{ "id": 5793084, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH M. BERGIN, Defendant-Appellant", "name_abbreviation": "People v. Bergin", "decision_date": "1992-03-30", "docket_number": "No. 2 \u2014 90\u20140802", "first_page": "32", "last_page": "47", "citations": [ { "type": "official", "cite": "227 Ill. App. 3d 32" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "72 Ill. App. 3d 483", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5581816 ], "pin_cites": [ { "page": "485" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/72/0483-01" ] }, { "cite": "443 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182418 ], "weight": 3, "pin_cites": [ { "page": "319" }, { "page": "573" }, { "page": "2789" } ], "opinion_index": 0, "case_paths": [ "/us/443/0307-01" ] }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "year": 1979, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "129 Ill. 2d 458", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567120 ], "weight": 3, "pin_cites": [ { "page": "474" }, { "page": "474" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/129/0458-01" ] }, { "cite": "35 Ill. 2d 467", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378433 ], "weight": 2, "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0467-01" ] }, { "cite": "25 Ill. 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App. 3d", "case_ids": [ 3586037 ], "year": 1988, "pin_cites": [ { "page": "826" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/170/0815-01" ] }, { "cite": "173 Ill. App. 3d 314", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3478261 ], "year": 1988, "pin_cites": [ { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/173/0314-01" ] }, { "cite": "174 Ill. App. 3d 868", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3516190 ], "weight": 2, "pin_cites": [ { "page": "871" }, { "page": "871" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/174/0868-01" ] }, { "cite": "108 Ill. App. 3d 708", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3013785 ], "weight": 4, "pin_cites": [ { "page": "710" }, { "page": "710" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/108/0708-01" ] }, { "cite": "153 Ill. App. 3d 906", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3607308 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "908" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/153/0906-01" ] }, { "cite": "29 Ill. App. 3d 884", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2497376 ], "pin_cites": [ { "page": "893" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/29/0884-01" ] }, { "cite": "370 Ill. 612", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2561571 ], "year": 1975, "pin_cites": [ { "page": "616-17" } ], "opinion_index": 0, "case_paths": [ "/ill/370/0612-01" ] }, { "cite": "537 F.2d 922", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1049706 ], "weight": 3, "pin_cites": [ { "page": "926-27" }, { "page": "927" } ], "opinion_index": 0, "case_paths": [ "/f2d/537/0922-01" ] }, { "cite": "95 Ill. 2d 404", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3111155 ], "pin_cites": [ { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/95/0404-01" ] }, { "cite": "133 Ill. 2d 118", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3260454 ], "year": 1983, "pin_cites": [ { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/133/0118-01" ] }, { "cite": "121 Ill. 2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201150 ], "weight": 3, "pin_cites": [ { "page": "441" }, { "page": "445" }, { "page": "445" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0401-01" ] }, { "cite": "63 Ill. 2d 534", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5427013 ], "pin_cites": [ { "page": "541" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0534-01" ] }, { "cite": "485 U.S. 58", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 13492 ], "weight": 3, "pin_cites": [ { "page": "63" }, { "page": "61" }, { "page": "887" } ], "opinion_index": 0, "case_paths": [ "/us/485/0058-01" ] }, { "cite": "141 Ill. 2d 147", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238453 ], "pin_cites": [ { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0147-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "pin_cites": [ { "page": "186-90" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "140 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3530838 ], "pin_cites": [ { "page": "12-13" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/140/0001-01" ] }, { "cite": "141 Ill. App. 3d 827", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3495890 ], "year": 1986, "pin_cites": [ { "page": "833" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/141/0827-01" ] } ], "analysis": { "cardinality": 1362, "char_count": 36377, "ocr_confidence": 0.781, "pagerank": { "raw": 1.0740862833260229e-07, "percentile": 0.5605027551799352 }, "sha256": "fcaea74b060894e43085a17514c1d60fd575c4e07d18bddaf652af2683929356", "simhash": "1:fba9b1c7424a9c75", "word_count": 6005 }, "last_updated": "2023-07-14T16:10:11.260403+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. JOSEPH M. BERGIN, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE INGLIS\ndelivered the opinion of the court:\nA single parent of four young children was suddenly awakened in her bed at 4 a.m. on Sunday, September 3, 1989. Two men were in her dark bedroom, one standing right at her bedside. The closest man, whom the victim recognized as a 24-year-old next-door neighbor, covered her face with a pillow and allegedly said \u201c[d]on\u2019t talk or we\u2019ll kill the kids.\u201d Both men then left.\nFollowing a jury trial in May 1990, defendant, Joseph M. Bergin, was convicted of unlawful restraint (Ill. Rev. Stat. 1989, ch. 38, par. 10 \u2014 3) and intimidation (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 6) for the above acts. The jury acquitted defendant on a charge of home invasion, and the trial court entered a directed verdict for defendant on a charge of residential burglary. Defendant was sentenced to concurrent terms of 30 months\u2019 probation with six months\u2019 periodic imprisonment, which was stayed pending this appeal. Defendant made a timely appeal and argues that the convictions should be reversed for four reasons: (1) because defendant\u2019s motion to exclude certain photographs was improperly denied; (2) because three jury instructions tendered by defendant were improperly denied; (3) because the prosecutor made improper comments during closing argument; and (4) because defendant was not proven guilty beyond a reasonable doubt. We affirm.\nTRIAL TESTIMONY\nFifteen witnesses testified, and stipulations from two police officers were entered into the record during the four-day trial. We will not dwell on facts ascertained at trial that are not in dispute. Defendant admits drinking with friends at various Elmhurst, Illinois, establishments on Saturday, September 2, 1989, from 9 p.m. until closing time at around 4 a.m. Defendant then returned to his parents\u2019 home, where he lived, with his friend Harry Gordon, who was visiting from Minnesota for the weekend. Defendant admits entering the victim\u2019s home, directly adjacent to his parents\u2019 home, through a basement door, climbing two flights of stairs to reach the victim\u2019s second-floor bedroom, standing at her bedside while Gordon was elsewhere in the room, placing a pillow over her face, asking her to roll over on her side, and then running out of the house with Gordon. In dispute is whether defendant threatened the victim when she awoke by telling her \u201cDon\u2019t talk or we\u2019ll kill the kids,\u201d which the victim alleges but defendant denies. Defendant\u2019s theory of the case at trial and on appeal is that he was merely trying to extract his drunken friend, who had unknowingly entered the wrong home, from the victim\u2019s home. Defendant and his family and the victim and her family have been next-door neighbors for over 10 years.\nThe victim testified that she awoke at 4 a.m. to find defendant standing by her bedside. She asked him twice what he was doing there to which he did not reply. She then screamed. Defendant moved closer to her, and she reached up and grabbed his arms. Defendant then placed a pillow on her face and threatened in a raspy voice \u201cDon\u2019t talk or we\u2019ll kill the kids.\u201d She found it hard to breathe with the pillow on her face and said \u201cI can\u2019t breathe.\u201d Defendant repeated the previous threat, and the victim again complained about breathing, asking defendant to \u201c[p]lease let me sit up.\u201d Defendant told her to roll over onto her side, at which time she saw another man standing in the bedroom doorway. Throughout the ordeal, she noticed a \u201cbar odor\u201d about the defendant. Both men then ran out of her bedroom and out of her home, after which she immediately called the Elmhurst police department.\nWhen the police arrived, the victim realized that she had a bloody scratch on her nose from the encounter with defendant. A photograph of her face, showing the scratch and which was taken at the time, was introduced into evidence. The police found the victim\u2019s bed to be a mess and also found what was later identified as defendant\u2019s black L.A. Raiders hat on the victim\u2019s bed near the pillow area. The hat and photographs of the bed were introduced into evidence. Shortly after the police arrived, the victim identified the other intruder, Harry Gordon, whom the police had standing outside in her driveway. She did not recall that Gordon had ever been near her bed. On cross-examination, she testified that the incident had been very emotionally upsetting to her. In response to a question regarding her degree of alertness when she suddenly awoke that particular morning, she said that with four young children, she typically wakes up and responds quickly to their needs at night. The victim stated that she was not taken to the hospital for the scratch on her nose.\nThe prosecution called seven law enforcement witnesses. Officer Robert Wanderer of the Elmhurst police department testified that he was the first officer to arrive at the victim\u2019s home, at approximately 4:20 a.m. He met the victim at the front door and noticed the scratch on the victim\u2019s nose. He did not, however, take any skin or blood samples from defendant\u2019s fingernails to verify the implication that defendant had inflicted the scratch. Officer Wanderer noticed that the basement screen door latch on the victim\u2019s home had recently been broken. He found recent tracks in the victim\u2019s backyard and footprints in defendant\u2019s backyard; however, he did not request to see defendant\u2019s shoe for a match. Wanderer found the black L.A. Raiders hat on the victim\u2019s bed, which was later used by a police bloodhound for tracking purposes. He described the scene of the crime as being two suburban homes with side-by-side blacktop driveways, separated by a narrow grassy strip. The victim\u2019s home is directly south of defendant\u2019s parents\u2019 home.\nOfficer Michael Lullo of the Elmhurst police department talked with the victim shortly after police responded to the call. The victim told Lullo that her 24-year-old neighbor, defendant, had been one of the two men in her bedroom and that he was the one who placed a pillow over her face. Lullo testified that he saw the other man, Harry Gordon, that morning at approximately 5:45 a.m. and opined that Gordon was not under the influence of alcohol at that time.\nOfficer Dennis Kazarian of the Elmhurst police department also responded to the call. He stated that the victim was very emotionally upset and that the victim had a cut on her nose. Kazarian stated that around 6 a.m. that morning he went to defendant\u2019s home next door and found defendant and Gordon sleeping in the basement. He asked Gordon to step outside onto the victim\u2019s driveway, at which time the victim identified Gordon as one of the two intruders in her bedroom.\nDeputy Sheriff Dennis Guzlas of the Du Page County sheriff\u2019s department testified that he arrived at 5:45 a.m. that morning with a bloodhound tracking dog. Guzlas stated that he had six years of experience as a dog handler and that the dog he had with him that morning had a 90% success rate. The dog traced a scent from the L.A. Raiders hat. Guzlas placed the dog at the rear kitchen door of the victim\u2019s home, where the intruders had apparently departed. The dog travelled through a few backyards, around the block, and finished the search at the front door of defendant\u2019s home. The prosecution introduced into evidence a copy of the map that Guzlas had made showing the path of the dog through the neighborhood.\nTwo stipulations were offered by the prosecution concerning tests performed on the L.A. Raiders hat. Elmhurst police officer Don Pasquerella stated that he packaged the hat and submitted it to the Du Page County crime laboratory, along with hair samples from defendant and Gordon that were taken pursuant to a court order. Alfred Lucas, a forensic chemist with the crime laboratory, stated that after testing he found that the hair in the hat was similar to hair samples submitted by defendant and not similar to those submitted by Gordon.\nSergeant Thomas Turek of the Elmhurst police department testified that he arrived 15 minutes after the call, at approximately 4:30 a.m. Turek talked with defendant at defendant\u2019s home shortly thereafter, at which time defendant denied going onto the victim\u2019s property hours earlier. The defendant told Turek that he and Gordon came home from a night of socializing with friends, parked in the driveway for approximately 10 minutes and then went to bed. Defendant did ask Turek \u201c[d]id the guy steal anything?\u201d\nDuring the course of the prosecution\u2019s case, the prosecutor introduced a variety of color photographs of the area around the two homes. The prosecutor also introduced a map of the area around the two homes, drawn by Officer Pasquerella, into evidence.\nJohn Bergin, defendant\u2019s older brother, testified that he and his girlfriend had been out socializing with defendant and Gordon that evening and early morning. He opined that Gordon appeared drunk. He stated that he was parked in the street in front of his parents\u2019 home with his girlfriend when defendant and Gordon arrived and parked their cars in the driveway. While he did not recall what defendant or Gordon did upon their arrival, he did state that he and his girlfriend heard a scream from the victim\u2019s home about five minutes after defendant and Gordon arrived home.\nBernard Eisner, defendant\u2019s employer at the time, testified that he is president of Illinois School Services, where defendant was a salesman in training at the time. The two had a business meeting planned for Sunday, September 3, 1989. Eisner stated that defendant called sometime that day and cancelled the meeting because there had been a death in the family. The two did meet the following day, at which time defendant told Eisner what had actually happened. At that time, defendant told Eisner that his drunken friend had mistakenly entered the wrong home, that he tried to retrieve his friend and that they woke the victim up in the process.\nDefendant\u2019s case consisted of testimony from six individuals, plus his own testimony. Kurt Zackrison testified that he has known defendant and Harry Gordon since eighth grade. He stated that he was socializing with both friends for part of the evening on the night of September 2, 1989. He opined that while Gordon was intoxicated that evening, defendant was not.\nMaria Guadalupe Carmona testified that defendant\u2019s mother babysat her child from 1987 through 1989. She stated that she occasionally saw defendant playing with her child and the victim\u2019s children.\nJeff Borla testified that he has known defendant and Gordon for 15 years and that he was socializing with the two and other friends on the evening of September 2, 1989. Borla opined that while Gordon was intoxicated on the evening in question, defendant was not.\nDefendant presented three character witnesses who testified as to defendant's good reputation in the community. Two football coaches from the College of Du Page, where defendant had played for two years, and an assistant State\u2019s Attorney for Cook County testified on defendant\u2019s behalf.\nDefendant was the last witness. He testified that after a night of socializing with friends, Harry Gordon followed him home, both parking their cars in the driveway at about 4 a.m. Defendant told Gordon to wait by a fence while he went behind the house to urinate. When defendant came back, Gordon was gone. Defendant stated that he then looked through a kitchen window in the victim\u2019s home and saw Gordon inside. He found the back door to the victim\u2019s home locked and no windows which were open. He entered the victim\u2019s home through an open basement door, kicking some stacked cans as he walked in. Defendant ran up the stairs to the first floor, heard footsteps above him on the second floor, and ran up to the second floor in search of Gordon. He stated that he saw Gordon standing in the victim\u2019s bedroom and that Gordon was snoring. He tried to grab Gordon to remove him, bumped the victim\u2019s bed, and fell onto the victim\u2019s bed while she was sleeping. The victim awoke and screamed. Defendant put a pillow over her face so that she would not be able to recognize him. She said that she could not breathe, so he removed the pillow and told her to roll onto her side. Defendant then grabbed Gordon and exited the victim\u2019s home through the rear kitchen door. He stated that he was nervous about what had just happened and ran around the block, cut through a yard and jumped a fence to get back to his next-door house because he did not want the victim to see him. When he got to the back door of his house he grabbed Gordon, who was standing there, and went to the basement to sleep.\nDefendant testified that he was then awakened at approximately 5:30 a.m. that morning by the police. He denied that he was involved in the incident when he spoke with police at that time. Later that morning, he received a telephone call from the Elmhurst police department and drove down to the station for further questioning at about 9:30 a.m., after which he was placed under arrest. When asked by Officers Lullo and Turek at the police station if he had entered the victim\u2019s home earlier that morning, he shrugged his shoulders. Defendant denied saying \u201c[djon\u2019t talk or we\u2019ll kill the kids\u201d when he was in the victim\u2019s bedroom. He stated that he knew the victim as a neighbor and occasionally played with her children. He also denied calling his employer, Bernard Eisner, that morning and saying that he would not be able to make their scheduled meeting because there had been a death in the family.\nDefendant testified that Harry Gordon was a good friend of his and his family for many years and that Gordon had probably been in his home hundreds of times. Defendant stated that the second-floor attic in their home is where he and his brothers used to sleep. He opined that Gordon might have thought that the attic was where he was supposed to sleep, which could explain Gordon\u2019s venturing up to the second floor of the victim\u2019s house. Defendant\u2019s present bedroom is in the basement of his parents\u2019 home. Defendant stated that while the victim\u2019s house has an exposed, outside basement stairway, his parent\u2019s house does not.\nPHOTOGRAPHS\nAt issue is whether reversible error arose when the trial court denied defendant\u2019s motion to exclude a group of color photographs of the two houses that were first tendered to the defense on the last day of trial. Defendant claims that the State violated Supreme Court Rule 412 pertaining to discovery which provides in pertinent part:\n\u201c[T]he State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control:\n* * *\n(v) any *** photographs *** which the prosecuting attorney intends to use in the hearing or trial.\u201d 134 Ill. 2d R. 412.\nDefendant correctly notes that the photographs were an attempt by the State to rebut defendant\u2019s assertion made during the trial that the houses would appear similar to a drunk at 4 a.m., as Gordon allegedly was, and that Gordon had merely confused the houses and mistakenly entered the victim\u2019s. Defendant claims that the photographs surprised and prejudiced the defense and therefore their introduction was reversible error. We disagree.\nWe note that while defendant did object to the photographs, he did not seek a continuance so as to allow him time to study the photographs and refute any prejudicial inferences presented. In fact, the following colloquy took place between the trial judge and defense counsel immediately after the trial court denied defense counsel\u2019s objection to the photographs:\n\u201cMR. PARENTI [defense counsel]: My motion to exclude the new evidence is denied?\nTHE COURT: Do you need some time before proceeding with your case here to look at those, and if you have any further preparation?\nMR. PARENTI: I have reviewed them, your Honor.\u201d\nThis court has previously stated that \u201c[exclusion of evidence is a last resort, required only where a recess or a continuance would be ineffective. [Citation.] Generally the failure to seek a continuance waives a claim of error based upon a discovery violation.\u201d (People v. Curtis (1986), 141 Ill. App. 3d 827, 833; see People v. Lucas (1986), 140 Ill. App. 3d 1, 12-13.) We conclude that defendant waived his claim of error by not requesting a continuance. Moreover, we agree with the State that defendant suffered no prejudice by the introduction of the photographs. We have examined the photographs at issue and conclude that they were consistent with other evidence of the scene of the crime and that the defense was not taken by surprise.\nWithin his argument section regarding the photographs, defendant also raised another discovery issue. Defendant alludes to an allegedly undisclosed statement of the defendant which was first elicited during redirect examination of Officer Lullo. To the extent that defendant has raised this issue for review in his brief, we conclude that defendant has waived appellate review of the alleged error by not including the claim in his written post-trial motion. People v. Enoch (1988), 122 Ill. 2d 176, 186-90; Ill. Rev. Stat. 1989, ch. 38, par. 116 \u2014 1(c).\nJURY INSTRUCTIONS\nDefendant argues that the trial court erred by denying four of his tendered jury instructions: a non-Illinois Pattern Jury Instruction regarding a missing witness (Harry Gordon); an instruction on the affirmative defense of necessity (Illinois Pattern Jury Instructions, Criminal, No. 24 \u2014 25.22 (2d ed. 1981) (hereinafter IPI Criminal 2d)); and two non-IPI instructions on unlawful restraint (based on IPI Criminal 2d Nos. 8.06 and 8.07).\nWe initially note the general rule that a defendant is entitled to instructions on those defenses which the evidence supports, even where the support is slight. (People v. Everette (1990), 141 Ill. 2d 147, 156.) The Supreme Court has stated that \u201c[a]s a general proposition, a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.\u201d (Mathews v. United States (1988), 485 U.S. 58, 63, 99 L. Ed. 2d 54, 61, 108 S. Ct. 883, 887.) Our supreme court in Everette cautioned that while \u201c \u2018very slight evidence upon a given theory of a case will justify the giving of an instruction,\u2019 *** we must be wary so as not to permit a defendant to demand unlimited instructions based upon the merest factual reference or witness\u2019 comment.\u201dIll. 2d at 157, quoting People v. Bratcher (1976), 63 Ill. 2d 534, 541.) Whether to give a non-IPI instruction to the jury is a decision committed to the trial court\u2019s sound discretion. (People v. Thompkins (1988), 121 Ill. 2d 401, 441; see 134 Ill. 2d R. 451(a).) Any error in giving or refusing instructions will not justify a reversal when the evidence in support of the conviction is so clear and convincing that the jury\u2019s verdict would not have been different. (People v. Austin (1989), 133 Ill. 2d 118, 124; see People v. Moore (1983), 95 Ill. 2d 404, 410 (harmless error standard applied to alleged jury instruction error).) We analyze each disputed jury instruction in light of the above principles.\nDefendant first argues that the trial court committed reversible error in denying the non-IPI missing witness instruction he tendered. The instruction would have informed the jury that it was peculiarly within the power of the State to produce Harry Gordon as a witness and that it could infer from the State\u2019s failure to call him that Gordon would have testified unfavorably to the State\u2019s case. The instruction is based on Seventh Circuit Committee (1980) Instruction 3.25.\nAs his primary source of authority, defendant cites United States v. Mahone (7th Cir. 1976), 537 F.2d 922, where the court affirmed a trial court\u2019s decision to deny a missing witness instruction. Under Ma-hone, a two-part test exists for the court to grant a missing witness instruction: (1) the absent witness must be peculiarly within one party\u2019s power to produce; and (2) the testimony of the witness must elucidate issues in the case. Mahone, 537 F.2d at 926-27.\nDefendant has a weak argument on either part of the test. We find no evidence in the record that Harry Gordon was within the peculiar control of the State, notwithstanding defense counsel\u2019s allegations. Furthermore, we fail to see how Gordon would illuminate facts of the case concerning defendant\u2019s convictions of intimidation and unlawful restraint. According to defendant\u2019s own testimony, he found Gordon snoring in a standing position in the victim\u2019s bedroom. Given the uncertainty of whether Gordon\u2019s testimony would have been useful, we cannot say the trial judge abused his discretion by not giving the missing witness instruction. The conclusion we reach is in fact similar to the conclusion reached in Mahone: that \u201c[i]n cases such as this where it is debatable whether the absent witness\u2019 testimony would have elucidated the issues in the case, there should be latitude for the judge to decide whether the requested instruction would be unnecessary and time consuming for the jury.\u201d (Mahone, 537 F.2d at 927.) We find no error in the trial court\u2019s denial of defendant\u2019s missing witness instruction.\nDefendant next contends that reversible error arose from the trial court\u2019s refusal of his tendered jury instruction on the defense of necessity, which states:\n\u201cConduct which would otherwise be an offense is justifiable by reason of necessity if the defendant was without blame in occasioning or developing the situation and reasonably believed that such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.\u201d (IPI Criminal 2d No. 24 \u2014 25.22.)\nDefendant argues in his brief that the evidence showed \u201cthat he entered the victim\u2019s home solely to rescue Gordon, believed to be intoxicated, and to protect the victim and her children from Gordon,\u201d and that he was without blame in developing the situation.\nWe fail to understand how a defense of necessity relates to defendant\u2019s convictions of intimidation and unlawful restraint. Defendant\u2019s necessity defense, according to his own argument, relates only to his entry into the victim\u2019s home. The defense of necessity in no way relates to threatening the victim or holding a pillow to her face. Furthermore, the only offenses charged which concerned the defendant\u2019s entry of the victim\u2019s home were residential burglary, of which defendant received a directed verdict, and home invasion, for which defendant was acquitted. We agree with the State that alleged errors in instructions are not subject to attack on appeal where the defendant has been acquitted of the offenses to which the instructions pertain. (See People v. Schneider (1939), 370 Ill. 612, 616-17; People v. Legear (1975), 29 Ill. App. 3d 884, 893.) We find no error in the trial court\u2019s refusal of defendant\u2019s necessity instruction.\nDefendant next argues that the trial court erred in denying the following non-IPI instructions on unlawful restraint:\nDefendant\u2019s Tendered Instruction No. 19:\n\u201cA person commits unlawful restraint when he knowingly and without authority detains another.\nTo commit unlawful restraint, the defendant must detain his victim with an overriding intent and motivation to detain.\nFurther, the conduct must prevent the person from moving from one place to another, and said conduct must be directly related to the detention.\u201d (Based on IPI Criminal 2d No. 8.06.)\nDefendant\u2019s Tendered Instruction No. 21:\n\u201cTo sustain the charge of unlawful restraint, the State must prove the following proposition:\nFirst: That the defendant JOSEPH BERGIN knowingly and without legal authority detained [victim] with an overriding intent and motivation to detain her.\nSecond: That JOSEPH BERGIN\u2019S conduct prevented [victim] from moving from one place to another.\nIf you find from your consideration of the evidence that this proposition has been proved beyond a reasonable doubt, you may find the defendant guilty.\nIf you find from your consideration of all the evidence that this proposition has not been proved beyond a reasonable doubt, you should find the defendant JOSEPH BERGIN not guilty.\u201d (Based on IPI Criminal 2d No. 8.07.)\nAt the outset, we find these two instructions to be non-IPI instructions because they depart substantially from the equivalent IPI versions. Defendant based his formulation of the two instructions on the holdings in People v. Haybron (1987), 153 Ill. App. 3d 906, and People v. Kuykendall (1982), 108 Ill. App. 3d 708. Based on the two cases, defendant argues that without his tendered instructions, the jury was erroneously allowed to convict him of unlawful restraint even if his overriding intent and motivation was not the detention of the victim, but only the avoidance of detection, of which his detention of the victim was only derivative and circumstantially related.\nIn both Haybron and Kuykendall, the court reversed a conviction of unlawful restraint because of insufficient proof. In Kuykendall, the court discussed how certain offenses against the person or property necessarily involve a degree of restraint. (Kuykendall, 108 Ill. App. 3d at 710.) The court noted that in such cases as rape, murder and robbery, \u201cthe overriding intent and motivation of the offender\u201d is something other than unlawful restraint. (Kuykendall, 108 Ill. App. 3d at 710.) The latter quoted language is the language defendant included in his tendered instructions. This court has previously criticized that particular language from Kuykendall for focusing on defendant\u2019s motive, rather than his knowledge, and we do so again here. (People v. Paulick (1988), 174 Ill. App. 3d 868, 871.) The court in Haybron merely repeated the \u201coverriding intent and motivation\u201d language, citing Kuykendall, and reversed for insufficient proof. Haybron, 153 Ill. App. 3d at 908.\nOur research shows no other unlawful restraint case in Illinois that has invoked the \u201coverriding intent and motivation\u201d language of Kuykendall. In fact, recent cases interpreting Kuykendall have interpreted it as holding that unlawful restraint is punishable as a separate crime, in cases where a greater offense such as rape or armed robbery is also charged, if the restraint is independent. See People v. Leonhardt (1988), 173 Ill. App. 3d 314, 322; People v. Watts (1988), 170 Ill. App. 3d 815, 826; People v. Sperow (1988), 170 Ill. App. 3d 800, 814.\nTo the extent that Kuykendall and Haybron stand for the proposition that an offender\u2019s motive is the key factor in an unlawful restraint charge, we disagree and choose not to follow them. We believe the better analysis is to follow the plain language of section 10 \u2014 3(a) of the Criminal Code of 1961 under which an offender must \u201cknowingly without legal authority\u201d detain another. (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 10 \u2014 3(a); see IPI Criminal 2d No. 8.06.) We find no error in the trial court\u2019s denial of defendant\u2019s non-IPI unlawful restraint jury instructions.\nPROSECUTOR\u2019S COMMENTS\nAt issue is whether the trial court erred in denying defendant\u2019s motion for a mistrial. Defendant made the motion in response to a comment by the prosecutor during rebuttal closing argument that there were two defendants in this matter although only one was now on trial. Defendant argues that throughout the trial he never mentioned that Gordon was a defendant and that the prosecutor\u2019s comment implied that Gordon was not being tried because he had pled guilty, from which the jury would infer that defendant, too, must be guilty. Defendant concludes that he is entitled to a new trial. We disagree.\nThe following exchange took place during the prosecutor\u2019s rebuttal closing argument:\n\u201cMR. BIRKETT [prosecutor]: He [defendant] had a job, he was making good dough. And so did Harry.\nLadies and gentlemen, these comments about mother and father, everybody loves Harry, they will continue to love him\u2014 Joe, not Harry, my partner just corrected me. Maybe everybody loves Harry, too. There are two defendants in this case, but only one on trial now.\nMR. PARENTI [defense counsel]: Excuse me?\nMR. BIRKETT: Maybe everybody does love Joe.\nMR. PARENTI: Objection. May I have a sidebar?\nTHE COURT: I will sustain the objection, the jury will disregard the statement with regard to more than one defendant.\nMR. BIRKETT: I\u2019m sorry if I misspoke. I mean, Joe. Maybe everybody loves Joe. They will not stop loving him and caring for him if you do your job and find him guilty, the world will not stop. They will continue to love him. And don\u2019t be persuaded by sympathy and prejudice.\u201d\nThis court has held that \u201ca prosecutor is given wide latitude in closing argument as long as the comments are based on the evidence or reasonable inferences therefrom.\u201d (People v. Cobb (1989), 186 Ill. App. 3d 898, 916; see People v. Thompkins (1988), 121 Ill. 2d 401, 445.) Generally, a prosecutor\u2019s remarks in closing argument do not amount to reversible error unless they constitute a material factor in defendant\u2019s conviction or result in substantial prejudice to him. (Thompkins, 121 Ill. 2d at 445.) Furthermore, prompt instructions by the trial judge to the jury to disregard improper closing argument comments will usually cure any error. (People v. Franklin (1990), 135 Ill. 2d 78, 100.) We will analyze defendant\u2019s contentions of prejudicial error in light of the above principles.\nWe initially disagree with defendant\u2019s premise that there is no basis in the record for a closing argument comment by the prosecutor implying that Harry Gordon was also charged in the case. In cross-examining both Officer Lullo and Officer Turek, defense counsel asked questions which themselves implied that there had been such a case. We thus conclude that there was evidentiary support for the prosecutor\u2019s inadvertent comment.\nFurthermore, defendant neglects to mention in his argument that his objection to the comment was sustained. The trial judge promptly instructed the jury to disregard the comment. In addition, the jury here received the customary instructions both before and after the testimony and arguments that it should disregard comments of counsel which are not based on evidence. We believe the prompt action here by the trial judge cured the allegedly improper prosecutorial comment.\nCases cited by defendant do not alter our conclusion. In People v. Thomas (1975), 25 Ill. App. 3d 88, the court found that the prosecutor\u2019s improper comments did not rise to the level of reversible error in view of the strong evidence of defendant\u2019s guilt. (Thomas, 25 Ill. App. 3d at 92.) Such a result could also stand in the instant case given the strong evidence supporting defendant\u2019s convictions. In People v. Weinstein (1966), 35 Ill. 2d 467, which defendant also cites, the court found reversible error based on repeated improper comments by the prosecutor. (Weinstein, 35 Ill. 2d at 471.) Weinstein therefore does not apply in this case where the prosecutor made one inadvertent comment, which was promptly corrected by the trial judge.\nGUILT BEYOND A REASONABLE DOUBT\nAs the final issue raised, defendant argues that he was not proven guilty beyond a reasonable doubt of either unlawful restraint (Ill. Rev. Stat. 1989, eh. 38, par. 10 \u2014 3) or intimidation (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 6).\nOur supreme court discussed the parameters of appellate review of a claim of reasonable doubt in People v. Boclair (1989), 129 Ill. 2d 458:\n\u201cIt is the jury\u2019s duty to assess the credibility of witnesses and to weigh the evidence in determining a defendant\u2019s guilt or innocence. [Citations.] That determination is entitled to great deference, and when the sufficiency of the evidence is challenged we will not retry the defendant, although it is our duty to set aside a conviction when the evidence raises a reasonable doubt of defendant\u2019s guilt. *** \u2018 \u201c[T]he relevant question is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\u201d \u2019 \u201d (Emphasis in original.) Boclair, 129 Ill. 2d at 474, quoting People v. Collins (1985), 106 Ill. 2d 237, 261, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.\nRegarding his unlawful restraint conviction, defendant argues that the State failed to show that his overriding intent and motivation was to detain the victim, citing People v. Haybron (1987), 153 Ill. App. 3d 906, and People v. Kuykendall (1982), 108 Ill. App. 3d 708, as authority. Defendant argues that the State merely showed that the minimal detention caused by defendant\u2019s holding a pillow to the victim\u2019s face was derivative of his purpose to avoid identification.\nDefendant confuses the issue at hand and misconstrues the unlawful restraint statute, which simply states:\n\u201cA person commits the offense of unlawful restraint when he knowingly without legal authority detains another.\u201d (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 10 \u2014 3(a).)\nWhile defendant\u2019s argument focuses on his motive or lack thereof to unlawfully restrain the victim, the key word in the statute is \u201cknowingly,\u201d about which we see no real debate when applied to the evidence. Furthermore, as stated earlier in the opinion, we disagree with Kuykendall and Haybron to the extent that they suggest that this court should focus on the motive of the defendant. (See Paulick, 174 Ill. App. 3d at 871.) Lastly, we strongly disagree with defendant\u2019s attempt to minimize the import of his placing a pillow over the face of a single woman suddenly awakened in her own bedroom. The victim had a right to suffer no restraint at all. See People v. Satterthwaite (1979), 72 Ill. App. 3d 483, 485 (two-minute impairment of victim\u2019s freedom of locomotion constituted unlawful restraint).\nDefendant next challenges the sufficiency of the evidence as to his intimidation conviction for telling the victim: \u201cDon\u2019t talk or we\u2019ll kill the kids.\u201d Defendant argues that the evidence was insufficient to show that he personally uttered the threat, since the victim had a pillow over her face at the time the threat was uttered and since, as a long-time friend of the family, defendant was unlikely to have threatened the victim\u2019s children. We disagree.\nContrary to defendant\u2019s argument, the intent which must be proven by the State is not the intent to carry out the threat but the intent to \u201ccause another *** to omit the performance of any act\u201d (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 6), which in this case was talking. We therefore agree with the State that the proof of intimidation is not undercut by the unlikelihood that defendant would have harmed the victim\u2019s children due to his good relationship with the children.\nThe issue here is therefore one of credibility: whom the jury chose to believe. Defendant denied having uttered the threat while the victim claimed he had. Resolution of that question was within the unique province of the jury as trier of fact. (Boclair, 129 Ill. 2d at 474.) And the jury had reason to reject defendant\u2019s testimony. The jury heard testimony, some from defendant himself, of false statements by defendant to both the police and his former employer following the offense. We find defendant\u2019s speculation that Harry Gordon uttered the threat to be exactly that, speculation. There is no evidence in the record to support such speculation.\nThe jury in the instant case heard testimony from 17 witnesses over the course of the four-day trial, acquitted defendant on a charge of home invasion, and found him guilty beyond a reasonable doubt of unlawful restraint and intimidation. After our review of the record, we cannot say that the jury\u2019s verdict is so unsatisfactory, unreasonable or improbable as to raise a reasonable doubt of defendant\u2019s guilt on either conviction.\nThe judgment of the circuit court of Du Page County is affirmed.\nAffirmed.\nWOODWARD and BOWMAN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE INGLIS" } ], "attorneys": [ "Philip C. Parenti and Jeffrey J. LeVine, both of Philip C. Parenti, Ltd., of Chicago, for appellant.", "James E. Ryan, State\u2019s Attorney, of Wheaton (William L. Browers, 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. JOSEPH M. BERGIN, Defendant-Appellant.\nSecond District\nNo. 2 \u2014 90\u20140802\nOpinion filed March 30, 1992.\nPhilip C. Parenti and Jeffrey J. LeVine, both of Philip C. Parenti, Ltd., of Chicago, for appellant.\nJames E. Ryan, State\u2019s Attorney, of Wheaton (William L. Browers, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0032-01", "first_page_order": 56, "last_page_order": 71 }