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August 7, 1996


Appeal from the Circuit Court of Cook County. Honorable Frank W. Meekins, Judge Presiding.

Released for Publication September 16, 1996.

The Honorable Justice Rizzi delivered the opinion of the court. Tully, P.j., concurs. Greiman, J., dissents. Justice Greiman, concurring in part and dissenting in part.

The opinion of the court was delivered by: Rizzi

JUSTICE RIZZI delivered the opinion of the court: *fn1

A jury found defendant, Kevin Cooper, guilty of heinous battery (720 ILCS 5/12-4.1)(West 1992) and aggravated battery of a child (720 ILCS 5/12-4.3) (West 1992). He was sentenced to 30 years in the Illinois Department of Corrections for the heinous battery conviction. He was not sentenced for the aggravated battery of a child conviction because it is a lesser offense of heinous battery. At trial defendant represented himself, pro se. He is represented by counsel on appeal.

On appeal, defendant contends that (1) the State failed to prove beyond a reasonable doubt that the child suffered severe and permanent disfigurement as required by the heinous battery statute; (2) he was not proven guilty of either heinous battery or aggravated battery of a child beyond a reasonable doubt; (3) he was denied a fair trial because the trial court refused to "explicitly" respond to a question posed by the jury during deliberation; and (4) his sentence was excessive. We affirm the judgment of conviction for heinous battery but reduce the sentence, and vacate the incomplete judgment of conviction of aggravated battery of a child.

On the morning of February 12, 1994, Chicago police officers responded to a call to investigate a case of extreme domestic battery at 24 West 108th Street in Chicago. They waited in their car at that location until the complainant, Demetrice Pruitt, arrived. When Pruitt arrived in a car, she told the police officers that the defendant was her boyfriend, and that he was in the house with her baby, Reggie Pruitt, who was burned, and that he would not release the baby. She also told the police that she was not married to the defendant, and he was not her baby's father.

Pruitt was highly agitated, and crying uncontrollably. She told the police officers that the defendant had held her and her baby hostage since January 11, 1994, and that he had an automatic pistol in the house. Meanwhile, the defendant who had been peering out of the window of the house opened the door. One of the police officers asked the defendant if Pruitt could have her baby, and defendant said, "Yes." When the police officer told Pruitt to go into the house to get her baby, she replied: "I'm not going in there by myself." One of the officers said that an officer would accompany her into the house. Defendant said: "Police are not coming in here."

The defendant opened the door, but Pruitt was reluctant to go inside. Defendant said: "Come on in here, but the police can't come in." Pruitt again refused to enter the house by herself. One of the officers then guided Pruitt toward the defendant, and when he attempted to grab Pruitt the officer grabbed the defendant and the two men struggled. The officer subdued the defendant and handcuffed him. When he was asked where the baby was, defendant said that he was upstairs. Another officer then went upstairs and found Reggie. The officer saw that Reggie was burned "pink." Defendant then told Pruitt: "I'm going to get you."

After securing the defendant in a police car, one of the officers toured the house in an attempt to discover the source of Reggie's injury. He looked for a tub, large dish pan, or pail which could have been used to inflict the injury. He found the bathtub in the bathroom, but he did not find any pan or pail. The officer ran the water in the bathroom and noted that it was "extremely hot."

The police officers wrapped Reggie in a blanket and took him to Roseland Hospital's Emergency Room ("Roseland"). One of the officers was in the emergency room when treatment was administered. He described Reggie's injury as "a complete saturated burn starting about mid-chest up to and including his thighs, buttocks, scrotum and penis."

Ruth Mills was the registered nurse who treated Reggie when he arrived at Roseland. Mills saw no evidence of Reggie receiving any treatment for his burns prior to his arrival at Roseland. Before administering treatment, Mills obtained Reggie's history from Pruitt. Pruitt told Mills that her boyfriend threw hot water on the baby because he "boo-boo'ed" on himself. Mills understood this to mean that the baby defecated on himself. In treating Reggie, Mills noted first and second degree burns on Reggie's buttocks, thighs and penis. Mills stated that because second degree burns remove enough skin to expose the victim's nerve endings, but are not deep enough to destroy the nerve endings, second degree burns are excruciatingly painful.

As Roseland was not equipped to treat Reggie's wounds, he was transported to Wyler Children's Hospital at the University of Chicago. Dr. Rodger Pielet treated Reggie at the University of Chicago burn center on February 12, 1994. At trial, Dr. Pielet was qualified as an expert in the fields of plastic and reconstructive surgery. His specialty includes burn management and burn reconstruction. Dr. Pielet observed that Reggie had thermal burns, which result from exposure to a hot substance, covering approximately 10 percent of his body. Dr. Pielet classified Reggie's burns as partial thickness or second degree burns, indicating that the burns went through the epidermis, the top layer of skin, into the dermis, the second layer of skin. Reggie was also malnourished, had a peculiar rash over his chest, a serious ear infection and had been exposed to tuberculosis.

Dr. Pielet identified colored photographs taken of Reggie before his burns were cleaned and debrided. The photographs show Reggie's naked body and the sepia colored areas of his skin stand in stark contrast to the burned, raw and pink looking areas of his skin resulting from the severity of the burns.

According to Dr. Pielet, several characteristics of Reggie's burns indicate the injuries were not self-inflicted but resulted from someone dunking Reggie in a bathtub with hot water. Reggie's burns were consistent with a scalding water burn. Dr. Pielet observed a very sharp line of demarcation between the burned and unburned areas. He also noted that from the location of Reggie's burns it was apparent he was in a flexed position at the hip and knee, indicating that Reggie was withdrawing from a painful stimulus. There was a ring sign in the central region of Reggie's buttock signifying Reggie suffered more severe burns around the outside of his buttock as compared to the central region. In a bathtub containing hot water, the bathtub's surface would be cooler than the water itself because solids such as steel or porcelain covering steel dissipate heat faster than water. A ring sign would result if a child were held in hot water in a bathtub with his buttock resting on the bathtub's surface because the burn would be less severe where the buttock was actually touching the bathtub. Reggie had only one splash mark burn on the back of his left calf. The lack of splash mark evidence indicated that Reggie did not fall into the burning substance. According to Dr. Pielet, "it would be impossible for a child to fall into a tub in that position and stay in that position to sustain that type of burn."

Dr Pielet concluded that it was highly unlikely that Reggie's burns were accidental because "to sustain a burn in this distribution he would have had to be sitting, sitting with his feet up in the air and a child of two years of age would, most likely, not be, would not be able to sit in a tub and reach up and turn on a tap."

Upon administering treatment, Dr. Pielet noted that Reggie was relatively quiet and passive although a child of that age would usually be very scared by the strange surroundings and the treatments because the initial dressing changes and debridement are quite painful. This led Dr. Pielet to conclude that Reggie had been in an environment were he was scared.

Dr. Pielet examined Reggie on the date of trial. According to Dr. Pielet, Reggie's burns healed but have ...

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