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06/24/88 the People of the State of v. Kevin Berg

June 24, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

KEVIN BERG, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

525 N.E.2d 573, 171 Ill. App. 3d 316, 121 Ill. Dec. 515 1988.IL.999

Appeal from the Circuit Court of Rock Island County; the Hon. Jay M. Hanson, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE STOUDER delivered the opinion of the court. HEIPLE and WOMBACHER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER

Following a jury trial the defendant, Kevin Berg, was found guilty in the circuit court of Rock Island County of the second count of a two-count complaint. He was sentenced to 364 days' incarceration.

On appeal, Berg contends: (1) the trial court erred in allowing the State to amend the complaint to correct a fundamental defect on the first day of trial; (2) the complaint failed to set forth the elements of the offense; and (3) he was not found guilty beyond a reasonable doubt.

Berg lived with Kimberly Baker and her minor child from January 1986 through October or November of 1986. He did not stay with the child continuously throughout the day. Testimony showed that Berg would clothe and feed the minor, play with her, give her presents, discipline her, tell her not to do something if it might lead to her being injured, take her to visit her grandmother, and would take Kimberly and the minor out to eat.

On October 8, 1986, an acquaintance of Kimberly's, when visiting, noticed some bruises on the minor's face. This acquaintance asked if the minor could stay with him for a while and Kimberly assented. He reported the bruises to Kimberly's mother and the Bettendorf police were notified. The minor was taken to the hospital where she was examined by Dr. Barry Barudin. Dr. Barudin testified that he noticed multiple bruises on the minor's back and face, disruption to her primary teeth, broken nails on her big toes and multiple breaks in the hair shafts of her scalp. X rays showed a fractured rib. The doctor stated that the bruises were sustained several days prior to October 8, but probably not at the same time. The rib fracture was deemed to have occurred at least a week prior to October 8 and was probably caused by "some external force," such as falling down a flight of stairs. The doctor rendered no medical treatment, the tests conducted on the bruises proved negative, and the child was kept overnight for observation.

Berg and the minor's mother were identically charged in separate two-count indictments. Count I alleged that they had injured the child, and count II alleged that they had endangered the child's health by failing to obtain prompt medical attention. Both counts were brought pursuant to the child-endangerment statute (Ill. Rev. Stat. 1985, ch. 23, par. 2354).

Berg testified that the bruise on the side of the minor's face occurred when he and the minor's mother were playing pool and the mother accidentally hit the minor with a pool cue. Ice was applied to the area. The remaining bruises were caused by a fall down some stairs and bumping into the pool table and a coffee table. Berg also stated that the minor had received some scratches and bruises while playing with the cat. Berg knew that the child's toe nails had fallen off prior to October 8, but he did not know the cause. He testified that clumps of the minor's hair would fall out when her mother brushed it. He had washed the minor's hair a few times but did not notice anything unusual. Berg had no information regarding the cracked rib and her teeth appeared no different on October 8 than when he first moved in. He stated that the minor was Kimberly's child and that he left her care up to her.

Other witnesses had observed the child run into objects and walls while observing her. There was also testimony received that the minor was a clumsy child. None of the prosecution witnesses testified that they either saw Berg injure the minor or otherwise knew that he had injured her. The only testimony regarding Berg's possible involvement came from two witnesses, one who stated she did not notice any bruises prior to Berg moving in with Kimberly, and the other who testified that he noticed some bruises when he baby-sat.

The jury returned verdicts of not guilty on count I and guilty on count II. Berg presented his motion for a new trial and in arrest of judgment

The first issue we address is whether the court erred in permitting the State to amend its complaint on the first day of trial. As originally drafted, count II of the complaint alleged that the defendant "wilfully caused the health of such child to be injured in that prompt medical treatment was not obtained for the child's injuries." On the first day of trial, that count was amended by substituting the word "endangered" for the word "injured" in the language of the complaint. Berg contends that this ...


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