concurring in part and dissenting in part:
I concur in the majority’s holding that the trial court did not abuse its discretion in its response to the jury’s inquiry. I respectfully dissent from the majority’s decision to affirm defendant’s conviction for heinous battery because I believe that the evidence of severe and permanent disfigurement was not sufficient to uphold such conviction based on People v. O’Neal, 257 Ill. App. 3d 490 (1993).
In O’Neal, this court reversed a conviction for heinous battery, finding that the State "offered no evidence of severe and permanent disfigurement” to the victim. O’Neal, 257 Ill. App. 3d at 494. The two-year-old victim in O’Neal sustained burns on his legs from just below his knees down to his feet when the defendant placed or held the victim in a bathtub with hot water. The doctor testifying for the State classified the victim’s injury "as a partial thickness scald burn or second degree burn.” O’Neal, 257 Ill. App. 3d at 492. The partial thickness heated in 10 days. Although the majority of the skin surface remained intact, the "mechanical integrity” of the skin below its surface was "permanently altered.” O’Neal, 257 Ill. App. 3d at 492. The victim’s mother testified that the victim remained in the hospital for three weeks, had physical therapy for several months after leaving the hospital, and required home therapy treatment for a minimum of six months thereafter. The victim’s mother also testified that the victim did not have any skin grafts or plastic surgery. O’Neal, 257 Ill. App. 3d at 491.
Like the doctor in O’Neal, Dr. Pielet testified that the victim sustained partial thickness burns, which are second degree burns, and "[o]nce it was determined that these burns would most likely heal without surgical intervention, we instituted local wound care.” Reggie remained in the hospital for 3½ weeks and Dr. Pielet testified that, upon discharge, Reggie "was healed.” Moreover, Dr. Pielet testified that Reggie’s "burns are completely healed. He does have scars. Of course, these scars are permanent.”
I do not believe that existence of scars alone constitutes severe and permanent disability or disfigurement for purposes of the heinous battery statute. Unlike the instant circumstances, cases that have sustained heinous battery convictions present egregious situations and grievous disfigurement and disability. E.g., People v. Hicks, 101 Ill. 2d 366 (1984); People v. Fomond, 273 Ill. App. 3d 1053 (1995); People v. Negrete, 258 Ill. App. 3d 27 (1994); People v. Rogers, 222 Ill. App. 3d 774 (1991). In Hicks, the defendant poured boiling water over the nine-year-old female victim, causing severe burns on the victim’s chest, abdomen and upper right arm, and requiring substantial debridement and skin grafting. In Fomond, a 2½-year-old girl sustained third-degree burns that required at least seven surgeries, including two skin grafts and continued physical therapy even several years after receiving the burns. In Negrete, a 17-month-old baby boy sustained burns from hot water, resulting in permanent scarring across 60% of his body and, due to the burning of his genital area, possible permanent damage to his reproductive capacity. In Rogers, the defendant poured grain alcohol on top of the female victim’s head and then threw a lit match at her, causing her head, face, chest and pants to ignite.
In light of the above-cited case law, I would reverse defendant’s conviction for heinous battery.
Defendant was properly convicted of aggravated battery against a child; however, no sentence was imposed for that crime. If a reviewing court reverses a conviction on which the sentence was imposed, it can remand for sentencing on a conviction on which no sentence was imposed. Such process has been approved in People v. Dixon, 91 Ill. 2d 346 (1982), and People v. Frantz, 150 Ill. App. 3d 296, 300 (1986) ("[i]f the reviewing court acts to affirm the incomplete judgment of conviction, the reviewing court then must remand the cause for imposition of sentence”).