\u2019s Hospital released Cecelia to defendant after approximately two weeks of hospitalization. On the day following Cecelia\u2019s release from the hospital, defendant noticed that Cecelia would cry when her left arm was moved. Three days later, Jose took Cecelia to Wyler\u2019s Hospital for follow-up care. When he returned, defendant noticed that Cecelia\u2019s arm was swollen. She asked Jose if \u201cthey had done something to the arm at the hospital.\u201d Jose told her the hospital staff had examined the arm.\nThe next day, Natalia Salces, an investigator from the Department of Child and Family Services (DCFS), came to defendant\u2019s house. The investigator, a native Spanish speaker, questioned defendant, examined the sink and Cecelia, and concluded that the claim against defendant was unfounded.\nThereafter, defendant took Cecelia to the Flores\u2019 family physician, Dr. Carlos Gonzales. Defendant pointed out a swelling in Cecelia\u2019s arm. Dr. Gonzales reassured her that nothing was wrong with the arm. A few days later, however, when Dr. Gonzales noticed that the deformity was still present, he ordered an X ray of the arm.\nThe X rays were taken on August 6. According to Dr. Sharukin Yelda, an orthopedic surgeon on the staff of Swedish Covenant Hospital and Children\u2019s Memorial Hospital, the X rays revealed 13 fractures throughout Cecelia\u2019s body in different stages of healing. An X ray that had been taken at Wyler\u2019s Children\u2019s Hospital prior to Cecelia\u2019s release revealed that Cecelia also had fractures in her collarbone and ribs. Absent a \u201cvery severe injury or accident or trauma,\u201d it would be very difficult for Cecelia to have broken these bones, Dr. Yelda stated. Dr. Yelda opined that her rib fractures \u201cwere sustained by being hit in the chest,\u201d and that the elbow, wrist, and ankle injuries were caused by \u201cpulling severely, twisting or extending or bending.\u201d While Cecelia\u2019s three right ribs and her collarbone had been broken more than a month before the X rays, her elbow, wrist, ankle, and left ribs were fractured less than a week before the X rays. There was \u201cno doubt in [Dr. Yelda\u2019s] mind that [Cecelia] is a victim of child abuse.\u201d Dr. Yelda testified that in his opinion, Cecelia will be unable to move her right elbow for the remainder of her life.\nDefendant testified that she and Jose were the only persons to care for Cecelia except for two occasions, subsequent to the time the child was burned, when she left her with a baby-sitter. She could not explain the 13 fractures, although she stated that when Cecelia was 2\u00bd weeks old, Cecelia\u2019s older sister had knocked Cecelia out of her crib onto the carpeted floor.\nDefendant and Jose were charged by indictment for the offenses of cruelty to children, aggravated battery, and aggravated battery of a child. At the close of all the evidence, Jose was found not guilty, but defendant was convicted of aggravated battery of a child and sentenced to four years\u2019 imprisonment. Defendant appeals.\nOpinion\nI\nDefendant contends that the State failed to prove her guilty beyond a reasonable doubt of aggravated battery of a child. Under the Illinois Criminal Code of 1961 \u201c[a]ny person of the age 18 years and upwards who intentionally or knowingly, and without legal justification and by any means, causes great bodily harm or permanent disability or disfigurement to any child under the age of 13 years, commits the offense of aggravated battery of a child.\u201d (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, par. 12 \u2014 4.3(a).\nDefendant argues that the State failed to prove that she \u201cintentionally or knowingly\u201d harmed Cecelia. The knowledge and intent required to establish aggravated battery of a child involve an \u201cawareness\u201d by the accused of the harm which will result from the act. (People v. Herr (1980), 87 Ill. App. 3d 819, 822, 409 N.E.2d 442, 445, citing Ill. Rev. Stat. 1979, ch. 38, par. 4 \u2014 5(b).) Ordinarily, this element of intent is established by circumstantial evidence. People v. Traylor (1985), 139 Ill. App. 3d 443, 447, 487 N.E.2d 1040; People v Smith (1984), 124 Ill. App. 3d 243, 248, 464 N.E.2d 685.\nWe have reviewed the evidence and determine that it is sufficient to prove defendant guilty beyond a reasonable doubt of the offense of aggravated battery of a child. Defendant admits that she administered the bath that caused the burns and that the hot water may have surged for a minute during the bath. Although she claims she did not notice any increase in the temperature of the water, Dr. Gottlieb\u2019s testimony revealed that the water would have had to have been between 120 and 150 degrees to cause such burns in one minute. Thus, while someone could have been holding Cecelia, Dr. Gottlieb concluded the person would have \u201cat least\u201d felt the change in temperature. Also, there would have been \u201cimmediate crying and screaming and a lot of pain.\u201d We find there is ample evidence from which the trier of fact could have concluded that defendant was aware that the water was hot enough to harm Cecelia.\nWith regard to the fractures, Dr. Yelda explained that the elbow, wrist, and ankle fractures resulted from severe twisting, extending, or bending and that the broken ribs were caused by a blow to the chest or pressure to the chest. Dr. Yelda testified that Cecelia\u2019s elbow injuries will leave her permanently deformed and disabled. He stated that it is very unusual for a child Cecelia\u2019s age to sustain fractures absent a \u201cvery severe injury or accident or trauma\u201d and, based on his experience, he has \u201cno doubt\u201d that Cecelia was the victim of child abuse. Defendant testified that Cecelia was under her care and supervision except for two instances where a baby-sitter cared for Cecelia.\nBased upon defendant\u2019s admission that she held Cecelia during the time that running hot water caused the child\u2019s burns, the medical testimony regarding the manner in which those burns were inflicted, and the testimony relating to when and how the multiple fractures were sustained, we determine that the evidence sufficiently established beyond a reasonable doubt that defendant knowingly caused great bodily harm. We have carefully reviewed defendant\u2019s allegations of error respecting her intentional infliction of harm to the child and the standard of proof articulated by the court. We conclude that the trial is sufficiently free of error and find that the record supports defendant\u2019s conviction of aggravated battery of a child.\nDefendant also contends that the State failed to prove that she was 18 years of age or older. A conviction for aggravated battery of a child requires the accused be over 18 years of age at the time of the act. (See Ill. Rev. Stat. 1985, ch. 38, par. 12 \u2014 4.3(a).) However, an adult\u2019s \u201cexact age\u201d need not be proved unless the evidence tends to show defendant was under the requisite age. (People v. Cavaness (1960), 21 Ill. 2d 46, 52, 171 N.E.2d 56, 59; People v. Stolfo (1961), 32 Ill. App. 2d 340, 177 N.E.2d 881; see also People v. Dalton (1982), 91 Ill. 2d 22, 28, 434 N.E.2d 1127; People v. D\u2019Angelo (1975), 30 Ill. App. 3d 86, 90-91, 333 N.E.2d 525, appeal denied (1975), 61 Ill. 2d 598.) The observation of the trier of fact may corroborate evidence of defendant\u2019s age. See People v. Dalton (1982), 91 Ill. 2d 22, 29, 434 N.E.2d 1127.\nFor example, this court in Stolfo held that the State need not prove that a defendant was 17 years of age, since the evidence showed that the defendant was married, had two children, had worked for over four years, and there was no evidence tending to show that the defendant was under the requisite age. Here, defendant testified that she had been married for five years and employed for four years. She was the mother of both a four-year-old child and a two-year-old child. We find this evidence sufficiently probative of defendant\u2019s age to support her conviction.\nII\nDefendant argues that she is entitled to a new trial because the trial court excluded the testimony of a material defense witness, Dr. Bertram Levin, as a sanction for defendant\u2019s infractions of discovery rules. Defendant contends that the court\u2019s exclusion violated the compulsory process clause of the sixth amendment and was an abuse of discretion. (U.S. Const., amend. VI.) The State argues that the refusal to accept the testimony of Dr. Levin was an appropriate sanction, based on the late notice of defendant\u2019s intention to present the testimony of not only- Dr. Levin, but also Dr. Rudich, defendant\u2019s initial medical witness.\nWhen defendant informed the court that she wished to call Dr. Perry Rudich to testify, the State objected because defendant had not at that time filed an answer to the State\u2019s discovery request in which the witness\u2019 identification would have been disclosed. At the time defendant requested to call Dr. Rudich, the State had already introduced the testimony of all three of its medical expert witnesses. The trial court ruled that it would allow Dr. Rudich to testify and ordered defendant to file an answer to the State\u2019s discovery request. The court indicated that the State would be permitted whatever continuance it deemed necessary because of the court\u2019s allowance of the testimony of Dr. Rudich.\nDr. Rudich had originally concluded that there were no fractures in Cecelia\u2019s arms. However, a week prior to the date on which he was scheduled to testify, he informed defendant that he had reviewed the X rays and that based on this review he would conclude there had been fractures. Within one week after Dr. Rudich so informed defendant, she located another witness, Dr. Bertram Levin, to testify in her favor regarding the fractures. She notified the State and the trial court of her wish to have Dr. Levin testify on the day after she had located him; she made an offer of proof and indicated that the witness would be available for questioning by the State before the witness was presented.\nIn her offer of proof, defendant stated that if permitted to testify, Dr. Levin would state that he is a physician on the attending staff and director of the department of diagnostic radiology at Michael Reese Hospital, a professor of radiology at the Pritzker School of Medicine at the University of Chicago, and an expert in pediatric radiology. On the basis of Cecelia\u2019s X rays, Dr. Levin would conclude that the fractures shown are consistent with the injuries of children who were injured by a fall from the bed or crib or who were accidentally dropped during hospitalization or in the course of play or normal care. Dr. Levin was of the opinion that it is impossible to determine from the X rays whether the injuries resulted from one instance of trauma or several, and he disputed Dr. Yelda\u2019s absolute certainty in dating Cecelia\u2019s fractures and predicting her disability.\nThe United States Supreme Court recently addressed the issue of exclusion as a sanction for discovery violations in Taylor v. Illinois (1988), 484 U.S___, 98 L. Ed. 2d 798, 108 S. Ct. 646. Premised on the concept that the right of an accused to present witnesses in his own defense is a most fundamental right, the Taylor court recognized that government must assist criminal defendants in their efforts to compel the attendance of favorable witnesses at trial.\nThe same principle that guarantees the accused the right to present witnesses also supports the \u201cimposition and enforcement of firm, though not always inflexible, rules relating to the identification and presentation of evidence.\u201d (484 U.S. at_, 98 L. Ed. 2d at 811-12, 108 S. Ct. at 653.) Discovery \u201cminimizes the risk that a judgment will be predicated on incomplete, misleading, or even deliberately fabricated testimony.\u201d (484 U.S. at_, 98 L. Ed. 2d at 812, 108 S. Ct. at 654.) Consequently, the court rejected the argument that preclusion is never a permissible sanction for a discovery violation.\nThe Taylor court held that if the accused\u2019s explanation for his failure to comply with a request for pretrial identification of witnesses \u201creveals that the omission was willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence, it would be entirely consistent with the purposes of the Confrontation Clause simply to exclude the witness\u2019 testimony. [Citation.].\u201d 484 U.S. at _, 98 L. Ed. 2d at 814,108 S. Ct. at 655-56.\nIllinois Supreme Court Rule 415 provides when a party discovers new material subject to disclosure after complying with discovery, the party \u201cshall promptly notify\u201d the other party and the court, if the material is discovered during trial. (107 Ill. 2d R. 415.) An unintentional omission has been held not to violate discovery rules where the prosecutor and the trial court are notified \u201cimmediately\u201d after the party \u201cbecame aware of this witness\u201d and \u201cas soon as the intent to call the witness was formed.\u201d People v. Rayford (1976), 43 Ill. App. 3d 283, 287, 356 N.E.2d 1274, 1277.\nGenerally the decision regarding whether a sanction is appropriate for a discovery violation rests within the discretion of the trial court, and the exercise of that discretion will not be disturbed absent a showing of prejudice. (People v. LaFiura (1981), 93 Ill. App. 3d 1099, 1103-04, 418 N.E.2d 48.) However, recess and continuance are to be thoughtfully considered and preferred to exclusion as a sanction. (See People v. Loggins (1985), 134 Ill. App. 3d 684, 691, 480 N.E.2d 1293, appeal denied (1985), 108 Ill. 2d 581; People v. Winfield (1983), 113 Ill. App. 3d 818, 837, 447 N.E.2d 1029.) We have held the imposition of exclusion to be an abuse of discretion where the State had \u201cample opportunity\u201d to interview the additional witness. (People v. Foster (1986), 145 Ill. App. 3d 477, 479-81, 495 N.E.2d 1141, 1143.) In Taylor, the United States Supreme Court noted that \u201cin Illinois, the sanction of preclusion is reserved for only the most extreme cases\u201d \u201c \u2018where the uncooperative party demonstrates a \u201cdeliberate contumacious or unwarranted disregard for the trial court\u2019s authority.\u201d [Citation.]\u2019 \u201d 484 U.S. at_n.23, 98 L. Ed. 2d at 816 n.23, 108 S. Ct. at 657 n.23, quoting People v. Rayford (1976), 43 Ill. App. 3d 283, 286, 356 N.E.2d 1274,1277.\nIn this case, while it is not altogether clear that defendant violated discovery rules with regard to Dr. Levin, we agree that some sanction was appropriate in light of defendant\u2019s tardiness. However, the trial court should not have excluded Dr. Levin\u2019s testimony. Even assuming defendant\u2019s previous discovery violations, we cannot agree that those violations were deliberate, contumacious, or demonstrated unwarranted disregard for the trial court\u2019s authority so as to merit the exclusion of a material witness. Nor was it clear that defendant was seeking to reap a tactical advantage from the State\u2019s surprise. The witness was available for interrogation by the State prior to his testifying. There is no indication in the record that, based upon the offer of proof, the State would be handicapped in any effort to rebut the testimony of Dr. Levin.\nHowever, defendant failed to demonstrate prejudice in the exclusion of Dr. Levin\u2019s testimony. This was a bench trial. The trial court remarked that even \u201caccepting per se all the proof that [defendant] indicated,\u201d the finding of the court would remain the same. In the circumstances of this case, the trial court\u2019s exclusion of Dr. Levin\u2019s testimony does not constitute reversible error. Defendant\u2019s offer of proof indicates that Dr. Levin\u2019s testimony would relate only to the fractures. Dr. Gottlieb\u2019s testimony establishing that defendant must have known she was burning or seriously harming her daughter would remain uncontroverted. Consequently even if Dr. Levin\u2019s testimony were preferred by the court, there was sufficient evidence to convict defendant.\nIll\nFinally, defendant asserts that the trial court abused its discretion in sentencing her to four years\u2019 imprisonment. Defendant argues that the sentence was based on her responsibility for Jose\u2019s acts. We disagree. Although the court commented during the sentencing hearing that Jose might have had some role in the fractures, he also expressed the opinion that defendant should stand up to her husband if he abuses Cecelia. A court of review will not upset the trial court\u2019s imposition of a sentence of imprisonment absent an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Conviction for aggravated battery of a child is subject to a sentence of three to seven years\u2019 imprisonment. (See Ill. Rev. Stat. 1985, ch. 38, pars. 12 \u2014 4.3, 1005 \u2014 8\u2014l(aX5).) Based on our review of the record, we do not find that the trial court abused its discretion in sentencing defendant to four years\u2019 imprisonment.\nFor the reasons stated above, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nJOHNSON and LINN, JJ., concur.", "type": "majority", "author": "JUSTICE McMORROW" } ], "attorneys": [ "Paul P. Biebel, Jr., Public Defender, of Chicago (Jeffrey M. Howard, Assistant Public Defender, of counsel), for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Lynda A. Peters, Terese Griffin, and Loretta Diamonte, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BERTHA FLORES, Defendant-Appellant.\nFirst District (4th Division)\nNo. 86\u20142435\nOpinion filed March 17, 1988.\nPaul P. Biebel, Jr., Public Defender, of Chicago (Jeffrey M. Howard, Assistant Public Defender, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Lynda A. Peters, Terese Griffin, and Loretta Diamonte, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0284-01", "first_page_order": 306, "last_page_order": 316 }