Appeal from Circuit Court of Adams County No. 98CF518 Honorable Mark A. Schuering, Judge Presiding.
The opinion of the court was delivered by: Justice McCULLOUGH
Following a jury trial in the circuit court of Adams County in which defendant, Gayla Davis, was found guilty of two counts of the aggravated battery of Shaunnalei Byrd (720 ILCS 5/12-4(a), 12-4(b)(1) (West Supp. 1997) (as amended by Pub. Act 90-735, §5, eff. August 11, 1998 (1998 Ill. Laws 3843, 3844-46))), defendant was sentenced to nine years' imprisonment on count II, relating to the use of a deadly weapon. In this appeal, defendant argues (1) the trial court improperly failed to subject evidence of her prior convictions to a balancing test and erred in using the "mere-fact" method of impeachment, (2) she was not proved guilty beyond a reasonable doubt, (3) the issues instructions did not adequately specify the nature of the acts alleged, (4) the extended- term and consecutive sentencing statutes under which she was sentenced were unconstitutional, (5) the nine-year term of imprisonment was excessive, and (6) the trial court lacked authority to order 50% of her Department of Corrections (DOC) monthly wages to be withheld and remitted to the Adams County circuit clerk to pay costs and restitution. We vacate the order of withholding and affirm in all other respects.
We first consider the propriety of using the mere-fact method and whether the trial court properly applied the Montgomery balancing test (People v. Montgomery, 47 Ill. 2d 510, 512-19, 268 N.E.2d 695, 696- 700 (1971)) to determine the admissibility of evidence of defendant's prior convictions. On the morning that jury selection was to begin, defendant's counsel made an oral motion in limine to preclude the State from using evidence of a March 1998 aggravated battery conviction and an October 1995 obstruction of justice conviction, both felonies, to impeach defendant in the event that she testified. The prosecutor indicated no intention of using a February 1998 conviction for misdemeanor battery.
The record shows defendant did not want the jury to hear the nature of the prior convictions, was informed that the trial court would use the mere-fact method, and had no questions concerning its use.
In response to the State's contention on appeal that defendant has waived the issue by failing to object and file a posttrial motion (People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130 (1988)), defendant asserts plain error (134 Ill. 2d R. 615(a)). The record being clear that defendant induced the trial court into using the mere-fact method of impeachment, defendant cannot now complain that the trial court did so. See People v. Lowe, 153 Ill. 2d 195, 199, 606 N.E.2d 1167, 1169 (1992) ("an accused may not ask the trial court to proceed in a certain manner and then contend in a court of review that the order which he obtained was in error"). The mere-fact method of impeachment allows the jury to be informed of the existence of a prior conviction and not the specific crime of which defendant was convicted. People v. Holloman, 304 Ill. App. 3d 177, 182, 709 N.E.2d 969, 972 (1999). There was no error in using the mere-fact method of impeachment.
The mere-fact method does not supplant the Montgomery analysis. People v. Dixon, 308 Ill. App. 3d 1008, 1017, 721 N.E.2d 1172, 1179 (1999). The Supreme Court of Illinois has declined to find error where the transcript makes it clear that the trial court was applying the Montgomery standard even though the trial judge did not expressly articulate it. See People v. Williams, 173 Ill. 2d 48, 83, 670 N.E.2d 638, 655 (1996); People v. Redd, 135 Ill. 2d 252, 325-26, 553 N.E.2d 316, 349-50 (1990). In this case, the record demonstrates that the trial judge weighed the danger of unfair prejudice to defendant against the probative value of the prior convictions. Indeed, the arguments of counsel focused on that very point. No error occurred.
We next consider whether defendant was proved guilty of aggravated battery of Byrd beyond a reasonable doubt. Evidence was presented from which the jury could find that, after a number of lesser incidents between the two women throughout the day and evening of November 29, 1998, defendant and her sister used an automobile to stop another automobile in which Byrd was a passenger and, after the occupants exited the vehicles, defendant pushed Byrd to the ground, got on top of her with her knees on Byrd's chest, and cut Byrd's face with a razor blade.
When a challenge to the sufficiency of the evidence is raised in a criminal appeal, this court considers the evidence in the light most favorable to the State in determining whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. People v. Oaks, 169 Ill. 2d 409, 457-58, 662 N.E.2d 1328, 1349-50 (1996).
As relevant to the allegation in count II of the information in this case, a person commits aggravated battery when she knowingly and without legal justification causes bodily harm to the victim and in doing so she uses a deadly weapon other than by a discharge of a firearm. 720 ILCS 5/12-4(b)(1) (West Supp. 1997) (as amended by Pub. Act 90-735, §5 (1998 Ill. Laws at 3844-46) (incorporating the statutory definition of battery (720 ILCS 5/12-3(a)(1) (West 1998)))).
On appeal, defendant does not argue that the razor blade was not a deadly weapon. Instead, defendant's argument focuses on the evidence that she presented contradicting the testimony of witnesses supporting Byrd's version of the incident. Defendant denied having a razor blade and testified that Byrd had something in her hand. Defendant argues that on this evidence the jury could find that someone else in the melee may have had the razor blade.
It is the function of the jury to assess witness credibility, weigh the evidence, and draw inferences from the evidence. People v. Adams, 308 Ill. App. 3d 995, 1007, 721 N.E.2d 1182, 1191 (1999). It is not the function of this court to reassess witness credibility or reweigh the evidence. The evidence of defendant's guilt was not so improbable or unsatisfactory as to create a reasonable doubt of defendant's guilt. People v. Smith, 141 Ill. 2d 40, 55, 565 N.E.2d 904, 906 (1990). The evidence in this case was sufficient to establish defendant's guilt of aggravated battery beyond a reasonable doubt.
The third issue is whether the issues instructions to the jury improperly failed to use the term "great bodily harm" and only referred to "bodily harm," in violation of defendant's right to due process under the fourteenth amendment of the United States Constitution (U.S. Const., amend. XIV). In this case, the jury found defendant guilty of both counts of aggravated battery. Defendant does not challenge the charging instrument, the definitional instructions, or the verdict forms.
Not only is the issue waived by the failure to raise the issue at trial and in the posttrial motion, but it is not such a grave error that fundamental fairness requires a new trial with a proper instruction. See People v. Reddick, 123 Ill. 2d 184, 198, 526 N.E.2d 141, 147 (1988). In this appeal, defendant argues that the issue instruction as to count I was inaccurate. Defendant was found guilty of both counts of aggravated battery, but a judgment of conviction was entered only on the finding of guilt as to count II. Defendant does not explain how an error on the issue instruction relating to count I could have resulted in an improper judgment of conviction to count II. We find no reversible error.
We next consider whether the extended-term sentence imposed in this case violated due process under the standards applied in Apprendi v. New Jersey, 530 U.S. ___, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Defendant argues in her supplemental brief that all factors for extending a sentence provided in section 5-5-3.2(b) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-5-3.2(b)(1) (West Supp. 1997)) as well as the discretionary consecutive ...