Filed 11/26/08               NO. 4-07-0723

                       IN THE APPELLATE COURT

                              OF ILLINOIS

                          FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Macon County
SHAUNESSY GRIMES,                      )    No. 06CF1346
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    Katherine M.
                                       )    McCarthy,
                                       )    Judge Presiding.
_________________________________________________________________

           JUSTICE STEIGMANN delivered the opinion of the court:

           Following a June 2007 trial, a jury convicted defen-

dant, Shaunessy Grimes, of first degree murder (720 ILCS 5/9-1

(a)(2) (West 2006)).   In August 2007, the trial court sentenced

him to 35 years in prison.

           Defendant appeals, arguing that (1) the trial court

erred by denying his request to instruct the jury on (a) the

lesser-included offense of involuntary manslaughter and (b) the

issue of causation, and (2) the State failed to present suffi-

cient evidence to prove that he was accountable for first degree

murder.   We disagree and affirm.

                             I. BACKGROUND

           In October 2006, the State charged defendant with first

degree murder (720 ILCS 5/9-1(a)(2) (West 2006)), alleging that

he and two codefendants, Demetrice C. Phillips and Stephanie
Boyd, were accountable for Jeremiah Maclin's death.   In May 2007,

the trial court severed defendant's case from those of his co-

defendants.

          A summary of the evidence from defendant's June 2007

trial showed, in pertinent part, the following.

          On September 21, 2007, Breanna Turner, defendant's

girlfriend and mother of his child, got into an argument with

Quinishia Frazier because Turner believed she was having a

relationship with defendant.   Later that day, Turner and Boyd

confronted Frazier near Van Dyke Street in Decatur, Illinois.

Turner and Frazier began fighting, and a crowd gathered.   Someone

in the crowd threw a brick, which hit Boyd in the head.    Frazier

then knocked Turner to the ground and several people from the

crowd began to kick and stomp Turner.   Turner's cousin pulled

Turner away from the group.

          That same evening, Turner and Boyd told Phillips and

defendant about the fight, which made defendant angry.    Phillips

asked defendant whether he wanted to "shoot it up" and defendant

replied, "Come on."   Turner, Boyd, Phillips, and defendant then

proceeded to defendant's house, where defendant retrieved his

.22-caliber, single-shot rifle.   Defendant placed the rifle on

the back floorboard of Boyd's car, and the group headed back to

Van Dyke Street.

          Once they arrived near the scene of the earlier fight,


                               - 2 -
Phillips instructed Boyd to pull into a nearby alley.     Defendant

handed Phillips the rifle as they walked down the alley toward

Van Dyke Street.   Several minutes later, out of defendant's line

of sight, witnesses from the crowd heard a shot fired in their

direction.   Maclin fell to the ground, bleeding from a fatal

wound to the back of his neck.    Defendant and Phillips ran back

to the car, where Turner and Boyd were waiting.     Before the group

drove away, Phillips said that he "thought he saw someone fall."

The next day, defendant and Phillips threw the rifle into the

Sangamon River.

          An autopsy performed by forensic pathologist Travis

Hindman revealed that Maclin died from a gunshot wound to the

right side of the back of his neck.      However, due to a typograph-

ical error, Hindman's autopsy report indicated that the gunshot

wound was to the left side of the back of Maclin's neck.

Hindman's report also showed that (1) no bullet exit wound was

found on Maclin's body and (2) two metallic fragments, which had

a combined weight of 1.11 grams, were lodged at the base of

Maclin's neck.

          At trial, defendant vigorously cross-examined (1)

Hindman regarding (a) the cause of Maclin's death and (b) his

degree of certainty that the metallic fragments had actually come

from defendant's .22-caliber rifle and (2) Detective Charles

Hendricks, to determine whether he investigated other people who


                                 - 3 -
may have been in the crowd with a gun.

            Following the presentation of evidence and argument,

the trial court conducted a hearing on the parties' proposed jury

instructions outside the presence of the jury.    At that hearing,

defendant tendered (1) an involuntary manslaughter instruction as

a lesser-included offense and (2) an instruction on causation,

arguing that the State proved only that a shot was fired, but not

that Phillips fired the shot that caused Maclin's death.    The

court denied defendant's requests.

            The jury thereafter convicted defendant of first degree

murder (720 ILCS 5/9-1(a)(2) (West 2006)), and the trial court

sentenced him as stated.

            This appeal followed.

                            II. ANALYSIS

        A. Defendant's Claim That the Trial Court Erred
           By Refusing His Proffered Jury Instructions

            Defendant argues that the trial court erred by refusing

his request to instruct the jury on the (1) lesser-included

offense of involuntary manslaughter and (2) issue of causation.

We address defendant's arguments in turn.

      1. Standard for Giving a Lesser-Included Instruction

             A jury instruction on a lesser-included offense is

justified only when some evidence exists to support giving it to

the jury.    People v. Jones, 219 Ill. 2d 1, 31, 845 N.E.2d 598,

614 (2006).    Whether an instruction on a lesser-included offense

                                - 4 -
is warranted depends on the facts and circumstances of each case.

Jones, 219 Ill. 2d at 31, 845 N.E.2d at 614.    The giving of a

jury instruction on a lesser-included offense lies within the

sound discretion of the trial court.    People v. Jackson, 372 Ill.

App. 3d 605, 613, 874 N.E.2d 123, 130 (2007), citing Jones, 219

Ill. 2d at 31, 845 N.E.2d at 614.

           2. General Standard for Giving Jury Instructions

            A party normally is entitled to a jury instruction when

the evidence presented supports giving it.     People v. Evans, 369

Ill. App. 3d 366, 380, 859 N.E.2d 642, 653 (2006).    The evidence

upon which a party relies to justify his request for an instruc-

tion must be more than a mere factual reference or witness's

comment.    Otherwise, a defendant could force the trial court to

include unlimited instructions unrelated to the case.     Evans, 369

Ill. App. 3d at 380, 859 N.E.2d at 653.    We review a court's

refusal to give a jury instruction for an abuse of discretion.

People v. Dorn, 378 Ill. App. 3d 693, 698, 883 N.E.2d 584, 588

(2008).

             3. Instruction on Involuntary Manslaughter

            Defendant argues that the trial court erred by refusing

to instruct the jury on the lesser-included offense of involun-

tary manslaughter.    Specifically, defendant contends that he

presented sufficient evidence that Phillips' conduct was reck-

less, rather than intentional, which justified an instruction on


                                - 5 -
involuntary manslaughter.   In support of his contention, defen-

dant asserts that the cumulative evidence was enough to suggest

that his mental state and, subsequently, his actions, were

reckless, rather than intentional.      The State responds that the

evidence was not sufficient to warrant an instruction on involun-

tary manslaughter because Phillips did not act recklessly.      We

agree with the State.

                        a. Defendant's Intent

          Initially, we note defendant's assertion that his

intent is somehow relevant to our inquiry into whether he was

entitled to an involuntary manslaughter instruction.     This

assertion is not correct.   To prove accountability, the State

must demonstrate, beyond a reasonable doubt, that either (1)

defendant shared the principal's criminal intent or (2) there was

a common criminal design.    People v. Perez, 189 Ill. 2d 254, 266,

725 N.E.2d 1258, 1264-65 (2000).

          As the supreme court explained in Perez, when two or

more persons engage in a common criminal design, any acts commit-

ted by one party to further the common design are attributable to

all parties to the common design, rendering each party individu-

ally responsible for the consequences of the others' acts.

Perez, 189 Ill. 2d at 267, 725 N.E.2d at 1265.     A defendant need

not affirmatively act when a common criminal plan or purpose

exists.   People v. Turner, 375 Ill. App. 3d 1101, 1104, 875


                                - 6 -
N.E.2d 175, 180 (2007).    "A common criminal plan or design can be

inferred from the circumstances, and a defendant need not express

'[w]ords of agreement' to be held accountable for a codefendant's

criminal acts."     Turner, 375 Ill. App. 3d at 1104, 875 N.E.2d at

180, quoting People v. Taylor, 164 Ill. 2d 131, 141, 646 N.E.2d

567, 571 (1995).

          In this case, the State tried defendant for first

degree murder on an accountability theory premised upon the fact

that he and Phillips engaged in a common criminal design.

Therefore, the State was not required to prove defendant shared

Phillips' intent, a fact that the trial court explained when it

denied defendant's request to instruct the jury on involuntary

manslaughter as follows:

                  "The only thing we have here is the

          defendant himself testifying that [his ac-

          tions were] intended to scare, and that he

          didn't have intent.

                                 * * *

                  When [Phillips] intend[ed] to fire a

          gun, point[ed] it in the general direction of

          his *** intended victim, and [shot], such

          conduct [was] not merely reckless and does

          not warrant an involuntary manslaughter in-

          struction, regardless of [Phillips'] asser-


                                 - 7 -
          tion that he *** did not intend to kill any-

          one.

                 *** [T]hat also applies in this case

          even on accountability theory, even though

          defendant wasn't the shooter."

Thus, the trial court essentially found that (1) defendant's

intent was irrelevant because he was tried on the theory that

defendant and Phillips engaged in a common criminal design and

(2) the focus should have been on Phillips' intent, which could

not have been reckless under the circumstances.   We agree with

the trial court.   That defendant may have possessed some lesser

intent, such as recklessness, is not relevant to our inquiry.

           b. Sufficiency of the Evidence To Justify
             an Involuntary Manslaughter Instruction

          We now turn to the underlying issue of whether the

trial court correctly found that defendant failed to present

sufficient evidence to justify an involuntary manslaughter

instruction. A person commits first degree murder when in per-

forming the acts that cause another's death, "he knows that such

acts create a strong probability of death or great bodily harm to

that individual or another."   720 ILCS 5/9-1(a)(2) (West 2006).

On the other hand, a person commits involuntary manslaughter when

he unintentionally kills another by recklessly performing an act

that is likely to cause death or great bodily harm.     720 ILCS

5/9-3(a) (West 2006).

                                - 8 -
          "It is well established that proof that a death re-

sulted from a defendant's act of deliberately firing a gun in the

general direction of his victim is sufficient to sustain a

conviction for first-degree murder."   People v. Lemke, 384 Ill.

App. 3d 437, 446, 892 N.E.2d 1213, 1220 (2008); see Jackson, 372

Ill. App. 3d at 613-14, 874 N.E.2d at 130 ("when the defendant

intends to fire a gun, points it in the general direction of his

or her intended victim, and shoots, such conduct is not merely

reckless ***, regardless of the defendant's assertion that he or

she did not intend to kill anyone").

          Looking to Phillips' conduct (because he was the

primary actor in this case), the record reveals that defendant

failed to present any evidence that Phillips acted recklessly.

Phillips did not testify at defendant's trial, leaving the trial

court to make its ruling based on the following circumstantial

evidence of Phillips' intent: (1) getting out of the car; (2)

asking defendant to hand him the rifle; (3) walking around the

corner of a house; (4) firing a rifle in the direction of the

crowd; (5) running back to the car; (6) telling the group that he

"thought he saw someone fall"; and (7) throwing the rifle into

the Sangamon River the next day.   We conclude that a lesser-

included offense instruction on involuntary manslaughter was not

justified.   Accordingly, the trial court did not abuse its

discretion by refusing defendant's request to present such an


                               - 9 -
instruction to the jury.

                   4. Instruction on Causation

           Defendant next argues that the trial court erred by

refusing his proffered causation instruction pursuant to Illinois

Pattern Jury Instructions, Criminal, No. 7.15 (4th ed. 2000)

(hereinafter IPI Criminal 4th No. 7.15). Specifically, defendant

contends that an instruction on the element of causation was

required because (1) the State failed to prove that Phillips ever

fired the rifle and (2) even if Phillips had fired the rifle, the

State failed to prove that Phillips' bullet was the same bullet

that (a) hit Maclin or (b) caused his death.     The State responds

that a causation instruction was not required because the evi-

dence showed that (1) a single shot was fired, (2) Phillips fired

that shot, and (3) the shot caused Maclin's death.     We agree with

the State.

           The instruction on causation in homicide cases reads as

follows:

                "In order for you to find that the acts

           of the defendant caused the death of [the

           victim], the State must prove beyond a rea-

           sonable doubt that defendant's acts were a

           contributing cause of the death and that the

           death did not result from a cause unconnected

           with the defendant.    However, it is not nec-


                                 - 10 -
           essary that you find the acts of the defen-

           dant were the sole immediate cause of death."

           IPI Criminal 4th No. 7.15.

The homicide-causation instruction should be given when an

alternative explanation for the cause of death is argued by the

defense.   People v. Pinkney, 322 Ill. App. 3d 707, 718, 750

N.E.2d 673, 681 (2000).   However, trial courts should be espe-

cially cautious about giving the homicide-causation instruction

when a defendant is tried on a common-design theory because the

instruction could confuse the jury.     Pinkney, 322 Ill. App. 3d at

720, 750 N.E.2d at 683.

           In response to defendant's request to instruct the jury

on the issue of causation, the trial court found the following:

           "I don't find any evidence *** that the death

           resulted from any cause other than the shoot-

           ing by *** Phillips for which the defendant

           is accountable.   So I find mere speculation

           that another gun was involved.   I just don't

           think there is any evidence in the record

           that the gun shot that killed *** Maclin came

           from some other source.

                                * * *

                With a jury instruction, it is only the

           [c]ourt's responsibility to determine if


                               - 11 -
          there is sufficient evidence that warrants a

          jury instruction on it, which is a higher

          level than [defendant] being able to argue

          reasonable inferences from the evidence which

          is what [defendant] want[s] to do in this

          case.   [The court] is merely stating that

          there is insufficient evidence to warrant a

          jury instruction [on causation]."

          In this case, defendant did not argue any other re-

motely plausible explanation for Maclin's death.   The evidence

presented at trial revealed that (1) Phillips walked around the

corner of a house, (2) Phillips fired in the direction of the

crowd, and (3) Maclin fell to the ground with a fatal gunshot

wound to the back of the neck.   The fact that defendant vigor-

ously cross-examined (1) Hindman about the type and weight of the

bullet fragments retrieved from Maclin's neck and (2) Hendricks

regarding whether they questioned other persons who may or may

not have been at the scene with a gun falls short of a plausible

explanation for a cause unconnected to defendant sufficient to

warrant an instruction on the element of causation.

          Therefore, we conclude that the trial court did not

abuse its discretion by refusing defendant's request to instruct

the jury on the element of causation.

 B. Defendant's Claim That the State's Evidence Was Insufficient
          To Prove Him Guilty Beyond a Reasonable Doubt

                              - 12 -
           Defendant next argues that the State failed to prove

beyond a reasonable doubt that (1) Maclin died from a gunshot

wound or (2) Phillips caused Maclin's death.    Essentially,

defendant contends that the State's evidence was insufficient to

prove him guilty beyond a reasonable doubt.    We disagree.

                       1. Standard of Review

           We review a defendant's challenge to the sufficiency of

the evidence to determine whether, after viewing the evidence in

the light most favorable to the State, any rational trier of fact

could have found the essential elements of the offense beyond a

reasonable doubt.   People v. Wheeler, 226 Ill. 2d 92, 114, 871

N.E.2d 728, 740 (2007).   "This same standard of review applies

regardless of whether the evidence is direct or circumstantial

***."   People v. Cooper, 194 Ill. 2d 419, 431, 743 N.E.2d 32, 40

(2000).   Because the jury is in the best position to judge the

credibility and demeanor of the witnesses, its findings are

entitled to great weight.   Wheeler, 226 Ill. 2d at 114-15, 871

N.E.2d at 740.

  2. Defendant's Accountability for the Common Criminal Design

           A defendant is accountable for the conduct of another

when "[e]ither before or during the commission of an offense, and

with the intent to promote or facilitate such commission, he

solicits, aids, abets, agrees or attempts to aid, such other

person in the planning or commission of the offense."    720 ILCS

                              - 13 -
5/5-2(c) (West 2006).   To prove accountability, the State must

demonstrate beyond a reasonable doubt that either (1) defendant

shared the principal's criminal intent or (2) there was a common

criminal design.    Perez, 189 Ill. 2d at 266, 725 N.E.2d at 1264-

65.   "A defendant's mental state is ordinarily proved circumstan-

tially by inferences reasonably drawn from the evidence."     People

v. Jones, 376 Ill. App. 3d 372, 383, 876 N.E.2d 15, 25 (2007).

           The following nonexhaustive circumstances may be

considered by the factfinder when determining a defendant's legal

accountability: (1) his presence at the scene without disap-

proval; (2) flight from the scene; (3) failure to report the

crime; (4) his close affiliation with the codefendant after the

crime is committed; (5) the sharing of any proceeds from the

criminal act; and (6) the destroying or disposing of evidence.

Turner, 375 Ill. App. 3d at 1104, 875 N.E.2d at 180-81.

           In this case, defendant (1) was present at the scene

without disapproval, (2) fled the scene with Phillips, (3) did

not report the crime until pressured by law enforcement, (4)

worked with Phillips after the shooting to dispose of the rifle,

and (5) attempted to dispose of the rifle by throwing into the

Sangamon River.    Further, defendant intended for, and conspired

with, Phillips to confront the crowd, brandish the rifle, and

"shoot it up."    Therefore, defendant was responsible for Phillip-

s' conduct in furtherance of that common criminal design.


                               - 14 -
       3. The Murder for Which Defendant Was Accountable

            "[W]hen [an individual] intends to fire a gun, points

it in the general direction of his or her intended victim, and

shoots, such conduct is not merely reckless ***, regardless of

the defendant's assertion that he or she did not intend to kill

anyone."    Jackson, 372 Ill. App. 3d at 613-14, 874 N.E.2d at 130.

Indeed, "[i]t is well established" that such conduct can never be

reckless.    Lemke, 384 Ill. App. 3d at 446, 892 N.E.2d at 1220

(affirming the defendant's conviction for first degree murder).

            Here, Phillips agreed with defendant to confront the

crowd, brandish the rifle, and "shoot it up," a common criminal

design that resulted in Maclin's murder.     Given the evidence

presented by the State--which we have previously summarized--the

jury could have reasonably inferred that (1) Phillips murdered

Maclin and (2) defendant was accountable for Phillips' actions in

that regard.

            Accordingly, we conclude that the State presented

sufficient evidence to prove beyond a reasonable doubt that

defendant was accountable for the first degree murder of Maclin,

which resulted from defendant's common criminal design.

                           III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.    As part of our judgment, we grant the State's request

that defendant be assessed $50 as costs for this appeal.


                               - 15 -
Affirmed.

KNECHT and COOK, JJ., concur.




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