{ "id": 79494, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL E. MILLIGAN II, Defendant-Appellant", "name_abbreviation": "People v. Milligan", "decision_date": "2002-02-06", "docket_number": "No. 4-00-0359", "first_page": "264", "last_page": "272", "citations": [ { "type": "official", "cite": "327 Ill. App. 3d 264" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "712 N.E.2d 822", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "183 Ill. 2d 587", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "689 N.E.2d 631", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "635" }, { "page": "635" } ], "opinion_index": 0 }, { "cite": "294 Ill. App. 3d 254", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 35347 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "260" }, { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/294/0254-01" ] }, { "cite": "652 N.E.2d 322", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "327" } ], "opinion_index": 0 }, { "cite": "166 Ill. 2d 247", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198915 ], "year": 1995, "pin_cites": [ { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0247-01" ] }, { "cite": "747 N.E.2d 357", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "194 Ill. 2d 581", "category": "reporters:state", "reporter": "Ill. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "742 N.E.2d 774", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "778" } ], "opinion_index": 0 }, { "cite": "317 Ill. App. 3d 945", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1026006 ], "year": 2000, "pin_cites": [ { "page": "949" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/0945-01" ] }, { "cite": "649 N.E.2d 1351", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "1356-57" } ], "opinion_index": 0 }, { "cite": "271 Ill. App. 3d 954", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 249142 ], "year": 1995, "pin_cites": [ { "page": "959" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/271/0954-01" ] }, { "cite": "713 N.E.2d 532", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "535" } ], "opinion_index": 0 }, { "cite": "186 Ill. 2d 450", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243932 ], "year": 1999, "pin_cites": [ { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0450-01" ] }, { "cite": "606 N.E.2d 1167", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1169" } ], "opinion_index": 0 }, { "cite": "153 Ill. 2d 195", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738895 ], "year": 1992, "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0195-01" ] }, { "cite": "196 Ill. 2d 552", "category": "reporters:state", "reporter": "Ill. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "752 N.E.2d 1244", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "1248" } ], "opinion_index": 0 }, { "cite": "323 Ill. App. 3d 292", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 171760 ], "year": 2001, "pin_cites": [ { "page": "297" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/323/0292-01" ] }, { "cite": "710 N.E.2d 507", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "509" } ], "opinion_index": 0 }, { "cite": "304 Ill. App. 3d 250", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564562 ], "year": 1999, "pin_cites": [ { "page": "254" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/304/0250-01" ] }, { "cite": "708 N.E.2d 365", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "370" } ], "opinion_index": 0 }, { "cite": "185 Ill. 2d 532", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 121990 ], "year": 1999, "pin_cites": [ { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/185/0532-01" ] }, { "cite": "576 N.E.2d 1089", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "1092" }, { "page": "1092" }, { "page": "1092", "parenthetical": "whether the victim's injuries constitute great bodily harm is 'neither dependent upon hospitalization of the victim, nor the permanency of his disability or disfigurement'" } ], "opinion_index": 0 }, { "cite": "216 Ill. App. 3d 398", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5287587 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "401" }, { "page": "401" }, { "page": "401" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/216/0398-01" ] }, { "cite": "268 N.E.2d 695", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "698" } ], "opinion_index": 0 }, { "cite": "47 Ill. 2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2903225 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0510-01" ] }, { "cite": "29 S.W3d 885", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 11186777 ], "year": 1999, "pin_cites": [ { "page": "891", "parenthetical": "error, in prosecution for sale of cocaine, to admit five priors for sale of cocaine" } ], "opinion_index": 1, "case_paths": [ "/sw3d/29/0885-01" ] }, { "cite": "447 N.W.2d 277", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10593884 ], "year": 1989, "pin_cites": [ { "page": "283", "parenthetical": "Levine, J., dissenting" } ], "opinion_index": 1, "case_paths": [ "/nw2d/447/0277-01" ] }, { "cite": "160 Vt. 125", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 4848944 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "127-28", "parenthetical": "error to admit 16 convictions even though most involved untruthfulness" }, { "page": "986", "parenthetical": "error to admit 16 convictions even though most involved untruthfulness" } ], "opinion_index": 1, "case_paths": [ "/vt/160/0125-01" ] }, { "cite": "449 N.E.2d 821", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1983, "pin_cites": [ { "page": "826" }, { "page": "827" }, { "page": "827" }, { "page": "826-27" } ], "opinion_index": 1 }, { "cite": "96 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3115107 ], "weight": 5, "year": 1983, "pin_cites": [ { "page": "187" }, { "page": "188" }, { "page": "188" }, { "page": "188" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/96/0176-01" ] }, { "cite": "748 N.E.2d 166", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "170" }, { "page": "170" }, { "page": "170" } ], "opinion_index": 1 }, { "cite": "195 Ill. 2d 378", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 725361 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "384" }, { "page": "384" }, { "page": "384" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/195/0378-01" ] }, { "cite": "663 N.E.2d 490", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "496", "parenthetical": "irrelevant that trial was conducted before 1994 Williams decision (Williams, 161 Ill. 2d 1, 641 N.E.2d 296), when judicial trend \"was to allow impeachment with virtually all prior felony convictions\"" } ], "opinion_index": 1 }, { "cite": "279 Ill. App. 3d 152", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 75246 ], "year": 1996, "pin_cites": [ { "page": "158", "parenthetical": "irrelevant that trial was conducted before 1994 Williams decision (Williams, 161 Ill. 2d 1, 641 N.E.2d 296), when judicial trend \"was to allow impeachment with virtually all prior felony convictions\"" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/279/0152-01" ] }, { "cite": "731 N.E.2d 987", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "990-91" } ], "opinion_index": 1 }, { "cite": "314 Ill. App. 3d 268", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140285 ], "year": 2000, "pin_cites": [ { "page": "272" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/314/0268-01" ] }, { "cite": "641 N.E.2d 296", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "310", "parenthetical": "challenge on appeal not thereby precluded" }, { "page": "312" }, { "page": "312" } ], "opinion_index": 1 }, { "cite": "161 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783181 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "34", "parenthetical": "challenge on appeal not thereby precluded" }, { "page": "39" }, { "page": "39" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/161/0001-01" ] }, { "cite": "742 N.E.2d 774", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "779", "parenthetical": "evidence not offered by State to impeach but by defense to explain why defendant lied to police" } ], "opinion_index": 1 }, { "cite": "317 Ill. App. 3d 945", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1026006 ], "year": 2000, "pin_cites": [ { "page": "950" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/317/0945-01" ] }, { "cite": "713 N.E.2d 532", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "536-37", "parenthetical": "rejecting mere-fact method as a halfway measure which admits all convictions without the required balancing test" }, { "page": "537" }, { "page": "538" } ], "opinion_index": 1 }, { "cite": "186 Ill. 2d 450", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243932 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "459" }, { "page": "459" }, { "page": "463" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/186/0450-01" ] }, { "cite": "268 N.E.2d 695", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "pin_cites": [ { "page": "700" } ], "opinion_index": 1 }, { "cite": "47 Ill. 2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2903225 ], "year": 1971, "pin_cites": [ { "page": "518" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/47/0510-01" ] } ], "analysis": { "cardinality": 928, "char_count": 18219, "ocr_confidence": 0.724, "pagerank": { "raw": 5.684874614740142e-08, "percentile": 0.3576544424018543 }, "sha256": "7419097f9ae9262d0c5cb5b80cda0cc3bd664798e3d29767a15f6c0b37160aa3", "simhash": "1:424a756b35d4af12", "word_count": 3023 }, "last_updated": "2023-07-14T20:55:57.852492+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. DANIEL E. MILLIGAN II, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE McCULLOUGH\ndelivered the opinion of the court:\nFollowing a January 18, 2000, jury trial in the circuit court of Ford County, defendant, Daniel Milligan, was convicted of one count of home invasion (720 ILCS 5/12 \u2014 11(a)(2) (West 1998)) and one count of aggravated battery (720 ILCS 5/12 \u2014 4(a) (West 1998) (as amended by Pub. Act 91 \u2014 357, \u00a7 237, eff. July 29, 1999)). The trial court sentenced defendant to 25 years\u2019 imprisonment and 3 years\u2019 imprisonment, respectively, the sentences to be served concurrently. On appeal, defendant claims (1) the evidence of great bodily harm to the victim was not sufficient to support the aggravated battery conviction; (2) the court erred by failing to conduct a Montgomery balancing test before admitting evidence of five prior felony convictions (see People v. Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695 (1971)); and (3) the 25-year sentence imposed for his home invasion conviction was excessive. We affirm.\nThe events leading to the charges in this case took place on September 5, 1999. The victim was Melancholy Granger. In any event, defendant and Granger had been drinking and visiting various other people in Ford County on September 5. Granger had been driving, and an argument ensued because she did not want defendant to drive after he had been drinking. Granger left defendant at the side of the road and returned home. Defendant later returned to Granger\u2019s. As he came running up, she shut and locked her door. In spite of the fact that defendant testified that he had keys for the garage and back doors of Granger\u2019s residence, defendant proceeded to kick in the front door. He beat Granger with his fists, an answering machine, and a telephone. He struck her in the head, back, and arms; grabbed her throat and choked her; threatened to make her hang herself; and broke a chair over her legs. Granger\u2019s parents arrived and called the police. Defendant fled and was later arrested.\nDefendant argues that the victim\u2019s injuries are insufficient to support the finding of great bodily harm necessary to his aggravated battery conviction. Relying on People v. Figures, 216 Ill. App. 3d 398, 401, 576 N.E.2d 1089, 1092 (1991), he argues that if the offense of \u201csimple\u201d battery is to have any import at all, the amount of damage necessary for a finding of great bodily harm must be more severe than simple bruises and abrasions.\nWhen considering a challenge to the sufficiency of the evidence in an appeal from a criminal conviction, the reviewing court does not retry the defendant. Instead, this court determines whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. This court will not reverse the conviction unless the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendant\u2019s guilt. People v. Smith, 185 Ill. 2d 532, 542, 708 N.E.2d 365, 370 (1999).\n\u201cWhether the victim\u2019s injuries rise to the level of great bodily harm is a question for the trier of fact. People v. Figures, 216 Ill. App. 3d 398, 401, 576 N.E.2d 1089, 1092 (1991). In making that determination, the relevant inquiry is \u2018not what the victim did or did not do to treat the injury but what injuries the victim in fact received.\u2019 People v. Edwards, 304 Ill. App. 3d 250, 254, 710 N.E.2d 507, 509 (1999); see also Figures, 216 Ill. App. 3d at 401, 576 N.E.2d at 1092 (whether the victim\u2019s injuries constitute great bodily harm is \u2018neither dependent upon hospitalization of the victim, nor the permanency of his disability or disfigurement\u2019).\u201d People v. Garry, 323 Ill. App. 3d 292, 297, 752 N.E.2d 1244, 1248 (2001), appeal denied, 196 Ill. 2d 552 (2001).\nWe have examined the photographs of Granger\u2019s injuries taken by City of Paxton police officer Salvatory Maacaluso and the parties\u2019 stipulation of the testimony of the victim\u2019s treating physician, Dr. Mapolean B. Knight. The photographs depict Granger with bruises under her eyes, on her back, and on one arm. They also show scratches or cuts on her throat and on one leg. Knight diagnosed Granger as having multiple contusions, a closed head injury, and leg abrasions. Given the closed head injury and the extent of Granger\u2019s abrasions and bruising, we find that the evidence as presented was sufficient to find defendant guilty of aggravated battery beyond a reasonable doubt.\nDefendant next argues that the trial court improperly allowed evidence of his four prior burglary convictions and a prior attempt (burglary) conviction without conducting a balancing test under the familiar standards of Montgomery. We must review the issue as plain error, if at all, for defendant failed to properly preserve the claim in the trial court. See 134 Ill. 2d R. 615(a). We find no error, plain or otherwise.\nIn the present case, the following colloquy was had at the close of the State\u2019s evidence:\n\u201cTHE COURT: We are still out of the presence of the jury, Mr. Welch, after the recess, you are now indicating that Mr. Milligan is going to testify?\nMR. WELCH [(defense attorney)]: Yes.\nTHE COURT: All right. And there is a matter of some prior felony convictions, is that correct?\nMR. WELCH: Yes.\nTHE COURT: And the State and the defense are in agreement about how many there are and what they are?\nMR. WELCH: Yes.\nTHE COURT: And?\nMR. WELCH: Well, we misspoke earlier off the record. It is \u2014 it\u2019s four burglary convictions and an attempt. I think we said three and an attempt; it\u2019s actually four and an attempt.\nTHE COURT: So there are five felony convictions within ten years, four for burglary, one for attempt burglary.\nMR. LEE [(prosecuting attorney)]: Right.\nMR. WELCH: Yes.\nTHE COURT: Some of them are different counts out of the same\u2014\nMR. WELCH: I\u2019m sorry, what now?\nTHE COURT: There are five convictions with which he can be impeached?\nMR. WELCH: Five convictions; two cases, but five separate convictions were entered.\nTHE COURT: Okay. And the jury\u2019s entitled to know of the five convictions and what they were for?\nMR. WELCH: According to the Supreme Court.\nTHE COURT: We follow the Supreme Court. Agreed, Mr. Lee?\nMR. LEE: Agreed.\nMR. WELCH: And I would agree on that procedure, but I would object.\nTHE COURT: You\u2019re objecting for the record?\nMR. WELCH: To preserve the issue in case they change their mind at some point, yes.\nTHE COURT: You would like the Supreme Court to reverse itself on the mere fact\u2014\nMR. WELCH: Yes.\nTHE COURT: Method of impeachment?\nMR. WELCH: Yes, or perhaps that would be taken up higher, but I know if I don\u2019t object I waive that issue. So, yes, I don\u2019t have any objection to him being impeached under the previous procedure where they would just be told he\u2019s been convicted of a felony or felonies, but I do object to the change where they will be told specifically what he\u2019s been convicted of.\nTHE COURT: Okay. I assume you don\u2019t anticipate eliciting any additional information regarding the circumstances of those out of your client, so that would preclude the State from making any other inquiry.\nMR. WELCH: No, he will acknowledge these five convictions, and that\u2019s where we intend to leave it.\nTHE COURT: Okay.\u201d\nDuring his direct examination, defendant acknowledged that he had been convicted of four separate burglaries and one attempt (burglary). Generally, a defendant may not complain of error which he invited or in which he acquiesced. People v. Lowe, 153 Ill. 2d 195, 199, 606 N.E.2d 1167, 1169 (1992). Further, defendant does not cast his argument on appeal in terms of ineffective assistance of his trial counsel; rather, he merely faults the trial court for not conducting a Montgomery balancing test.\nMontgomery requires that the trial court conduct a balancing test before allowing the use of prior convictions to impeach a defendant, weighing the probative value of the evidence against the prejudice to defendant. People v. Atkinson, 186 Ill. 2d 450, 456, 713 N.E.2d 532, 535 (1999); Montgomery, 47 Ill. 2d at 516, 268 N.E.2d at 698. The evidence in this case was not admitted as impeachment. Instead, the defendant\u2019s trial counsel elicited defendant\u2019s testimony on direct examination. The State attempted no impeachment on the basis of this prior conviction.\n\u201c Tf evidence of the prior conviction is admissible independently of impeachment purposes \u2014 and therefore independent of Montgomery \u2014 then the Montgomery test becomes inapposite. ***\u2019 People v. Hester, 271 Ill. App. 3d 954, 959, 649 N.E.2d 1351, 1356-57 (1995).\u201d People v. Williams, 317 Ill. App. 3d 945, 949, 742 N.E.2d 774, 778 (2000), appeal denied, 194 Ill. 2d 581, 747 N.E.2d 357 (2001).\nNo error occurred. The evidence was not offered by the State to impeach defendant, but by the defense. For that purpose, the Montgomery balancing test had no application.\nThe final issue is whether defendant\u2019s 25-year sentence for home invasion was excessive. Defendant argues that the sentence was excessive because he was 22 years old when sentenced and had significant potential for rehabilitation.\nThe trial court is the proper forum for sentencing, and its sentencing decision is given great deference and will not be disturbed on appeal absent an abuse of discretion. People v. Coleman, 166 Ill. 2d 247, 258, 652 N.E.2d 322, 327 (1995).\nIn this case, the mitigating evidence was presented to the trial court. The trial court is presumed to have considered the mitigating evidence. People v. Payne, 294 Ill. App. 3d 254, 260, 689 N.E.2d 631, 635 (1998), appeal denied, 183 Ill. 2d 587, 712 N.E.2d 822 (1999). Moreover, as noted in Payne, defendant\u2019s history of drug and alcohol abuse does not require a more lenient treatment of defendant. Payne, 294 Ill. App. 3d at 260, 689 N.E.2d at 635. In addition, the defendant\u2019s criminal history and the nature of the offense in this case demonstrate that, in spite of defendant\u2019s relatively young age, he has a diminished potential for rehabilitation.\nAt trial, defendant admitted five prior felony convictions, four burglaries and one attempt. The presentence investigation report further disclosed convictions of battery, resisting a peace officer, and escape. There was also evidence at sentencing that defendant had fraudulently cashed an insurance check and struck another inmate while in jail.\nAs to the nature of the offense, defendant repeatedly struck Granger with his fists, battered her with a telephone and chair, and choked her. The victim\u2019s impact statement related the psychological damage inflicted on her by defendant as a result of his invasion of her home and the attack upon her person. The record does not demonstrate an abuse of sentencing discretion.\nThe judgment of the circuit court of Ford County is affirmed.\nAffirmed.\nSTEIGMANN, J., concurs.", "type": "majority", "author": "PRESIDING JUSTICE McCULLOUGH" }, { "text": "JUSTICE COOK,\ndissenting:\nI respectfully dissent. I would reverse and remand because of the trial court\u2019s failure to conduct a proper Montgomery balancing test. See Atkinson, 186 Ill. 2d at 459, 713 N.E.2d at 536-37 (rejecting mere-fact method as a halfway measure which admits all convictions without the required balancing test). \u201cUnder that test, if prejudice to the defendant substantially outweighs the probative value of admitting the impeachment evidence, the prior conviction must be excluded.\u201d Atkinson, 186 Ill. 2d at 459, 713 N.E.2d at 537.\nI disagree with the majority\u2019s conclusion that defendant waived any objection by not waiting until the State offered evidence of the prior convictions, i.e., \u201cThe evidence was not offered by the State to impeach defendant, but by the defense\u201d (327 Ill. App. 3d at 269). It is not inconsistent for a defendant to request the exclusion of evidence and, after the court\u2019s denial of that request, to disclose the evidence himself in the hope of lessening its impact upon the jury. People v. Williams, 161 Ill. 2d 1, 34, 641 N.E.2d 296, 310 (1994) (challenge on appeal not thereby precluded); cf. Williams, 317 Ill. App. 3d at 950, 742 N.E.2d at 779 (evidence not offered by State to impeach but by defense to explain why defendant lied to police). The majority has not suggested any reason why defendant would introduce his prior convictions other than in anticipation of the State\u2019s impeachment. There is no waiver in this case.\nI have previously suggested that a defendant\u2019s request that the mere-fact method be used, after the court has conducted a balancing test, waives any Atkinson error. People v. Sparks, 314 Ill. App. 3d 268, 272, 731 N.E.2d 987, 990-91 (2000). That is not the situation here. A defendant may logically request use of the mere-fact method and still insist that the court apply the balancing test. It is difficult to understand why a defendant would ever fail to insist on a balancing test. People v. Moore, 279 Ill. App. 3d 152, 158, 663 N.E.2d 490, 496 (1996) (irrelevant that trial was conducted before 1994 Williams decision (Williams, 161 Ill. 2d 1, 641 N.E.2d 296), when judicial trend \u201cwas to allow impeachment with virtually all prior felony convictions\u201d).\nAlthough Atkinson rejected the use of the mere-fact method, it affirmed in the case before it, because of the clear indications that a balancing test had been performed. The Atkinson court stressed that defense counsel specifically referred to the balancing test, the trial judge recognized that he had to determine whether the probative value of the evidence outweighed its prejudice, and \u201c[i]t is clear from the trial judge\u2019s comments that he was aware of the Montgomery balancing test.\u201d Atkinson, 186 Ill. 2d at 463, 713 N.E.2d at 538. That is not true in the case before us. In fact, all indications are to the contrary. A fair reading of the colloquy here is that the trial court and counsel were unaware of any issue concerning impeachment by prior convictions other than the mere-fact issue. There was no discussion that introduction of evidence of similar crimes could be prejudicial to defendant or that the admission of more than one burglary conviction was likely to lead the jury to convict defendant simply because of his propensity to commit crime, simply because he was a \u201cbad man.\u201d There was no motion in limine, no reference by defense counsel to the balancing test, and no mention by the court of the balancing test.\nRecent decisions of the supreme court have reasserted the need for performance of the balancing test. \u201cIt is a fundamental tenet of our criminal justice system *** that the introduction of evidence of other crimes to show or suggest a propensity to commit crime is an improper purpose and is prohibited.\u201d Williams, 161 Ill. 2d at 39, 641 N.E.2d at 312. \u201c[TJrial courts should not admit prior-conviction evidence as probative of guilt, rather than credibility.\u201d People v. Cox, 195 Ill. 2d 378, 384, 748 N.E.2d 166, 170 (2001). \u201cConvictions for the same crime for which the defendant is on trial should be admitted sparingly.\u201d Cox, 195 Ill. 2d at 384, 748 N.E.2d at 170. It must also be recognized that admission of a number of prior convictions may suggest only a propensity to commit crime.\nIn People v. McKibbins, 96 Ill. 2d 176, 449 N.E.2d 821 (1983), the supreme court upheld the admission of 20 prior convictions. In that case, however, the failure to limit the number of convictions did not \u201cindicate! ] a failure to balance the probative value of this evidence against its prejudicial impact,\u201d because defense counsel had filed a motion in limine, had argued the balancing test must be applied, and the court had stated it understood the balancing test. McKibbins, 96 Ill. 2d at 187, 449 N.E.2d at 826.\nIn McKibbins, the defendant was charged with murder, and the 20 prior convictions admitted were theft misdemeanors, demonstrating \u201ca consistent pattern of dishonesty.\u201d McKibbins, 96 Ill. 2d at 188, 449 N.E.2d at 827. None of the 20 \u201cpriors\u201d \u201cwere crimes of violence from which the jury might infer that the defendant had a propensity for committing such crimes.\u201d McKibbins, 96 Ill. 2d at 188, 449 N.E.2d at 827. Again, the present case is different. Defendant was charged with home invasion and aggravated battery, and the prior convictions were for burglary and attempt (burglary). One of the factors in determining prejudice is \u201c \u2018whether the crime was similar to the one charged.\u2019 \u201d McKibbins, 96 Ill. 2d at 188, 449 N.E.2d at 826-27, quoting Montgomery, 47 Ill. 2d at 518, 268 N.E.2d at 700.\nIt may be easier to admit a number of convictions based on untruthfulness, to show the defendant\u2019s \u201cconsistent pattern of dishonesty,\u201d and harder to admit other convictions. \u201c \u2018The focus o\u00ed Montgomery was on crimes which bear !up]on the defendant\u2019s truthfulness as a witness.\u2019 \u201d Cox, 195 Ill. 2d at 384, 748 N.E.2d at 170, quoting Williams, 161 Ill. 2d at 39, 641 N.E.2d at 312; see also State v. Ashley, 160 Vt. 125, 127-28, 623 A.2d 984, 986 (1993) (error to admit 16 convictions even though most involved untruthfulness); State v. Bohe, 447 N.W.2d 277, 283 (N.D. 1989) (Levine, J., dissenting) (same-crime evidence should be sparingly used); State v. Walker, 29 S.W3d 885, 891 (Tenn. Grim. App. 1999) (error, in prosecution for sale of cocaine, to admit five priors for sale of cocaine). Some jurisdictions, such as New York, which allow high numbers of prior convictions into evidence, also allow or even require mere-fact impeachment, and are not persuasive authority in Illinois, which does not allow mere-fact impeachment.\nWhether we address this case in terms of plain error or ineffective assistance of counsel, there is no indication that the required balancing test has been performed, despite concerns about the number of convictions admitted and their similarity to the offense with which defendant was charged.", "type": "dissent", "author": "JUSTICE COOK," } ], "attorneys": [ "Daniel D. Yuhas and Cory E. Easton, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Tony Lee, State\u2019s Attorney, of Paxton (Norbert J. Goetten, Robert J. Biderman, and Thomas R. Dodegge, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL E. MILLIGAN II, Defendant-Appellant.\nFourth. District\nNo. 4-00-0359\nOpinion filed February 6, 2002.\nRehearing denied March 5, 2002.\nCOOK, J., dissenting.\nDaniel D. Yuhas and Cory E. Easton, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nTony Lee, State\u2019s Attorney, of Paxton (Norbert J. Goetten, Robert J. Biderman, and Thomas R. Dodegge, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0264-01", "first_page_order": 282, "last_page_order": 290 }