Appeal from the Circuit Court of St. Clair County; the Hon.
Patrick J. Fleming, Judge, presiding.
PRESIDING JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
The defendant, Patricia Bernard, along with Joseph Galatioto, was charged in a two-count indictment with the offense of aggravated battery of Andrew and Vanessa Bernard, children under the age of 13 years. After a jury trial, the defendant was found guilty and sentenced to concurrent terms of seven and five years' imprisonment.
The following evidence was adduced at trial. Gary Boyer indicated that he met defendant in the first part of November 1983. At that time he lived in the U.S. 40 Motel in Fairmont City, and defendant lived with her two children, Andrew and Vanessa Bernard, and Joseph Galatioto in a neighboring unit. In about mid-November, Boyer could not pay his rent so he moved in with the defendant. Boyer stated that neither he nor the defendant ever struck Andrew or Vanessa Bernard. Beginning about the second week in November, he observed Galatioto strike Andrew Bernard in the chest with his fist while Andrew was lying on a bed. He also observed Galatioto strike Andrew with his fist on another occasion. He saw Galatioto slap Vanessa Bernard in the face and throw her into a wall. On one occasion he observed Galatioto kick Vanessa in the buttocks. Boyer testified that the defendant was present during most of these incidents. Her reaction, according to Boyer, was one of amusement. Galatioto also struck the defendant on one occasion. Boyer also testified that on one occasion defendant suggested that Vanessa be taken to a hospital but that Galatioto rejected the idea.
Although Boyer was in the company of defendant, away from the motel and Galatioto, on numerous occasions seeking employment, defendant did not ask Boyer to help her with the children. Boyer himself never did anything to stop Galatioto. Boyer testified that Galatioto, a former bouncer, was 6 feet 3 inches tall and weighed 225 pounds. Boyer testified that the defendant was not present on some occasions when Galatioto struck Andrew and Vanessa. Throughout the day defendant would be away from the motel either looking for work or working at a local bakery. Boyer admitted that he had two prior theft convictions. He left the U.S. 40 Motel on November 26, 1983, and, at the time of trial, he was incarcerated in the Madison County jail for theft.
A part-time maid at the U.S. 40 Motel, Betty Byrd, testified that during November and the early part of December she saw the defendant every day when the defendant came to pick up towels. Byrd had been instructed by the defendant and Galatioto not to clean the defendant's room. The defendant asked to borrow money from Byrd to get food for her children. In early December, the defendant asked Byrd to give her and Andrew a ride to the Rosemont Bakery, where the defendant was employed. According to Byrd, from there the defendant planned to get a ride to the hospital.
Dr. Norma Jean Maxvold, a resident physician at Cardinal-Glennon Hospital in St. Louis, identified the defendant and testified that the defendant had brought Andrew Bernard to the hospital in early December. Dr. Maxvold testified that her examination of Andrew revealed a contused right ear, blood in both external auditory canals, a perforated left eardrum, blood in the right ear, multiple bruises to the face, a torn frenulum (the lining inside the upper lip which attaches to the gum line of the teeth), bruising behind the ears, and callous formation on several ribs, the clavicle, and the scapula. In addition, Dr. Maxvold noted bruises to Andrew's lower extremities, including unusual bruises on the dorsum of the feet, the upper surface of the feet, the ribs in the anterior chest, the abdomen and groin area, and the back and buttocks. His liver was enlarged significantly, he was suffering from serious bleeding internally, and had developed meningitis. The meningitis was traumatically induced. He was further diagnosed as having a basilar skull fracture and hearing loss in both ears, with significantly more loss in the left ear. Defendant explained Andrew's injuries to Dr. Maxvold as having occurred during falls, stating that Andrew fell quite easily and would sustain bruises. Defendant explained that she brought Andrew to the hospital because he was vomiting, and she expressed concern that because of her lack of funds, he was not receiving the proper amount of vitamins.
Jo Ann Sanders, a resident physician in pediatrics, testified that she examined Vanessa Bernard for injuries in the emergency room at Cardinal-Glennon Memorial Hospital. Vanessa's body showed multiple bruises in various stages of resolution over her body, a hymenal tear in her genital area, and a perforated eardrum. When Dr. Sanders asked Vanessa how the bruises occurred, she said that Joe had kicked her.
Dr. Armand Brodure, a pediatric radiologist, examined X rays taken of Andrew Bernard on December 5, 1983. He identified fractured seventh, eighth, and ninth ribs. The child's 10th rib had suffered a fracture near where the rib joins the spine. According to Dr. Brodure, the location of this fracture was very uncommon and occurs only as a result of a severe injury. The injury, judging from the healing, occurred weeks earlier. Dr. Brodure identified a broken scapula, or shoulder blade, and a broken collarbone. The collarbone fracture had occurred very recently, within no longer than two weeks. The fracture of the scapula had occurred at about the same time as those of the ribs, four to six weeks earlier. In addition, the child's ulna and radius of the left forearm showed healing as a result of a fracture. The healing indicated that the injury had occurred at about the same time as that to the collarbone, i.e., within two weeks. The child's right ulna showed the same healing. According to Dr. Brodure, these injuries were not consistent with falling to the floor. Based on his examination, Dr. Brodure was of the opinion that the child's physical reaction to the injury would have been immediate and vocal and would have been obvious because he would have been in great pain.
The parties stipulated that the defendant was 32 years of age, that Andrew Bernard was 23 months old and Vanessa Bernard was 5 years of age. Joseph Galatioto was 34 years of age. Following deliberations, the jury found defendant guilty of aggravated battery of Vanessa and Andrew Bernard. The court entered judgments on the verdict and set sentencing for April 19, 1984.
On April 24, 1984, a hearing was held in the circuit court of St. Clair County at which time the State moved to continue sentencing for 30 days. In support thereof, the State indicated that the State of Oregon sought the defendant's testimony in a grand jury proceeding. The court granted the motion and entered an order surrendering custody of the defendant to the custody of the Oregon authorities. Sentencing was continued until May 4, 1984.
On May 4, 1984, the People and the defense jointly filed a motion to continue the sentencing so that the defendant could give a statement to Oregon authorities regarding a criminal investigation there that concerned another of defendant's children, Victor A.R. Bernard. In return for the defendant's cooperation in giving the statement, which both the State and the defendant agreed was to be verified through a polygraph examination, the State would request an order granting defendant use immunity regarding the information in the statement and would recommend a period of probation for the defendant and six months' incarceration in the St. Clair County jail.
An order granting defendant use immunity concerning the events surrounding the current condition of Victor A.R. Bernard was entered on May 4, 1984. On May 7, 1984, the State moved to revoke the grant of immunity and to continue with the sentencing because defendant had failed to cooperate in the taking of the polygraph. The matter was continued for hearing on the State's motion to revoke the use immunity. The hearing was held on May 17 and 18. After hearing the testimony from the polygraph examiner and defendant and the arguments of counsel, the court granted the State's motion to withdraw the use immunity.
A sentencing hearing was held with defendant's assent subsequent to the hearing on the withdrawal of the use immunity. The State argued at sentencing that defendant was not a fit candidate for probation and requested that the defendant be sentenced to terms of 14 and 7 years. The court sentenced the defendant to a term of imprisonment of seven years for the conviction of aggravated battery of Andrew Bernard and a term of five years for the battery of Vanessa Bernard, the terms to be served concurrently.
• 1 Defendant's first contention on appeal is that she was not proved guilty of the two counts of aggravated battery of a child beyond a reasonable doubt because the evidence did not show her striking her minor children nor did she have the intent to commit or aid in the battery of the children. Defendant argues that to sustain a conviction upon an accountability theory, the State must prove beyond a reasonable doubt that before or during the commission of the offense, and with the specific intent to promote or facilitate such commission, the defendant solicits, aids, abets, or agrees or attempts to aid the principal. (Ill. Rev. Stat. 1985, ch. 38, par. ...