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                                Appellate Court                             Date: 2017.03.23
                                                                            11:38:36 -05'00'




                    People v. Jones, 2017 IL App (1st) 143403



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            MICHAEL JONES, Defendant-Appellant.



District & No.     First District, First Division
                   Docket No. 1-14-3403



Filed              January 30, 2017
Rehearing denied   March 9, 2017



Decision Under     Appeal from the Circuit Court of Cook County, No. 13-CR-11594; the
Review             Hon. James Michael Obbish, Judge, presiding.



Judgment           Affirmed.



Counsel on         Michael J. Pelletier, Patricia Mysza, and Peter Sgro, of State Appellate
Appeal             Defender’s Office, of Chicago, for appellant.

                   Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg
                   and Sara A. McGann, Assistant State’s Attorneys, of counsel), for the
                   People.



Panel              JUSTICE HARRIS delivered the judgment of the court, with opinion.
                   Justices Simon and Mikva concurred in the judgment and opinion.
                                              OPINION

¶1       Defendant, Michael Jones, was convicted after a bench trial of aggravated domestic
     battery, and the trial court sentenced him to five years’ imprisonment and four years of
     mandatory supervised release (MSR). On appeal, defendant contends: (1) the State did not
     prove him guilty of aggravated domestic battery beyond a reasonable doubt where severe
     deformities in his hands and arms, along with his lack of strength and range of motion,
     rendered him incapable of stabbing the victim in her chest; (2) he is entitled to a new trial
     where the record shows that the trial court prejudged his case and rejected his defense before
     defendant’s expert witness had testified; and (3) he was denied his right to present a full
     defense when the trial court refused to admit mental health records of the victim. For the
     following reasons, we affirm.

¶2                                          JURISDICTION
¶3        Defendant was sentenced on September 29, 2014. He filed a notice of appeal on September
     29, 2014. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the
     Illinois Constitution (Ill. Const. 1970, art. VI, § 6), and Illinois Supreme Court Rules 603 (eff.
     Feb. 6, 2013) and 606 (eff. Dec. 11, 2014), governing appeals from a final judgment of
     conviction in a criminal case entered below.

¶4                                          BACKGROUND
¶5        Defendant was charged by information with attempted first degree murder, aggravated
     domestic battery, unlawful use or possession of a weapon by a felon, and aggravated battery in
     the stabbing of his ex-girlfriend, Cherelle Richardson. Prior to trial, on the State’s motion,
     Richardson’s mental health records were delivered to the trial court for an in camera
     inspection to determine their relevancy before tendering them to the defense. After reviewing
     the records, the trial court determined that they were not “relevant to any of the current
     allegations against [defendant]. I don’t see how in any way they would be helpful to either
     party.”
¶6        Defense counsel filed a motion to reconsider. At the hearing on the motion, counsel argued
     that the defense at trial would be that Richardson stabbed herself, and her mental health records
     would “help us determine her mental state and to possibly lead us to any other records” in
     preparation for confronting Richardson at trial. The trial court noted that the records were from
     2009, and detail “an incident that occurred four years prior to the allegations that are before
     me. And although the complaining witness did in fact receive that mental health treatment for a
     short period of time, it ended in 2009 with respect to that particular incident. Nothing about
     that incident seems to me to be in any way relevant to the incident at hand here.” The trial court
     denied the motion but informed defense counsel that if at trial, the mental health records may
     be necessary for impeachment purposes, “you could renew your motion at that time. And then
     if it becomes relevant that she had the condition that you describe, that you’ve learned of and
     she were to deny that and it was relevant, then the records could be used to impeach her.”
¶7        At trial, Richardson testified that she met defendant in the spring of 2011. They began an
     intimate relationship in March 2012, and on November 29, 2012, Richardson gave birth to the
     couple’s son, ZyYon. During this time, Richardson did not have a permanent place of


                                                 -2-
       residence, so she stayed intermittently with defendant at his house at 5345 South Wolcott in
       Chicago, Illinois. Richardson and defendant frequently argued, which would cause her to leave
       for a period of time before returning.
¶8         On December 11, 2012, they argued and defendant threatened to kill Richardson, placing
       her in a chokehold from behind as she sat on the couch. During the argument, ZyYon was in a
       car seat on the floor. Richardson flipped defendant on the floor but he continued to choke her
       until she “tapped out.” The choking incident lasted about two minutes. Richardson left and
       called the police. Although the officers offered to call an ambulance for her, Richardson
       declined medical treatment. She filed an order of protection against defendant, but she did not
       go to court to ensure the order was still in effect because she did not have a way to get there.
       Subsequent to the incident, Richardson lost custody of ZyYon. When asked on
       cross-examination the reason Richardson no longer has ZyYon, she answered, “because
       [defendant] called [the Department of Children and Family Services (DCFS)] on me.”
¶9         Richardson testified that the couple argued “all the time” from January to May 2013. On
       May 26, 2013, Richardson went to defendant’s house and they argued because defendant’s
       brother had seen Richardson with another man. After they had calmed down from the
       argument, defendant performed oral sex on Richardson. Richardson, however, refused to
       reciprocate, which angered defendant. While defendant went into the kitchen, Richardson went
       into the bathroom. When she walked out of the bathroom, she saw defendant standing by the
       front door. Richardson went to the front door and as defendant walked past her, he stabbed her
       in the chest and told her “to go be with that n***a then.” She did not realize she had been
       stabbed until she looked down at her shirt and “seen all the blood coming out.” Richardson did
       not see the object defendant stabbed her with, but his hand touched her “left side, [her] left
       breast.”
¶ 10       Richardson began to panic when she saw the blood. Defendant told her, “B***h, run,” and
       she ran out of the house. Richardson ran down the street trying to find someone to call an
       ambulance. She eventually passed out and when she awoke, the police asked her if she knew
       the person who stabbed her before putting her in an ambulance. At the hospital, Richardson
       underwent emergency surgery to repair the wound.
¶ 11       On cross-examination, Richardson was asked if she had been diagnosed with bipolar
       disorder. She answered, “Wrong. I don’t know how y’all diagnosed me with that because I’m
       not bipolar and they cannot make no diagnosis off of me.” The trial court sustained the State’s
       objection and held a side bar to hear argument on the issue. Defense counsel argued that the
       defense’s theory is that Richardson stabbed herself, and the medical records showing she had
       been treated for bipolar disorder is relevant to their theory because it would “show her state of
       mind at the time this stabbing occurred.” This exchange followed:
                    “THE COURT: Do you have any reason to believe by way of evidence that
               [Richardson] stabbed herself?
                    MS. PAYETTE [defense attorney]: Other than there’s two people in the room and I
               have strong medical evidence to show that [defendant] is physically incapable of doing
               it. I think that that would be sufficient, Judge.
                    THE COURT: So your answer is no, you don’t have any evidence that you’re going
               to be putting on?
                    MS. PAYETTE: Not that I’m going to be putting on, Judge.


                                                   -3-
                   THE COURT: Your objection will be sustained.”
¶ 12       Richardson acknowledged on cross-examination that she was aware of defendant’s
       physical disabilities, specifically that he had stiff joints and skeletal deformities in his arms and
       legs. However, Richardson also observed defendant in his daily routine, and he could brush his
       teeth by himself, and when they cooked together defendant would use a knife to cut the onions,
       tomatoes, and lettuce. Richardson stated that to brush his teeth, defendant would “bring his
       head down.”
¶ 13       Video taken from a camera next to defendant’s house was admitted into evidence. On the
       video, Richardson is seen holding a jacket and leaving defendant’s house after being stabbed.
       She then turns back toward the house and moments later is seen walking toward the street
       holding two jackets. A car parked on the street belonged to defendant’s cousin. Richardson
       admitted that she had consumed alcohol and smoked marijuana that day. A few minutes after
       Richardson left, defendant can be seen leaving his house and entering the front passenger side
       of his cousin’s car. Walking with a limp, defendant is holding a jacket as he gets into the car.
       Defendant closed the car door by reaching his left arm across his body. No weapon was
       recovered from defendant’s house or in the area outside of his house. The genetic profile of
       blood taken from the sidewalk outside defendant’s house matched Richardson’s genetic
       profile.
¶ 14       Officer Dan Kavalauskas testified that on May 26, 2013,1 he arrested defendant. After
       giving defendant his Miranda warning, defendant made a statement regarding the incident.
       Defendant stated that he and Richardson got into a “verbal altercation” at his house. Defendant
       took Richardson’s coat and threw it at her from the porch, telling her to “get the f*** out of
       there.” He then took his book bag and ran to his grandmother’s house.
¶ 15       Dr. Ryan Sullivan, the physician who performed emergency surgery on Richardson,
       testified that the stabbing object created a two-centimeter bleeding laceration on the right
       ventricle of her heart. The object entered Richardson above her left nipple, pierced her skin,
       went through subcutaneous fat and breast tissue, through a large muscle of the chest wall,
       through muscles between the ribs and the inner lining of the chest wall to the membrane
       surrounding the heart. Dr. Sullivan testified that the object did not pierce through Richardson’s
       heart, although “it was into the heart tissue at some depth.” However, if Richardson had not
       had the emergency surgery, she would have died. Richardson spent five days in the hospital
       following the emergency surgery.
¶ 16       On cross-examination, Dr. Sullivan stated that the stabbing object entered “at least a good
       six-inches to get to the heart.” When asked whether the wound could have been self-inflicted,
       Dr. Sullivan answered, “Not being a forensic pathologist, it’s not my area of expertise, but I
       suppose.” On redirect examination, Dr. Sullivan stated that the wound could have been
       inflicted by someone else.
¶ 17       Dr. Tracy Camaj, a physical therapist, testified for the defense. Defense counsel hired Dr.
       Camaj to examine defendant. Dr. Camaj reviewed the police reports, a preliminary trial report,
       and a hospitalization report. She examined defendant on April 29, 2013, to assess his range of
       motion and strength. To measure hand grip strength, Dr. Camaj used a dynamometer. She used
       a pinch gauge to measure tip-to-tip strength and a gonimoter to measure joint angles. She also

           Officer Kavalauskas’s testimony mistakenly refers to the events as occurring on May 26-27, 2014.
           1

       There is no dispute that the events actually occurred in 2013.

                                                     -4-
       used a tape measure to measure the girth of defendant’s arms and legs. She testified that these
       instruments are standardized tools used in physical therapy.
¶ 18        After examining defendant, Dr. Camaj concluded that defendant could lift his right arm
       only 20 degrees and his left arm 35 degrees. However, when Dr. Camaj assisted defendant in
       lifting his arms she could raise his right arm to 90 degrees and his left arm to 75 degrees. She
       testified that defendant could resist a couple pounds of pressure on his arms and although he
       could reach his arms behind his back he could not reach his arms behind his head. Defendant’s
       elbows could only minimally rotate and neither elbow could be fully straightened. Dr. Camaj
       further noted that defendant’s right wrist was bent and she could not move it at all. Defendant’s
       left wrist was also bent, but “he could flex it down to 90 degrees.” On defendant’s right hand,
       he had a fairly normal range of motion in his middle and index fingers. The other fingers were
       held in flex and non-functional and he had minimal movement in his right thumb. On his left
       hand, defendant could bring his index finger and thumb together. Using the dynamometer, Dr.
       Camaj measured 20 pounds of grip strength in defendant’s right hand, which is nearly 60
       pounds lighter than the average person of defendant’s age. She could not perform the strength
       test on defendant’s left hand because he could not grip the dynamometer with his left hand.
       Measuring defendant’s ability to grasp and hold objects, Dr. Camaj found that defendant was
       able to grip about five to six pounds and hold about three or four pounds of pressure with his
       right hand, while his left hand could grip and hold about two pounds of pressure.
¶ 19        Dr. Camaj stated that it was unlikely that defendant, who was approximately 5 feet 3 inches
       tall, could raise either arm to Richardson’s chest (she was 5 feet 6 inches tall). In her opinion,
       defendant could not use his left hand to stab Richardson because he did not have the necessary
       grip strength or elbow range of motion. Dr. Camaj stated that, although defendant could grip an
       object with his right hand, she did not believe he could lift his right arm high enough to stab
       Richardson in the chest.
¶ 20        Regarding the prior choking incident, Dr. Camaj stated that defendant “could probably
       apply pressure with his arm or forearm, but he doesn’t have that ability to choke someone as
       we typically would see with a bent elbow.” When asked whether she believed, within a
       reasonable degree of medical certainty, that defendant could have stabbed Richardson, Dr.
       Camaj responded, “I don’t believe he could have stabbed her from a standing position and
       thrust a knife into her chest, I don’t.”
¶ 21        On cross-examination, Dr. Camaj acknowledged that she did not review any of defendant’s
       previous medical records and did not ask defendant about his daily activities. She was unaware
       whether defendant could cut vegetables, use a key to open a door, or smoke. Dr. Camaj also
       acknowledged that while defendant could not physically hold a dynamometer, which is a tool
       much larger than a knife or pen, it did not indicate that defendant could not hold any object.
       Although there was a discrepancy between the angles defendant could lift his arms by himself,
       and the angles Dr. Camaj could lift defendant’s arms, Dr. Camaj did not believe defendant was
       malingering. Instead, she described defendant as “not giving full effort.” Dr. Camaj stated that
       based on her evaluation, “it would be pretty impossible” for defendant to hold an instrument
       and lift his hand to stab Richardson. When the State asked her, “But not impossible, isn’t that
       true, [Dr. Camaj]?” she answered, “Correct.” She further stated that she did not evaluate
       defendant for the possibility of using momentum with his grip strength because “[t]here is
       typically no way to really evaluate momentum, no standard to do that.”


                                                   -5-
¶ 22        The trial court granted defendant’s motion for a directed finding of not guilty on the
       aggravated unlawful use or possession of a weapon by a felon charge because no weapon was
       recovered, and also found defendant not guilty of attempted first degree murder. However, the
       trial court found defendant guilty of count II, aggravated domestic battery, and the aggravated
       battery charge was merged into count II. The court reasoned:
                    “But the expert witness said that ultimately when one listens and evaluates her
               testimony that what occurred here, what is alleged that [defendant] did would be
               difficult but not impossible.
                    And in just looking myself at the exhibits here, People’s Exhibits 3 and 4 which are
               the exhibits which show the point of entry in the complaining witness’ left breast area,
               it shows that although whatever entered her breast at that point, as we know from the
               doctor’s testimony I believe, may have gone almost six inches in depth, *** you could
               see from the photograph itself the point of entry is extraordinarily small. So whatever
               object entered into her breast at that point and proceeded further in, I don’t believe
               would have needed the strength and velocity of a fully developed adult male who
               would not have any physical deformities or any of the conditions that [defendant] is
               afflicted with.
                    There has been no proof adduced by anybody, I don’t know it could be, as to what
               kind of force would be necessary. This is a perhaps slender, sharp object that is going
               through soft tissue, skin. It’s not penetrating bones.
                                                     ***
                    So I don’t think it’s necessary that [defendant] be someone of some superior
               strength or normal strength in order to accomplish what I believe he did do.”
       The trial court found Dr. Camaj’s testimony “interesting and credible” but it did not relate “to
       the actual events.” Rather, the court found significant the video that showed defendant getting
       into a car and reaching his left arm across his body to close the car door. The trial court
       described the act as “requiring more, it would seem to me, more physical exertion and
       [strength] and flexibility on his part than just sort of uncoiling his body and being able to thrust,
       you know, some type of knife or ice pick or some type of sharp object that would pass through
       skin and tissue rather easily.”
¶ 23        Furthermore, the trial court found Richardson’s testimony credible and defendant’s theory
       that Richardson stabbed herself in the heart “defi[ed] common sense” because if she merely
       wanted to frame defendant as revenge for reporting her to DCFS, she would not give herself a
       near fatal injury. The court also noted that no eyewitnesses could corroborate defendant’s
       contention that Richardson stabbed herself, and the evidence instead corroborated
       Richardson’s testimony.
¶ 24        At sentencing, after considering evidence in mitigation and aggravation, the trial court
       sentenced defendant to five years’ imprisonment. Defendant filed this timely appeal.

¶ 25                                           ANALYSIS
¶ 26       On appeal, defendant first contends that the State failed to prove him guilty of aggravated
       domestic battery beyond a reasonable doubt. When 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

                                                     -6-
       of the crime beyond a reasonable doubt. People v. Evans, 209 Ill. 2d 194, 209 (2004). It is not
       the function of this court to retry defendant. People v. Hall, 194 Ill. 2d 305, 329-30 (2000).
       Rather, it is the role of the factfinder to weigh the evidence in making a determination. People
       v. Tye, 141 Ill. 2d 1, 13 (1990). “It is not necessary that the trier of fact find beyond a
       reasonable doubt as to each link on the chain of circumstances. Rather, the trier of fact must
       find only that the evidence taken together supports a finding of the defendant’s guilt beyond a
       reasonable doubt.” Evans, 209 Ill. 2d at 209. Furthermore, the factfinder is not obligated “to
       accept any possible explanation compatible with the defendant’s innocence and elevate it to
       the status of reasonable doubt.” People v. Herrett, 137 Ill. 2d 195, 206 (1990). A reviewing
       court will not reverse a conviction unless the evidence is so unreasonable, improbable or
       unsatisfactory that it raises a reasonable doubt of defendant’s guilt. Id.
¶ 27       Defendant argues that his conviction of aggravated domestic battery is unreasonable where
       the unrebutted expert testimony of Dr. Camaj found that defendant’s “severe deformities in his
       arms and hands rendered him incapable of stabbing” Richardson. The weight assigned to an
       expert’s testimony depends upon the facts supporting the expert’s opinion and the reasons
       given for the opinion. Doser v. Savage Manufacturing & Sales, Inc., 142 Ill. 2d 176, 195
       (1990). The trial court may accept or reject expert testimony in whole or in part and need not
       accept the opinion of one expert even where that expert’s testimony is not contradicted by the
       testimony of another expert. People v. Tara, 367 Ill. App. 3d 479, 489 (2006).
¶ 28       After performing various motion and strength tests on defendant, Dr. Camaj concluded that
       it was unlikely that defendant could use his left hand to stab Richardson because he did not
       have the necessary grip strength or elbow range of motion. Although defendant could grip an
       object with his right hand, she did not believe he could lift his right arm high enough to stab
       Richardson in the chest. However, Dr. Camaj acknowledged that during the examination,
       defendant was “not giving full effort.” She also conceded that while defendant’s left hand
       could not physically hold a dynamometer, which is a tool much larger than a knife or pen, it did
       not mean defendant could not hold any object. The trial court concluded that although Dr.
       Camaj’s testimony was “interesting and credible,” it did not relate “to the actual events.”
¶ 29       The trial court noted that Richardson’s wound was evidenced by an “extraordinarily small”
       entry point. Although defendant could not fully grip the instruments Dr. Camaj used in her
       examination, those instruments were much larger than a knife or other sharp, narrow object
       that was probably used to stab Richardson. Other evidence showed that defendant was able to
       grip and use narrow, relatively light objects. Richardson testified that defendant used a knife to
       cut onions, and that he could brush his teeth by himself. The trial court further found that
       defendant’s actions of getting into a car and reaching his left arm across his body to close the
       car door showed he had the physical exertion strength and flexibility “to thrust, you know,
       some type of knife or ice pick or some type of sharp object that would pass through skin and
       tissue rather easily.”
¶ 30       The trial court also found that, contrary to defendant’s contention, Dr. Camaj did not
       conclude defendant was incapable of stabbing Richardson. When asked whether she believed,
       within a reasonable degree of medical certainty, that defendant could have stabbed
       Richardson, Dr. Camaj responded, “I don’t believe he could have stabbed her from a standing
       position and thrust a knife into her chest, I don’t.” Dr. Camaj stated that based on her
       evaluation, “it would be pretty impossible” for defendant to hold an instrument and lift his


                                                   -7-
       hand to stab Richardson. When the State asked her, “But not impossible, isn’t that true, [Dr.
       Camaj]?” she answered, “Correct.”
¶ 31        Furthermore, the trial court deemed Richardson’s testimony credible over defendant’s
       theory that she stabbed herself, finding the notion Richardson would give herself a near fatal
       injury to get back at defendant “defi[es] common sense,” and pointing out that no weapon was
       found on or near Richardson after she collapsed. The trier of fact assesses the credibility of
       witnesses and resolves conflicts or inconsistencies in the evidence. Evans, 209 Ill. 2d at 211.
       We find that the evidence presented supports the trial court’s determination that defendant
       stabbed Richardson.
¶ 32        Next, defendant contends that he was denied his right to a fair trial where the trial court was
       biased and rejected the defense’s theory of the case before Dr. Camaj, defendant’s main
       witness, testified. Defendant has a constitutional right to an unbiased, open-minded trier of
       fact. People v. Phuong, 287 Ill. App. 3d 988, 993 (1997). The constitutional guaranty of due
       process “entitles a defendant to a fair and impartial trial before a court which proceeds not
       arbitrarily or capriciously, but upon inquiry, and renders judgment only after trial.” People v.
       Eckert, 194 Ill. App. 3d 667, 673 (1990). Defendant acknowledges that he did not raise this
       issue below, but argues that we should consider the issue as plain error. Judicial bias “is one of
       the few trial errors that may not be deemed harmless; moreover, the waiver rule is applied less
       rigidly where the conduct of the trial judge is the basis for the appeal.” People v. Williams, 272
       Ill. App. 3d 868, 874 (1995). However, in reviewing a plain error contention, this court must
       first determine whether any error occurred at all. People v. Bannister, 232 Ill. 2d 52, 65 (2008).
¶ 33        Defendant argues that the trial court improperly rejected the defense’s theory of the case
       before his witness, Dr. Camaj, testified. He first points to the exchange between the trial court
       and defense counsel regarding the use of medical records to indicate Richardson’s alleged past
       bipolar diagnosis. Defense counsel argued that the records were necessary to support the
       theory that Richardson stabbed herself and would go to her state of mind at the time of the
       stabbing. The trial court asked if counsel had any evidence to show that Richardson stabbed
       herself. Defense counsel answered that there were two people in the room when the stabbing
       occurred, and she had “strong medical evidence to show that [defendant] is physically
       incapable of doing it. I think that that would be sufficient.” The trial court responded, “So your
       answer is no, you don’t have any evidence that you’re going to be putting on?” Defense
       counsel answered, “Not that I’m going to be putting on, Judge.”
¶ 34        Defendant contends that the trial court’s comments indicate that the court improperly
       rejected his defense before Dr. Camaj could testify. We disagree. At the sidebar where this
       exchange occurred, the trial court was determining the relevancy of Richardson’s mental
       health records regarding an incident that occurred more than four years prior to defendant’s
       case. Defense counsel argued for admission and use of the records while Richardson testified,
       because they would support his theory that Richardson stabbed herself. To make its relevancy
       determination, the trial court merely asked whether counsel had evidence that she would be
       presenting that Richardson stabbed herself. Dr. Camaj’s testimony was not evidence that
       Richardson stabbed herself; rather, it was evidence that defendant was incapable of stabbing
       Richardson. The trial court merely stated as much, and defense counsel concurred. The trial
       court then sustained the State’s objection. We find nothing in that exchange indicating the trial
       court was biased against defendant and rejected his theory of the case prior to Dr. Camaj’s
       testimony.

                                                    -8-
¶ 35        The cases cited by defendant as support—People v. Ojeda, 110 Ill. App. 2d 480 (1969),
       People v. McDaniels, 144 Ill. App. 3d 459 (1986), People v. Johnson, 4 Ill. App. 3d 539
       (1972), and People v. Heiman, 286 Ill. App. 3d 102 (1996)—are distinguishable in that the trial
       court in those cases clearly indicated it did not find the defendant’s case credible prior to the
       presentation of defendant’s evidence. Here, after presentation of all the evidence, the trial court
       concluded that Dr. Camaj was a credible witness but found that her examination of defendant
       did not preclude the possibility that he stabbed Richardson and that Dr. Camaj herself
       acknowledged that, although she believed it would be difficult for defendant to stab
       Richardson, it was not impossible. Unlike the judges in Ojeda, McDaniels, Johnson, and
       Heiman, the trial court here properly considered evidence presented by defendant in support of
       his defense before making its determination.
¶ 36        Defendant also argues that the trial court improperly based its determination on knowledge
       it had about outside cases rather than on the evidence presented. The trial court here, as the trier
       of fact, is presumed to know the law and to have considered only competent evidence in
       making a determination on the merits. People v. Koch, 248 Ill. App. 3d 584, 592 (1993). To
       rebut this presumption, the record must affirmatively show that the trial court actually used the
       evidence improperly as alleged. Id.
¶ 37        In announcing the verdict, the trial court commented that in 40 years it had not had a case
       where “a person has stabbed themselves and then immediately runs out of the house and
       immediately when interviewed” by police told them someone else stabbed her. At the hearing
       on defendant’s motion to reconsider, the trial court commented that it did not believe
       Richardson had the intelligence to frame defendant. Defendant argues that these statements
       show the trial court improperly considered evidence not in the record and, therefore, the
       presumption that it considered only competent evidence was rebutted. As support, defendant
       cites People v. Wallenberg, 24 Ill. 2d 350 (1962). In Wallenberg, a witness testified that his
       truck had a soft tire, and he travelled down a stretch of streets where he found no gas stations.
       In pronouncing its judgment, the trial court remarked that, although the witness stated that he
       found no gas stations along that stretch, “ ‘I happen to know different. I don’t believe his
       story.’ ” Id. at 354. However, no evidence contradicting the witness’s testimony was in the
       record. Id. The supreme court found that the trial court improperly made a determination based
       upon its private knowledge instead of on the record before it, and therefore the presumption
       that the trial court considered only admissible evidence was rebutted. Id.
¶ 38        Unlike the trial court in Wallenberg, the trial court here did not make determinations that
       contradicted undisputed testimony in the record. Rather, the trial court was merely making a
       determination on the credibility of defendant and Richardson based on past knowledge and
       experience. The court had to decide between competing versions of how Richardson was
       stabbed. Triers of fact are entitled to use their knowledge and observations in life when
       considering the evidence presented. People v. Hobley, 182 Ill. 2d 404, 465 (1998). We find that
       the trial court committed no error in making these statements.
¶ 39        Defendant’s final contention is that his constitutional right to confront witnesses was
       violated when the trial court denied his request to admit Richardson’s mental health records.
       As a result, he was precluded from “probing Richardson’s history of mental illness during
       cross-examination.” These mental health records, however, are not part of the record on
       appeal. The trial court viewed the records in camera on the State’s motion. Illinois Supreme
       Court Rule 415(f) (eff. Oct. 1, 1971) states that “If the court enters an order granting relief

                                                    -9-
       following a showing in camera, the entire record of such showing shall be sealed, impounded,
       and preserved in the records of the court, to be made available to the reviewing court in the
       event of an appeal.” It is the defendant’s burden, as the complaining party, to request that the
       records involved are sealed, impounded, and preserved for appeal. People v. Deleon, 227 Ill.
       2d 322, 342 (2008). “[A]bsent a request for such compliance, any deficiency in the record will
       be attributable to that party.” Id. As our supreme court reasoned in Deleon, “it is the
       appellant’s burden to present a sufficiently complete record of the proceedings below to
       support a claim of error and, in the absence of a complete record on appeal, it will be presumed
       that the order entered by the circuit court was in conformity with the law and had a sufficient
       factual basis.” (Emphasis in original.) Id.
¶ 40       For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 41      Affirmed.




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