                                          2015 IL App (1st) 131022
                                             No. 1-13-1022
                                       Opinion filed August 5, 2015
                                                                                         Third Division


                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             FIRST DISTRICT


     THE PEOPLE OF THE STATE OF ILLINOIS,                  )      Appeal from the Circuit Court
                                                           )      of Cook County.
            Plaintiff-Appellee,                            )
                                                           )
     v.                                                    )      No. 12 CR 2715
                                                           )
     STEVEN LENGYEL,                                       )
                                                           )      The Honorable
            Defendant-Appellant.                           )      Michael Brown,
                                                           )      Judge, presiding.



            JUSTICE HYMAN delivered the judgment of the court, with opinion.
            Presiding Justice Pucinski and Justice Mason concurred in the judgment and opinion.

                                                 OPINION

¶1          Defendant Steven Lengyel and his father Richard Lengyel got into a verbal argument that

     escalated into a physical altercation. Steven punched Richard, and, two days later, Richard died

     at the hospital after suffering a stroke. The State charged Steven with first degree murder. The

     jury convicted Steven of second degree murder, and he was sentenced to 18 years in prison.

¶2          On appeal, Steven argues: (1) the State failed to prove him guilty of second degree

     murder beyond a reasonable doubt because he did not have the requisite intent or knowledge for

     murder but instead, he committed involuntary manslaughter by recklessly punching Richard; (2)

     ineffective assistance of counsel for his trial attorney’s alleged failure to present the defense of
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     involuntary manslaughter; and (3) the trial court abused its discretion in sentencing him to 18

     years' imprisonment.

¶3          Based on the evidence that Steven acted recklessly and without the intent to kill Richard,

     he should have been convicted of involuntary manslaughter, not second degree murder.

     Accordingly, we reverse Steven's second degree murder conviction, enter a conviction for

     involuntary manslaughter, and remand for resentencing.

¶4                                           BACKGROUND

¶5          Steven Lengyel was 22 years old and living with his father, Richard Lengyel, in a one-

     bedroom apartment on the north side of Chicago. Unemployed, Steven took care of Richard, who

     received disability benefits stemming from his diabetes. Steven took care of Richard by shopping

     for him, taking him to dialysis, and managing his finances. Steven and Richard argued daily over

     things like cigarettes, DVDs, and car parts.

¶6          On January 3, 2012, Steven was in the bedroom with his girlfriend, Alexandra Cort, when

     he decided to go to the living room and talk to Richard about a pizza menu. Steven and Richard

     got into a verbal, and then a physical, altercation, after which Richard was taken to the hospital

     where he died two days later following a stroke.

¶7          On January 4, Steven voluntarily surrendered to police and, while Richard was still alive,

     was charged with aggravated battery. He gave videotaped statements to detectives on January 4

     and January 5.

¶8          Steven told detectives that he had issues with his father and his inner rage against Richard

     had been building for years. He was frustrated that “[Richard] wouldn’t let me get my shit and

     leave.” He also said, “I’m not proud of what happened at all.”




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¶9            On the day of the fight, Steven asked Richard about a pizza menu, and Richard accused

       him of stealing a lighter. Steven then went to his room and started going through his DVDs, and

       noticed that some were missing. He asked his father if he knew where the DVDs were, and then

       Steven and Richard began arguing over the DVDs and other grievances.

¶ 10          As the argument escalated, Richard, who was sitting in his recliner, grabbed Steven's

       shirt. To disentangle himself, Steven punched Richard in the head four or five times. Steven

       acknowledged that he hit his father but said Richard touched him first, and he was only trying to

       get away from Richard. Steven said he paused for a second after the first contact, then continued.

       Steven stopped as soon as he saw Richard was bleeding. Steven denied hitting Richard in the

       back or chest, explaining that Richard fell a couple months earlier, which could account for the

       broken ribs and bruising on Richard’s back.

¶ 11          After Steven saw the blood, he went back to his bedroom, locked the door, and told Cort

       that they needed to leave the apartment. Richard then broke through the bedroom door. Steven

       pushed him out and Richard fell down to his hands and knees. Richard got up on his own and

       went to the kitchen to get a towel. At Richard's request, Steven called for an ambulance. He told

       the operator that Richard had fallen and needed help. Steven did not wait for the ambulance to

       arrive; Richard told him to leave before the paramedics got there.

¶ 12          Steven and Cort left the apartment and went to a friend’s apartment. Steven told his

       friend that he and his father had gotten into a fight, and that Richard had again blamed him for

       stealing his things. Steven called his mother because he was worried about his father and wanted

       to know if Richard was okay. Eventually, Steven and Cort went back to the apartment to gather

       some clothes and DVDs to pawn, and spent the night at Cort's apartment. The next morning,




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       Steven agreed to meet with detectives at a McDonald's. Meanwhile, Richard was in the hospital

       in critical condition.

¶ 13           Following Richard’s death, Steven was charged by indictment with two counts of first

       degree murder. Count I alleged that Steven intentionally or knowingly beat, struck, and killed

       Richard with his hands (720 ILCS 5/9-1(a)(1) (West 2012)), and count II alleged that Steven

       struck and killed Richard with his hands, knowing that such acts created a strong probability of

       death or great bodily harm (720 ILCS 5/9-1(a)(2) (West 2012)).

¶ 14           At trial, Carol Lengyel, Richard’s sister, testified that on January 5, Richard was taken off

       of life support and died. At the time of his death, Richard was 55-years-old and the father of two

       children, Steven and Tiffany.

¶ 15           Steven’s girlfriend, Alexandra Cort, testified that she was in the apartment during the

       fight. For most of the day, Cort and Steven were cleaning the bedroom and watching movies,

       while Richard stayed in the living room. At about 5:00 p.m., Steven found a pizza menu in the

       bedroom and went to ask Richard if he wanted to keep it. Cort stayed in the bedroom. She heard

       Richard ask Steven where his lighter was, and then she heard arguing, which escalated to yelling,

       over who owned the lighter and the DVDs.

¶ 16           According to Cort, Steven felt Richard was a bad father and never around. Richard

       countered that Steven had been a horrible son, refused to pay rent, and would not go to school.

       Steven accused Richard of getting high. Cort did not see what was happening because it

       “sounded like every other fight [Richard and Steven] had.” After ten minutes, Steven ran back

       into the bedroom and locked the door. Steven said that they had to leave because he had just hit

       his father. Steven appeared worried, scared, and angry. She saw a rip in his shirt.




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¶ 17          Steven’s in-court testimony largely follows his videotaped statements to the police.

       Steven testified that after he approached his father with the pizza menu, Richard accused him of

       stealing a lighter. Steven went to the bedroom, and after about 15 to 20 minutes went back to

       speak with his father after noticing some of his DVDs were missing. Richard was sitting in the

       recliner. Steven asked Richard if he knew the whereabouts of the DVDs, after which he and

       Richard began yelling at one another. Steven said he was angry but did not want to kill Richard.

¶ 18          As the argument escalated, Richard got up from the recliner and grabbed Steven’s shirt

       with both hands. Steven walked Richard back to the recliner because he was worried that

       Richard might fall. Richard repeatedly stood and fell back into his recliner. Unable to pull away

       because Richard would not let go of his shirt, Steven hit his father.

¶ 19          Steven testified to hitting Richard in the head four or five times. He stopped after he

       noticed blood on the fourth or fifth strike. Steven’s shirt ripped when he was finally able to free

       himself from his father's grasp. Steven went into the bedroom and locked the door.

¶ 20          A few minutes later, Richard broke down the bedroom door and entered yelling and

       swearing at Steven, ordering him to leave the apartment, and stating he wished Steven was never

       born. Steven responded by pushing Richard in his chest, causing Richard to fall down to his

       hands and knees. Richard was talking and crying, but he did not look like he was injured.

¶ 21          While Richard lay on the floor, Steven yelled that Richard was a horrible father. Richard

       told Steven to call 911, which Steven did. Richard got up on his own and walked into the kitchen

       to get a towel for his head, then sat down in his recliner and told Steven and Cort to leave. They

       gathered some belongings and left before the ambulance arrived.

¶ 22          Cort and Steven went to their friend Tabish Dean’s place. Dean testified that Steven told

       him, “I just beat up my dad.” Steven also said Richard was pushing him more and more, and that



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       was “the last straw.” Steven did not say he killed or wanted to kill his father, but that he hit

       Richard to get away from him. After a few hours, Steven and Cort left to retrieve their personal

       belongings at the apartment.

¶ 23           Steven and Cort knew that Richard was in the emergency room. Steven thought his father

       would need some stitches. Steven told Cort that he could not stay with Richard anymore, and

       would sell all of his DVDs and video games to live on his own. After receiving a call from

       detectives, Steven turned himself into the police.

¶ 24           Chicago Police Officer George Scoufis testified that when he arrived at the apartment

       paramedics were administering first aid. Richard told Scoufis, “my son beat me up.” Scoufis

       asked Richard how and where he had been hit. Richard replied, “[Steven] used his fists” and

       “struck [him] about the head and the face.” Richard said Steven did not use any weapons and

       never mentioned that he had been hit anywhere else on his body. Scoufis observed a small

       amount of blood about Richard's head. After the paramedics transported Richard to the hospital,

       Scoufis attempted to interview Richard but Richard could not speak and was slipping in and out

       of consciousness. About two and half hours later, Scoufis learned that doctors assessed Richard’s

       condition as critical.

¶ 25           Chicago Police Detective Michelle Wood testified that the day after the altercation, she

       contacted Steven and met him at a McDonald’s. Detective Wood arrested Steven for aggravated

       domestic battery and transported him to the Area 3 Detective Division. Detective Wood and

       Detective John Korolis informed Steven of his Miranda rights. Steven agreed to be interviewed.

       The police videotaped the interviews, which took place on January 4, and January 5, the day

       Richard died.




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¶ 26          Detective Wood testified that after Richard’s death, she executed a search warrant for the

       apartment and recovered Steven’s ripped shirt with Richard’s blood on it.

¶ 27          Dr. Lauren Woertz of the Cook County Medical Examiner’s Office performed Richard’s

       autopsy. She attributed Richard's death to a stroke due to an increase in blood pressure caused by

       stress from injuries. She said the blunt force trauma to the head, in and of itself, did not cause the

       stroke. Most of the injuries were on Richard’s scalp, a laceration on the top of the scalp and some

       bruising on the scalp and forehead. She found diffuse bruising on the left side of the body, a

       diffuse bruise on the left side of the back, and scrapes on the knees and legs.

¶ 28          Dr. Woertz saw bleeding in the brain, which was consistent with a stroke. Richard had

       some fractures of the spine as well as multiple rib fractures but no skull fractures. She believed

       that all of the injuries had been incurred recently and the rib and spinal fractures likely happened

       at the same time. She also indicated that Richard had many health problems in addition to the

       diabetes, including peripheral vascular disease, diverticulosis, kidney disease, heart disease, and

       high blood pressure. In addition, Richard had a previous stroke. The urine drug screen performed

       by the hospital indicated the presence of opiates. Dr. Woertz stated these underlying natural

       diseases weakened Richard’s body and that it takes less insult on this type of person to cause a

       potentially catastrophic effect than on a healthy person.

¶ 29          Over the State’s objection, the court granted Steven a second degree murder instruction

       based on an unreasonable belief in self-defense.

¶ 30          The jury convicted Steven of second degree murder. The defense filed a motion for a new

       trial, which the trial court denied. At sentencing, Steven received 18 years in prison. The defense

       filed a motion to reconsider the sentence, which the trial court denied as well.




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¶ 31                                             ANALYSIS

¶ 32          Steven raises three issues for review: (1) whether the State proved him guilty of second

       degree murder beyond a reasonable doubt; (2) whether his counsel was ineffective for failing to

       present an involuntary manslaughter defense; and (3) whether the trial court exercised

       appropriate discretion in imposing the 18 year sentence.

¶ 33                                     Sufficiency of the Evidence

¶ 34          Steven challenges the sufficiency of the evidence, arguing the State failed to prove

       beyond a reasonable doubt that he had the requisite intent or knowledge for second degree

       murder. Rather, Steven contends, he committed involuntary manslaughter by recklessly

       punching his father.

¶ 35                                         Standard of Review

¶ 36          The due process clause protects an accused against conviction absent proof beyond a

       reasonable doubt of every fact necessary to constitute the crime with which he or she is charged.

       U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2; In re Winship, 397 U.S. 358, 364 (1970);

       People v. Brown, 2013 IL 114196, ¶ 48. When a defendant challenges the sufficiency of the

       evidence, this court must determine whether, after viewing the evidence in the light most

       favorable to the prosecution, any rational trier of fact could have found the essential elements of

       the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brown,

       2013 IL 114196, ¶ 48.

¶ 37          A reviewing court may set aside a criminal conviction only where the evidence is so

       improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. People v.

       Collins, 214 Ill. 2d 206, 217 (2005). A court of review will not retry a defendant when

       considering a challenge to the sufficiency of the evidence. People v. Smith, 185 Ill. 2d 532, 541



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       (1999). While we give deference to a fact finder’s decision to accept testimony, the fact finder's

       decision is neither conclusive nor binding. People v. Cunningham, 212 Ill. 2d 274, 280 (2004).

¶ 38                                    Second Degree Murder Conviction

¶ 39           Steven was charged with two counts of first degree murder under sections 9-1(a)(1) and

       (a)(2) of the Criminal Code of 1961 (720 ILCS 5/9-1(a)(1), (a)(2) (West 2012)). First degree

       murder occurs when a person kills another person without lawful justification and, in performing

       the acts that cause the death:

                       “(1) he [or she] either intends to kill or do great bodily harm to that individual or

                   another, or knows that such acts will cause death to that individual or another; or

                       (2) he [or she] knows that such acts create a strong probability of death or great

                   bodily harm to that individual or another[.]” 720 ILCS 5/9-1 (West 2012).

¶ 40           First degree and second degree murder share the same elements. People v. Flemming,

       2015 IL App (1st) 111925, ¶ 53. The difference between the two is that second degree murder

       involves the presence of a mitigating factor, such as serious provocation or an unreasonable

       belief in justification. Id.

¶ 41           At trial, Steven requested an instruction on second degree murder based on an

       unreasonable belief in self-defense. The State objected, arguing that the evidence did not show

       Steven subjectively believed a danger existed. The trial court gave the instruction over the

       objection. Because the jury found Steven guilty of second degree murder, they must necessarily

       have concluded that the State proved the elements of first degree murder, and Steven proved by a

       preponderance of the evidence a mitigating factor sufficient to reduce the offense to second

       degree murder. We observe that the self-defense strategy was ill-conceived. Steven never

       claimed that he believed a danger existed and that the amount of force he used was necessary to


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       avert any danger. Steven testified he hit Richard to get away, not because he felt his physical

       safety was threatened or to avoid any imminent danger of harm. Defense counsel should not have

       pursued this strategy at the expense of an involuntary manslaughter instruction.

¶ 42                                                 Intent

¶ 43          Steven contends that the State did not prove that he killed his father intentionally or

       knowingly, but at most, recklessly. Thus, his conviction should be reduced to involuntary

       manslaughter.

¶ 44          The difference between first degree murder and involuntary manslaughter involves the

       mental state that accompanies the conduct resulting in the victim’s death. People v. DiVincenzo,

       183 Ill. 2d 239, 249 (1998). Involuntary manslaughter requires less culpability than first degree

       murder. Id. Involuntary manslaughter occurs when a person's actions are “likely to cause death or

       great bodily harm to some individual, and he [or she] performs them recklessly.” 720 ILCS 5/9-

       3(a) (West 2012).

¶ 45          A person acts recklessly “when [he or she] consciously disregards a substantial and

       unjustifiable risk that circumstances exist or that a result will follow.” 720 ILCS 5/4-6 (West

       2012). In contrast, to act intentionally, the person must possess the conscious objective or

       purpose to accomplish that result, and to act knowingly, the person must possess the conscious

       awareness of his or her conduct being practically certain to cause that result. 720 ILCS 5/4-4, 4-

       5(b) (West 2012).

¶ 46                                             Intentionally

¶ 47          First, Steven argues he did not intentionally kill his father. He points out that he called an

       ambulance at Richard's insistence, and his father was alert and conscious when he left. Often, a

       mental state can be inferred from the character of the defendant’s acts and the circumstances



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       surrounding the commission of the offense. People v. Jones, 175 Ill. 2d 126, 133 (1997). The

       surrounding circumstances include the character of the defendant’s acts and the nature and

       seriousness of the victim’s injuries. People v. Castillo, 2012 IL App (1st) 110668, ¶ 52.

¶ 48             Steven, citing People v. Mitchell, 105 Ill. 2d 1, 9-10 (1984), asserts that intent also can be

       inferred from a defendant’s actions immediately after a crime. In Mitchell, our supreme court

       found that the defendant mother did not intend to kill her 16-month-old daughter because, after

       repeatedly striking her until she was unconscious, the mother could have completed the crime if

       that had been her intention. Id. Instead, the mother ultimately took her daughter to the hospital.

       Id. As in Mitchell, after he struck his father, Steven called for an ambulance almost immediately,

       indicated concern for his father's condition, and told the police consistently that he was angry

       with Richard, but was not trying to kill him. Considering all of the circumstances surrounding

       the fight, the proof fails to establish beyond a reasonable doubt that Steven intended to kill his

       father.

¶ 49                                                 Knowingly

¶ 50             Next, Steven argues that he did not knowingly kill his father, citing (1) the fight's brevity,

       (2) the limited number of punches (four or five), and (3) the cause of death being attributed to a

       stroke and not directly to his having struck Richard.

¶ 51             To the first point, Steven refers to the long-standing principle in Illinois that death is not

       normally a reasonable or probable consequence of a barehanded blow. People v. Brackett, 117

       Ill. 2d 170, 180 (1987); People v. Crenshaw, 298 Ill. 412, 416-17 (1921); People v. Gresham, 78

       Ill. App. 3d 1003, 1007 (1979). While the intentional use of a deadly weapon presumes that the

       individual knows his or her acts create a strong probability of death or great bodily harm,

       generally, no similar presumption accompanies a fist fight. Id.



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¶ 52          The State contends that despite this principle, the disparity in size and strength between

       Steven and Richard negates it and shows Steven acted with the knowledge that death or great

       bodily harm was the practically certain outcome. Brackett, 117 Ill. 2d at 180. In Brackett, during

       the course of an evening, the defendant raped and beat the victim with his bare fists. Id. at 173.

       The supreme court found that the disparity in size and strength between the 21-year-old male

       defendant, who was six feet three inches tall and 175 pounds, and the 85-year-old female victim,

       was sufficient to support the finding that he knew his acts created a strong probability of death or

       great bodily harm. Id. at 179-80.

¶ 53          Unlike the victim and defendant in Brackett, the record shows that Richard and Steven

       were similar in size. Richard was six feet two inches in height, and weighed 240 pounds and

       Steven was six foot one inch in height, and weighed 220 pounds. Although Richard had multiple

       health problems, he had enough strength after the fight to break open the locked bedroom door.

       Richard was conscious, coherent, and ambulatory when Steven left. Furthermore, unlike in

       Brackett, this was not an hours-long rape and beating. The physical altercation lasted a matter of

       minutes. Steven did not use a weapon and stopped punching as soon as he saw blood.

¶ 54          To the second point, Steven contends that because the punches did not directly cause the

       death, he could not be practically certain that his actions would cause death or great bodily harm.

       In People v. Tainter, 304 Ill. App. 3d 847, 851 (1999), for example, the court held the victim’s

       death from a bacterial infection related to a broken jaw after an assault warranted an instruction

       on the lesser included offense of involuntary manslaughter. The court reasoned that due to the

       “unusual final cause of death,” a jury might find that the defendant did not know the beating

       created a strong probability of great bodily harm. Id. Similarly, Steven’s punches did not directly




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       cause Richard’s death, and a jury could find that Steven did not know that his actions created a

       strong probability of great bodily harm.

¶ 55           Thus, where Steven punched Richard solely with his fists and where those punches did

       not directly cause death, the proof fails to sufficiently establish beyond a reasonable doubt that

       Steven knowingly killed his father.

¶ 56                                       Involuntary Manslaughter

¶ 57           Steven argues that the evidence supports giving an involuntary manslaughter instruction

       because a reasonable jury could find his acts were reckless.

¶ 58           To determine whether a defendant’s conduct reveals sufficient recklessness to warrant a

       jury instruction on involuntary manslaughter, we consider: (1) the disparity in size between the

       defendant and the victim; (2) the brutality and duration of the beating, and the severity of the

       victim's injuries; and (3) whether the defendant used his or her bare fists or a weapon. People v.

       DiVincenzo, 183 Ill. 2d 239, 251 (1998). Our supreme court cautioned that, “an involuntary

       manslaughter instruction is generally not warranted where the nature of the killing, shown by

       either multiple wounds or the victim’s defenselessness, shows that defendant did not act

       recklessly.” Id.

¶ 59           Steven focuses on the short time of the physical altercation and the lack of a weapon. He

       contends a tense argument escalated when Richard grabbed his shirt and would not let go, and he

       stopped as soon as he saw blood. Thus, at most, Steven contends that he acted recklessly by

       disregarding the risk the punches could lead to a spike in blood pressure, which could eventually

       lead to a stroke.

¶ 60           The State counters that taking all the factors into account, they militate against a finding

       of recklessness. First, the State argues that there was a significant disparity in age, strength, and



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       health. Second, the nature of the incident and severity of the injuries do not support a conclusion

       of reckless behavior. Richard’s autopsy revealed lacerations on the top of his scalp, bruising on

       his forehead and on the left side of his back, scrapes on the right forearm and hand, two scrapes

       and a pink bruise on his right knee, and a scrape on his left leg. Richard also had bleeding in the

       brain consistent with a stroke, bleeding on the surface of the brain, swelling of the brain, and rib

       and spinal fractures.

¶ 61           Finally, the State cites People v. Viramontes in support of the contention that the extent

       of Richard’s injuries belies a mental state of recklessness. In Viramontes, the defendant husband

       was convicted of first degree murder in the fatal beating of his wife following the discovery of

       her infidelity. People v. Viramontes, 2014 IL App (1st) 130075, ¶ 1. The defendant argued that

       the trial court erred in denying an involuntary manslaughter instruction where he threw his wife

       against the refrigerator and wall, did not use a weapon, did not strangle his wife, and did not

       engage in acts known to kill. Id. ¶ 64. This court held that the trial court properly denied an

       involuntary manslaughter instruction holding the evidence did not support a finding of

       recklessness based on the disparity in size and strength of the parties and the nature and extent of

       the victim’s injuries. Id. ¶ 65.

¶ 62           But in Viramontes, the severe and gruesome nature and extent of the wife’s injuries

       transcended the nature and extent of Richard’s injuries. The wife’s autopsy revealed 27 external

       evidences of injury, and a subdural hemorrhage to the skull and cerebral edema to the brain.

       Richard’s autopsy revealed that he did not have a hemorrhage to the skull or a cerebral edema. In

       fact, the physical violence Viramontes inflicted on his wife was significantly more brutal than

       the exchange between Steven and his father. Viramontes did not merely hit his wife a few times

       about the head; he threw his wife against the door, tossed her over a table, and threw her into the



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       refrigerator and then onto the floor, each time causing her to hit her head. And, when his wife

       retreated into the fetal position on the floor, he hit her in the face with his hands. In contrast,

       Steven punched his father four or five times. In addition, Viramontes initiated the physical

       altercation, while here, Richard instigated the fight by grabbing on to Steven's shirt.

¶ 63          Finally, the disparity in size and strength between Viramontes and his wife was far

       greater than the disparity in size and strength between Steven and Richard. Viramontes weighed

       30 pounds more than his wife, and admitted that he was stronger. Steven and Richard were about

       the same height and weight. Although Richard had health problems and was older, he still had

       enough strength to break a locked bedroom door. Thus, unlike Richard’s injuries, the wife’s

       injuries were inconsistent with a mental state of recklessness.

¶ 64          Taking all the factors into consideration, the proof sufficiently shows Steven recklessly

       punched Richard. The weaponless fight involved individuals of the same general size and

       strength. Steven was in a tense argument with his father that escalated when Richard grabbed his

       shirt and would not let go. Steven stopped punching when he saw blood and called the

       ambulance soon after. When the paramedics arrived, Richard was conscious and responsive.

       Accordingly, Steven acted recklessly by disregarding the risk that the punches could lead to a

       spike in blood pressure, which eventually led to a stroke. Thus, we find that Steven's actions

       constituted involuntary manslaughter, not second degree murder and remand for resentencing.

¶ 65          Because we are reducing Steven's conviction to involuntary manslaughter based on the

       lack of evidence establishing second degree murder, we need not address his ineffective

       assistance of counsel argument.




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¶ 66                                             Sentencing

¶ 67          We also need not address Steven's argument that the trial court abused its discretion in

       sentencing him to 18 years in prison, close to the maximum for second degree murder, given his

       age, his remorsefulness, and his lack of a prior criminal history. We remand and ask the trial

       court to hold a new sentencing hearing based on involuntary manslaughter.

¶ 68                                          CONCLUSION

¶ 69          We find that the evidence presented at trial, considered in the light most favorable to the

       prosecution, shows that Steven Lengyel acted recklessly and that his actions constituted

       involuntary manslaughter, not second degree murder. Therefore, under Illinois Supreme Court

       Rule 615(b)(3) (eff. Jan. 1, 1967), we reduce Lengyel's conviction of second degree murder to

       involuntary manslaughter and remand to the circuit court for resentencing.

¶ 70          Reversed and remanded for resentencing.




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