{ "id": 5287623, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRUCE NESBITT, Defendant-Appellant", "name_abbreviation": "People v. Nesbitt", "decision_date": "1991-07-25", "docket_number": "No. 4\u201491\u20140067", "first_page": "1023", "last_page": "1026", "citations": [ { "type": "official", "cite": "216 Ill. App. 3d 1023" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "542 N.E.2d 1127", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "186 Ill. App. 3d 255", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2656256 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/186/0255-01" ] }, { "cite": "542 N.E.2d 814", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "823" } ], "opinion_index": 0 }, { "cite": "186 Ill. App. 3d 668", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2658352 ], "pin_cites": [ { "page": "682" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/186/0668-01" ] }, { "cite": "479 N.E.2d 1091", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "1096" } ], "opinion_index": 0 }, { "cite": "133 Ill. App. 3d 927", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3529366 ], "year": 1989, "pin_cites": [ { "page": "933" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0927-01" ] } ], "analysis": { "cardinality": 428, "char_count": 7007, "ocr_confidence": 0.788, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.3916041051041972 }, "sha256": "871e9366cfb313358300871f72e93f480b8c0fe1af45e5e35e93c1b2fb75d235", "simhash": "1:9c40e6b87dc318e8", "word_count": 1130 }, "last_updated": "2023-07-14T16:24:26.558535+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. BRUCE NESBITT, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McCULLOUGH\ndelivered the opinion of the court:\nDefendant Bruce Nesbitt was found guilty of battery and sentenced to 300 days\u2019 imprisonment with no good-time credit. Defendant appeals his conviction and sentence, arguing the trial court erred in (1) denying his motion for a new trial based on the prosecutor\u2019s improper conduct and argument in his opening statement and closing argument; and (2) in sentencing him and in denying him good-time credit. We affirm.\nOnly those facts necessary to resolve the issues before us will be recited.\nDefendant\u2019s battery conviction stems from an incident on September 15, 1990, at Barnett\u2019s Liquor Store in Champaign, Illinois, between defendant and the victim, Larry G. Cole. According to three eyewitnesses, defendant was first observed attempting to take a package from Cole outside the liquor store. The eyewitnesses then stated defendant jumped on Cole\u2019s back and pushed his head into the pavement after he fell. According to one eyewitness, defendant then kicked Cole in the head by raising his leg \u201clike a football player kicking a field goal.\u201d The eyewitnesses testified Cole appeared to be intoxicated. The eyewitnesses also stated several of defendant\u2019s friends, who were observing the altercation with Cole, attempted to pull defendant off of Cole.\nCole testified the incident began outside the liquor store when defendant said to him \u201cHey, let me have some of your stuff,\u201d referring to the wine and beer Cole had just purchased at the store. After Cole said no, the two got into an argument.\nDefendant testified he went to the liquor store to purchase liquor and, upon exiting the store with his purchase, he bumped into Cole, who became mad and began using racial slurs against him. Defendant stated Cole threatened to spit in his face and, when defendant pushed Cole away, a fight between the two began. According to defendant, the two were wrestling together on the ground and he (defendant) kicked out at Cole.\nThe State called two eyewitnesses in rebuttal, both of whom stated defendant and Cole were not wrestling at any time during the altercation. One eyewitness, an employee of the store, testified he did not see defendant in the liquor store prior to the altercation with Cole on September 15, 1990. Cole also testified in rebuttal that he did not at any time touch the defendant.\nDuring his opening statements, the prosecutor attempted to demonstrate for the jury how the defendant kicked Cole in the face. During closing arguments, the prosecutor (1) referred to the eyewitness testimony that defendant kicked Cole in the head \u201clike a football player kicking a field goal\u201d; (2) stated defendant \u201chumiliated\u201d Cole; and (3) stated defendant \u201cwas going to have some fun with this drunk,\u201d referring to Cole. Defendant\u2019s objections to the conduct and statements of the prosecutor during opening and closing remarks were overruled.\nWe first consider the defendant\u2019s claim that the actions and comments of the prosecutor prejudiced him and, therefore, a new trial must be conducted. In matters involving arguments or remarks of counsel, the question of the prejudicial impact, if any, upon the jury is within the sound discretion of the trial court and will not be disturbed on review unless there has been a clear abuse of discretion. Zelinski v. Security Lumber Co. (1985), 133 Ill. App. 3d 927, 933, 479 N.E.2d 1091, 1096; People v. Phillips (1989), 186 Ill. App. 3d 668, 682, 542 N.E.2d 814, 823.\nThe record shows the prosecutor attempted, during opening statements, to show the jury how the defendant kicked Cole in the head. The trial judge noted the demonstration, while improper, was not prejudicial and stated that the prosecutor\u2019s conduct only made him look foolish before the jury. We will not disturb the trial judge\u2019s findings on this issue. As to the State\u2019s closing arguments, the State\u2019s evidence established defendant was the instigator of the altercation with Cole. The State\u2019s closing arguments were based on the evidence and reasonable inferences that could be drawn from the evidence. By its verdict, it is clear the jury believed the State\u2019s witnesses. We find there was sufficient evidence to support the verdict.\nWe next consider whether the trial court abused its discretion in sentencing defendant and in refusing to grant him good-time credit. The presentence report shows defendant had four felony convictions since 1981. Also, defendant had been sentenced to probation twice since 1981 and had not completed the terms of probation successfully. The trial judge noted defendant\u2019s criminal record, and his inability to complete probation. After stating that a sentence of probation would deprecate the seriousness of the offense, the trial judge sentenced defendant to 300 days\u2019 imprisonment.\nThe determination of a sentence involves considerable judicial discretion and will not be disturbed on review absent a showing of abuse of that discretion. (People v. Fisher (1989), 186 Ill. App. 3d 255, 542 N.E.2d 1127.) Battery is a Class A misdemeanor, which has a sentencing range up to one year\u2019s imprisonment. (Ill. Rev. Stat. 1989, ch. 38, pars. 12 \u2014 3(b), 1005 \u2014 8\u20143(a)(1).) We find no abuse of discretion in sentencing.\nRegarding the denial of good-time or good-behavior credit, section 3 of the County Jail Good Behavior Allowance Act provides that good-behavior credit shall be denied to any person serving a sentence \u201cwho inflicted physical harm upon another person in committing the offense for which he is confined.\u201d (Ill. Rev. Stat. 1989, ch. 75, par. 32.) Defendant does not argue that Cole was not injured in their altercation. Rather, he argues there was no showing that Cole\u2019s reported injuries \u2014 loss of a front tooth, the loosening of two other teeth, and a cut or \u201cgash\u201d to the forehead \u2014 were caused by defendant\u2019s actions. Defendant argues any injuries Cole suffered were a result of their mutual wrestling or struggling and not shown to be caused by the kick delivered to Cole\u2019s head by defendant.\nWe find defendant\u2019s argument unpersuasive. The evidence established Cole was seen by an eyewitness in the midst of the altercation with defendant with a cut on his forehead. Cole testified his front tooth was knocked out when defendant kicked him in the head. This evidence clearly establishes Cole suffered physical harm as a result of defendant\u2019s actions. The trial court, therefore, properly denied defendant any good-time credit.\nFor the foregoing reasons, defendant\u2019s conviction and sentence for battery are affirmed.\nAffirmed.\nLUND, P.J., and GREEN, J., concur.", "type": "majority", "author": "JUSTICE McCULLOUGH" } ], "attorneys": [ "Kristen H. Fischer, of Kristen H. Fischer Law Offices, of Champaign, for appellant.", "Thomas J. Difanis, State\u2019s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, 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. BRUCE NESBITT, Defendant-Appellant.\nFourth District\nNo. 4 \u2014 91\u20140067\nOpinion filed July 25, 1991.\nKristen H. Fischer, of Kristen H. Fischer Law Offices, of Champaign, for appellant.\nThomas J. Difanis, State\u2019s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "1023-01", "first_page_order": 1045, "last_page_order": 1048 }