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08/02/89 the People of the State of v. William J. Conley

August 2, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

WILLIAM J. CONLEY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

543 N.E.2d 138, 187 Ill. App. 3d 234, 134 Ill. Dec. 855 1989.IL.1190

Appeal from the Circuit Court of Cook County; the Hon. Lester D. McCurrie, Judge, presiding.

APPELLATE Judges:

JUSTICE CERDA delivered the opinion of the court. FREEMAN, P.J., and WHITE, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CERDA

The defendant, William J. Conley, was charged with two counts of aggravated battery based on permanent disability and great bodily harm. (Ill. Rev. Stat. 1983, ch. 38, par. 12-4(a).) He was found guilty after a jury trial of aggravated battery based solely on permanent disability on July 17, 1986. The defendant's motions for judgment notwithstanding the verdict or a new trial were denied, and the defendant was sentenced to 30 months' probation including 40 days of periodic imprisonment. On appeal, it is contended that: (1) the State failed to prove beyond a reasonable doubt that the victim incurred a permanent disability and that the defendant intended to inflict a permanent disability; (2) the trial court erred in prohibiting the defense from asking a State identification witness to describe the offender during defendant's case in chief; (3) the trial court erred in allowing the admission of evidence elicited during State cross-examination that defense witnesses failed to tell police that the offender was another individual; (4) the State's use during cross-examination and in closing argument of defendant's pretrial silence deprived the defendant of a fair trial; and (5) the trial court erred in prohibiting defense counsel from arguing to the jury that the victim had a financial motive in securing a verdict and in telling the jury that financial motive was not in issue. For the following reasons, we affirm.

The defendant was charged with aggravated battery in connection with a fight which occurred at a party on September 28, 1985, in unincorporated Orland Township. Approximately 200 high school students attended the party and paid admission to drink unlimited beer. One of those students, Sean O'Connell, attended the party with several friends. At some point during the party, Sean's group was approached by a group of 20 boys who apparently thought that someone in Sean's group had said something derogatory. Sean's group denied making a statement and said they did not want any trouble. Shortly thereafter, Sean and his friends decided to leave and began walking toward their car which was parked a half block south of the party.

A group of people were walking toward the party from across the street when someone from that group shouted "There's those guys from the party." Someone emerged from that group and approached Sean, who had been walking with his friend Marty Carroll 10 to 15 steps behind two other friends, Glen Mazurowski and Dan Scurio. That individual demanded that Marty give him a can of beer from his six-pack. Marty refused, and the individual struck Sean in the face with a wine bottle, causing Sean to fall to the ground. The offender attempted to hit Marty, but missed as Marty was able to duck. Sean sustained broken upper and lower jaws and four broken bones in the area between the bridge of his nose and the lower left cheek. Sean lost one tooth and had root canal surgery to reposition 10 teeth that had been damaged. Expert testimony revealed that Sean has a permanent condition called mucosal mouth and permanent partial numbness in one lip. The expert also testified that the life expectancy of the damaged teeth might be diminished by a third or a half.

At trial, the State presented Officer Houlihan, Doctor Arnold S. Morof, and five occurrence witnesses. Of the five occurrence witnesses, only Marty Carroll identified Conley as the offender. The only other witness connecting Conley to the crime was another student, Demetrius Kereakas, who testified that he saw Conley throw a bottle at Dan Scurio's car as the four boys left after the incident. The defense recalled State witness Marty Carroll and presented seven witnesses in addition to the defendant. Four of the defense witnesses testified that the defendant was not the offender, but rather that Sean was hit by a Robert Frazer, who is known in school as "Crazy Bob" or "Terminator." The party was held at a residence surrounded by open fields. There were no streetlights and most of the witnesses had been drinking before the incident.

At the end of the trial, the jury was furnished with four verdict forms for the two counts of aggravated battery. The jury returned a guilty verdict for aggravated battery based on permanent disability, failing to sign the remaining verdict forms. The State's Attorney advised the trial Judge that the jury had returned only one verdict but that he had no objections. The trial court accepted the verdict and discharged the jury. It must be noted here that when a verdict on less than all the counts is accepted by the trial court and the jury is discharged, the jury's silence as to other counts is treated as an acquittal on those counts for purposes of double jeopardy. (People v. Thurman (1983), 120 Ill. App. 3d 975, 979, 458 N.E.2d 1038, aff'd in part and rev'd in part on other grounds (1984), 104 Ill. 2d 326, 472 N.E.2d 414; People v. Rollins (1982), 108 Ill. App. 3d 480, 485, 438 N.E.2d 1322.) Therefore, had this court found it necessary to reverse and remand for a new trial, the defendant could not have been retried for aggravated battery based on great bodily harm.

The defendant initially contends on appeal that the State failed to prove beyond a reasonable doubt that Sean O'Connell incurred a permanent disability. Section 12-4(a) of the Criminal Code of 1961 provides that: "[a] person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery." (Ill. Rev. Stat. 1983, ch. 38, par. 12-4(a).) The defendant contends there must be some disabling effect for an aggravated battery conviction based on permanent disability. The defendant does not dispute that Sean lost a tooth or that surgery was required to repair damaged teeth. The defendant also does not dispute that Sean will have permanent partial numbness in one lip or suffer from a condition called mucosal mouth. The defendant maintains, however, that there is no evidence as to how these injuries are disabling because there was no testimony of any tasks that can no longer be performed as a result of these injuries.

The parties cite no Illinois decisions, nor have we found any, defining permanent disability in the context of aggravated battery. The State relies on People v. Post (1982), 109 Ill. App. 3d 482, 440 N.E.2d 631, and People v. Hicks (1984), 101 Ill. 2d 366, 462 N.E.2d 473, for the proposition that loss of function is not required for a finding of permanent disability. In Post, the victim had been stabbed once in the back and three times in the leg, but incurred only permanent scarring. The court affirmed the defendant's conviction for aggravated battery based on permanent disability. However, Post is not dispositive of the issue as the defendant was also convicted of aggravated battery based on great bodily harm and disfigurement, and the defendant never raised the issue of sufficiency of the evidence regarding permanent disability. In Hicks, a young girl received severe burns on her chest caused by boiling water. Hicks is also not dispositive of the issue as the defendant was convicted of heinous battery. Thus, as the defendant points out in his reply brief, this appears to be a question of first impression.

The function of the courts in construing statutes is to ascertain and give effect to the intent of the legislature. (People v. Steppan (1985), 105 Ill. 2d 310, 316, 473 N.E.2d 1300.) The starting point for this task is the language itself (People v. Boykin (1983), 94 Ill. 2d 138, 141, 455 N.E.2d 1174), and the language should be given its plain and ordinary meaning. (Steppan, 105 Ill. 2d at 317; People v. Pettit (1984), 101 Ill. 2d 309, 313, 461 N.E.2d 991.) The defendant urges the court to adopt the definition found in Webster's Third New International Dictionary which defines disability as an "inability to do something." The State refers to additional language from the same source that a disability is a "physical or mental illness, injury, or condition that incapacitates in any way." (Webster's Third New International Dictionary 642 (1986).) There is some support for defendant's proposed definition in an old Illinois decision. In Dahlberg v. People (1907), 225 Ill. 485, 80 N.E. 310, a woman was convicted of assault with intent to commit mayhem (aggravated battery incorporates the earlier offense of mayhem) after she threw red pepper at someone's eyes and missed, hitting an innocent bystander in the eyes instead. Her conviction was reversed because the crime of attempt requires that the offender employ adequate means to accomplish the attempted result, and the evidence revealed that blindness could not have resulted had she succeeded. (Dahlberg, 225 Ill. at 490.) Thus, by necessary implication, anything short of blindness would not have supported a conviction for mayhem.

In arriving at a definition, however, it is also proper to consider the statute's purpose and the evils sought to be remedied. (Steppan, 105 Ill. 2d at 316.) The Committee Comment explains that section 12 -- 4(a) incorporates the old offense of mayhem. (Ill. Ann. Stat., ch. 38, par. 12 -- 4(a), Committee Comment at 465 (Smith-Hurd 1979).) At common law the offense of mayhem required the dismemberment or disablement of some bodily part. Initially, the law sought to protect the King's right to the military services of his subjects. However, modern criminal codes have expanded their protection against a wider range of injuries. As one court explained:

"What, then, originated as the narrow common law offense of mayhem is generally today a statutory offense of considerably larger dimensions. The transition has been accompanied, if not induced, by a shift in emphasis from the military and combative effects of the injury to the preservation of the human body in normal functioning. The statutory counterparts of non-statutory mayhem doubtless include all that the common law proscribed. But what is important now is not the victim's capacity for attack or defense, but the integrity of his person." (Emphasis added.) (United States v. Cook (D.C. Cir. 1972), 462 F.2d 301, 303.)

Under this view, it seems apparent that for an injury to be deemed disabling, all that must be shown is that the victim is no longer whole such that the injured bodily portion or part no longer serves the body in the same manner as it did before the injury. Applying this standard to the case at hand, the injuries Sean O'Connell suffered are sufficient to constitute a permanent disability. Sean will endure permanent partial numbness in one lip and mucosal mouth. *fn1 He lost one tooth and there is also a chance he may lose some teeth before attaining the age of seventy.

The defendant further argues that the State failed to prove beyond a reasonable doubt that he intended to inflict any permanent disability. The thrust of defendant's argument is that under section 12 -- 4(a), a person must intend to bring about the particular harm defined in the statute. The defendant asserts that while it may be inferred from his conduct that he intended to cause harm, it does not follow that he intended to cause permanent disability. The State contends it is not necessary that the defendant intended to bring about the particular injuries that resulted. The State maintains it met its burden by showing that the defendant intentionally struck Sean.

The law on this question is unclear. The defendant relies upon People v. Crosser (1983), 117 Ill. App. 3d 24, 27, 452 N.E.2d 857, and Bay State Insurance Co. v. Wilson (1982), 108 Ill. App. 3d 1096, 440 N.E.2d 131, which both hold that aggravated battery is a specific intent crime. The State, however, relies upon People v. Allen (1969), 117 Ill. App. 2d 20, 254 N.E.2d 103. In Allen, the court wrote that in committing the offense of aggravated battery, "the only mental state required is that the accused knowingly and intentionally cause the social harm defined in the statute, no premeditation or malice being necessary." (Allen, 117 Ill. App. 2d at 27-28.) The court then went on to state that it is not necessary that the defendant intended to cause the particular injury which resulted. (Allen, 117 Ill. App. 2d at 28.) Resolution of this issue is made difficult as there exist inconsistent decisions within the first district. Allen is cited with approval by the third division in People v. Perry (1974), 19 Ill. App. 3d 254, 259, 311 N.E.2d 341; however, specific intent analysis is applied in another decision by the third division in People v. Farrell (1980), 89 Ill. App. 3d 262, 264-65, 411 N.E.2d 927. The fifth division has also produced inconsistent decisions. In People v. Gomez (1986), 141 Ill. App. 3d 935, 939, 491 N.E.2d 68, it was stated that aggravated battery is a specific intent crime. However, just the opposite was written in People v. Gvojic (1987), 160 Ill. App. 3d 1065, 1069, 513 N.E.2d 1083.

For proper resolution of this issue, it is best to return to the statutory language. Section 12 -- 4(a) employs the terms "intentionally or knowingly" to describe the ...


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