APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Defendant was charged by information with aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(a)) and cruelty to children (Ill. Rev. Stat. 1979, ch. 23, par. 2368). After a bench trial, defendant was found guilty of endangering the life or health of a child, a misdemeanor (Ill. Rev. Stat. 1979, ch. 23, par. 2354), and sentenced to one year probation.
Three grounds for reversal are presented by defendant: first, that she was not proved guilty beyond a reasonable doubt; second, that the finding of the trial court amounted to an improper inconsistent verdict; and third, that the statute under which she was convicted is unconstitutional in that it fails to provide adequate notice of the conduct it proscribes.
Defendant Theresa Rogers is the mother of Marinda Rogers, the victim. Marinda was six months old on the date of the incident. Marinda's father is Byron Hampton, who is not married to defendant. At the time of the incident, defendant, Marinda, and Byron lived with Byron's parents, Mr. and Mrs. John Hampton, Sr.
Byron Hampton testified that he went to work on the day of the incident at 4 p.m., leaving defendant and the baby at home. He noticed no injuries on the baby. Defendant was mixing pina coladas when he left. Byron returned home on a break at 8:30 p.m. Defendant was drunk and smoking a cigarette. The baby had a cigarette burn on her left eyelid. Byron didn't recall defendant's answer to his question of how the burn was caused. He went back to work.
Returning home around 11:30 p.m., Byron found defendant lying in his parents' bed, and Marinda in his bed. The baby had sustained multiple injuries. Her face was bruised, her arms had scratches, and her right leg appeared broken. When he saw the baby, Byron went into his parents' room and kicked defendant in the head, knocking her hearing aid out. He then hit her side. Byron had called his father and brother when he saw the baby, and they arrived home. Defendant fled the house and returned with the police, and they all went to the hospital with the baby. Byron admitted on cross-examination that he had a temper, and that he once put his fist through a wall in the house. He also stated that he has never seen defendant hit the baby.
John Hampton testified that he was Byron's father. He was at work the evening of the incident, where he received a call from Byron at 11:45 p.m. He went home and saw the baby all bruised. Defendant was drunk and incoherent, and half a fifth of Crown Royal whiskey was missing from his liquor supply. The half empty bottle was on the kitchen table. When shown People's exhibits Nos. 1-5, photos of Marinda taken at the hospital, he stated that the full extent of her bruises was not visible in the pictures. On cross-examination, he conceded that two years ago, he called the police and charged defendant with breaking into his house.
Police officer Gregory Ramirez testified that he responded to a child-abuse complaint at Michael Reese Hospital. In his initial conversation with defendant, she stated that she didn't know how Marinda's injuries were caused. Later, she told a police investigator that she left the baby with a sitter and found her in that condition when she picked her up. On cross-examination, Ramirez stated that although defendant appeared intoxicated, she didn't smell of alcohol.
Janice Yokley testified that she was a licensed day care provider, and that she cared for Marinda for four days, February 11-14. The baby had no marks the last time she saw her.
Carlos Alberto Flores testified that he was a third-year pediatric resident at Michael Reese Hospital, and that he examined Marinda. In sum, the baby had the following injuries: facial bruises, random scratches, fractured arm, fractured femur, fractured skull, and a cigarette burn on her eyelid. Marinda was placed in traction to treat the femur fracture. Dr. Flores stated that the femur was the hardest bone to break in an infant.
Defendant testified she was hard of hearing and had to read lips when not wearing her hearing aid; that Byron was very jealous and beat her up several times; that she called the police once and had him charged with battery; that on the day of the incident, she was out on a job interview in the morning and Byron was at home with Marinda; and that he was drinking Crown Royal.
Defendant further testified that after Byron left for work, she gave the baby a warm bath. The doctor had instructed her to do so to bring the baby's fever down. The telephone rang while the baby was in the bath, so defendant picked up the baby and went through the kitchen to answer the phone. In the kitchen, the baby jumped from her arms, fell to the kitchen table, and then fell to the floor. Defendant put a cold rag on the baby's head, fed her, and then put her to sleep in Byron's bed. Defendant then had a can of Champale and lay down in the other bed. She awoke to Byron's kick on the head. Her hearing aid was knocked out and broken.
Defendant explained her initial story to the police about the babysitter as a product of her fear of being thought a bad mother for dropping the child.
In rebuttal, the State introduced a stipulation to the testimony of Dr. Flores. His opinion was that it was unlikely that the skull and arm fractures occurred in the fall described by defendant, and that ...