{ "id": 4267422, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JACQUELYN A. SWART, Defendant-Appellant", "name_abbreviation": "People v. Swart", "decision_date": "2006-12-29", "docket_number": "No. 2\u201404\u20140417", "first_page": "614", "last_page": "638", "citations": [ { "type": "official", "cite": "369 Ill. App. 3d 614" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "157 Ill. 2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 778576 ], "year": 1993, "pin_cites": [ { "page": "445" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/157/0401-01" ] }, { "cite": "209 Ill. 2d 194", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461336 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "225" }, { "page": "225" }, { "page": "225" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0194-01" ] }, { "cite": "215 Ill. 2d 167", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4060336 ], "year": 2005, "pin_cites": [ { "page": "186-87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/215/0167-01" ] }, { "cite": "218 Ill. 2d 104", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5736047 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "121" }, { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/218/0104-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "year": 1988, "pin_cites": [ { "page": "186", "parenthetical": "both a trial objection and a written posttrial motion raising the issue are necessary to preserve an issue for review" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "218 Ill. 2d 255", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5735974 ], "year": 2006, "pin_cites": [ { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/218/0255-01" ] }, { "cite": "205 Ill. 2d 411", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1302603 ], "year": 2002, "pin_cites": [ { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/205/0411-01" ] }, { "cite": "212 Ill. 2d 274", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2444253 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "280" }, { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/212/0274-01" ] }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "year": 1985, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "443 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182418 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "319" }, { "page": "573" }, { "page": "2789" } ], "opinion_index": 0, "case_paths": [ "/us/443/0307-01" ] }, { "cite": "218 Ill. 2d 232", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5736011 ], "year": 2006, "pin_cites": [ { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/218/0232-01" ] }, { "cite": "185 Ill. 2d 532", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 121990 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "541" }, { "page": "541" }, { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/185/0532-01" ] }, { "cite": "213 Ill. 2d 210", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8448524 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/ill-2d/213/0210-01" ] }, { "cite": "343 Ill. App. 3d 152", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3719002 ], "year": 2003, "pin_cites": [ { "page": "158" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/343/0152-01" ] }, { "cite": "351 Ill. App. 3d 807", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083840 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/ill-app-3d/351/0807-01" ] }, { "cite": "171 Ill. 2d 74", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57334 ], "year": 1996, "pin_cites": [ { "page": "98", "parenthetical": "defendant waived Frye issue by failing to present expert testimony at Frye hearing" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/171/0074-01" ] }, { "cite": "218 Ill. 2d 125", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5735992 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "138", "parenthetical": "a criminal defendant's failure to object at trial leads to \"procedural default\"" }, { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/218/0125-01" ] }, { "cite": "355 Ill. App. 3d 981", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3599675 ], "year": 2005, "pin_cites": [ { "page": "988" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/355/0981-01" ] }, { "cite": "213 Ill. 2d 523", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8449153 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "530" }, { "page": "530-31" }, { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0523-01" ] }, { "cite": "199 Ill. 2d 63", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58941 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "76-77" }, { "page": "77" }, { "page": "78" }, { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0063-01" ] }, { "cite": "204 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609707 ], "weight": 7, "year": 2003, "pin_cites": [ { "page": "24" }, { "page": "24" }, { "page": "24" }, { "page": "25" }, { "page": "26" }, { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/204/0001-01" ] }, { "cite": "152 Ill. 2d 432", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5602939 ], "year": 1992, "pin_cites": [ { "page": "459" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/152/0432-01" ] }, { "cite": "173 Ill. 2d 167", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 147606 ], "year": 1996, "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/173/0167-01" ] }, { "cite": "221 Ill. 2d 414", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5703655 ], "weight": 6, "year": 2006, "pin_cites": [ { "page": "428" }, { "page": "428" }, { "page": "428-29" }, { "page": "429" }, { "page": "429" }, { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/221/0414-01" ] }, { "cite": "293 F. 1013", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 11720199 ], "weight": 2, "year": 1923, "pin_cites": [ { "page": "1014" } ], "opinion_index": 0, "case_paths": [ "/f/293/1013-01" ] } ], "analysis": { "cardinality": 2065, "char_count": 63208, "ocr_confidence": 0.762, "pagerank": { "raw": 7.845390439647866e-08, "percentile": 0.45855897390156725 }, "sha256": "08a0f99523deadda9346774a6ebdcbacf7fe71f5859777d44a704ecf0045da56", "simhash": "1:8b2284a34e2febf3", "word_count": 10360 }, "last_updated": "2023-07-14T20:04:07.948493+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. JACQUELYN A. SWART, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BYRNE\ndelivered the opinion of the court:\nA jury found defendant, Jacquelyn Swart, guilty of the first-degree murder of a 14-month-old girl, Alexandra Firkins (Alex). See 720 ILCS 5/9 \u2014 1(a)(2) (West 2004). The trial court imposed a 35-year prison term. The State\u2019s theory of the case is that Alex succumbed to \u201cshaken baby syndrome\u201d while in defendant\u2019s care. Defendant denies shaking Alex, and at trial, she attempted to introduce evidence that Alex suffered an \u201cundetected injury\u201d during the days preceding her death.\nOn appeal, defendant argues that (1) the State\u2019s medical experts were not credible and (2) the prosecutor committed reversible error by suggesting during closing argument that defendant abused Alex not only on the date of her death but also five days earlier. Notably, at trial, defendant neither challenged the admissibility of the State\u2019s expert testimony pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), nor objected to the prosecutor\u2019s comments. We affirm.\nFACTS\nOn April 7, 1998, Alex was born to Todd and Wendy Firkins. Beginning 10 weeks after Alex\u2019s birth, the Firkins employed defendant, the wife of Wendy\u2019s coworker, to provide daycare for Alex in defendant\u2019s apartment. Defendant cared for Alex for approximately one year, until she was hospitalized on Monday, June 21, 1999. Defendant and her husband have two children of their own: \u201cNemesis,\u201d a boy who was six years old at the time of the incident, and \u201cFelix,\u201d a girl who was Alex\u2019s age. Before Felix was born, defendant worked at a Kindercare facility, where she received child abuse training. Defendant was told that shaking a baby is dangerous and can be fatal.\nDetectives Timothy Connell and Tim Garnish interviewed defendant as part of the investigation. Defendant denied shaking her own children and insisted that \u201cshe had never handled Alex roughly, nor shaken her, nor [had] she ever struck her in any way.\u201d\nA. Chain of Events\n1. Wednesday, June 16, 1999\nWendy, Todd, their family members, and defendant testified about the days immediately preceding Alex\u2019s death. On the morning of Wednesday, June 16, 1999, Wendy dropped Alex off at defendant\u2019s apartment, as was customary. Ordinarily, Alex napped for 1 to IV2 hours after lunch. However, when Wendy returned at 5 p.m., Alex was still sleeping, and defendant stated that she did not wish to wake Alex because Alex had been \u201cvery crabby\u201d that day. Alex behaved normally the rest of the evening, but she took longer than usual to fall asleep, which Wendy attributed to the long nap.\nEach day, defendant prepared handwritten notes chronicling Alex\u2019s activities, meals, and moods, and Wendy would read them upon returning home with Alex. On June 16, defendant wrote that \u201cAlex has been pretty crabby all day\u201d and that defendant had to put her back down to sleep as \u201cnothing else made her happy.\u201d\n2. Thursday, June 17, 1999\nWendy testified that, on Thursday, June 17, 1999, Alex behaved normally except that she drooled constantly and was more whiny and \u201cneedier\u201d than usual, because she was teething. Todd testified that the teething had interfered with Alex\u2019s sleep for two weeks before her death. When Wendy took Alex to defendant\u2019s apartment, she instructed defendant to limit Alex\u2019s nap. Wendy arrived to pick up Alex at defendant\u2019s apartment in the evening, and when Alex stood to walk toward her mother, she vomited. Defendant told Wendy that Alex must have vomited because she ate prunes that day and that Alex had been \u201ckind of cranky\u201d for the half hour before Wendy\u2019s arrival. Detective Connell testified that defendant told him about the vomiting episode.\nWendy testified that Alex was quieter than usual on the drive home. However, Alex ate her dinner normally and did not vomit that evening. Wendy did not recall if she told the police that Alex was lethargic on the way home.\nOn June 17, defendant wrote a note asking, \u201cis it Friday yet?\u201d However, defendant thought that she had probably written \u201ca smiley face at the end of it.\u201d\n3. Friday, June 18, 1999\nWendy described Alex\u2019s behavior on the morning of Friday, June 18,1999, as \u201ctypical.\u201d When Wendy brought Alex to defendant\u2019s home, Alex had not yet finished her bottle, so Wendy stayed a bit longer and played with Alex when she became \u201cwhiney.\u201d Wendy coaxed Alex into a good mood through play, but Alex vomited and began to cry. Wendy left, and defendant put Alex down for her nap from 9 to 10:30 a.m. Defendant informed Wendy by telephone that Alex had taken her morning nap and could eat toast. At 11:30 a.m., Wendy retrieved Alex and went to a company picnic as planned. Defendant also attended the picnic.\nAlex was a bit shy at the picnic, but eventually ate and got involved chasing a huge ball. Alex missed her afternoon nap, and about five other adults watched Alex while Wendy played in a softball game. One of the adults testified that Alex fed herself Cheerios, drank juice from a cup, and otherwise appeared normal for a 14-month-old girl. Wendy took Alex home at 4 p.m.\nOn Friday evening, Wendy and Todd attended a play. Scott and Laurie Pirkins, Todd\u2019s brother and sister-in-law, watched Alex. Laurie testified that Alex did not vomit but was fussy during dinner. After an evening stroll with Alex, Laurie and Scott readied Alex for bed and reported to her parents that Alex was \u201cfine.\u201d Wendy and Todd retrieved Alex at approximately 2 a.m. and took her home.\n4. Saturday, June 19, 1999\nOn Saturday, the Pirkinses prepared their home for a Father\u2019s Day party the next day. Wendy testified that Alex awakened, drank her bottle, and by 9 a.m. was in the basement with Todd and a family friend who were assembling a pool table. Alex was \u201cwalking and laughing and running around.\u201d Alex did not appear injured in any way.\nWendy\u2019s mother arrived at 10 a.m., and Alex napped for a half-hour. Wendy, her mother, and Alex went to the mall, where Alex was alert and interested in her surroundings. Alex ate, ran, and walked around the mall until the three returned home at 6 p.m. Like the day before, Alex missed her afternoon nap. Todd played with Alex, bathed her, and put her to bed between 8:30 and 9 p.m. Alex slept through the night.\n5. Sunday, June 20, 1999\nOn Father\u2019s Day, Alex awoke at 7 a.m. and Wendy gave her a bottle of milk. At 12:30 p.m., Wendy fed her again and put her down for her morning nap. Alex had no difficulty eating. The party guests began arriving at 1:30 p.m., and Alex was awakened by the commotion. Alex played with her grandmother and aunt and appeared fine. Later in the afternoon, Wendy and several others left to purchase Alex some outdoor toys, including a plastic bubble car and a slide. The family activity prevented Alex from taking her afternoon nap.\nWendy and Todd testified that Alex played on the slide \u201cnonstop.\u201d Once, Alex slid down faster than usual and her head was \u201cpushed back\u201d against the slide. Alex whined but did not cry. When she reached the bottom of the slide, she immediately stood and ran around to continue using it. Wendy, Todd, and two other family members testified to Alex\u2019s reaction to hitting her head. Wendy and Todd testified that Alex ate dinner and became very tired near the end of the evening. Wendy and two others testified that Wendy put Alex to bed between 8 and 8:30 p.m. and that Alex fell asleep quickly.\n6. Monday, June 21, 1999\nOn Monday, June 21, 1999, Alex awoke at approximately 6 a.m., which was an hour earlier than usual. Wendy placed Alex on Wendy\u2019s waterbed, and after resting a short time, Alex began to play. Alex was \u201con all fours\u201d looking at her reflection in the mirror hung behind the headboard, and she started crawling toward the mirror. Wendy testified that Alex \u201cslipped a little\u201d and bumped her forehead on the headboard. Alex did not cry, and the bump resulted in a small red mark over her eyebrow.\nWendy set Alex on the floor to play with some toys, and Alex became progressively \u201cwhinier\u201d and wished to be picked up. Wendy gave her a bottle of milk and lay on the couch with her. Alex finished the entire eight-ounce bottle, and Wendy returned her to the crib, where she fell asleep immediately.\nWendy called defendant and told her that she and Alex would be late that morning. Wendy wished to sleep in that morning, but she falsely told defendant that she was waiting for a repairman. Wendy explained that she lied because she could come and go to work as she pleased, unlike defendant\u2019s husband, who might be resentful of Wendy.\nAt 8 a.m., Alex was still sleeping, and Wendy called defendant to say she planned to let Alex sleep in so they would not have a \u201cbad Monday.\u201d Wendy explained that Mondays were the hardest day of the week for Alex. Alex awoke after 9 a.m. and ate scrambled eggs, and Wendy took her to defendant\u2019s apartment. During the drive, Alex was in a \u201cgreat mood\u201d and was \u201cplayful \u2014 [in] her typical happy, jolly mood.\u201d\nWendy carried Alex from the car to defendant\u2019s door and set her down. Alex leaned on the door and \u201cstumbled a bit\u201d when it opened. Wendy and defendant conversed and Alex ran through the kitchen, took magnets off the refrigerator door, and handed them to Felix, defendant\u2019s daughter. Wendy testified that she told defendant that the family had a busy weekend, Alex had not napped much, and Alex had been \u201ca little fussy\u201d that morning but was in a much better mood. Defendant testified that Wendy told her that Alex was \u201ccranky and fussy all weekend\u201d and had been \u201cvery clumsy that morning.\u201d According to defendant, Alex tripped and fell in the doorway.\nDefendant testified that, after Wendy left, she took Alex and Felix outside to play on the swings at 10:30 a.m. Felix stayed on the patio, and defendant placed Alex on the grass, which was \u201ckind of damp.\u201d Because Alex was fussy, defendant moved her to another spot, which was damp as well. Defendant took the girls back inside, where they stayed for 10 to 15 minutes.\nSandy Powers, defendant\u2019s neighbor, testified that she was working at her desk near her patio door when, sometime between 10 a.m. and noon, she heard a baby crying in defendant\u2019s apartment. She rose to close the door and saw defendant carrying Alex as defendant exited her apartment. Alex was \u201ccrying hard\u201d as defendant placed her on the grass. Alex was sitting \u201con her bottom with her legs out in front of her and her arms at her sides.\u201d Alex\u2019s back was perpendicular to the ground and her head was erect. After defendant placed Alex on the grass, Powers saw defendant return to the apartment and help Felix out the door. As Felix \u201ctoddl[ed],\u201d Alex continued to cry, so defendant \u201cvery gently\u201d moved her to another part of the grass. Powers stated that Alex was again sitting with her legs out in front of her and her arms at her sides. When Felix began crying, defendant brought both girls back into her home, and Powers could no longer hear crying after defendant closed her patio door. Defendant testified that she closed the patio door because her air conditioner was running.\nDefendant testified that, at 11 a.m., she prepared lunch for the girls. Defendant gave Alex turkey bologna, peas, and carrots, but Alex ate only the peas. At 11:30 a.m., defendant changed the girls\u2019 diapers and gave them their bottles. Both girls became cranky and defendant put them down for their naps. Defendant then turned on her white-noise machine.\nAt 12:30 p.m., defendant checked on the girls, saw that Alex was awake, and brought her to the living room. At 1:18 p.m., defendant telephoned her husband at his office. She did not remember why she called, and she denied calling him to say that she had done something to hurt Alex.\nDefendant testified that Felix awoke between 1:15 and 1:30 p.m., and the girls played until Alex became cranky and began to cry. At 1:40 p.m., defendant took the girls outside again, placing Alex on her feet in the grass. Alex sat while Felix walked toward the swings. Defendant stood Alex up, but Alex immediately sat down and began to cry. Defendant took Alex to the swings and placed her back-to-back against Felix on one of the swings. Alex did not stop crying after 5 to 10 minutes of swinging, so defendant took the girls back inside. Powers testified that she never saw defendant and the girls near the swings on June 21. Defendant conceded that, if she took the most direct path to the swings, she would have passed Powers\u2019 building.\nDefendant testified that, upon returning from the swings, she changed Alex\u2019s diaper and put her in the playpen, but Alex continued to cry. Defendant left the room momentarily and returned to activate the white-noise machine. When defendant walked in the room, Alex was not crying but her breathing was \u201creally congested.\u201d Defendant picked up Alex, but \u201c[s]he was just limp, her head kind of flopped back and she just wasn\u2019t moving.\u201d Defendant called Alex by name, but she would just open and close her eyes as if she were \u201creally tired.\u201d Detective Connell testified that defendant told him that Alex\u2019s \u201ceyes were fluttering around a little bit and she *** sounded like she was kind of congested.\u201d\nDefendant testified that she called Wendy at 2:08 p.m. to tell her that something was wrong with Alex. When Wendy did not answer, defendant left a voice mail message. Wendy testified that her office receptionist told her that defendant had left several messages. Defendant eventually reached Wendy, who testified that defendant asked her \u201cdoes Alex ever get floppy when she\u2019s tired?\u201d Wendy responded by asking what defendant meant by \u201cfloppy,\u201d and defendant said \u201cWendy, I\u2019m scared something\u2019s wrong.\u201d Wendy then said she would be \u201cright there.\u201d\nWhen Wendy arrived, defendant was holding Alex, who was unconscious. Defendant asked whether Alex could \u201cjust be sleeping\u201d and immediately handed her to Wendy. Wendy said, \u201cno,\u201d and directed defendant to call 911. Wendy testified that she could hear Alex breathing. Wendy cleared Alex\u2019s mouth of vomit and peas, and defendant explained that Alex vomited while Wendy was en route. Defendant stated that she did not call 911 immediately because all she \u201ccould think of was to call Wendy.\u201d\nWendy and defendant each testified that, while awaiting the paramedics, defendant told Wendy about feeding Alex lunch and playing on the swings. Defendant also said that Alex became crabby and that, after lying down for several minutes, Alex began \u201cbreathing funny\u201d and \u201cher eyes rolled up in her head and that\u2019s when she got floppy.\u201d Defendant also told the paramedics her version of the events while they treated Alex.\nShelly Carbone, who had been a paramedic for 14 years, testified that she and five other paramedics arrived at defendant\u2019s home within one minute of the 911 call. Alex was unconscious and unresponsive, her respiratory rate was inadequate, and her arms and legs were making \u201cno purposeful movement.\u201d The paramedics used a bag valve and mask to forcibly deliver oxygen to Alex. Carbone testified that Alex scored 3 out of 15 on the Glasgow Coma Scale, which was the \u201cworse [sic] calculation for a coma score.\u201d Alex\u2019s coma score indicated no ocular response, no verbal ability, and no motor movement. Alex\u2019s blood pressure indicated either poor cardiac output, a loss of blood, or neurological problems. One of Alex\u2019s pupils was larger than the other, which indicated that she suffered a traumatic neurological event. The paramedics continued ventilation and placed an intravenous catheter in her arm.\nCarbone testified that, while the paramedics treated Alex, defendant was pacing in short steps with her arms folded, biting one of her thumbnails. Wendy was very emotional and tearful. Carbone testified that defendant told her that Alex had played before and after lunch but had become \u201ccrabby.\u201d Defendant explained that, when she could not rouse Alex from her post-lunch nap, she called Wendy. Defendant told Carbone that she had been with Alex \u201call day\u201d and that Alex had not fallen or gotten into any chemicals. According to Carbone, she had to solicit all of the information from defendant and defendant did not give it in a \u201cfree-flow manner.\u201d\nCarbone observed Alex moaning but not crying, making noisy respiration sounds, and posturing, which all indicated a traumatic neurological injury. Wendy, Todd, defendant, and defendant\u2019s husband all went to Hinsdale Hospital, where Alex was treated.\nDr. Jose Quinones testified he was called to evaluate Alex at 2:50 p.m. Alex was very pale and unresponsive to \u201canything,\u201d but she presented no outward signs of injury. Alex was intubated, and CT scans were performed because Alex exhibited cerebrate posturing, a reflexive movement of the spinal cord without any control from the upper central nervous system, manifested by the hyperextension of the feet, hands, and legs. The CT scan disclosed blood hemorrhaging in the brain, as well as some edema, or swelling, of the brain. Dr. Quinones diagnosed Alex with shaken baby syndrome based on the neurological findings, the clinical condition presented by Alex, and the CT scan.\nDr. Quinones opined that \u201c[t]here\u2019s no wax and wane\u201d to the condition because, once the trauma causes the cerebral edema, the swelling progresses and \u201cthe child continues to be sick and gets progressively sicker and eventually becomes lethargic and unresponsive.\u201d Once the trauma was inflicted, Alex would not have been able to talk, eat, or act normally. Dr. Quinones told the parents that he suspected child abuse and that they should talk to the authorities, whom the hospital had alerted. Wendy and Todd told Dr. Quinones about Alex\u2019s recent vomiting, but there was some dispute as to how much vomiting they reported. There was also some dispute as to whether the Pirkinses characterized Alex\u2019s incident on the slide as a bump on the head or a fall to the ground. Regardless, Dr. Quinones testified that Alex\u2019s injuries \u201cabsolutely [could] not\u201d have been caused by falling off a slide. Wendy and Todd failed to tell the doctor about Alex bumping her forehead on the headboard that morning.\nAlex was transferred to Christ Hope Hospital, but defendant did not follow the Pirkinses there. Defendant testified that she left Hinsdale Hospital because there was nothing more she could do for Alex, not because she feared the police. At that time, defendant told Todd that \u201cnothing [had] happened\u201d to cause the injuries. At 12:30 a.m., the police arrived at defendant\u2019s home and conducted an interview, during which defendant told them about Alex\u2019s meals and her play on the swing.\n7. The Days Following Hospitalization\nRecords showed that defendant called her attorney less than 10 minutes before Alex was pronounced dead at 10:34 p.m. on June 22, 1999. On her attorney\u2019s advice, defendant did not attend Alex\u2019s wake or have any contact with the Pirkinses. Defendant testified that she did not give Wendy her daily note taken on June 21, because she never saw Wendy again. Defendant stated that she gave the note to her attorney one week before trial, which was five years after Alex\u2019s death.\nDefendant denied accessing Internet websites describing shaken baby syndrome after she left Hinsdale Hospital, but she acknowledged the possibility that her husband had done so. Defendant acknowledged that she later accessed such websites on the advice of her attorney.\nDetective Connell testified that, while he questioned defendant, she said, \u201cJust ask me the question.\u201d When he asked, \u201cWhat question?\u201d she replied, \u201cDid I do anything to Alex?\u201d Detective Connell testified that he asked defendant whether she harmed Alex, and defendant said \u201cno.\u201d\nDefendant admitted that \u201csometimes\u201d she would get frustrated when the girls were crying and she could not console them. Defendant denied that she was stressed by other factors like financial problems. She further testified that she \u201chad some concerns at some certain times\u201d that Alex was an abused or neglected child and that she had told her husband about her suspicions. However, defendant admitted that she never told the police or the Department of Children and Family Services (DCFS) about her concerns. Defendant further admitted that nothing made her believe that Alex was injured when she arrived at her home on the date of the incident.\nB. Expert Testimony\n1. The State\u2019s Experts\nIn addition to Dr. Quinones, the State called six other medical experts to opine on Alex\u2019s condition and the cause of it. Dr. Benjamin Ticho, a pediatric ophthalmologist on staff at Christ Hope Hospital, examined Alex\u2019s eyes to determine what she could see and whether any structural abnormalities affected the way the parts of her eyes worked. Alex exhibited \u201cno response to any visual stimuli of any kind,\u201d and neither pupil constricted. The external portions of her eyes appeared \u201creasonably normal,\u201d but the rear parts had multiple hemorrhages in the peripapillary area, which is the area at the tip of the optic nerve, called the \u201coptic disc\u201d or \u201cpapilla.\u201d Dr. Ticho observed hemorrhages in the center parts of the retinas and in the intraretinal and preretinal areas, but none were seen in the edges of the retinas. The hemorrhages were similar in both eyes.\nDr. Ticho used photographs to explain his observations and opinions. Dr. Ticho stated that one of the photos depicted flame-shaped retinal hemorrhages, which were \u201cclinically seen in the condition called shaken baby syndrome.\u201d He observed no evidence of blunt ocular trauma, suggesting that the eyes had not been hit directly. Dr. Ticho opined that, to a reasonable degree of medical certainty, his findings indicated that shaking was the mechanism of injury. He concluded that in the \u201cabsence of any alternative explanation, these types of retinal hemorrhages in this clinical setting is virtually diagnostic of shaken baby syndrome.\u201d Dr. Ticho admitted on cross-examination that he could not detect shaken baby syndrome strictly from an eye examination, but one \u201ccan get a very good and high suspicion for it.\u201d\nDr. Ticho testified that neither he nor any ophthalmologist could determine an \u201cexact\u201d time of injury, but he could \u201cdate\u201d the injury based on the color of blood. In his view, Alex sustained \u201cfresh\u201d injuries, which meant that they could have been just inflicted or two weeks old.\nDr. Gerardo Reyes, a critical care pediatrician on staff at Christ Hope Hospital, testified that Alex was admitted to the pediatric intensive care unit with a note from Hinsdale Hospital reporting that she was \u201cextremely ill with extensive brain damage.\u201d Wendy and Todd testified that, when they arrived, he began questioning them and said to think of \u201cevery last detail no matter how insignificant [that] they thought it was of what could have happened.\u201d They told him everything that they knew had happened that week, including the slide incident.\nAlex did not require sedation to be intubated because she was in a severe coma and had no feeling. Dr. Reyes suspected shaken baby syndrome and consulted with Dr. Ticho and Dr. Yoon Hahn, a pediatric neurosurgeon. Dr. Hahn concluded that Alex had cerebral edema, severe brain damage, and internal bleeding of the brain. Dr. Reyes testified that, based on their findings and the 50 cases of shaken baby syndrome he had diagnosed in his 15 years of medical practice, he concluded to a reasonable degree of medical certainty that Alex suffered from shaken baby syndrome. The CT scan revealed damage to Alex\u2019s neck in the area of the cervical spine, which was consistent with ligament damage of the neck. Alex\u2019s cause of death was \u201cbrain herniation.\u201d Dr. Reyes opined that Alex\u2019s injuries were not consistent with having been in an accident, such as falling off a bike or playground equipment or being struck by a car. Dr. Reyes told Wendy and Todd that Alex was suffering from a lot of brain swelling and bleeding and that she had a \u201cvery serious neck injury.\u201d\nTodd testified that, before her death, Alex had never been involved in a car crash or taken to the hospital for treatment of any injury. Once Alex had learned to walk, she stopped crawling; she was very active and playful and she ate normally and verbalized.\nDr. Kathleen Gruzalski, one of Alex\u2019s prior pediatricians, testified that at her one-year checkup, Alex was described as a \u201cvery tall girl\u201d who was in excellent health and was developing normally. Approximately six months before her death, Alex was diagnosed with stomach flu, which was not unusual for a child her age. Dr. Gruzalski also testified that the vomiting Alex experienced before her death was not unusual for a 14-month-old girl. On cross-examination, the doctor testified that vomiting could be caused by increased pressure on the brain after a head injury.\nDr. Wilbur Smith, an expert in pediatric radiology and pediatrics, testified that he reviewed Alex\u2019s medical records, autopsy records, scans, and police reports. Dr. Smith also reviewed the reports of Dr. Jan Leestma, a neuropathologist, and Dr. Ronald Uscinski, a neurosurgeon, whom the defense retained as experts. Dr. Smith testified that Alex\u2019s CT scans showed she had two or three head injuries. First, she suffered an injury to the subgaleal space, which indicated that there must have been an impact to the head. Second, she suffered an injury to the subdural space, which indicated the veins had been torn and had bled into the subdural space. Third, she suffered an injury to the subarachnoid space, which indicated that the veins from the surface of the brain had been torn and there was blood against the surface of the brain. The CT scans taken at Hinsdale Hospital and Christ Hope Hospital depicted a hematoma, or fresh blood outside the blood vessel. Alex had a subarachnoid hemorrhage and a subdural hematoma. Dr. Smith explained that \u201ca subarachnoid hemorrhage means that blood is against the brain and blood against the brain always gives symptoms and always gives quite severe symptoms very fast. *** Those [adults] that are not knocked unconscious by it say [\u2018]I have the worst headache of my life. [\u2019] It\u2019s called a thunderclap headache. You can\u2019t see. You vomit. You have a terrible headache.\u201d Dr. Smith also identified an intrahemispheric subdural hematoma between the two hemispheres of Alex\u2019s brain, which, he added, \u201c[a]lmost always comes from shaking.\u201d\nDr. Smith testified that two of the CT scans showed that Alex\u2019s brain \u201chad suffered a very, very severe injury\u201d and that so many cells were dying that leaking fluid caused cerebral swelling. Based on the subarachnoid hemorrhage and bleeding, Dr. Smith opined that Alex would have exhibited symptoms of unbearable pain or becoming comatose within minutes of suffering the injury. Moreover, Alex exhibited a \u201csignificant cervical injury,\u201d which would have rendered her comatose and prevented her from responding to commands. The severe edema caused the joint that holds the head together to be \u201cblown apart.\u201d Symptoms of a spinal injury are paralysis and spinal shock, but a person with paralysis could experience muscle spasms or twitching without any \u201cpurposeful movement.\u201d Dr. Smith opined that neck injuries are consistent with shaking even though they occur in only 2% of cases. Dr. Smith stated that he did not see \u201cany evidence of an old injury on Alex,\u201d and, even if there had been one, it did not cause her death. Dr. Smith testified that, to a reasonable degree of medical certainty, a combination of severe shaking and impact caused Alex\u2019s death. Dr. Smith conferred with Dr. Adrienne Segovia, who performed Alex\u2019s autopsy, and she confirmed all of the injuries he observed.\nDr. Segovia testified that she observed a small, irregularly shaped external bruise just below the crown of Alex\u2019s head. Dr. Segovia further observed a similarly sized bruise over the bone of the skull. The internal bruise was underlying the external bruise. Dr. Segovia concluded that Alex\u2019s subdural hematoma was \u201crecent\u201d because it was \u201cnonadherent\u201d and did not stick to the dura. She opined that Alex had not suffered an \u201cold\u201d injury. Dr. Segovia concluded that Alex\u2019s cervical injuries would have directly affected her breathing and movement, resulting in paralysis. Alex\u2019s injuries were \u201cconsistent with significant force, significant trauma.\u201d Dr. Segovia testified that, to a reasonable degree of medical and scientific certainty, Alex\u2019s death was caused by swelling of the brain and multiple injuries to the neck, the spinal cord, and the subdural and subarachnoid areas of the brain. Dr. Segovia concluded that Alex\u2019s death was a result of blunt trauma inflicted by child abuse.\nDr. Randall Alexander, an expert in pediatrics and child abuse, reviewed the autopsy report, the medical records, some of the police reports, the photos, scans, and X rays, and the reports of Drs. Leestma, Uscinski, and Mark Schuman, who were retained by defendant. Dr. Alexander testified that shaken baby syndrome occurs when a child is shaken repetitively back and forth and with such violence that she sustains injuries. The primary injury is to the brain; developmental disabilities occur in 25% of cases, and death results in another 25% of cases. Shaken baby syndrome requires repetitive shaking to cause brain damage through cumulative force. Dr. Alexander characterized shaken baby syndrome as a medically recognized diagnosis and a form of child abuse, which \u201cmost people in medicine\u201d recognize as possibly causing significant injury or death. He acknowledged that contrary opinions about this diagnosis were \u201cnot surprising,\u201d but mentioned that medical experts differ in opinion on a variety of matters.\nDr. Alexander testified that, usually, a shaken child is younger than one year old because she is small and easy to lift. A person inflicting the injury usually holds the child under the arms and shakes her back and forth. The head\u2019s acceleration and deceleration is a form of blunt trauma. Studies have shown that the head does not move straight back, but will pivot to the side during shaking. Because young children have very flexible necks, neck injury is uncommon, and a child who survives a shaking rarely has a spinal cord injury. However, 3% to 5% of fatal shakings cause soft tissue neck injuries. Dr. Alexander acknowledged that Alex suffered a neck injury and a hematoma on the optic nerve, which were rare.\nDr. Alexander testified that the shaking stresses and strains blood vessels and nerve cells, resulting in a \u201cmarker injury\u201d of blood leaking in the subdural or subarachnoid spaces. Furthermore, multiple layers of retinal hemorrhages, which are found in the back of the eye and in front of the retina, are peculiar to shaken baby syndrome. Retinal hemorrhages can be caused by a rapid rise in intracranial pressure, but only under certain circumstances, which would need to be investigated. The least severe cases of shaken baby syndrome resemble concussions and involve irritability, lethargy, vomiting, and irregular eating; but concussions do not have retinal hemorrhages or subdural or subarachnoid bleeding. In the most severe shaken baby case, the child will become unconscious immediately and breathing difficulties will set in. In the worst situation, posturing will occur. Dr. Alexander testified that Alex\u2019s injuries were abusive and fit the \u201cclassical pattern of shaking with some additional impact\u201d indicated by bruising under the scalp. The injuries were inflicted by violent shaking of a minimum of four or five shakes. Injuries to the brain cells would have been immediate; she would have developed severe symptoms right after the shaking. Dr. Alexander acknowledged that an old subdural hematoma could possibly cause brain swelling if it was \u201chuge,\u201d but Alex\u2019s injuries as a whole showed that she had been shaken. With a reasonable degree of medical certainty, Dr. Alexander opined that Alex\u2019s fatal head injuries were inflicted after she ate lunch on June 21, 1999.\n2. Defendant\u2019s Experts\nDr. Darinka Mileusnic, an expert in forensic pathology and anatomic pathology, testified that Alex had suffered a subdural hematoma and spinal injury about two weeks before her death and that it was healing at the time she suffered a second injury. The slides of the brain tissue indicated that the new injury occurred three days from the time of death, plus or minus two days. A better medical history would have helped estimate the time of injury. Dr. Mileusnic emphasized that Dr. Segovia\u2019s autopsy report did not mention the thickness of the subarachnoid hemorrhage, which, in Dr. Mileusnic\u2019s opinion, would not have necessarily caused immediate severe symptoms of unconsciousness unless it had been at the base of the brain with a large amount of bleeding.\nDr. Mileusnic opined that neither the old subdural hematoma nor the more recent one would have impaired Alex\u2019s ability to eat, pick peas out of carrots, or have normal motor functions. Alex would have shown symptoms only of crankiness, lethargy, and vomiting. The bumps to Alex\u2019s head from either the slide or the headboard could have caused the healing subdural hematoma to rebleed. Dr. Mileusnic acknowledged that some experts believed that subdural hematomas could rebleed spontaneously but this was a highly controversial opinion.\nDr. Mileusnic opined that there was no evidence of a major accident or that Alex had been \u201creally abused.\u201d She emphasized that there were no witnesses to the shaking, no admission by defendant, no grab marks on Alex, and no injuries to Alex\u2019s long bones. Retinal hemorrhages are most prevalent in child abuse cases but they can also be caused by infections, clotting disorders, blood disorders, meningitis, or undiagnosed metabolic disorders. Dr. Mileusnic relied on the ophthalmic report to determine that Alex\u2019s hemorrhages were one to two weeks old, but she conceded that they could have been less than 24 hours old. On cross-examination, Dr. Mileusnic agreed that Alex had suffered child abuse and that her injuries were consistent with shaken baby syndrome, which was a form of blunt trauma. She testified that, to a reasonable degree of medical certainty, Alex had a subdural hematoma approximately three days old and a spinal injury about two to three weeks old but neither would have caused immediate unconsciousness. Dr. Mileusnic acknowledged the uncertainty of the possibility that a rebleed of the old subdural hematoma resulted in the new trauma.\nDr. Mark Schuman, an expert in forensic pathology, opined on Alex\u2019s cause of death, but he did not review all of the police reports or the CT scans and X rays. Dr. Schuman dated the subdural hematoma through histology and concluded that it was 7 to 10 days old. He observed a more traumatic event, which was \u201cjust blood\u201d without evidence of healing. A minor bump on the head from falling from a small slide or bumping the head on a headboard could cause an existing subdural hematoma to rebleed. Neither of the injuries, in Dr. Schuman\u2019s opinion, would have caused immediate unconsciousness. He did not observe any retinal hemorrhages, but he saw reports describing them. The retinal hemorrhages could have been caused by falls, accidental head injuries, or meningitis. When the prosecution confronted Dr. Schuman with published position papers and studies indicating the seriousness of shaken baby syndrome, Dr. Schuman discounted them, but acknowledged that shaking a 14-month-old child \u201cdoesn\u2019t seem like the good thing to do.\u201d He opined that a head injury contributed to Alex\u2019s death, and he also agreed that it was possible that defendant shook Alex and caused an impact to her head.\nDr. Jan Leestma, an expert in anatomic pathology and neuropathology, testified that he reviewed the hospital records, CT scans, slides, police reports, photographs from other expert witnesses, and the autopsy report and the other materials generated by the pathologist. He opined that Alex suffered from a chronic subdural hematoma, the oldest parts of which were 10 days to \u201ca couple weeks\u201d old, as well as a more recent subdural hematoma, which could have been 5 minutes to several days old. He acknowledged that his dating technique had limited precision. Dr. Leestma testified that a 14-month-old child might exhibit no symptoms from an existing subdural hematoma or might exhibit crying, unhappiness, crankiness, fussiness, lethargy, vomiting, or sometimes seizures. Alex\u2019s symptoms correlated with an existing subdural hematoma, but the existing subdural hematoma could not be proven. He opined that there was no evidence that Alex had been shaken, because there were no grip marks, which would be expected on a 22-pound child. Dr. Leestma acknowledged that, in 1997, he testified in another case that retinal hemorrhages were typically caused by shaking and were a \u201cred flag\u201d for trauma and that, in 2001, he testified that \u201cchildren who suffer life threatening head injuries are symptomatic immediately.\u201d He also conceded that, as he wrote in a 1988 textbook, the \u201ccoexistence of intracranial hemorrhage and retinal hemorrhage is strongly suggestive of willful rather than accidental injury.\u201d However, he concluded that there was no evidence of a shaking trauma in this case and that there was an evolving body of experimental evidence in the field.\nDr. Ronald Uscinski, an expert in neurosurgery, testified that his review of the CT scans disclosed an abnormality in the architecture of Alex\u2019s brain; a layer of fresh blood over both cerebral hemispheres of the brain; a small amount of blood over and below the tentorium, which indicated fresh blood in the subdural space; and oxygen depletion. He concluded that Alex\u2019s subdural hematoma was so small that it could be \u201cclinically silent\u201d and was probably several days old.\nDr. Uscinski opined that Alex\u2019s subdural hematoma would not have caused immediate unconsciousness when it formed. He concluded that her vomiting and lethargy were signs of an existing hematoma, which would manifest itself after an injury and expand slowly so the person becomes symptomatic \u201cweeks or months\u201d later. Dr. Uscinski gleaned from the autopsy findings and medical records that Alex had not suffered a spinal cord injury, because she was breathing and moving her legs. He concluded that Alex had not been shaken, because a person could not generate the force required to cause her intracranial injury. He disagreed with Dr. Alexander\u2019s view that \u201cshaken baby syndrome was a serious and clearly definable form of child abuse.\u201d\n3. The State\u2019s Rebuttal Witnesses\nDr. Hannes Vogel, an expert in pediatrics, anatomic pathology, and neuropathology, testified that he reviewed the histologic sections from the autopsy, the medical examiner\u2019s report, the photographs, the hospital records, some of the well-baby records, deposition transcripts, the police reports, and opinions of the other experts. In Dr. Vogel\u2019s opinion, there was \u201cabsolutely no evidence in this case of a preexisting injury to [Alex].\u201d Dr. Vogel then explained his interpretation of the evidence in reaching his conclusion. Dr. Vogel identified an injury to the spinal cord, retinal hemorrhages, and a subdural hematoma caused by trauma. He stated that there was no evidence of a subdural hematoma that had rebled. Dr. Vogel also identified a subgaleal hemorrhage, which signified a \u201csignificant blow to the back of the head, *** not the sort of thing that kids get when they just bump their heads.\u201d He concluded that Alex would have become symptomatic within a matter of seconds or one minute after the injuries were inflicted.\nDr. Mary Case, an expert in forensic pathology, neuropathology, and anatomical pathology, stated that, to a reasonable degree of medical certainty, Alex suffered an acceleration-deceleration injury, which caused the brain to rotate on its axis. Like the State\u2019s other experts, she testified that Alex died from an abusive head injury and was the victim of homicide. However, she did not characterize Alex\u2019s condition as shaken baby syndrome because she did not know whether Alex suffered an impact as well as shaking.\nC. Posttrial Procedure\nFollowing the jury\u2019s guilty verdict, defendant moved for a new trial, alleging several trial errors and deprivations of various constitutional rights. The only issue raised in the motion that defendant revisits on appeal is whether she was proved guilty beyond a reasonable doubt. On April 22, 2004, the trial court imposed a 35-year prison term, and defendant filed a timely notice of appeal.\nANALYSIS\nOn appeal, defendant argues that (1) \u201cthe expert testimony regarding shaken baby syndrome, absent any additional evidence to demonstrate [defendant\u2019s] guilt, was insufficient to prove her guilty beyond a reasonable doubt\u201d; and (2) \u201cthe prosecutor\u2019s surprise and unsubstantiated propensity argument that [defendant] committed an act of abuse five days before the charged offense combined with its misstatement of the law regarding other crimes evidence warrants reversal.\u201d We disagree with both propositions.\nA. Expert Testimony\nThe jury found defendant guilty of two counts of first-degree murder. The counts alleged that on June 21,1999, \u201cdefendant, without lawful justification, shook and/or caused blunt trauma to the head of Alexandra Pirkins, knowing said act or acts created a strong probability of great bodily harm [count III] [or] death [count IV] to Alexandra Pirkins, thereby causing the death of Alexandra Pirkins.\u201d See 720 ILCS 5/9 \u2014 1(a)(2) (West 2004).\nOn appeal, defendant challenges the State\u2019s scientific evidence by framing the issue as \u201cwhether expert testimony in the highly controversial area of shaken baby syndrome offered to prove the manner and timing that the victim\u2019s fatal injuries were inflicted, absent any other evidence of the defendant\u2019s guilt, amounts to proof beyond a reasonable doubt for the offense of murder.\u201d\nIt is well settled that the decision to admit or exclude expert testimony is within the sound discretion of the trial court. Thompson v. Gordon, 221 Ill. 2d 414, 428 (2006). A person may testify as an expert if his experience and qualifications afford him knowledge that is not common to laypersons, and if his testimony will aid the trier of fact in reaching its conclusions. Thompson, 221 Ill. 2d at 428. \u201c \u2018There is no predetermined formula for how an expert acquires specialized knowledge or experience and the expert can gain such through practical experience, scientific study, education, training or research.\u2019 \u201d Thompson, 221 Ill. 2d at 428-29, quoting People v. Miller, 173 Ill. 2d 167, 186 (1996). \u201cThus, \u2018[flormal academic training or specific degrees are not required to qualify a person as an expert; practical experience in a field may serve just as well to qualify him.\u2019 \u201d Thompson, 221 Ill. 2d at 429, quoting Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 459 (1992). To testify, an expert need only have knowledge and experience beyond that of an average citizen. Thompson, 221 Ill. 2d at 429. \u201cExpert testimony, then, is admissible \u2018if the proffered expert is qualified by knowledge, skill, experience, training, or education, and the testimony will assist the trier of fact in understanding the evidence.\u2019 \u201d Thompson, 221 Ill. 2d at 429, quoting Snelson v. Kamm, 204 Ill. 2d 1, 24 (2003).\nDefendant does not challenge the credentials of the State\u2019s expert witnesses. Instead, she implicitly challenges the science underlying their opinions by asserting that the theory of shaken baby syndrome is \u201chighly controversial\u201d and \u201chotly contested.\u201d Illinois courts follow the Frye test in determining the admissibility of expert testimony based on novel scientific evidence. Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 76-77 (2002), overruled on other grounds, In re Commitment of Simons, 213 Ill. 2d 523 (2004). The \u201cgeneral acceptance\u201d test articulated in Frye provides that scientific evidence is admissible only if the methodology or scientific principle upon which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs. Frye, 293 F. at 1014; Donaldson, 199 Ill. 2d at 77. However, general acceptance does not require that the methodology be accepted by unanimity, consensus, or even a majority of experts. Donaldson, 199 Ill. 2d at 78.\nBecause scientific evidence generally carries with it a heightened degree of reliability, a Frye hearing is conducted to weed out unreliable evidence that may fall under the guise of scientific evidence. If the novel scientific evidence has gained general acceptance in the particular field in which it belongs, then the evidence is presumed reliable and will be deemed admissible under Frye. Agnew v. Shaw, 355 Ill. App. 3d 981, 988 (2005). Subjecting novel scientific evidence to the general-acceptance test reduces the risk of relying on invalid evidence. Donaldson, 199 Ill. 2d at 78.\nTo supplement her indirect attempt to attack the admissibility of the State\u2019s expert opinions, defendant has cited to several treatises, newspaper articles, and medical journals challenging the theory of shaken baby syndrome. However, these materials were not filed in the trial court, and the State has moved to strike them. We ordered the motion to be taken with the case. Recently our supreme court has ruled that, when reviewing a trial court\u2019s ruling, we may rely upon materials that were not part of the trial record to determine whether a Frye hearing is required and, if so, whether the scientific technique at issue is generally accepted in the relevant scientific community. Simons, 213 Ill. 2d at 530. Illinois courts follow a dual standard of review with respect to the trial court\u2019s admission of expert scientific testimony. The decision as to whether an expert scientific witness is qualified to testify in a subject area, and whether the proffered testimony is relevant in a particular case, remains in the sound discretion of the trial court. Simons, 213 Ill. 2d at 530-31. The trial court\u2019s Frye analysis, however, is subject to de novo review. In conducting such de novo review, the reviewing court may consider not only the trial court record but also, where appropriate, sources outside the record, including legal and scientific articles, as well as court opinions from other jurisdictions. Simons, 213 Ill. 2d at 531. Consistent with Simons, we deny the State\u2019s motion to strike the references to and arguments derived from the materials defendant cites for the first time on appeal. However, for the following reasons, we conclude that defendant has waived any challenge under Frye to the scientific evidence.\nIn the trial court, defendant failed to invoke Frye to challenge the admissibility of the State\u2019s expert testimony. In fact, defendant inexplicably fails to even cite Frye on appeal. In Snelson v. Kamm, 204 Ill. 2d 1 (2003), the supreme court decided that the failure to request a Frye hearing results in the waiver of any objection to the foundation of an expert\u2019s opinion. Snelson, 204 Ill. 2d at 24; see also People v. Johnson, 218 Ill. 2d 125, 138 (2005) (a criminal defendant\u2019s failure to object at trial leads to \u201cprocedural default\u201d). In Snelson, Kamm neither objected to the admissibility of the expert testimony nor filed a motion for an evidentiary hearing to determine its admissibility under Frye. Snelson, 204 Ill. 2d at 24. Because the record showed that Kamm did not object to the underlying foundation of the opposing expert\u2019s testimony at trial, the supreme court concluded that the issue had been forfeited on appeal. Snelson, 204 Ill. 2d at 25, citing People v. Moore, 171 Ill. 2d 74, 98 (1996) (defendant waived Frye issue by failing to present expert testimony at Frye hearing).\nThis court has similarly held that a party waives an objection under Frye by failing to preserve the issue in the trial court. See, e.g., In re Commitment of Bushong, 351 Ill. App. 3d 807 (2004); In re Detention of Swope, 343 Ill. App. 3d 152, 158 (2003), aff\u2019d on other grounds, 213 Ill. 2d 210 (2004). Therefore, we conclude that defendant has waived the issue of the admissibility of the State\u2019s expert testimony. Furthermore, defendant does not urge us to excuse her waiver by addressing the issue under the plain error doctrine.\nWhile defendant has never alleged that any of the State\u2019s experts were unqualified to testify, she argues that their opinions should be disregarded because they are unpersuasive and do not support the conviction. The basis for a witness\u2019s opinion generally does not affect his standing as an expert; such matters go only to the weight of the evidence. See Snelson, 204 Ill. 2d at 26. \u201cIndeed, the weight to be assigned to an expert opinion is for the jury to determine in light of the expert\u2019s credentials and the factual basis of his opinion.\u201d Snelson, 204 Ill. 2d at 27. Therefore, we view defendant\u2019s issue as one regarding the sufficiency of the scientific evidence rather than its admissibility.\nB. Sufficiency of the Evidence\n\u201cA person who kills an individual without lawful justification commits first-degree murder if, in performing the acts which cause the death[, s]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)(2) (West 2004). Defendant argues that \u201cthe expert testimony was insufficient to prove beyond a reasonable doubt that Alex Firkins died as a result of shaken baby or shaken impact syndrome.\u201d\nWhen considering a challenge based upon the sufficiency of the evidence supporting a criminal conviction, a reviewing court does not retry the defendant. People v. Smith, 185 Ill. 2d 532, 541 (1999). \u201cWhen reviewing the sufficiency of the evidence, \u2018the relevant question is 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 beyond a reasonable doubt.\u2019 \u201d (Emphasis in original.) People v. Bishop, 218 Ill. 2d 232, 249 (2006), quoting Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979); People v. Collins, 106 Ill. 2d 237, 261 (1985). \u201cTestimony may be found insufficient under the Jackson standard, but only where the record evidence compels the conclusion that no reasonable person could accept it beyond a reasonable doubt.\u201d People v. Cunningham, 212 Ill. 2d 274, 280 (2004). This standard of review applies in all criminal cases, whether the evidence is direct or circumstantial, as much of the evidence is in this case. People v. Tenney, 205 Ill. 2d 411, 427 (2002).\nOur duty is to carefully examine the evidence while giving due consideration to the fact that the court and jury saw and heard the witnesses. The testimony of a single witness, if it is positive and the witness credible, is sufficient to convict. Smith, 185 Ill. 2d at 541. While the credibility of a witness is within the province of the jury, and the finding of the jury on such a matter is entitled to great weight, the jury\u2019s determination is not conclusive. We will reverse a conviction where the evidence is so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of the defendant\u2019s guilt. Smith, 185 Ill. 2d at 542.\nDefendant admitted that her prior employer, Bandereare, had instructed her that shaking a child would be dangerous and possibly fatal. Thus, there is no dispute that, at the time of the acts that caused Alex\u2019s death, defendant knew that such acts would create a strong probability of death or great bodily harm to Alex. See 720 ILCS 5/9\u2014 1(a)(2) (West 2004). However, defendant argues that the circumstantial evidence is insufficient to prove that she performed the acts that caused Alex\u2019s death.\nThe State\u2019s various medical experts testified that Alex exhibited the symptoms of shaken baby syndrome, including a subdural hematoma and retinal hemorrhages. The experts also opined that the symptoms of shaken baby syndrome manifest themselves almost immediately after the infliction of the injury; and no one disputes that defendant had control over Alex at the time she lost consciousness. Specifically, Dr. Quinones diagnosed Alex with shaken baby syndrome based on the neurological findings, the clinical condition presented by Alex, and the CT scan. Dr. Ticho concluded that in the \u201cabsence of any alternative explanation, these types of retinal hemorrhages in this clinical setting is virtually diagnostic of shaken baby syndrome.\u201d Dr. Reyes testified that, based on the findings and the 50 cases of shaken baby syndrome he had diagnosed in his 15 years of medical practice, he concluded to a reasonable degree of medical certainty that Alex suffered from shaken baby syndrome. Dr. Smith testified that, to a reasonable degree of medical certainty, he believed that a combination of severe shaking and impact caused Alex\u2019s death. Dr. Segovia testified that, to a reasonable degree of medical and scientific certainty, Alex\u2019s death was caused by swelling of the brain and multiple injuries to the neck, the spinal cord, and the subdural and subarachnoid areas of the brain. Furthermore, some of defendant\u2019s experts testified equivocally about their conclusions to the contrary. The jury was free to credit the State\u2019s experts and discredit defendant\u2019s experts, and the verdict reflects that the jury did so.\nEven if the State were required as defendant suggests to \u201cprove beyond a reasonable doubt that no one else had opportunity to commit the crime,\u201d we conclude that the circumstantial evidence allows such an inference. Viewing the evidence in the light most favorable to the prosecution requires us to allow all reasonable inferences from the record in favor of the prosecution. See Cunningham, 212 Ill. 2d at 280. Defendant conceded at trial that Alex lost consciousness while in her care, and more than one expert testified that Alex would have become symptomatic almost immediately after suffering her fatal condition. No one suggests that anyone other than defendant had control over Alex during the hours immediately preceding her loss of consciousness on June 21, 1999, and defendant denies that Alex suffered any external injury at all on that date. We must allow the jury\u2019s reasonable inference from this evidence that defendant\u2019s denials are incredible and that defendant inflicted the injuries causing Alex\u2019s death.\n\u201cExamining the trial evidence in the light most favorable to the State, we believe a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\u201d People v. Jordan, 218 Ill. 2d 255, 270 (2006).\nC. Prosecution\u2019s Rebuttal Argument\nNext, defendant argues that she was prejudiced when, during rebuttal argument, the prosecution commented on Alex\u2019s condition five days before she died. In defendant\u2019s view, the prosecution improperly attempted to prove her propensity to commit murder by asserting that she committed prior bad acts. The State responds that (1) defendant waived the issue by failing to object to the rebuttal at trial, (2) the prosecution\u2019s comments were not prejudicial, and (3) even if they were prejudicial, defense counsel\u2019s closing argument provoked them. We agree with all of the State\u2019s arguments.\nDefendant\u2019s theory is that Alex suffered an \u201cundetected accident\u201d and died from a preexisting subdural hematoma, which caused the lethargy and crabbiness she exhibited on the days preceding her death. For instance, during closing argument, defense counsel asserted that \u201c[o]ne of the symptoms is lethargy, whether you call it lethargic, sleepy, whatever, I\u2019m not going to characterize the evidence. The evidence is the child slept all day Wednesday, that was very unusual. That\u2019s uncontroverted.\u201d\nThe prosecution\u2019s allegedly prejudicial rebuttal is as follows:\n\u201cYou know, there was conversation about Wednesday [June 16, 2001,] and Wednesday [Alex] was crabby at the defendant\u2019s house. And Wednesday she slept all day. Think about that. She\u2019s at the defendant\u2019s house and she\u2019s crabby. What do we know about kids that are shaken? They become lethargic and sleepy. What does she do? She sleeps all day at the defendant\u2019s house.\nNow, we haven\u2019t given you any proof that she shook Alex on Wednesday. You can consider circumstantially whatever you want. We are telling you the injuries happened on [Monday] the 21st. We know because all of the doctors have said that there is an intervening act that killed her that day regardless of whether you believed she had some old injury ***. Regardless of that, that particular day the injuries were so sufficient as to kill her.\nThink about it. It worked on Wednesday. She was crying on Monday. If I shake her and she sleeps all day on Wednesday, maybe it will work on Monday. But on Monday [defendant] went too far. On Monday [defendant] shook [Alex] more. On Monday she didn\u2019t put her to sleep. She silenced her.\u201d\nThe trial court did not rule on the propriety of the prosecution\u2019s rebuttal argument, because defendant did not object at trial and did not challenge the argument in a posttrial motion. Because defendant did not object to the prosecution\u2019s remarks at trial, any issue concerning their propriety has been procedurally defaulted. See Johnson, 218 Ill. 2d at 138; People v. Enoch, 122 Ill. 2d 176, 186 (1988) (both a trial objection and a written posttrial motion raising the issue are necessary to preserve an issue for review). Defendant asks us to excuse her procedural default of the closing argument issue under the plain error doctrine.\nIn People v. Nicholas, 218 Ill. 2d 104 (2005), our supreme court recently restated the plain error doctrine:\n\u201c \u2018[T]he plain error doctrine bypasses normal forfeiture principles and allows a reviewing court to consider unpreserved error when either (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence. In the first instance, the defendant must prove \u201cprejudicial error.\u201d That is, the defendant must show both that there was plain error and that the evidence was so closely balanced that the error alone severely threatened to tip the scales of justice against him. The State, of course, can respond by arguing that the evidence was not closely balanced, but rather strongly weighted against the defendant. In the second instance, the defendant must prove there was plain error and that the error was so serious that it affected the fairness of the defendant\u2019s trial and challenged the integrity of the judicial process. [Citation.] Prejudice to the defendant is presumed because of the importance of the right involved, \u201cregardless of the strength of the evidence.\u201d [Citation.] In both instances, the burden of persuasion remains with the defendant.\u2019 \u201d (Emphasis omitted.) Nicholas, 218 Ill. 2d at 120-21, quoting People v. Herron, 215 Ill. 2d 167, 186-87 (2005).\nBefore we may apply either prong of the plain error doctrine, however, there must be a plain error. Nicholas, 218 Ill. 2d at 121. Here, there was no error at all. Generally, prosecutors have wide latitude in the content of their closing arguments. People v. Evans, 209 Ill. 2d 194, 225 (2004). Statements must be considered in the context of the closing arguments as a whole, and counsel may comment upon defense characterizations of the evidence or case. \u201cFurther, in the context of rebuttal argument, \u2018when defense counsel provokes a response, the defendant cannot complain that the prosecutor\u2019s reply denied him a fair trial.\u2019 \u201d Evans, 209 Ill. 2d at 225, quoting People v. Hudson, 157 Ill. 2d 401, 445 (1993). Comments during closing argument are reversible error only if they were both improper and so prejudicial that real justice was denied or the verdict of the jury may have resulted from the error. Evans, 209 Ill. 2d at 225. In closing, the prosecution may comment on the evidence and any fair, reasonable inferences it yields, even if such inferences reflect negatively on the defendant. Nicholas, 218 Ill. 2d at 121.\nWhen viewing defense counsel\u2019s closing argument and the prosecution\u2019s rebuttal as a whole, it is clear that no plain error occurred. Defense counsel argued that Alex was lethargic on Wednesday, June 16, 1999, because an undetected accident caused a subdural hematoma, which led to her death five days later. We agree with the State that the rebuttal argument alerted the jury to a reasonable alternative explanation for the lethargy: Alex suffered blunt force trauma from defendant\u2019s shaking on that date. The prosecution acknowledged that it had not introduced medical evidence of a shaking on June 16 but properly argued that the jury could infer from the circumstantial evidence \u2014 Alex\u2019s lethargy \u2014 that a shaking occurred. Defendant characterizes the prosecution\u2019s comments during rebuttal as improper \u201cother crimes evidence,\u201d when, in fact, they are merely argument based on the same evidence of Alex\u2019s lethargy on June 16 that defense counsel emphasized in closing argument.\nWhen placed in context, it is clear that the prosecution was informing the jury that it could reasonably infer from Alex\u2019s prolonged lethargy that defendant shook her on Wednesday, June 16, 1999, as well as Monday, June 21, 1999, the date of her hospitalization. Even if the prosecution improperly characterized the evidence, the prosecution did not dwell on the possibility that defendant shook Alex on June 16. Instead, the prosecution expressly conceded that there was no scientific evidence of a shaking on that date. The prosecution properly argued that a finding of abuse on June 16 was unnecessary because the expert testimony regarding Alex\u2019s condition on June 21 was sufficient to convict.\nDefendant argues that the prosecution misstated the law by saying that \u201c[y]ou can consider circumstantially whatever you want\u201d when reviewing the evidence of Alex\u2019s lethargy on Wednesday, June 16, 1999. The prosecution\u2019s isolated, off-the-cuff statement was imprecise but not prejudicial. Following closing argument, the trial court instructed the jury that \u201c [c]ircumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of the defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.\u201d Defendant does not suggest that the trial court erred in instructing the jury. Thus, even if the prosecution misstated the law of circumstantial evidence, the trial court\u2019s instruction cured any defect.\nWe conclude that the prosecution\u2019s comments were not error, and therefore, defendant has not met her burden under the plain error doctrine and no reversal of the conviction is required.\nFor. the preceding reasons, the judgment of the circuit court of Du Page County is affirmed.\nAffirmed.\nO\u2019MALLEY and KAPALA, JJ., concur.", "type": "majority", "author": "JUSTICE BYRNE" } ], "attorneys": [ "Thomas Michael Breen, Todd S. Pugh, and Gina T. Marotta, all of Thomas M. Breen & Associates, of Chicago, for appellant.", "Joseph E. Birkett, State\u2019s Attorney, of Wheaton (Lisa A. Hoffman, Assistant State\u2019s Attorney, and Martin E Moltz and Joan M. Kripke, both of State\u2019s Attorneys Appellate Frosecutor\u2019s Office, of counsel), for the Feople." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JACQUELYN A. SWART, Defendant-Appellant.\nSecond District\nNo. 2\u201404\u20140417\nOpinion filed December 29, 2006.\nThomas Michael Breen, Todd S. Pugh, and Gina T. Marotta, all of Thomas M. Breen & Associates, of Chicago, for appellant.\nJoseph E. Birkett, State\u2019s Attorney, of Wheaton (Lisa A. Hoffman, Assistant State\u2019s Attorney, and Martin E Moltz and Joan M. Kripke, both of State\u2019s Attorneys Appellate Frosecutor\u2019s Office, of counsel), for the Feople." }, "file_name": "0614-01", "first_page_order": 630, "last_page_order": 654 }