{ "id": 2990284, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REGINALD JAMES, Defendant-Appellant", "name_abbreviation": "People v. James", "decision_date": "1993-09-30", "docket_number": "No. 1\u201490\u20140033", "first_page": "516", "last_page": "533", "citations": [ { "type": "official", "cite": "255 Ill. App. 3d 516" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "424 N.E.2d 44", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "45" } ], "opinion_index": 0 }, { "cite": "98 Ill. App. 3d 116", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498938 ], "pin_cites": [ { "page": "117-18" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/0116-01" ] }, { "cite": "428 N.E.2d 666", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "page": "668" } ], "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 692", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3084327 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "694" }, { "page": "694-95" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0692-01" ] }, { "cite": "243 Ill. App. 3d 238", "category": "reporters:state", "reporter": "Ill. 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The trial judge sentenced defendant to 10 years in the Illinois Department of Corrections. On appeal, defendant contends that: (1) where he was arrested for arson without probable cause and his confession was the fruit of this unconstitutional seizure, the trial judge erred in denying his motion to quash his arrest and suppress his confession on the theory that the police had probable cause to arrest him for battery; (2) he was denied a fair trial for arson and aggravated arson where the court gave the jury a nonElinois Pattern Jury Instruction (IPI) concluding instruction and verdict forms which precluded the jury from finding him not guilty of arson; (3) the case must be remanded for resentencing because the presentence report did not comply with the governing statute in that it lacked required information and was demonstrably inaccurate; and (4) he must be granted a new sentencing hearing on his conviction because the court relied in aggravation on the fact that the lives of innocent people were placed in peril by defendant\u2019s conduct when this was the aggravating element which enhanced his crime from arson to aggravated arson.\nOn October 6, 1987, at approximately 1:15 a.m., a fire started in Mary Montanez\u2019s third-floor apartment at 2648 North Milwaukee Avenue. The fire department arrived moments later and the fire was brought under control within 20 or 30 minutes. After the blaze was brought under control, battalion chief Edward Kelly discovered that there were actually four separate fires in the apartment. He then notified the office of fire investigations.\nDetective Kenneth Urban from the Chicago police department\u2019s bomb and arson unit was assigned to investigate the fire. He arrived at the scene at approximately 11 a.m. on October 6, 1987. Urban\u2019s investigation confirmed that the fire had started in four different locations in the apartment. According to Urban, one fire had started in the living room, one had started in the kitchen and two fires had begun in the bedroom. All the electrical outlets were in normal condition; thus, Urban eliminated the possibility of an accidental fire. Consequently, Urban testified that in his expert opinion \u201cin the field of cause and origin on the subject of bomb and arson,\u201d the fire was the result of arson. He based his opinion on the fact that the fire had multiple points of origin and the normal condition of the electrical outlets. Subsequently, defendant became Urban\u2019s primary suspect and, on October 15, 1987, Urban arrested defendant for arson. On November 13, 1987, the grand jury indicted defendant for arson (Ill. Rev. Stat. 1991, ch. 38, par. 20 \u2014 1(a) (now 720 ILCS 5/20 \u2014 1(a) (West 1992))) and aggravated arson (Ill. Rev. Stat. 1991, ch. 38, par. 20 \u2014 1.1(a)(1) (now 720 ILCS 5/20 \u2014 1.1(a)(1) (West 1992))).\nPrior to trial, defendant filed a motion to quash his arrest and a motion to suppress his confession on the grounds that he was arrested for arson without probable cause and that his statements were coerced. At the pretrial hearing on the motions, Urban testified that, on October 6, 1987, while he was investigating the early morning fire, he spoke to Mary outside the apartment building. According to Urban, Mary told him that she was not at her apartment when the fire started, but that she believed defendant had started the fire. Urban stated that Mary then informed him that defendant was her ex-boy friend and that he had come to her apartment the night before. Defendant had once lived in the apartment with Mary, at one time had keys to the apartment, and on the night of October 5, somehow was able to gain entry to the apartment building without being \u201cbuzzed in\u201d by Mary. Urban testified that Mary said that defendant was drunk and acting strange so she insisted he leave. He testified that she told him that after defendant left, she discovered a message written on a blackboard in her apartment which read that \u201che was sorry they broke up and he wished her well, something like that.\u201d According to Urban, Mary said that defendant returned an hour later. This time, however, he was angry and he hit and kicked her before fleeing. She called the police, but defendant had left before the police arrived. She told Urban she was afraid for her safety, so she called her ex-husband, James Montanez, who came over and took them to her mother\u2019s house, which was located three blocks away.\nUrban further testified that, during his investigation, he also spoke to Mary\u2019s ex-husband James. James had told Urban that it was approximately 12:30 a.m. on October 6, 1987, when he arrived at 2648 North Milwaukee Avenue to pick up Mary and their daughter and take them to Mary\u2019s mother\u2019s house. According to Urban, James told him that when he drove up and parked his car, he met defendant in the street and spoke to him.\nUrban testified that, as a result of these conversations with Mary and James Montanez, he attempted to contact defendant. After several unsuccessful attempts, he left a message that he needed to speak to defendant \u201cin regards to a fire that occurred at Mary Montanez\u2019s apartment.\u201d Subsequently, defendant contacted Urban. Urban said he told defendant he was investigating the fire and that defendant denied setting it. Urban testified that he then asked defendant if he would be willing to take a polygraph test \u201cto clear his name of it.\u201d Defendant agreed and Urban set up an appointment on October 15 at 9 a.m. with the polygraph unit in the crime lab.\nAccording to Urban, defendant arrived at the bomb and arson office at approximately 12 p.m. on October 15. He then walked defendant to the crime lab where a polygraph examiner administered the test. Urban stated he did not handcuff defendant or threaten or promise him anything in order to get him to take the polygraph test. Urban testified he was not present while defendant was being given the test. He stated that, after the test was administered, the polygraph examiner came out of the examining room and told him that defendant \u201chad failed every question given regarding the fire.\u201d Urban testified that he then entered the examining room, informed defendant he had flunked the test, placed defendant under arrest and read him his Miranda rights. According to Urban, at that time, defendant admitted to setting the fire. He denied threatening defendant or promising him that, if he confessed, he would be charged with a misdemeanor instead of a felony. When asked on cross-examination whether charges had been filed against defendant for battery, Urban responded \u201cI think I may have put a battery charge on.\u201d\nRobert Torvar, the polygraph examiner, testified that prior to administering the polygraph test to defendant, he read defendant a consent form. He testified that defendant signed the form freely and was not threatened, restrained or promised anything in return for taking the test. Additionally, he stated that he explained the test to defendant and told him the questions that would be asked. Torvar said that after defendant completed the test, he told defendant he had flunked. He then left the examining room to inform Urban of the results.\nJudith Mondello, an assistant State\u2019s Attorney, testified that on October 15, 1987, at approximately 3:15 p.m., she was at the bomb and arson unit of the Chicago police department investigating a fire which was determined to be the result of arson. She stated that when she spoke to defendant she informed him of his Miranda rights and explained to him that she was not his attorney. According to Mondello, defendant said he understood his rights and that he was willing to discuss the fire with her. Mondello stated that defendant then told her \u201cin his own words\u201d his version of what happened the night of the fire and she transcribed his confession into a three-page handwritten statement. She testified that she read the statement to defendant and made several corrections which defendant requested. She and defendant initialed the corrections and defendant signed the bottom of each page. She stated that he never asked for an attorney or indicated that he wanted to stop making a statement. She also testified that defendant was not threatened, physically abused, or promised leniency if he would confess to the crime.\nDefendant\u2019s testimony was consistent with that of the officers up until the conclusion of the polygraph test. He stated that he submitted to the polygraph examination voluntarily. Defendant testified, however, that after the test was completed, Torvar told him he \u201cdid fine\u201d and then Torvar left the room. According to defendant, Torvar returned with Urban and another officer. Defendant stated that he asked if he could leave and was told he could not. He denied that he ever made a statement in the polygraph room or that either Torvar or Urban ever informed him of his Miranda rights. He testified that, when Torvar and Urban were both outside of the room, the third officer convinced him to confess to the crime. According to defendant, the officer told him that if he confessed then he would only be charged with criminal damage to property instead of arson. Defendant said that the officer told him that, since no one was hurt, if he would agree to make restitution and help with repairs \u201cthat would be the end of it.\u201d He stated that he agreed and when the assistant State\u2019s Attorney arrived he recited a fabricated confession to her.\nThe trial judge denied defendant\u2019s motions to quash his arrest and suppress his statements. She concluded that defendant was informed of his Miranda rights numerous times, had the capacity to understand those rights, and voluntarily waived them. She also determined that the defendant\u2019s confession was not the product of physical or psychological coercion and that defendant was not made any promises in exchange for his confession. Finally, the judge ruled that \u201c[t]here was certainly sufficient information to the police officer to meet the standard of probable cause to arrest.\u201d In making her ruling, the judge expressly found that the polygraph results were inadmissible and would not be considered in determining whether probable cause to arrest defendant existed. In denying defendant\u2019s motion to quash his arrest and suppress his confession, the judge reasoned that, based upon Urban\u2019s \u201cconversations, his investigations, his information that he developed from other witnesses\u201d and \u201c[t]he fact that the defendant hit and kicked and beaten [sic] this woman,\u201d there was clearly sufficient information within Urban\u2019s knowledge to establish probable cause to arrest defendant. After the judge made her ruling, defense counsel asked her to clarify upon what basis had she found that there was probable cause to arrest. The following discussion was then held between the trial judge and defense counsel:\n\u201cMR. STERNBERG [Defense counsel]: Is the Court finding that Officer Urban had probable cause to arrest because of his knowledge of the battery or the arson or both?\nTHE COURT: Certainly, the officer had probable cause to arrest him based upon the battery. There is no doubt of that.\nMR. STERNBERG: Because I-\nTHE COURT: In fact, the testimony that the officer had information the defendant had beaten and kicked this woman, he certainly had the right to indicate to the defendant that he was under arrest, and then advise him of his rights, which is, in fact, what the officer said that he did.\nMR. STERNBERG: Okay.\nTHE COURT: Additionally, he did have this additional information.\nMR. STERNBERG: Right. Is the finding that he had probable cause to arrest for the arson as well? He found probable cause on the basis of the battery, my question is \u2014 next question is, you also finding that he \u2014 he had probable cause on the basis to arrest for the \u2014 for the arson as well?\nTHE COURT: I don\u2019t think I have to meet that, counsel.\nMR. STERNBERG: I\u2019m sorry?\nTHE COURT: I don\u2019t think I have to meet that question. I\u2019ve found that the officer had probable cause to place the defendant under arrest based on his conversations with Mary Martinez [s\u00edc] and also James Martinez [sic]. And that then the next step that took place, he advised the defendant of his rights and the defendant made a statement admitting to the arson.\nMR. STERNBERG: If I may only point out to the Court, I believe that the officer testified that he didn\u2019t know that a summons \u2014 whether a summons had issued or not. And that I believe, he testified that he \u2014 that he wasn\u2019t dealing with the battery at the time he called the defendant in, and that wasn\u2019t the case that \u2014 that he was dealing with at that time.\nTHE COURT: The officer said, he believed that he put battery charges on the defendant. I have made the finding, sir, that\u2014\nMR. STERNBERG: Very well.\nTHE COURT: \u2014that the officer had probable cause to arrest and, therefore, when he had the defendant in custody as was his obligation, advised him of his constitutional rights, at which point the defendant made a statement.\u201d\nAt trial, during a short recess after jury selection, defendant left the courtroom and did not return. No one was able to locate defendant by the next day, so the trial commenced in absentia. Mary and James both testified at trial. Their testimony was consistent with what Urban, at the hearing on the pretrial motions, had stated that they had told him. Mondello\u2019s testimony at trial was also consistent with her testimony at the pretrial hearing. A resident of the building and the apartment manager testified that they had seen defendant at the apartment building several times while he was in a relationship with Mary.\nUrban\u2019s testimony concerned his investigation and his conclusion that the fire was the result of arson. He also related defendant\u2019s confession to the jury. According to Urban, defendant told him that he had had a fight with Mary and, when she called the police, he left. Urban stated that defendant said that later he called Mary, but when no one answered he realized nobody was there. Urban testified that defendant described how he retrieved gasoline from a container in his car, poured it into a styrofoam cup, returned to Mary\u2019s apartment, \u201ckicked in the front door and set the fires in the apartment.\u201d\nAt the jury instruction conference, the State initially tendered two verdict forms: \u201cguilty of aggravated arson\u201d and \u201cnot guilty of aggravated arson.\u201d Over defendant\u2019s objection, however, the judge agreed to give the jury an instruction on the lesser-included offense of arson. As a result, the State withdrew the verdict form of \u201cnot guilty of aggravated arson\u201d and proposed two different forms. There was no objection from defense counsel. Consequently, the judge agreed to give the jury the following three verdict forms: \u201cguilty of aggravated arson,\u201d \u201cguilty of arson,\u201d and \u201cnot guilty of any arson related offense.\u201d During its admonishment to the jury, however, the judge told the jury that the three verdict forms it would receive would be \u201cguilty of aggravated arson,\u201d \u201cguilty of arson,\u201d and \u201cnot guilty of aggravated arson.\u201d Defense counsel did not object in court or in his written post-trial motion to this incorrect admonishment or to the judge\u2019s failure to mention the \u201cnot guilty of any arson related offense\u201d verdict form. The common law record reveals, however, that all four of the above-mentioned verdict forms had the notation \u201cgiven\u201d in the bottom margin. After deliberations, the jury returned a verdict of \u201cguilty of aggravated arson.\u201d\nOn December 27, 1989, defendant was sentenced in absentia. The judge commented on the \u201csomewhat sketchy\u201d presentence investigation report she had received. The prosecutor then noticed that the second page which indicated several felony convictions was actually another person\u2019s \u201crap sheet\u201d and not defendant\u2019s. The judge commented that the report was \u201cpoorly prepared\u201d and she would \u201ccertainly not rely obviously on this incorrect information.\u201d In mitigation, she considered that defendant had \u201cno substantial criminal history\u201d and was a paramedic who had chosen to be of assistance to other people. In aggravation, however, she stated that she certainly had to take into consideration that he was a \u201cvery volatile person\u201d who could be dangerous to other people when his emotions were out of control. She noted that, although he was angry at Mary, \u201che placed in perile [sic] a number of innocent people who had nothing to do with his relationship.\u201d Consequently, the judge sentenced defendant to 10 years in the Illinois Department of Corrections. Subsequently, defendant was located and taken into custody.\nDefendant\u2019s first contention on appeal is that he was illegally arrested for arson without probable cause and, therefore, the trial judge erred in denying his motion to quash his arrest and suppress his confession on the grounds that probable cause existed to arrest him for battery. He argues that an unconstitutional arrest for one crime cannot subsequently be validated on the theory that probable cause existed for a different offense not contemplated by the police at the time of the arrest. The State, on the other hand, asserts that the record establishes that the police had probable cause to arrest defendant for arson. Alternatively, the State maintains that defendant\u2019s confession was not the result of an exploitation of the allegedly improper arrest and, therefore, not subject to suppression.\nIt is undisputed that defendant was arrested for arson and not battery. Urban was with the police bomb and arson unit and was assigned to investigate the fire. After several unsuccessful attempts at locating defendant, Urban left a message with defendant\u2019s mother that he needed to speak with defendant \u201cin regards to a fire that occurred at Mary Montanez\u2019s apartment.\u201d When he finally spoke with defendant, they spoke about the fire and defendant agreed to take a lie detector test to prove he did not cause the fire. After failing \u201cevery question given regarding the fire,\u201d Urban placed defendant under arrest. According to Urban, it was at this point that defendant admitted to setting Mary\u2019s apartment on fire.\nIt also is clear from the record that the trial judge refused to decide whether the police had probable cause to arrest defendant for arson because she believed it sufficient to determine that the officers had probable cause to arrest defendant for battery. However, the law is clear that a court, judging the propriety of an arrest after the fact, cannot validate an unconstitutional arrest on the theory that probable cause existed for another offense which was not contemplated by the police at the time of the arrest. (People v. Booker (1991), 209 Ill. App. 3d 384, 394, 568 N.E.2d 211, 218; People v. Nash (1979), 78 Ill. App. 3d 172, 176, 397 N.E.2d 480, 483.) Therefore, we must initially agree with defendant that the trial judge erred in denying his motion to quash his arrest and suppress his confession on the ground that probable cause existed to arrest him for battery since battery was not contemplated by Urban when he arrested defendant.\nAfter reviewing the record, however, we believe that Urban did possess the probable cause necessary to arrest defendant for arson. Probable cause exists when the totality of the facts and circumstances within the arresting officer\u2019s knowledge would be sufficient to warrant a reasonable and prudent person in believing that an offense had been committed and that defendant committed the offense. (Booker, 209 Ill. App. 3d at 393, 568 N.E.2d at 218; Nash, 78 Ill. App. 3d at 176, 397 N.E.2d at 483.) The evidence upon which probable cause is based need not be sufficient to convict, but must be more than a hunch or mere suspicion. People v. Reynolds (1983), 94 Ill. 2d 160, 166, 445 N.E.2d 766, 769; People v. Sledge (1981), 92 Ill. App. 3d 1051, 1058, 416 N.E.2d 412, 417.\nIn this case, Urban had concluded that the fire in Mary\u2019s apartment was the result of arson. He also knew, from speaking with Mary, that defendant had entered her apartment building twice on the night of the fire without being \u201cbuzzed in\u201d by Mary. Additionally, Mary had told Urban that defendant was drunk and extremely upset over their break up. She told Urban that defendant hit and kicked her several times. He also knew she was so fearful of defendant that she called her ex-husband to come and drive her and her daughter over to her mother\u2019s house, which was only three blocks away. Finally, Mary\u2019s ex-husband told Urban that he saw defendant in front of the apartment building when he arrived at approximately 12:30 a.m. Urban knew that this was approximately one-half hour before Mary\u2019s apartment was set on fire. We believe that these facts and circumstances surrounding the arson of Mary\u2019s apartment which were known to Urban when he arrested defendant were sufficient to support the belief in a reasonable and prudent person that defendant committed the arson. These facts alone may not have been enough to convict defendant, but they surely created more than a mere suspicion or hunch that defendant was the offender. Consequently, defendant\u2019s arrest for arson was supported by probable cause and his motion to suppress was properly denied.\nThe main case cited by defendant is People v. Thomas (1984), 123 Ill. App. 3d 857, 463 N.E.2d 832. In Thomas, defendant was arrested for the murder of his girl friend after her body was discovered in a forest preserve on October 21, 1978. The police investigators estimated that, from the degree of decomposition, the body had been there for three or four days. The victim was last seen alive on October 15 in defendant\u2019s company. Additionally, the police learned that defendant customarily visited the victim every day at her apartment and at work, but after she was considered missing he ceased this activity. The trial court found that defendant was arrested without probable cause. In refusing to disturb the trial court\u2019s determination as contrary to the manifest weight of the evidence, the Thomas court reasoned that although defendant was the last person to be seen with the victim, this was six days before the body was found whereas the estimated time of death was \u201cthree or four days earlier.\u201d The court also found that the fact that defendant discontinued his visits to the victim after he was told she was missing could not be considered either \u201cindicia of guilt or innocence.\u201d\nIn this case, however, the police knew that defendant had assaulted Mary at her apartment just prior to the fire and was seen at the scene within one-half hour of the blaze. Additionally, unlike in Thomas, the trial judge refused to rule whether or not probable cause to arrest for arson existed. Therefore, in coming to our conclusion, there is no trial court determination to which we must pay deference under the \u201cmanifest weight of the evidence\u201d standard.\nDefendant\u2019s second contention is that he was denied a fair trial when the judge gave the jury the following three verdict forms: \u201cnot guilty of aggravated arson,\u201d \u201cguilty of aggravated arson,\u201d and \u201cguilty of arson.\u201d Defendant asserts that the failure to give the jury the option of acquitting him of arson had the effect of directing a verdict of guilty on that count. The State, on the other hand, argues that the instructions, taken as a whole, correctly announced the applicable legal principles. The State also maintains that defendant has waived this argument on appeal by failing to object at trial and in a post-trial motion.\nThe failure to object at trial to a perceived error and to raise that issue in a subsequent post-trial motion results in waiver of the question on review unless it can be considered \u201cplain error.\u201d (People v. Herrett (1990), 137 Ill. 2d 195, 209, 561 N.E.2d 1, 7; People v. Enoch (1988), 122 Ill. 2d 176, 187, 522 N.E.2d 1124, 1130.) \u201cA vital part of a trial is the reading of instructions by the court to the jury at the close of the oral arguments\u201d (People v. Wilson (1976), 43 Ill. App. 3d 583, 585, 357 N.E.2d 81, 83) and a defendant is entitled to an instruction on his defense if supported by any evidence. (People v. Brooks (1989), 185 Ill. App. 3d 935, 942, 542 N.E.2d 64, 68.) Surely, a defendant who claims he is not guilty, as does defendant in this case, is entitled to have the jury given the option of acquitting him. We agree with those courts which have held that a trial judge\u2019s failure to give the jury an instruction which he agreed to give during the instruction conference is plain error. (People v. Dailey (1989), 188 Ill. App. 3d 683, 686, 544 N.E.2d 449, 451-52; Wilson, 43 Ill. App. 3d at 585, 357 N.E.2d at 83.) Consequently, defendant has not waived this issue.\nThe State argues that the instructions read to the jury, taken as a whole, accurately informed the jury of the applicable legal principles. In support of this argument, the State asserts that the judge actually recited the correct instruction to the jury just prior to giving the incorrect instructions. The State also points to the common law record which indicates that the jury was given four verdict forms which would have allowed them to find defendant guilty or not guilty of either offense.\nImmediately prior to telling the jury it would receive three verdict forms which allowed for pronouncements of \u201cguilty of aggravated arson,\u201d \u201cnot guilty of aggravated arson,\u201d and \u201cguilty of arson,\u201d the trial judge stated:\n\u201cYou are to decide based upon the evidence and arguments in this case whether to return a verdict of not guilty or a verdict of guilty of aggravated arson or a verdict of guilty of arson.\nAccordingly you will be provided with three (3) verdict forms. Not guilty and guilty of aggravated arson. And guilty of arson.\nFrom these 3 verdicts forms you should select the one that reflects your verdict and sign it as I have stated. Do not write on the other 2. Sign only one of these verdict forms.\u201d\nIt is arguable whether this instruction, as the State asserts, correctly informed the jury that it could find defendant not guilty of any arson-related offense. It is also a fair interpretation that the jury would only be considering defendant\u2019s guilt or innocence of aggravated arson. In light of the fact that the judge then immediately informed the jury that the three verdict forms it would receive would read \u201cnot guilty of aggravated arson,\u201d \u201cguilty of aggravated arson,\u201d and \u201cguilty of arson,\u201d we believe a reasonable jury would have interpreted this instruction consistently with the verdict forms it actually received. The question then is what verdict forms were actually handed to the jury.\nThe State asserts that the jury actually was given four verdict forms which allowed for verdicts of \u201cguilty of aggravated arson,\u201d \u201cnot guilty of aggravated arson,\u201d \u201cguilty of arson,\u201d and \u201cnot guilty of any arson related offense.\u201d The State points to the common law record which reveals that all four of the above verdict forms had the notation \u201cgiven\u201d in the bottom margin and, therefore, it argues that the jury received the correct instructions.\n\u201cA reviewing court is bound by the certified record of proceedings in the trial court, and the record is presumed to be correct unless it can be shown to be otherwise.\u201d (People v. Bland (1992), 228 Ill. App. 3d 1080, 1086, 593 N.E.2d 639, 644; see also People v. Allen (1985), 109 Ill. 2d 177, 184, 486 N.E.2d 873, 875; People v. Vincent (1988), 165 Ill. App. 3d 1023, 1028, 520 N.E.2d 913, 918.) In both Bland and Vincent, the certified records indicated that the trial judge read incorrect instructions to the jury, but the common law records included the correct instructions. The appellate court found that the mere fact that correct instructions were found in the record, which included instructions both given and refused, is insufficient to prove that the jury was actually given these instructions.\nIn this case, the State does not offer any evidence to prove nor, for that matter, does it even argue that the certified record of the reading of the instructions was inaccurate. As is shown by the above-cited cases, the mere fact that correct instructions are found in the court file is insufficient to prove that the jury was so instructed. Therefore, we are bound by the certified report of proceedings and must proceed under the assumption that the jury received the incorrect instructions which provided for verdicts of \u201cnot guilty of aggravated arson,\u201d \u201cguilty of aggravated arson,\u201d and \u201cguilty of arson.\u201d\nIn order for an accused to be convicted of a criminal offense, the jury must find that each element of the offense has been proven beyond a reasonable doubt. In this case, the jury was asked to determine the defendant\u2019s fate and provided with verdict forms which did not allow it to find him not guilty of any arson-related offense. There is a reasonable probability that this error had the effect of removing from the jury\u2019s consideration the elements of arson and conveying the message to the jury that it was its duty only to determine whether the aggravating factor of the greater offense was present, thus directing a verdict of guilty on the charge. This seriously undermines the reliability of the verdict and cannot be considered harmless error. The defendant, therefore, was denied his right to a fair trial.\nAlthough we reverse and remand for a new trial on this issue, we will address defendant\u2019s remaining assertions of error due to the possibility of their recurrence.\nDefendant\u2019s third contention on appeal is that the case must be remanded for resentencing because the presentence report considered by the court did not comply with mandatory statutory requirements and was both incomplete and inaccurate. The State asserts that defendant has waived this argument by failing to object during trial or in a post-trial motion. Alternatively, the State maintains that remandment for resentencing is not warranted because the court was aware of all required information at the time of sentencing.\nThe trial judge sentenced defendant, in absentia, after hearing arguments from counsel and considering a presentence report which had been prepared without defendant\u2019s cooperation. Prior to sentencing defendant, the prosecutor had brought to the court\u2019s attention several errors in the report. It was noted that the presentence report included not only defendant\u2019s \u201crap sheet,\u201d but also another person\u2019s more extensive sheet which indicated several felony convictions. The prosecutor then requested that \u201cthe record reflect there is a correction made to the PSI.\u201d The trial judge commented that the report was \u201csomewhat sketchy\u201d and \u201cpoorly prepared\u201d and stated that she would \u201ccertainly not rely obviously on this incorrect information.\u201d Additionally, the report was incomplete in that, other than defendant\u2019s gender, race, and birth date, it only contained defendant\u2019s criminal history and probation status. Defense counsel did not make any objections to the use of this report or to the incomplete nature of the report.\nSection 5 \u2014 3\u20141 of the Unified Code of Corrections provides in pertinent part:\n\u201cA defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court.\nHowever, the court need not order a presentence report of investigation where both parties agree to -the imposition of a specific sentence.\u201d (Ill. Rev. Stat. 1991, ch. 38, par. 1005 \u2014 3\u20141 (now 730 ILCS 5/5-3-1 (West 1992)).)\nThe Illinois Supreme Court has interpreted this statute to mean that a presentence investigation and written report are mandatory legislative requirements which cannot be waived unless both the State and defendant agree to the imposition of a specific sentence. (People v. Youngbey (1980), 82 Ill. 2d 556, 561, 413 N.E.2d 416, 419.) Since this requirement is not a personal right of the defendant (Youngbey, 82 Ill. 2d at 565, 413 N.E.2d at 421), a defendant who is tried and convicted in absentia cannot be considered to have waived the requirement by his voluntary absence from the trial. (People v. Lynch (1984), 122 Ill. App. 3d 121, 124, 460 N.E.2d 817, 819.) Additionally, \u201csubstantial compliance\u201d with the statute through the inclusion in the record of all the information which would have been in the report does not excuse the express statutory requirement of a written presentence report. (People v. Harris (1985), 105 Ill. 2d 290, 303, 473 N.E.2d 1291, 1297; Lynch, 122 Ill. App. 3d at 124, 460 N.E.2d at 819.) Moreover, the trial judge cannot order a \u201cpartial presentence report\u201d (People v. Andrus (1991), 210 Ill. App. 3d 878, 882, 568 N.E.2d 1388, 1391) and \u201c[i]t is the duty of the probation officer to prepare a presentence report consistent with the directives of the statute.\u201d People v. Meeks (1980), 81 Ill. 2d 524, 533, 411 N.E.2d 9, 14.\nHowever, if the trial judge does consider a presentence report, any objection to a deficiency in that report is deemed waived by a defendant\u2019s failure to object. (Meeks, 81 Ill. 2d at 533, 411 N.E.2d at 14; Andrus, 210 Ill. App. 3d at 881-82, 568 N.E.2d at 1391; People v. Collins (1982), 109 Ill. App. 3d 1076, 1080, 441 N.E.2d 935, 938.) Additionally, a defendant is precluded from objecting to the incomplete nature of the report when the deficiency is due to his own absence or refusal to cooperate. People v. Gomez (1986), 141 Ill. App. 3d 935, 942, 491 N.E.2d 68, 73-74.\nIn the instant case, the trial judge considered an admittedly inaccurate and incomplete presentence report. Although the inaccuracies were brought to the judge\u2019s attention and she did not consider the incorrect information, it nonetheless was error for her to sentence defendant based on such an incomplete presentence report. We note, however, that the incomplete nature of the report was due, to a great extent, to defendant\u2019s absence. Moreover, as the Meeks court stated:\n\u201cIt is the duty of the parties *** to bring to the attention of the sentencing authority any alleged deficiency or inaccuracy in the presentence report. The requirement that the trial judge consider the presentence report was complied with in the present case; any objections to the sufficiency of the report must first be presented to the trial court.\u201d (Meeks, 81 Ill. 2d at 533, 411 N.E.2d at 14.)\nSince defendant failed to object to the deficient nature of the presentence report, he has waived review of this issue.\nDefendant\u2019s final contention is that, during sentencing, the trial judge improperly considered in aggravation that his conduct threatened harm to others when that fact is implicit in the offense for which he was convicted. The State argues that the judge did not consider improper factors and, even if she did, the error was not of such magnitude to necessitate remandment for resentencing. The State also asserts that defendant has waived this issue by failing to object in court and in a post-trial motion.\nDefendant has not waived review of this issue. When a trial judge relies upon an improper aggravating factor in sentencing a defendant to a term of imprisonment, the defendant\u2019s \u201cfundamental right to liberty\u201d is unjustly affected and his right not to be sentenced based upon improper factors is violated. (People v. Martin (1988), 119 Ill. 2d 453, 458, 519 N.E.2d 884, 886.) Additionally, it is impractical to expect counsel to interrupt the trial judge while he is imposing sentence in order to \u201cpoint out that he was considering wrong factors in aggravation.\u201d (People v. Saldivar (1986), 113 Ill. 2d 256, 266, 497 N.E.2d 1138, 1142.) Thus, if a defendant asserts on appeal that a trial judge considered erroneous aggravating factors in determining the appropriate sentence of imprisonment, the issue will be reviewed under the \u201cplain error\u201d doctrine. See Martin, 119 Ill. 2d at 459, 519 N.E.2d at 887; Saldivar, 113 Ill. 2d at 266, 497 N.E.2d at 1142.\nIn sentencing defendant, the judge stated:\n\u201cI think this is a man who has very many talents and has much to offer and over most of his life has been a citizen who has been abiding by the law and in fact his role as a paramedic is obviously very persuasive, the fact that he chose that type of life and to be of service to other people in a very dangerous situation certainly indicates one side of his personality, the fact that he has no substantial criminal history.\nBut then we have the other side that we saw both in the courtroom when he left the courtroom and the facts that were illustrated at trial shows this is a man who can be dangerous. When his emotions are out of control, he can be very dangerous. And the facts in this case, the fact that while he may have been angry at his girlfriend, he placed in perile [sic] a number of innocent people who had nothing to do with his relationship.\nCertainly all of those issues also have to be taken into consideration. I am going to sentence him to 10 years in the Illinois Department of Corrections.\u201d\nIn imposing sentence upon a defendant, the trial judge may not consider in aggravation any fact implicit in the underlying offense for which defendant was convicted. (See People v. White (1986), 114 Ill. 2d 61, 66, 499 N.E.2d 467, 469; People v. Conover (1981), 84 Ill. 2d 400, 404, 419 N.E.2d 906, 908; People v. Gonzalez (1993), 243 Ill. App. 3d 238, 244.) The rationale behind forbidding this practice is that the legislature obviously has already considered such a fact when setting the range of penalties and \u201cit would be improper to consider it once again as a justification for imposing a greater penalty.\u201d (Martin, 119 Ill. 2d at 460, 519 N.E.2d at 887.) However, although \u201ca specific act inherent in a charged offense [can] not be considered to aggravate a sentence, a judge may still consider \u2018the nature and circumstances of the offense, including the nature and extent of each element of the offense as committed by the defendant.\u2019 \u201d (People v. Hunter (1981), 101 Ill. App. 3d 692, 694, 428 N.E.2d 666, 668, quoting People v. Tolliver (1981), 98 Ill. App. 3d 116, 117-18, 424 N.E.2d 44, 45.) In order to convict a defendant of \u201caggravated arson,\u201d the State must prove that, in the course of committing the arson, defendant must have known or reasonably should have known that one or more persons were present in the structure he was setting on fire. Ill. Rev. Stat. 1991, ch. 38, par. 20 \u2014 1.1(a)(1) (now 720 ILCS 5/20\u2014 l.l(a)(l) (West 1992)).\nDefendant supports his contention that the judge improperly relied upon a factor inherent in the offense when imposing his sentence with our recent decision in the Gonzalez case. The State cites the Hunter case in support of its assertion that the judge did not improperly rely in aggravation upon an act inherent in the offense, but rather properly considered the \u201cnature and extent\u201d of defendant\u2019s conduct. We believe Gonzalez is directly on point with the facts of this case.\nIn Gonzalez, when sentencing defendant, the trial judge stated:\n\u201cMr. Gonzalez, this is a very serious matter. The charge of aggravated arson is, I believe, one of the most serious types of crimes, because the person who begins this kind of violence loses control over it and endangers themselves and the other people beyond the person that the violence was aimed towards.\nThere were a number of people in that building, who had nothing to do with your dispute with the lady you felt owed you money, and when you acted in the way you did, you threatened all of their lives as well.\u201d (Gonzalez, 243 Ill. App. 3d at 244.)\nIn Gonzalez, we held that the judge improperly considered in aggravation a fact implicit in the underlying charge and, pursuant to Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)), we reduced defendant\u2019s sentence.\nIn the Gonzalez case, we also distinguished Hunter. In Hunter, defendant owned a duplex and set fire to the half in which he lived in order to collect the insurance money after he became frustrated with his inability to find a buyer. During the sentencing after he was convicted of aggravated arson, the trial court referred to the fact that defendant\u2019s conduct threatened serious harm to the family which lived in the other half of the duplex. On appeal, the Hunter court recognized that the fact that persons were exposed to serious harm is implicit in the charge and cannot be considered in aggravation, but stated that \u201che [the trial judge] did not necessarily depend on that fact to impose a sentence greater than the minimum.\u201d (Hunter, 101 Ill. App. 3d at 694-95.) The court found that the trial judge did not base his decision on this improper factor, but on numerous other legitimate factors which constituted the \u201cnature and circumstances\u201d of the crime. However, as we stated in Gonzalez:\n\u201cIn the present case, the trial judge did not determine defendant\u2019s sentence based on nature and extent of the offense committed by the defendant, but rather relied on the fact that defendant\u2019s actions threatened the lives of others. Unlike Hunter, the trial court here improperly relied on this aggravating factor in sentencing defendant.\u201d Gonzalez, 243 Ill. App. 3d at 245.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for a new trial.\nReversed and remanded.\nMANNING, P.J., and CAMPBELL, J., concur.", "type": "majority", "author": "JUSTICE BUCKLEY" } ], "attorneys": [ "Michael J. Pelletier and Anna Ahronheim, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Eileen O\u2019Neill, and Linda Jakubs, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REGINALD JAMES, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1\u201490\u20140033\nOpinion filed September 30, 1993.\nMichael J. Pelletier and Anna Ahronheim, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Eileen O\u2019Neill, and Linda Jakubs, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0516-01", "first_page_order": 536, "last_page_order": 553 }