{ "id": 35425, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PATRICK TAINTER, Defendant-Appellant", "name_abbreviation": "People v. Tainter", "decision_date": "1998-01-23", "docket_number": "No. 1\u201495\u20143935", "first_page": "634", "last_page": "649", "citations": [ { "type": "official", "cite": "294 Ill. App. 3d 634" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "635 N.E.2d 860", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "871" } ], "opinion_index": 0 }, { "cite": "262 Ill. App. 3d 876", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2850326 ], "year": 1994, "pin_cites": [ { "page": "890-91" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/262/0876-01" ] }, { "cite": "515 N.E.2d 337", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "342" } ], "opinion_index": 0 }, { "cite": "162 Ill. App. 3d 468", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3508315 ], "year": 1987, "pin_cites": [ { "page": "475" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/162/0468-01" ] }, { "cite": "611 N.E.2d 590", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "592" } ], "opinion_index": 0 }, { "cite": "243 Ill. App. 3d 850", "category": "reporters:state", "reporter": "Ill. 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App. 3d 97", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5784416 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/236/0097-01" ] }, { "cite": "606 N.E.2d 39", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "237 Ill. App. 3d 1001", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5162224 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-app-3d/237/1001-01" ] }, { "cite": "675 N.E.2d 910", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "926-27" } ], "opinion_index": 0 }, { "cite": "175 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295784 ], "year": 1996, "pin_cites": [ { "page": "34-35" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/175/0001-01" ] }, { "cite": "604 N.E.2d 294", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "311" }, { "page": "311" } ], "opinion_index": 0 }, { "cite": "152 Ill. 2d 133", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5602879 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "176" }, { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/152/0133-01" ] }, { "cite": "417 N.E.2d 1322", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "page": "1326" } ], "opinion_index": 0 }, { "cite": "84 Ill. 2d 186", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3045513 ], "year": 1981, "pin_cites": [ { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/84/0186-01" ] }, { "cite": "680 N.E.2d 357", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "365" }, { "page": "366" }, { "page": "366" }, { "page": "365" } ], "opinion_index": 0 }, { "cite": "176 Ill. 2d 289", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544867 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "307" }, { "page": "308" }, { "page": "308" }, { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0289-01" ] }, { "cite": "533 N.E.2d 89", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "page": "92" } ], "opinion_index": 0 }, { "cite": "178 Ill. App. 3d 292", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2434163 ], "year": 1988, "pin_cites": [ { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/178/0292-01" ] }, { "cite": "463 N.E.2d 696", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "699" } ], "opinion_index": 0 }, { "cite": "101 Ill. 2d 443", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160428 ], "year": 1984, "pin_cites": [ { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0443-01" ] }, { "cite": "570 N.E.2d 1180", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "1183" }, { "page": "1183" } ], "opinion_index": 0 }, { "cite": "212 Ill. App. 3d 351", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2599966 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "356-57" }, { "page": "357" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/212/0351-01" ] }, { "cite": "281 N.E.2d 389", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "pin_cites": [ { "page": "393" } ], "opinion_index": 0 }, { "cite": "4 Ill. App. 3d 522", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2913623 ], "year": 1972, "pin_cites": [ { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/4/0522-01" ] }, { "cite": "510 N.E.2d 877", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "882", "parenthetical": "and cases cited therein" } ], "opinion_index": 0 }, { "cite": "117 Ill. 2d 170", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5545360 ], "year": 1987, "pin_cites": [ { "page": "180", "parenthetical": "and cases cited therein" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/117/0170-01" ] }, { "cite": "626 N.E.2d 260", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "263" }, { "page": "263" } ], "opinion_index": 0 }, { "cite": "254 Ill. App. 3d 148", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2981460 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "152" }, { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/254/0148-01" ] }, { "cite": "518 N.E.2d 82", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "89" } ], "opinion_index": 0 }, { "cite": "119 Ill. 2d 69", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3193089 ], "year": 1987, "pin_cites": [ { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/119/0069-01" ] }, { "cite": "30 Ill. App. 3d 1034", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2625818 ], "year": 1975, "opinion_index": 1, "case_paths": [ "/ill-app-3d/30/1034-01" ] }, { "cite": "15 Ill. App. 3d 418", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2463054 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "421" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/15/0418-01" ] }, { "cite": "230 Ill. App. 3d 975", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5212129 ], "year": 1992, "pin_cites": [ { "page": "985" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/230/0975-01" ] }, { "cite": "101 Ill. 2d 443", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160428 ], "year": 1984, "pin_cites": [ { "parenthetical": "holding that involuntary manslaughter instruction was unwarranted where evidence showed that savagely brutal beating of four-year-old victim with mop handle resulted in bruises to the chest muscles, lungs, and brain and were too numerous to be counted" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/101/0443-01" ] }, { "cite": "4 Ill. App. 3d 522", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2913623 ], "year": 1972, "pin_cites": [ { "page": "526" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/4/0522-01" ] }, { "cite": "254 Ill. App. 3d 148", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2981460 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "153" }, { "page": "153" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/254/0148-01" ] } ], "analysis": { "cardinality": 1376, "char_count": 35364, "ocr_confidence": 0.768, "pagerank": { "raw": 6.38852823733527e-08, "percentile": 0.3955381182455039 }, "sha256": "283df48967486a14db3acd5c1182b9b02f9886b236dadc24d0c9ea683d2d2e67", "simhash": "1:b3522686f9cf85f8", "word_count": 5843 }, "last_updated": "2023-07-14T15:05:51.326352+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. PATRICK TAINTER, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE CAMPBELL\ndelivered the opinion of the court:\nFollowing a jury trial in the circuit court of Cook County, defendant Patrick Tainter was found guilty of the murder of Yvonne Johnson. The trial court found defendant eligible for an extended-term sentence and sentenced him to 75 years in the Illinois Department of Corrections. Defendant now appeals.\nThe record on appeal indicates the following facts. Before trial, defendant filed motions in limine to bar certain evidence. One motion sought to bar testimony regarding acts of violence toward Johnson committed by defendant within the six years prior to the murder. Another motion sought to bar reference to a possible weapon mentioned in hospital records. The trial court denied both motions.\nAt trial, William Ramirez testified that on April 14, 1994, Johnson, who was the aunt of Ramirez\u2019s \u201ccommon law\u201d wife, was staying at Ramirez\u2019s apartment. At approximately 9 p.m., Ramirez saw Johnson and defendant lying on the living room couch; defendant and Johnson had been dating for 13 years. Ramirez asked defendant or the couple to leave. Defendant and Johnson left at 1:30 a.m. Ramirez testified that Johnson returned at 1:45 a.m., bleeding from the mouth and nose. Johnson went to the bathroom, washed up, and slept on the couch.\nOn the morning of April 15, 1994, Ramirez saw that Johnson\u2019s face and lips were swollen. When Johnson spoke, the words did not sound \u201cright,\u201d as though her tongue was swollen. Ramirez asked Johnson what happened. After speaking to Johnson, Ramirez suggested that she go to the hospital, but she declined. Ramirez did not see Johnson eat or drink that day; he tried to feed her, but she could not chew. Johnson stayed in bed the entire day, which Ramirez testified was unusual for her.\nOn April 16, 1994, Johnson remained in bed. Ramirez again tried to feed Johnson, but was unsuccessful. Johnson\u2019s right cheek was getting darker; her lips continued to swell. Ramirez had a neighbor, Georgianna Starr, watch Johnson while he went to the grocery store. Starr testified that Johnson\u2019s face and jaw were swollen, with a dark bruise on the right side. Although her speech was slurred, Johnson told Starr how she was injured. Both Ramirez and Starr suggested that Johnson go to the hospital, but Johnson declined.\nOn April 17, 1994, Ramirez saw that Johnson\u2019s face was still black and swollen. Johnson could barely walk. The first time that Johnson went to the bathroom that day, she limped and appeared weak. The second time that Johnson went to the bathroom, Ramirez helped her due to her weakness. While she sat on the toilet, Johnson slumped forward and had passed blood. Johnson asked Ramirez to telephone for an ambulance. The paramedics arrived approximately 15 minutes later. Johnson was carried out of the bathroom by paramedics and Georgianna Starr. Johnson\u2019s eyes were rolling; she was unable to speak to anyone. Johnson was ultimately taken to Illinois Masonic Hospital.\nDr. Abraham Jacob testified that he treated Johnson when she was brought into the emergency room at approximately 11 a.m. on April 17, 1994. Dr. Jacob testified that Johnson was in a \u201cshockey state,\u201d with multiple contusions to her right shoulder, left breast, right knee and the right side of her face. Johnson\u2019s face was swollen. Dr. Jacob noticed that Johnson was mottled \u201call over, blotchy, reddish, like bluish.\u201d According to Dr. Jacob, X rays revealed that Johnson had a fractured mandible and older fractures of the ribs. Johnson had a cut and scrape of the knee. Rectal bleeding was also noted.\nIn addition, Johnson was \u201cmarkedly jaundiced,\u201d which Dr. Jacob stated was caused by liver failure. Based on information from Johnson\u2019s family, Dr. Jacob was aware that Johnson was being treated for cirrhosis of the liver. Dr. Jacob was also aware that Johnson was being treated for a possible stomach ulcer, high blood pressure and a prior infection. Dr. Jacob testified that he had received information from Johnson\u2019s family \u201cor whomever was with her\u201d and the paramedics that Johnson had been assaulted with a blunt object three days earlier. Dr. Jacob testified that there were \u201ctwo different versions;\u201d one involved a crowbar, one involved a two by four. Johnson was admitted to the intensive care unit, with complete respiratory support.\nIn the early morning hours of April 18, 1994, Johnson was in a coma. Johnson was unable to produce urine, despite being given diuretics and intravenous fluids. Dr. Jacob testified that Johnson died between 5:30 and 6 that morning.\nDr. Joseph Cogan, an assistant forensic medical examiner with the Cook County medical examiner\u2019s office, testified that on April 19, 1994, he performed an autopsy on Johnson. Dr. Cogan testified that Johnson was approximately 5 feet, 2 inches tall, weighing 191 pounds. Dr. Cogan catalogued Johnson\u2019s injuries, including swelling and hemorrhaging of the scalp and shoulders, injuries to the back of the head, hemorrhaging on both sides of the head, discoloration of the right side of her face and her right ear, and contusions of the left breast area. There was also bruising of the chest, right breast and upper abdomen. Dr. Cogan stated that trauma to the body \u2014 various blows to the body \u2014 causes hemorrhage underneath the skin.\nDr. Cogan also testified regarding the fractured mandible. Dr. Cogan stated that it was very hard to break an adult jaw in the manner Johnson\u2019s jaw was broken. Dr. Cogan testified that it would take \u201ca considerable amount of force.\u201d\nDr. Cogan opined that Johnson died as a consequence of multiple injuries from a beating. The fracture of Johnson\u2019s jaw produced a disruption in the barrier between the mouth and the inside of her body, allowing bacteria to spread through her head, neck and shoulders. Ultimately, Johnson\u2019s organs shut down due to the bacteria spreading through her body.\nDr. Cogan testified that the hemorrhaging in this case was consistent with \u201ca punch, a kick, a blow with some object, a lot of different things.\u201d Dr. Cogan testified that defendant may have used a two by four to inflict some of the blows against Johnson. Dr. Cogan testified that the hospital records mentioned the possibility that a crowbar or a two by four was used in the beating and that he later learned of the possibility of a fist or foot. Dr. Cogan also testified that a two by four could cause a fracture of the kind involved in this case but that he would not list a crowbar as a likely weapon.\nThe parties stipulated that Chicago police detective T. O\u2019Connor would testify that he was assigned to investigate the homicide of Johnson on April 18, 1994. During the course of investigation, he left a business card with defendant\u2019s sister. On the evening of April 18, 1994, defendant telephoned Detective O\u2019Connor and agreed to speak with Detective O\u2019Connor regarding the homicide. Defendant met Detective O\u2019Connor and then agreed to accompany him to the police station. Defendant was interviewed by Detective O\u2019Connor and Assistant State\u2019s Attorney (ASA) Bigane. Defendant was arrested at 2 p.m. on April 19.\nASA Virginia Bigane testified that she interviewed defendant at 3 p.m. on April 19, 1994. Following Miranda warnings, defendant stated that he had been Johnson\u2019s boyfriend for 12 years. On April 14, 1994, defendant and Johnson had been drinking alcohol in Chase Park, then went to Ramirez\u2019s apartment. Ramirez ordered defendant out of his apartment. Defendant asked Johnson to leave with him. Ramirez continued to order defendant to leave; defendant kept asking Johnson to go with him until she agreed.\nAfter leaving the apartment, defendant and Johnson went to an outside alley area. Johnson suggested to the defendant that they go to Rudy\u2019s house because she had a key to the house. Defendant told ASA Bigane that the fact that Johnson had another man\u2019s house key made him mad and jealous. Defendant told ASA Bigane that he punched Johnson in the face, which caused Johnson to spin around. Johnson attempted to grab onto a Dumpster to regain her balance. Defendant told ASA Bigane that he then gave Johnson a \u201croundhouse\u201d kick to her back side, swinging his leg around his body to gain momentum.\nDefendant told ASA Bigane that when Johnson attempted to get up, defendant again punched Johnson in the jaw. Johnson fell to the ground. Defendant then kicked Johnson in the body numerous times, particularly the back and ribs, while Johnson was on the ground, yelling for help and for defendant to stop.\nDefendant told ASA Bigane that he then got Johnson\u2019s purse and threw it at Johnson, saying \u201cHere\u2019s your damn bag.\u201d Defendant left Johnson on the ground. Defendant returned to Chase Park, where he fell asleep. ASA Bigane testified that defendant was cooperative but declined to have his statement transcribed by a court reporter or to sign a handwritten statement.\nWitnesses also testified regarding prior violent acts by the defendant. In each instance, the trial court instructed the jury that the evidence was being admitted on the issue of defendant\u2019s intent, motive or absence of an innocent state of mind and should be considered only for that limited purpose. Johnson\u2019s daughter, Kelly Weise, testified that in the summer of 1989, she saw defendant \u201cback-hand\u201d Johnson \u201cso hard it almost knocked her off her seat.\u201d Ramirez testified that five months before Johnson died, he saw defendant slap Johnson\u2019s face so hard that blood came out of her mouth. Ramirez testified that defendant and Johnson had been arguing about whether to go out that day. Georgianna Starr testified that two months before Johnson died, she saw defendant push Johnson onto a couch during an argument. Starr also testified that six years earlier, she had seen defendant punch Johnson in the eye during an argument.\nFollowing closing argument and jury instructions, the jury found defendant guilty of murder. The trial court denied defendant\u2019s post-trial motion. During sentencing, Johnson\u2019s family presented victim impact statements. The State also introduced evidence of prior felony convictions for concealment of a homicidal death, robbery and burglary. The trial court, finding that defendant\u2019s actions were brutal and savage, sentenced defendant to an extended term of 75 years in prison. Defendant now appeals.\nI\nInitially, defendant contends that he was denied a fair trial because the trial court refused to instruct the jury on the lesser offense of involuntary manslaughter. The basic difference between involuntary manslaughter and murder is the mental state accompanying the conduct causing the homicide. People v. Foster, 119 Ill. 2d 69, 87, 518 N.E.2d 82, 89 (1987). A person commits first-degree murder when he \u201ckills an individual without lawful justification *** [and] either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or (2) he knows that such acts create a strong probability of death or great bodily harm to that individual or another.\u201d 720 ILCS 5/9 \u2014 1(a)(1), (a)(2) (West 1996). A person commits involuntary manslaughter when he \u201ckills an individual without lawful justification *** if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.\u201d 720 ILCS 5/9 \u2014 3(a) (West 1996).\nIn a murder trial, it is error to refuse an instruction on involuntary manslaughter if there is any evidence in the record which, if believed, would reduce the crime to the lesser offense. People v. Rodgers, 254 Ill. App. 3d 148, 152, 626 N.E.2d 260, 263 (1993). Defendant notes that Illinois recognizes that death is not ordinarily contemplated as a natural consequence of blows from bare fists. People v. Brackett, 117 Ill. 2d 170, 180, 510 N.E.2d 877, 882 (1987) (and cases cited therein). Defendant also argues that the evidence that he had been drinking prior to the killing is evidence of recklessness. People v. Bembroy, 4 Ill. App. 3d 522, 526, 281 N.E.2d 389, 393 (1972).\nAccordingly, defendant relies on cases such as People v. Taylor, 212 Ill. App. 3d 351, 570 N.E.2d 1180 (1991). In Taylor, the evidence indicated:\n\u201c[B]oth defendant and the victim were intoxicated, the victim more so than the defendant. Defendant punched [the victim] in the face one time, causing him to fall to the ground. From the medical examiner\u2019s testimony, it appeared] that this fall, in which [the victim] hit his head on the concrete, rather than the blow, caused the injuries which resulted in death. Defendant then proceeded to kick and hit [the victim] as he lay on the ground. The evidence [was] conflicting as to whether defendant was .punching or slapping [the victim] as he lay on the ground. Defendant testified that he was hitting [the victim] in an attempt to awaken or arouse him. Defendant also tried unsuccessfully to pick [the victim] up several times. Defendant testified that he was attempting to place [the victim] in his car to rest, or to arouse [the victim]. [The victim\u2019s] head hit the concrete when defendant dropped him. However, there [was] no evidence that defendant dropped [the victim] with the intent to kill or harm him.\u201d Taylor, 212 Ill. App. 3d at 356-57, 570 N.E.2d at 1183.\nThis court concluded that this evidence was sufficient to justify instructing the jury on the offense of involuntary manslaughter. Taylor, 212 Ill. App. 3d at 357, 570 N.E.2d at 1183.\nHowever, an involuntary manslaughter instruction should not be given if the evidence clearly demonstrates that the crime was murder and there is no evidence that would reduce the crime to involuntary manslaughter. People v. Ward, 101 Ill. 2d 443, 451, 463 N.E.2d 696, 699 (1984). Factors to be considered when determining whether there was evidence of recklessness that would support the giving of an involuntary manslaughter instruction include: the disparity in size between the defendant and the victim; the brutality and duration of the beating; and the severity of the victim\u2019s injuries. Rodgers, 254 Ill. App. 3d at 153, 626 N.E.2d at 263. An involuntary manslaughter instruction is not warranted where the nature of the killing, shown by either multiple wounds or the victim\u2019s defenselessness, reveals the inapplicability of the theory. People v. Trotter, 178 Ill. App. 3d 292, 298, 533 N.E.2d 89, 92 (1988).\nIn this case, there was a disparity in size between the defendant and the victim, although this is not a case where an adult has killed a child, as in the Ward line of cases. The record shows that at the time of the killing, defendant was 36 years old, 5 feet 9 inches tall, weighing 170 pounds. Johnson was 56 years old (though appearing younger), approximately 5 feet 2 inches tall, weighing 191 pounds.\nThe record also discloses both the duration and brutality of the beating and Johnson\u2019s relative defenselessness. After punching Johnson in the face with sufficient force that Johnson spun around, defendant delivered a \u201cround-house\u201d kick that sent Johnson to the ground. When Johnson attempted to get up, defendant punched Johnson in the jaw. Defendant continued to punch and kick Johnson numerous times while she was on the ground, causing multiple injuries. The record contains no evidence that Johnson was able to defend herself.\nThe medical testimony shows that Johnson\u2019s jawbone was broken and that it takes a great deal of force to cause such a fracture. Indeed, while defendant\u2019s statement refers to kicking Johnson in the back and ribs, the medical testimony also contains evidence of multiple instances of trauma to Johnson\u2019s head and bruising of Johnson\u2019s chest and upper abdomen.\nUnlike Taylor, there was no conflicting evidence regarding the nature of the blows struck after Johnson was on the ground. Instead, the case is more similar to Rodgers, in which this court held that the involuntary manslaughter instruction was not warranted where the victim died of bleeding over the surface of the brain, due to blunt force injury, after defendant repeatedly punched the victim in the face.\nFurthermore, the State introduced evidence to show defendant\u2019s intent and the absence of accident. Defendant contends that the trial court committed reversible error by permitting this testimony. Evidence of prior acts of misconduct is admissible if relevant for some purpose other than to show a propensity for crime and if the probative value of the evidence outweighs its prejudicial effect. People v. Burgess, 176 Ill. 2d 289, 307, 680 N.E.2d 357, 365 (1997). For example, the State may seek to present evidence of prior acts of abuse committed by the defendant against the victim, to show the presence of intent and the absence of accident. Burgess, 176 Ill. 2d at 308, 680 N.E.2d at 366. In such cases, only general similarities between the different acts are necessary. Burgess, 176 Ill. 2d at 308, 680 N.E.2d at 366. A trial judge\u2019s decision allowing the introduction of evidence of this nature will be upheld unless the ruling represents an abuse of discretion. Burgess, 176 Ill. 2d at 307, 680 N.E.2d at 365.\nThe record in this case shows that the trial court considered the purposes for which the evidence was offered, as well as the probative nature and prejudicial impact of the evidence, before ruling that the evidence would be admissible. In this case, as the appeal demonstrates, the defendant\u2019s mental state was very much at issue. The prior acts of abuse by defendant were relevant to show intent and the absence of mistake. Indeed, such prior incidents could be highly probative on the question of defendant\u2019s awareness of the effects of a given amount of physical force on Johnson.\nThe record also shows that, during voir dire, the trial court asked whether evidence of prior acts of violence committed by the defendant against the victim would affect their ability to decide the case. The trial court also instructed the jury each time such testimony was elicited that the evidence was being admitted on the issue of defendant\u2019s intent, motive or absence of an innocent state of mind and should be considered only for that limited purpose.\nGiven this record, we cannot conclude that the trial court abused its discretion in admitting the testimony regarding defendant\u2019s prior abuse of Johnson. This evidence was consistent with the intent that can be inferred from the medical testimony regarding the force necessary to produce the severity of the injuries here and from defendant\u2019s own statement admitting that he continued to kick and punch Johnson numerous times after he knocked her to the ground. The record contains evidence that defendant had been drinking several hours before the beating but no evidence that he was intoxicated at the time of the beating.\nIn sum, the record clearly shows the crime of murder and contains no evidence that defendant did not know that his beating of Johnson created a strong probability of death or great bodily harm to Johnson. Accordingly, the trial court did not err in refusing to give the involuntary manslaughter instruction.\nII\nDefendant next contends that the trial court committed reversible error by admitting \u201canonymous multiple hearsay that speculated on the existence of a weapon.\u201d Specifically, defendant objects to the testimony of Dr. Jacob and Dr. Cogan regarding information that Johnson could have been assaulted with a crowbar or a two by four. Hospital records have a high degree of reliability. Wilson v. Clark, 84 Ill. 2d 186, 194, 417 N.E.2d 1322, 1326 (1981). Expert witnesses may consider not only medical records commonly relied upon by members of their profession in forming their opinions, but they also may testify as to the contents of these records. People v. Pasch, 152 Ill. 2d 133, 176, 604 N.E.2d 294, 311 (1992). A medical examiner may testify, based on medical reports and from the examiner\u2019s own observations of the evidence, which weapons might have been used in a crime. See People v. Kidd, 175 Ill. 2d 1, 34-35, 675 N.E.2d 910, 926-27 (1996).\nIn this case, Dr. Jacob testified regarding the possibility of a weapon in response to a question asking how Dr. Jacob knew the proper course of treatment, since Johnson was unable to speak. The record shows that the testimony was elicited as part of the basis for Dr. Jacob\u2019s opinions. The transcript also shows that Dr. Cogan was accepted as an expert in the field of forensic pathology, a field Dr. Cogan described as including:\n\u201cexamining deceased individuals, determining cause of death, performing autopsies ***, testifying in [c]curt in regard to *** autopsy findings, [and] assisting police or other people to understand the medical findings and origins of trauma and causes of death.\u201d\nThus, Dr. Cogan was qualified to render the opinion that Johnson\u2019s death was caused by multiple injuries from a beating and to explain what sorts of objects, such as a fist, a foot, a two by four or a crowbar, are consistent with the blunt trauma at issue in this case, particularly where the objects discussed are those mentioned in the hospital records.\nDefendant relies on cases such as People v. Ramey, 237 Ill. App. 3d 1001, 606 N.E.2d 39 (1994), in which this court ruled that the medical examiner\u2019s opinion was improper because it lacked a proper foundation and the State sought to use the underlying facts and data for substantive purposes. Defendant\u2019s brief attacks the lack of foundation for the testimony at issue. However, the record shows that defendant made no objection to Dr. Jacob\u2019s testimony in his posttrial motion. Defendant has not shown that he objected on foundational grounds at trial. Thus, defendant has waived the argument.\nSimilarly, defendant argues that he was denied a fair trial because the State allegedly used the testimony at issue for substantive purposes. While an expert may disclose the underlying facts, data and conclusions for the limited purpose of explaining the basis for his opinion, the contents of reports relied upon by experts would clearly be inadmissible as hearsay if offered for the truth of the matter asserted. Pasch, 152 Ill. 2d at 176, 604 N.E.2d at 311. However, as with the foundational argument, defendant failed to raise this objection in his posttrial motion, resulting in waiver on appeal. Moreover, the record shows that, at trial, defendant objected to only one of the references cited in his brief. The defense objected to the statement that the fracturing of Johnson\u2019s jaw was \u201cthe kind of break that a kick might be able to do or maybe even something like a two by four.\u201d Such a comment, which was the only specific reference to a two by four in the State\u2019s closing arguments, is not reversible error. See People v. Wicks, 236 Ill. App. 3d 97, 603 N.E.2d 594 (1992). In sum, defendant has failed to show reversible error.\nIll\nFinally, defendant argues that his sentence should be vacated, contending that he is ineligible for an extended term sentence and that the sentence is excessive in any event. Defendant has waived review of his sentence by his failure to file a postsentencing motion pursuant to section 5 \u2014 8\u20141(c) of the Unified Code of Corrections. People v. Reed, 177 Ill. 2d 389, 394 (1997).\nNor does there appear to be plain error in the sentencing at issue. Defendant contends that he is ineligible for an extended-term sentence. The trial court found defendant eligible for two separate reasons: (1) the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty (730 ILCS 5/5 \u2014 5\u2014 3.2(b)(2) (West 1994)); and (2) the defendant had been convicted of first degree murder and convicted of a separate offense under section 5 \u2014 5\u20143(c)(2) within the prior 10 years (see 730 ILCS 5/5 \u2014 5\u2014 3.2(b)(7), 5 \u2014 5\u20143(c)(2) (West 1994)). On December 13, 1990, defendant had been convicted and sentenced pursuant to section 5 \u2014 5\u2014 3(c)(2)(F), which applies when a defendant is convicted of a Class 2 felony within 10 years of a prior Class 2 felony conviction. Both of the convictions were for burglary.\nRegarding the prior conviction under section 5 \u2014 5\u20143(c)(2)(F), defendant argues that \u201c[t]he cross-reference [in section 5 \u2014 5\u2014 3.2(b)(7)], which carries its own ten-year limitation, is so cumbersome and wreaking [sic] of double enhancement that the legislature could not rationally have intended it to qualify as an extended term provision.\u201d However, the cases defendant cites in support of this argument, People v. Ferguson, 132 Ill. 2d 86, 547 N.E.2d 429 (1989), and People v. White, 114 Ill. 2d 61, 499 N.E.2d 467 (1986), do not involve these statutory provisions. Moreover, there is only one enhancement occurring in this proceeding. Furthermore, assuming arguendo that this is a case of double enhancement, that result is not improper where the legislature intended the result. People v. Thomas, 171 Ill. 2d 207, 224, 664 N.E.2d 76, 85 (1996).\nIn this situation, the statute clearly provides that a defendant\u2019s sentence pursuant to section 5 \u2014 5\u20143(c)(2) within the prior 10 years may provide the predicate for an extended-term sentence. 730 ILCS 5/5 \u2014 5\u20143.2(b)(7) (West 1994). It is not irrational that the legislature would provide that a defendant who had been recidivist at the level of Class 2 felonies who then commits first degree murder would be eligible for an extended-term sentence. Defendant notes that the first of his prior burglaries did not occur within 10 years of his murder conviction, but section 5 \u2014 5\u20143.2(b)(7) does not require that both Class 2 felonies fall within 10 years of the murder conviction. Thus, defendant was eligible for an extended-term sentence.\nDefendant\u2019s brief states in passing that the State\u2019s request for the extended-term sentence appeared \u201csolely vindictive\u201d because he was allegedly offered a 20-year sentence as part of a plea agreement. Defendant cites no authority in support of his argument. Generally, it is not improper or evidence of prosecutorial vindictiveness to offer a defendant a reduced sentence as an incentive to plead guilty as part of a plea agreement but to recommend a greater sentence when the State\u2019s offer has been refused, particularly where the sentence imposed falls within the statutory guidelines. See People v. Walton, 240 Ill. App. 3d 49, 60, 608 N.E.2d 59, 67 (1992).\nDefendant further contends that the sentence imposed was excessive, even if he was eligible for an extended term. Sentencing is a matter for the discretion of the trial court; its decision is entitled to great weight and deference. People v. La Pointe, 88 Ill. 2d 482, 492-93, 431 N.E.2d 344, 348 (1981).\nDefendant maintains there were no aggravating factors to this homicide. When a sentence is enhanced to Class X because of prior convictions, the trial court may not use the same convictions as aggravating factors. People v. Ward, 243 Ill. App. 3d 850, 852, 611 N.E.2d 590, 592 (1993). However, the trial court could allocate the rest of defendant\u2019s prior convictions toward aggravation. Cook, 279 Ill. App. 3d at 727-28, 665 N.E.2d at 305. In this case, aside from the two burglaries, the trial court could consider that defendant had prior convictions for aggravated battery, theft, concealment of a homicidal death and robbery. Moreover, even if no aggravating factors are present, defendant is not entitled to a near-minimum sentence. People v. Harvey, 162 Ill. App. 3d 468, 475, 515 N.E.2d 337, 342 (1987).\nThe record in this case indicates that the trial court carefully considered the statutory factors in aggravation and mitigation, and even considered nonstatutory factors in mitigation. The sentence imposed falls within the lower half of the statutory range. Thus, there was no abuse of discretion in imposing the sentence in this case.\nFor all of the aforementioned reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nO\u2019BRIEN, J., concurs.\nDefendant also complains that the trial court rejected the defense request to change the word \u201coffenses\u201d to \u201cconduct\u201d in submitting Illinois Pattern Jury Instructions No. 3.14, limiting the consideration of the collateral incidents, to the jury. See Illinois Pattern Jury Instructions, Criminal, No. 3.14 (3d ed. 1992) (hereafter IPI Criminal 3d). However, defendant does not expressly claim error, let alone reversible error. Nor did defendant cite any authority on this point in his brief. Thus, the argument is waived on appeal. Nor is there a question of plain error. The committee notes to the most recent version of IPI Criminal 3d No. 3.14 explain that the term \u201cconduct\u201d is to be used where defendant\u2019s actions are not technically an \u201coffense.\u201d As the State points out in its brief, the incidents in this case are in the nature of batteries. This is not a case where conduct not generally considered an offense \u2014 e.g., adultery, membership in a street gang \u2014 is used to prove motive. Accordingly, defendant cannot show the trial court abused its discretion on this point. Cf. People v. Curtis, 262 Ill. App. 3d 876, 890-91, 635 N.E.2d 860, 871 (1994).", "type": "majority", "author": "PRESIDING JUSTICE CAMPBELL" }, { "text": "PRESIDING JUSTICE BUCKLEY,\ndissenting:\nI must respectfully dissent. I believe that the evidence was sufficient to justify instructing the jury on the offense of involuntary manslaughter and failure to do so constitutes reversible error.\nIt is well established that an instruction defining a lesser offense should be given if there is evidence in the record that, if believed by the jury, would reduce the crime to a lesser-included offense. People v. Valdez, 230 Ill. App. 3d 975, 985 (1992). There was evidence in this case to warrant a jury instruction on involuntary manslaughter.\nA person commits involuntary manslaughter when he \u201cunintentionally kills an individual without lawful justification *** [and] his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.\u201d 720 ILCS 5/9 \u2014 3 (West 1992). The crux of the offense of involuntary manslaughter is recklessness. A \u201creckless\u201d mental state is a conscious disregard of \u201ca substantial and unjustifiable risk that circumstances exist or that a result will follow.\u201d 720 ILCS 5/4 \u2014 6 (West 1992). The majority, relying on three factors set forth in People v. Rodgers, 254 Ill. App. 3d 148, 153 (1993), concludes that there was no evidence of recklessness to support the giving of an involuntary manslaughter instruction. I respectfully disagree.\nRegarding the first factor, the majority briefly notes that there was a disparity in size between Johnson and defendant. However, consideration of this factor does not defeat an instruction for involuntary manslaughter in this case. In People v. Drumheller, 15 Ill. App. 3d 418 (1973), the case cited in Rodgers, the defendant killed a 14-month-old child by punching it in the stomach. The court held that a fatal blow from a fist may constitute murder where there is a great disparity in size and strength between the defendant and decedent. Drumheller, 15 Ill. App. 3d at 421. There is no great disparity here. As the majority points out, this is not a case where an adult has killed a small child. See, e.g., People v. Ward, 101 Ill. 2d 443 (1984) (holding that involuntary manslaughter instruction was unwarranted where evidence showed that savagely brutal beating of four-year-old victim with mop handle resulted in bruises to the chest muscles, lungs, and brain and were too numerous to be counted). In fact, Johnson, who was 5 feet 2 inches and weighed 191 pounds, was 20 pounds heavier than defendant, who was 5 feet 7 inches and weighed 170 pounds. Certainly this factor provides no basis for preclusion of the involuntary manslaughter instruction.\nThe majority next cites the \u201cduration and brutality of the beating\u201d and the nature of Johnson\u2019s injuries as factors which preclude a finding of recklessness. I again respectfully disagree with the majority\u2019s conclusion. According to defendant, he struck Johnson in the face, causing her to spin around and grab onto a Dumpster to regain her balance. Defendant then kicked Johnson in her backside and then punched her in the jaw. Johnson fell to the ground and defendant kicked her in the back and ribs \u201cnumerous\u201d times. The majority analogizes this case to People v. Rodgers, 254 Ill. App. 3d 148 (1993). However, the beating in Rodgers was quite different. In Rodgers, the victim was asleep on a couch when defendant approached and very forcefully punched the victim in the face approximately 7 to 13 times. The victim died almost immediately thereafter due to bleeding over the surface of the brain. Rodgers, 254 Ill. App. 3d at 153. In the instant case, Johnson was able to get up, walk home, wash her face and remain ambulatory for a day or two. Johnson refused medical treatment. The medical testimony presented at trial was that Johnson had bruises on her right shoulder, left breast, right knee and right side of her face. Defendant caused no broken bones other than the jaw. Defendant caused no injuries to vital organs and no lacerations. Defendant did not use a lethal weapon. Johnson died as a result of a bacterial infection due to the neglected treatment of her broken jaw, not as a direct result of the blows inflicted by defendant. Her injuries, unfortunately, did not appear life-threatening to anyone. This was not a \u201csavagely brutal\u201d beating certain to cause death. Rather, this was a sudden and short episode brought on by a jealous rage. The beating took place within a 15-minute interval from the time she left her home with defendant to the time she returned\u2014 alone. Additionally, the parties had been drinking several hours before which constitutes additional evidence of recklessness. See People v. Bembroy, 4 Ill. App. 3d 522, 526 (1972).\nThe evidence could support a finding that defendant did not reasonably know or intend deadly consequences. Defendant and Johnson had been dating for over 13 years. Defendant had been physical with Johnson in the past. Enraged and jealous over Johnson\u2019s possession of another man\u2019s housekey, defendant struck her. The jury could have found that defendant was reckless in hitting Johnson, but that defendant did not intend to kill her and did not know that his actions would have such a result. The jury could reasonably have found that the fact that defendant gave Johnson her purse before he left was indicative of his lack of murderous intent since had defendant known that Johnson\u2019s death was imminent he probably would not have returned her purse. Moreover, Johnson herself did not even seek medical treatment for her- injuries and refused the offer of her nephew\u2019s assistance in obtaining medical treatment.\nBecause even slight evidence tending to show involuntary manslaughter entitles a defendant to the jury instruction (People v. Jenkins, 30 Ill. App. 3d 1034 (1975)), I would reverse and remand this cause for a new trial.", "type": "dissent", "author": "PRESIDING JUSTICE BUCKLEY," } ], "attorneys": [ "Rita A. Fry, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Linda Woloshin, and Judy L. DeAngelis, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PATRICK TAINTER, Defendant-Appellant.\nFirst District (6th Division)\nNo. 1\u201495\u20143935\nOpinion filed January 23, 1998.\nBUCKLEY, P.J., dissenting.\nRita A. Fry, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Linda Woloshin, and Judy L. DeAngelis, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0634-01", "first_page_order": 652, "last_page_order": 667 }