concurring in part and dissenting in part:
I agree with the majority that the law of accountability was misstated so that defendant’s convictions for aggravated battery of a child and for felony murder based upon a theory of accountability must be reversed. I write separately, however, because I disagree with the majority’s conclusion that, viewing the evidence under a proper theory of accountability, the evidence at defendant’s trial was not sufficient to support defendant’s convictions.
A criminal conviction should not be set aside unless the evidence is so improbable, unreasonable or unsatisfactory as to justify a reasonable doubt concerning the defendant’s guilt. People v. Maggette, 195 Ill. 2d 336, 353 (2001). A reviewing court should not substitute its judgment for that of the trier of fact with regard to the weight of the evidence and the credibility of witnesses. People v. Kotlarz, 193 Ill. 2d 272, 298 (2000). Although the evidence in this case certainly was closely balanced, the evidence was not so improbable, unreasonable or unsatisfactory that no rational jury could convict defendant.
As the majority notes, in order to hold defendant accountable for Scott English’s conduct, the evidence must show that defendant knew that Scott was abusing Jami, that there was a substantial risk of serious harm if defendant did nothing to protect Jami from Scott, and despite this knowledge, that defendant continued to permit Scott to have access and control over Jami. I believe there is evidence to support such a conclusion.
The evidence at trial included testimony that there were more than 100 bruises in various stages of healing on Jami’s body, the oldest of which were at least one week old. There were 13 distinct hemorrhagic injuries to Jami’s skull, eight of which were three to four days old. The defendant’s mother, her sister, a friend and a babysitter testified that they had observed bruises on defendant’s children only after defendant moved in with Scott. With regard to the incident where Preston claimed that Scott had choked him and held him under water, defendant’s sister, Sue Ostrowski, testified that Preston had marks on his neck that looked like finger marks. Sue recalled that defendant brought Preston to her mother’s house to show her the injury and to ask her mother’s opinion about how Preston could have sustained such an injury. In addition, defendant once brought Jami to Sue’s house to ask Sue’s opinion of how Jami could have sustained an injury to her ear and neck. Scott had told defendant that those injuries were sustained when Jami fell down the stairs. Sue, however, told defendant that Jami’s injuries did not appear to be of the type that would result from falling down the stairs.
Defendant’s mother, Sandra Pollock, also testified at trial that Preston told defendant that Scott had choked him and held him under water. On another occasion, Jami told Sandra that Scott had caused an injury to her foot when he held her foot very tightly. When Sandra told defendant about the injury to Jami’s foot, defendant told Sandra that Jami was making up the story. With regard to the injuries that Jami allegedly sustained in a fall down the stairs, Sandra did not believe that the injuries were the result of a fall. When Sandra confronted defendant about those injuries, defendant told Sandra that Scott’s parents had confirmed the story about a fall.
Leslie Huber testified at trial that she baby-sat for defendant’s children. Leslie testified that a few weeks before the murder, Jami told her mother in Leslie’s presence that Scott had choked her. When Leslie asked defendant if she heard Jami, defendant told Leslie that Jami could be making up the choking story. Five days before Jami’s death, Leslie saw bruises on Jami’s head running across her hairline and saw a red, knotted mark on Jami’s forehead. Defendant asked Leslie’s mother, Sue Huber, to look at the marks on Jami’s head. Defendant told Sue she did not know what had caused those marks.
Sherry Ranos, a criminal investigator with the Illinois State Police, testified that she had interviewed defendant after Jami’s death. With regard to the incident where Scott told defendant that Jami had fallen down the stairs, defendant told Ranos that she did not believe the marks on Jami’s body were the result of falling down the stairs. Defendant also told Ranos that three days before Jami’s death, Jami had three separate “accidents” in one day: (1) the incident where Scott “accidentally” grabbed Jami by the neck; (2) the incident where Scott “accidentally” pushed Jami in the bathtub, causing her to fall backward and hit her head; and (3) the incident where Jami fell in the bathroom and required stitches to her head. Defendant also revealed that Jami told defendant that Scott was mean.
In addition to the foregoing evidence, portions of defendant’s grand jury testimony were read into evidence at trial. Defendant had testified before the grand jury that she did not believe Scott’s story concerning how Preston had received his neck injuries, so she brought Preston to her mother for a second opinion. While she was at her mother’s home, defendant learned from Preston that Scott had choked him and tried to drown him. Defendant also testified that after Jami allegedly fell down the stairs, defendant asked her mother and her sister their opinion concerning the accident. Defendant’s sister told defendant that the injuries looked “kind of funny” for falling down the stairs. At trial, defendant acknowledged that Jami’s injuries occurred only when defendant was away from the home.
I believe the foregoing evidence is sufficient to create a question for the trier of fact as to whether defendant knew Scott was abusing Jami. The injuries to defendant’s children first occurred after defendant moved in with Scott. In addition, Jami and Preston told defendant that Scott had choked them. Although defendant testified that Scott had explanations for all of the injuries to her children, defendant nonetheless was suspicious enough that she asked her mother, her sister, and Sue Huber for their opinions concerning the various injuries. Based upon this evidence, I believe a rational trier of fact, viewing the evidence in a light most favorable to the prosecution, could have found defendant guilty beyond a reasonable doubt. In any event, given the closeness of the evidence, a determination concerning defendant’s guilt under the proper theory of accountability is better left to the trier of fact. Accordingly, I dissent from the majority’s finding that this case need not be remanded for a new trial.
JUSTICE GARMAN joins in this partial concurrence and partial dissent.