                                                                     Sixth Division
                                                                     September 30, 2010

No. 1-08-1885

THE PEOPLE OF THE STATE OF ILLINOIS,                          )     Appeal from
                                                              )     the Circuit Court
       Plaintiff-Appellee,                                    )     of Cook County
                                                              )
                v.                                            )     07 CR 17333
                                                              )
BRYANT JONES,                                                 )
                                                              )     Honorable
       Defendant-Appellant.                                   )     John P. Kirby,
                                                              )     Judge Presiding.

       JUSTICE McBRIDE delivered the opinion of the court:

       Following a bench trial, defendant, Bryant Jones, was found guilty of first degree murder

and sentenced to 22 years’ imprisonment. On appeal, defendant contends that the State failed to

prove him guilty beyond a reasonable doubt. For the reasons that follow, we reduce defendant’s

conviction and remand for resentencing.

       Defendant was arrested and charged with two counts of first degree murder. Count I

alleged that defendant intentionally and knowingly asphyxiated the victim, Michael Howell, with

his foot, while count II alleged that defendant asphyxiated and killed Howell with his foot,

knowing that such act created a strong probability of death or great bodily harm to the victim.

       The following evidence was presented at defendant’s trial.

       Jasmin Reyes testified that she met defendant in 1994 and that they had two children

together. In April of 2007, Reyes and defendant were dating and Reyes was living with her

brother and his wife while defendant lived in a separate apartment with the couple’s children.

Reyes met Howell at the Target store where they both worked. In early 2007, Reyes and Howell,
1-08-1885

who was married at the time, began to have a sexual relationship. Reyes and Howell were both

working on April 9, 2007, and sent each other text messages throughout the day about meeting

after work. When Reyes said she did not have money to go anywhere, Howell suggested that

they go to defendant’s apartment.

        Reyes and Howell traveled to defendant’s home in separate vehicles. Reyes testified that

she did not have to tell Howell how to get to defendant’s apartment because she and Howell had

met there on a previous occasion in order to have sex. According to Reyes, Howell “knew the

situation I was in” and knew that the apartment belonged to defendant. Reyes arrived at

defendant’s home at approximately 5:15 p.m. and Howell arrived approximately 15 minutes

later. Reyes described defendant’s home as a two-bedroom attic apartment above a single-family

home. The apartment had only one entrance and exit, which was accessed by a stairway attached

to the rear of the building.

        Reyes testified that she did not have a key to defendant’s apartment but that she knew

where he kept his spare key. When Howell arrived at the apartment, he and Reyes immediately

had sex on defendant’s bed. About 20 minutes later, as they were preparing to leave the

apartment, Reyes looked out the back window and saw defendant in the backyard putting his dog

into a pen. Reyes was confused because she did not expect defendant to be home until 10 p.m.

She told Howell to hide in the children’s bedroom.

        Defendant entered the apartment and asked Reyes what she was doing there and how she

got into the apartment. Reyes unsuccessfully tried to pick a fight with defendant in order to get

him to leave. Defendant then went to the bathroom and when Reyes thought she heard him turn


                                                 2
1-08-1885

on the shower, she went to the children’s bedroom and told Howell to leave. Howell left the

bedroom but was delayed leaving the apartment because he tried to push instead of pull on the

apartment door. As Howell and Reyes were standing at the door, defendant exited the bathroom,

looked at Howell, and said, “who the f*** are you?” Howell responded that he “didn’t know

[Reyes] was with someone,” and Reyes said, “let me explain.” Reyes was standing between

defendant and Howell at this point and then Howell opened the apartment door, pushed Reyes

into defendant, and ran outside. Defendant caught Reyes, put her to the side, and followed

Howell out of the apartment. According to Reyes, neither Howell nor defendant touched each

other while they were inside defendant’s apartment.

       When the two men were outside, Reyes, who had remained in the apartment, heard

Howell tell defendant that he was a police officer and defendant asked to see Howell’s badge.

Reyes testified that Howell was lying about being a police officer. Reyes began to look for her

cell phone inside the apartment until she heard defendant and Howell “yelling” outside. Reyes

ran outside and, upon reaching the bottom of the stairs, saw defendant and Howell on the ground

near the gangway. Reyes explained that “[Howell] was on the ground on the side, [and

defendant] was coming off of him.” She further explained that Howell “was laying down

diagonally” and defendant “was on top of him” getting up off of Howell’s stomach. Howell was

not moving at the time but Reyes could hear that he was still breathing. When defendant stood

up, he told Reyes to take him to his children. Reyes stepped over Howell and, as she glanced

back, saw that he was still breathing and that his lips were “shivering.” Reyes and defendant

then drove to pick up their children and went to dinner. Reyes later drove to the police station


                                                 3
1-08-1885

with defendant.

       The State’s next witness was Marcos Cervantes, who lived in the same building as

defendant. Cervantes described the house as a single-family home with a gangway next to the

house that led to the backyard. The backyard consisted of a cement area and a staircase leading

up to an attic apartment. Cervantes stayed in the basement of the house while his mother and

daughters resided on the first floor. Defendant lived in the attic apartment with his two children.

       Cervantes testified that on April 9, 2007, defendant arrived at home with one of his

friends at approximately 5 p.m. Defendant, his friend, and Cervantes then left to walk their dogs

at a nearby park. Upon returning home, defendant’s friend left and defendant went upstairs to his

apartment, telling Cervantes that he was going to feed his dogs and take a shower. Cervantes

remained in the backyard playing with his dogs. After some time, Cervantes heard defendant yell

that someone was in his house. Cervantes looked up to the top of the staircase and saw

defendant “fall towards the side a little bit.” Cervantes tried to contain his dogs because they

were barking and were “really riled up.” As defendant descended the stairs, Cervantes saw

defendant’s arm outstretched as if he was “grabbing for something.” Cervantes did not hear any

sounds or see who was in front of defendant because he was trying to control his dogs.

Cervantes put one of his dogs in the pen and took the others to the gangway to put them in the

basement. As he was doing so, Cervantes saw defendant and an unknown man, whom he

identified as Howell, coming toward him by the back door. Defendant and Howell were pushing

each other and it appeared to Cervantes that defendant was holding Howell back and that Howell

was pushing defendant in order to get past him and leave the backyard. Defendant was punching


                                                 4
1-08-1885

Howell in the head with both of his fists and when asked by the prosecutor if defendant could

have punched Howell in the head more than five times, Cervantes said yes. Howell was

“swinging” or “flapping” his arms but Cervantes did not see Howell hit defendant.

       Cervantes further testified that at some point defendant hit Howell in the face, causing

him to spin around and fall to the ground. After Howell fell to the ground, defendant “stood

over” Howell and punched him in the head a “couple more times” and kicked him in the head,

although Cervantes did not recall how many times defendant did so. Cervantes pushed defendant

off of Howell and said “that was enough.” Defendant stopped punching and kicking Howell,

stood up, and asked Cervantes “why, do [you] know him?” Cervantes told defendant that he did

not and that he was calling the police. Defendant then put his left foot between Howell’s “chest

and his head” and “held [Howell] down.” Cervantes characterized defendant’s actions as

“standing there” and “holding [Howell] down” by pressing his foot “anywhere between the upper

chest and by his head.” When asked if defendant’s foot was between Howell’s chin and upper

chest, Cervantes testified that “[Howell] was kind of big, so I couldn’t get to see [defendant’s]

foot.” When asked if defendant used his foot in a “quick movement like a kick” or if he “held it

there,” Cervantes responded that defendant “held it there” but by that time Cervantes was turning

around to call the police and he did not know how long defendant held his foot in that position.

Defendant eventually took his foot off of Howell and, according to Cervantes, Howell’s lips were

moving, he was not choking, and he was still breathing at this time. Cervantes thought that

Howell had been “beat up,” and so he put a garden hose by Howell’s mouth and, according to

Cervantes, it “looked like [Howell] took a little bit” of water. Cervantes then told Howell to


                                                 5
1-08-1885

remain still because the police were on their way. Defendant was not at the house when the

police later arrived.

        A paramedic testified that he arrived at the scene at approximately 6:30 p.m., and found

Howell lying face down in the gangway. He had no pulse and was confirmed to be dead.

        Detective Daniel Gorman of the Chicago police department arrived at the scene at

approximately 7:30 p.m. The detective observed blood and vomit coming from Howell’s nose

and mouth. The detective spoke with Cervantes and, based upon that conversation, began to look

for defendant and Reyes. The detective later learned that defendant had gone to the police station

and been arrested there. Detective Gorman met with defendant at Area One headquarters at

approximately 11 p.m. The detective noticed defendant was limping but he refused medical

assistance and said he hurt himself playing softball. At the police station, defendant said that he

was 5 feet 11 inches tall and weighed 240 pounds. Detective Gorman did not observe any cuts,

abrasions or blood on defendant.

        Chicago police officer Richard Turrise was also involved in the investigation into

Howell’s death. Officer Turrise went to defendant’s previous address and spoke with

defendant’s mother, who in turn telephoned defendant and put him on the phone with the officer.

Defendant said that he would come to his mother’s house but he did not do so. The officer again

spoke to defendant on the telephone and, after that conversation, the officer put out a description

of defendant and advised that defendant was in the vicinity of the 8th district police station.

When the officer arrived at that station, defendant was already in custody. Officer Turrise

testified that when he saw defendant at the police station, he did not observe any marks, bruises


                                                  6
1-08-1885

or abrasions on defendant’s face or arms. The officer also identified defendant’s booking

photograph and testified that there were no marks or blood on defendant’s face.

       Dr. Michael Humilier, a deputy medical examiner at the Cook County medical

examiner’s office, performed an autopsy on Howell on April 10, 2007. Based upon the results of

that autopsy, Dr. Humilier testified that in his opinion, within a reasonable degree of medical

certainty, Howell died of asphyxia due to compression of the neck from an assault and the cause

of death was homicide.

       Dr. Humilier testified that at the time of his death Howell was 30 years old, 5 feet 9

inches tall, and weighed 370 pounds. Dr. Humilier’s examination revealed a number of injuries

to Howell, all of which occurred within 24 hours of the autopsy. Specifically, Howell suffered

petechial hemorrhages to his left and right lower eyelids as well as to his lower lip and the front

of his neck and upper chest. Petechial hemorrhages are pinpoint hemorrhages that are caused

when blood flowing to the brain is obstructed. When this occurs, blood that is already in the

brain increases in pressure and causes pinpoint hemorrhages in the blood vessels. Petechial

hemorrhages are commonly found in people who suffer from asphyxia, which is the exclusion of

oxygen from the brain by a number a number of different mechanisms, including depression of

the neck. The doctor testified that the hemorrhages on Howell’s neck and chest were consistent

with compression having been applied to the front area of his neck and chest.

       Dr. Humilier further testified that it requires 4.4 pounds of pressure to a person’s jugular

vein to cause that person to asphyxiate. In contrast, it requires up to 11 pounds of pressure to the

carotid artery, 33 pounds of pressure to the windpipe, and 66 pound of pressure to the vertebral


                                                 7
1-08-1885

arteries that run in the spinal column to cause asphyxiation. The doctor explained that direct

pressure to the jugular vein or carotid artery is not required in order to cause asphyxiation.

Rather, as long as the requisite pressure is applied to the soft tissues of the front or side of the

neck, those soft tissues would put pressure on and ultimately block the jugular vein and carotid

artery and cause asphyxiation. Dr. Humilier testified that in this case, it would have required a

minimum of 4.4 pounds of pressure to cause Howell to asphyxiate by compression of his jugular

vein resulting from someone standing up and applying pressure to the area of Howell’s neck.

        Dr. Humilier also observed other external injuries to Howell’s body. These included a

bruise on the left side of Howell’s neck which measured 3 by 1 ½ inches. This bruise was

consistent with pressure having been applied to that area of Howell’s neck. Other external

injuries included lacerations to Howell’s lips and abrasions and bruises on his body, head and

hands. The bruises and laceration to the lips were consistent with Howell having been punched

or kicked in the head. Dr. Humilier’s internal examination of Howell revealed subgaleal

hemorrhages to the right and left side of the scalp as well as swelling of the brain. The subgaleal

hemorrhages were consistent with Howell having been kicked or punched in the head.

        On cross-examination, Dr. Humilier testified that “[n]one of the abrasions, lacerations or

bruises” that Howell received, either individually or collectively, caused his death. When asked

whether Howell “die[d] from the fight,” the doctor responded that he did not. Dr. Humilier also

testified that the bruises and lacerations were consistent with Howell having fallen face first onto

the concrete. Moreover, the doctor testified that even 4.4 pounds of pressure would have caused

Howell to asphyxiate and that this amount of pressure could have been applied by someone using


                                                   8
1-08-1885

his foot to hold Howell down by his neck during the course of a fight. Under these

circumstances, it would have taken one minute of pressure to cause Howell to asphyxiate.

Moreover, if the foot was removed and Howell’s lips were still moving, that did not necessarily

mean that asphyxiation had not been completed. The quivering lips could have simply been

caused by the muscles in the lips contracting and expanding as Howell died.

       The State then rested its case and the trial court denied defendant’s motion for a directed

finding. Defendant testified on his own behalf. According to defendant, he left the tattoo parlor

where he worked at 3:30 p.m. on April 9, 2007, and went to walk his dogs with Cervantes and

another friend. Upon returning home, defendant left his dog with Cervantes and went upstairs to

his apartment. As he entered his apartment, Reyes came toward him and asked why he was

home. Defendant told her that he was going to freshen up and that they would then take their

children to dinner.

       Defendant was in the bathroom washing his hands when he noticed that Reyes was no

longer responding to him. He stepped out of the bathroom and saw an unknown man, whom he

identified as Howell, standing at the apartment door. Defendant said “who the f*** is this” and

then walked toward Howell and Reyes. Defendant opened the door and asked Cervantes if he

saw anyone come up to the apartment after defendant. Cervantes said that he had not. Defendant

returned to the apartment and again asked Reyes who Howell was. Reyes did not respond.

Howell then pointed at defendant, said “it is your fault,” and pushed defendant with his finger.

Howell then pushed Reyes into defendant and ran out of the apartment. Defendant caught Reyes,

put her to the side, and ran outside after Howell. Defendant caught up with Howell in the


                                                 9
1-08-1885

backyard and Howell said, “you don’t want to mess with me, I am a cop.” Defendant asked

Howell to show him his badge and Howell reached into his pocket. Instead of pulling out a

badge, however, Howell swung at defendant.

       Defendant testified that he was “scared,” that he “lost control,” and that he swung back at

Howell to defend himself. The two men then began to fight. Defendant did not remember how

many times he hit Howell, he “just remember[ed] punching and punching” because he was

scared and because Howell was a “big dude” whom he did not know. Defendant “just kept

swinging” because Howell had swung at him until, at some point, Howell grabbed his face and

fell to the ground. Defendant then “got on top of him holding him down so that he couldn’t

leave.” Cervantes approached him and said “that is enough,” at which point defendant got up

and asked Cervantes if he knew Howell. Cervantes responded that he did not. Cervantes then

called the police to report a burglary and defendant told Reyes, who had just come down the

stairs, that they needed to talk. They walked to the car and left. According to defendant, Howell

was still breathing at that point and defendant assumed that he would live. Defendant and Reyes

picked up their children from day camp and took them to dinner. Several hours later, defendant

turned himself into the police.

       On cross-examination, defendant testified that he returned to the apartment after asking

Cervantes if anyone had followed him upstairs in order to find out who Howell was. Defendant

acknowledged that after he chased Howell out of the apartment but before Howell swung at him,

he jumped in front of Howell and blocked his path out of the gangway. Defendant also

acknowledged that Howell never hit or injured him during the fight. Defendant did not recall


                                               10
1-08-1885

punching or kicking Howell in the head after he fell to the ground, but defendant did recall

“holding Howell down” so that he could not get up. Defendant did not remember using his foot

to do so, however. Instead, he explained that he held Howell down in the following way: “He

was on the ground, was trying to move. I kept him down. I had my hand on the ground and I had

him placed between, not my hand on ground [sic] and he was down on the ground between my

knees and my legs.” Defendant got up from the ground when Cervantes told him to stop and, at

that point, Howell was still breathing and defendant did not think there was “any chance” of

Howell getting up and coming after him because Howell was “out of it” and “losing

consciousness.”

       The trial court found defendant guilty of both intentional and knowing murder. In doing

so, the court rejected defendant’s assertion that he and Howell were engaged in mutual combat.

The court credited Reyes’ testimony that Howell never touched defendant in the apartment and

Cervantes’ testimony that Howell did not hit defendant during the struggle and that Howell tried

to leave the backyard but was prevented from doing so by defendant. The court also rejected

defendant’s claim of self-defense, noting that Howell did not injure or attack defendant. The

court also pointed to Cervantes’ testimony that defendant punched and kicked Howell and then

put his foot on Howell’s throat and characterized the situation as “one man trying to get out of

there and another in a fit of vengeance or rage” who knew what was “going on in that apartment”

and who, by his own words, “lost control.” The court subsequently sentenced defendant to a

term of 22 years’ imprisonment. This appeal followed.

       Defendant contends that the State failed to prove him guilty of first degree murder beyond


                                                11
1-08-1885

a reasonable doubt. He argues that the evidence showed that he committed involuntary

manslaughter when he recklessly caused Howell’s death. Alternatively, defendant argues that the

evidence supported only a conviction for second degree murder based on provocation resulting

from mutual combat.

       When reviewing challenges to the sufficiency of the evidence in a criminal case, the

relevant inquiry is 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 crime upon which the

defendant was convicted beyond a reasonable doubt. People v. Ross, 229 Ill. 2d 255, 272 (2008).

Although the trier of fact is responsible for assessing the credibility of the witnesses and

weighing the testimony, the trial court’s determination is not conclusive. People v. Smith, 185

Ill. 2d 532, 542 (1999). Rather, we will reverse a conviction where the evidence is so

unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of defendant’s guilt.

Smith, 185 Ill. 2d at 542.

       Defendant was charged with first degree murder under sections 9-1(a)(1) and 9-1(a)(2) of

the murder statute. A person is guilty of the offense of first degree murder under these sections

of the murder statute when he kills an individual without lawful justification if, in performing the

acts which cause the death, he intends to kill or do great bodily harm or knows that his acts

created a strong probability of death or great bodily harm to that individual. 720 ILCS 5/9-

1(a)(1), (a)(2) (West 2006). On the other hand, a person commits involuntary manslaughter

when he unintentionally kills another individual without lawful justification and his acts which

cause the death are likely to cause death or great bodily harm and are performed recklessly. See


                                                 12
1-08-1885

720 ILCS 5/9-3 (West 2006).

       The basic difference between first degree murder and involuntary manslaughter is 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 a less culpable mental state than

first degree murder. DiVincenzo, 183 Ill. 2d at 249. The mental state for murder is knowledge,

while the mental state for involuntary manslaughter is recklessness. People v. Givens, 364 Ill.

App. 3d 37, 44 (2005). A person is said to have knowledge when he is consciously aware that

his conduct is practically certain to cause a particular result. People v. Leach, 391 Ill. App. 3d

161, 175 (2009), citing 720 ILCS 5/4-5(b) (West 2002). A person acts recklessly when he

“consciously disregards a substantial and unjustifiable risk that circumstances exist or that a

result will follow * * * and such disregard constitutes a gross deviation from the standard of care

which a reasonable person would exercise in the situation.” 720 ILCS 5/4-6 (West 2006). “In

general, a defendant acts recklessly when he is aware that his conduct might result in death or

great bodily harm, although that result is not substantially certain to occur.” DiVincenzo, 183 Ill.

2d at 250. Recklessness therefore typically involves a lesser degree of risk than conduct that

creates a strong probability of death or great bodily harm. DiVincenzo, 183 Ill. 2d at 250.

       In DiVincenzo, our supreme court discussed several factors that were relevant to

determining whether a defendant acted recklessly. In that case, the evidence adduced at trial

established that the defendant disliked the victim because the victim had dated defendant’s

girlfriend several years earlier. On the day of the victim’s death, the defendant became upset

when, while stopped at a red light, he observed the victim staring at him from his vehicle.


                                                 13
1-08-1885

Defendant followed the victim’s vehicle for some time until the victim pulled into a driveway.

DiVincenzo, 183 Ill. 2d at 245-46. The defendant and the victim exited their vehicles and began

to argue and shove each other. When the victim made a movement as though he was going to

punch the defendant, the defendant slapped and punched the victim in the head, knocking him to

the ground. There was conflicting testimony as to whether the defendant kicked the victim while

he was on the ground. DiVincenzo, 183 Ill. 2d at 245-46. A witness testified that the entire

incident was over “in seconds.” The defendant then left the scene while the victim was left lying

motionless on the ground, and the victim died later that evening. A medical examiner testified

that the victim suffered a fractured and dislocated jaw, multiple bruises, and bleeding under the

scalp. According to the medical examiner, the injuries suffered by the victim were consistent

with blunt trauma caused by punching and kicking and the cause of death was a torn cerebral

artery that resulted in a subarachnoid hemorrhage, which the medical examiner characterized as a

“rare phenomenon.” DiVincenzo, 183 Ill. 2d at 247. The defendant called two expert witnesses at

trial. One testified that the hemorrhaging was due to a ruptured aneurysm, not a torn cerebral

artery, which he characterized as unlikely. Defendant’s other expert witness testified that a

minimal amount of force was required to fracture the jaw and that a blow to the jaw does not

usually cause cerebral bleeding. The expert also testified that the beating contributed to the

victim’s death. DiVincenzo, 183 Ill. 2d at 248. After the evidence was presented, the trial court

instructed the jury on first and second degree murder but denied the defendant’s request for an

involuntary manslaughter instruction. DiVincenzo, 183 Ill. 2d at 248. The jury found the

defendant guilty of first degree murder.


                                                14
1-08-1885

       On appeal, our supreme court found that the jury should have been instructed on

involuntary manslaughter and therefore reversed the defendant’s murder conviction. The court

stated that “although not dispositive, certain factors may suggest whether a defendant acted

recklessly and whether an involuntary manslaughter instruction is appropriate.” DiVincenzo, 183

Ill. 2d at 250-251. These include: (1) the disparity in size and strength between the victim and

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

injuries; and (3) whether a defendant used his bare fists or a weapon, such as a gun or a knife.

DiVincenzo, 183 Ill. 2d at 251. Applying these factors, the court reasoned that some evidence

was presented at trial that would support a finding of recklessness and involuntary manslaughter.

The court noted that there was no disparity in size and strength between the defendant and the

victim, that the altercation was of a short duration, and that all three expert witnesses testified

that the injury resulting in the victim’s death was a rare phenomenon. The court also noted that

the defendant did not use a weapon, such as a gun or a knife, and that there was disputed

testimony as to whether the defendant kicked the victim while he was on the ground.

DiVincenzo, 183 Ill. 2d at 251. The court concluded by noting that although the defendant may

have deliberately provoked the confrontation, “a defendant may act recklessly where he commits

deliberate acts but disregards the risks of his conduct.” DiVincenzo, 183 Ill. 2d at 252.

       In this case, it is undisputed that defendant performed the acts which caused Howell’s

death. The only issue is the mental state with which defendant performed those acts. Because a

defendant’s mental state is not commonly proved by direct evidence, it may be inferred from the

surrounding circumstances, including the character of the defendant’s acts and the nature of the


                                                  15
1-08-1885

victim’s injuries. People v. Terrell, 132 Ill. 2d 178, 204-05 (1989). Generally, the question of

whether a defendant acted intentionally, knowingly, or merely recklessly is a question to be

resolved by the trier of fact. Givens, 364 Ill. App. 3d at 44. The trial court’s determination,

however, is not conclusive. Rather, we must reverse a conviction where, after reviewing the

evidence and giving due consideration to the fact that the trial court had the opportunity to see

and hear the witnesses, we are of the opinion that the evidence was insufficient to prove

defendant guilty beyond a reasonable doubt. See Smith, 185 Ill. 2d at 541.

       The circumstances of the present case are unique. We have not found, nor have the

parties presented us with, a case similar to the present one in which the victim died from

asphyxiation as a result of pressure being applied from a foot. In contrast to the present case, in

the majority of cases in which the victim died from asphyxiation, death was brought about by the

defendant choking the victim with his hands for an extended period of time. For example, in

Leach, 391 Ill. App. 3d at 163, the defendant was found guilty of first degree murder based upon

evidence showing that he strangled his wife to death. At trial, the defendant claimed that he did

not mean to kill his wife and that her death was an accident. The testimony given at the

defendant’s trial established that the defendant and his wife had a physical altercation in their

bedroom which ultimately resulted in the defendant choking the victim for at least three minutes.

Leach, 391 Ill. App. 3d at 176. The medical examiner testified that a person loses consciousness

after 10 to 30 seconds of choking and that death results after three to six minutes of continued

pressure. In rejecting the defendant’s claim of recklessness and finding the defendant guilty of

first degree murder, the trial court stated that based upon the amount of time defendant must have


                                                 16
1-08-1885

choked the victim, the defendant must have known that his conduct created a strong probability

of death. Leach, 391 Ill. App. 3d at 176. In affirming that conviction on appeal, the appellate

court noted that based upon the testimony of the medical examiner and the defendant, the trial

court could have concluded that the defendant must have choked his wife for a minimum of 2

minutes and 30 seconds after she lost consciousness. The court noted that, given that time frame,

the trial court could have reasonably found that the defendant was consciously aware that his

conduct was practically certain to result in death or great bodily harm. Leach, 391 Ill. App. 3d at

176; see also People v. Tijerina, 381 Ill. App. 3d 1024 (2008) (where the defendant was found

guilty of first degree murder on evidence showing that he beat his girlfriend and choked her for

three to four minutes and that the victim died as a result of strangulation and multiple blunt force

trauma); People v. Lacey, 256 Ill. App. 3d 20 (1993) (where the defendant was found guilty of

first degree murder on evidence showing that he strangled the victim with a belt for 5 to 10

minutes until she went “limp”).

       These cases are consistent with the general principle that “the intentional use of a deadly

weapon is accompanied by a presumption the actor knows his acts create a strong probability of

death or great bodily harm because a person intends the natural and probable consequences of his

acts.” People v. Gresham, 78 Ill. App. 3d 1003, 1007 (1979); Terrell, 132 Ill. 2d at 204. For

example, in Leach, the court reasoned that based upon the nature of defendant’s voluntary act,

placing his hands on the victim’s neck, as well as the nature of the force that was applied,

choking the victim for three to six minutes until she was rendered unconscious and eventually

dead, “the requisite mental state of knowledge can be inferred from the very nature of


                                                 17
1-08-1885

defendant’s voluntary acts.” Leach, 391 Ill. App. 3d at 177. In other words, the mental state of

knowledge can be inferred based upon the fact that the natural and probable consequence of a

person placing his hands on a victim’s neck and choking that victim for at least several minutes

is death or great bodily harm.

       The present case stands in contrast to these principles and the cases discussed above such

that, in this case, an inference of knowledge cannot be drawn solely on the basis of defendant’s

voluntary act. In the present case, unlike those discussed above, Howell’s death was not brought

about by defendant’s use of a deadly weapon or by asphyxiation resulting from defendant placing

his hands on Howell’s neck and choking him for an extended period of time. Rather, the

pressure that caused Howell to asphyxiate was applied by defendant’s foot. Specifically, the

pressure was applied when, according to Cervantes, defendant stood next to Howell and “held

him down” by placing his foot between Howell’s neck and chest. While it is true that defendant

deliberately placed his foot in the area of Howell’s neck, “a defendant may act recklessly where

he commits deliberate acts but disregards the risks of his conduct.” DiVincenzo, 183 Ill. 2d at

252.

       In this respect, the trial court misconstrued Cervantes’ testimony when it found defendant

guilty of first degree murder. In announcing its ruling, the court pointed to Cervantes’ testimony

for the court’s conclusion that defendant knocked Howell to the ground and then “stood on his

neck.” The court specifically stated:

                       “Based on the testimony of all the parties *** it seems

               obvious to this Court that there was not mutual combat , there was


                                                18
1-08-1885

               not self-defense. And after the defendant was able to bodily punch

               this victim, this huge man, knock him to the ground he went

               further and he stood on his neck. And he testified he doesn’t

               remember standing on his neck or he doesn’t remember kicking

               him but Marcos Cervantes who is the closest individual to the

               incident said yes that defendant Mr. Jones did both of those,

               knocked him to the ground, stood over him, punched him and

               kicked him and stood on, put his foot on the victim’s throat which

               the doctor has described as causing the death of the victim.”

       Contrary to the court’s statement, Cervantes, who aside from defendant was the only

person to witness the altercation in the courtyard, never testified that defendant “stood on”

Howell’s neck. Rather, Cervantes consistently characterized defendant’s actions as “holding

[Howell] down” by placing his foot between Howell’s head and chest. Specifically, Cervantes

testified that after he pushed defendant off of Howell, defendant “kicked [Howell] and held him

down.” When later asked what defendant was doing with his foot, Cervantes testified that

defendant was “holding [Howell] down.” Although the trial court’s findings of fact are given

great weight, they are not conclusive where, as in this case, the finding is unsupported by the

testimony given at trial. See Smith, 185 Ill. 2d at 542.

       We also note that there was a significant disparity in the size of defendant and Howell.

While the two men were of similar height, Howell weighed 370 pounds while defendant weighed

240 pounds. Howell therefore outweighed defendant by approximately 130 pounds. This point


                                                 19
1-08-1885

is also significant because the trial court clearly chose to credit Cervantes’ testimony regarding

defendant’s actions during his altercation with Howell. If, as Cervantes testified, defendant used

his foot to hold Howell down, defendant certainly would have applied some pressure to do so

given the fact that Howell was a large man who outweighed defendant by 130 pounds.

       Moreover, unlike in the cases cited above in which the victim was strangled for at least

several minutes, the State did not establish how long defendant applied pressure to the area of

Howell’s neck. Cervantes testified that he did not know how long defendant held Howell down

with his foot and the medical examiner did not testify as to how long the pressure was applied to

the area of Howell’s neck. The medical examiner did testify as to the minimum amount of

pressure that would have been required to cause Howell to asphyxiate and how that pressure

could have been applied. Specifically, the medical examiner testified that it would have required

only 4.4 pounds of pressure to Howell’s neck to cause asphyxiation by compression of his

jugular vein. The medical examiner explained that, in contrast, it requires up to 11 pounds of

pressure to a person’s carotid arteries, 33 pounds of pressure to the trachea, and 66 pounds of

pressure to the vertebral arteries that run in the spinal column to cause asphyxiation. The

medical examiner further testified that the 4.4 pounds of pressure needed to cause Howell’s

asphyxiation could have been applied by the defendant placing his foot on Howell’s neck for one

minute in order to hold and keep Howell down after he had fallen to the ground. The medical

examiner also explained that the pressure required to cause Howell’s asphyxiation need not have

been applied directly to his jugular vein. Rather, as long the requisite pressure is applied to the

soft tissues of the front or side of the neck those soft tissues will put pressure on the blood


                                                  20
1-08-1885

vessels and cause asphyxiation.

       The evidence presented at trial does not support an inference that a layperson such as

defendant knew or should have known that applying 4.4 pounds of pressure for at least one

minute was sufficient to cause Howell to asphyxiate or that this pressure need not have been

applied directly to the jugular vein but instead could have been applied to the soft tissue on the

front or side of the neck. In addition, there is nothing in the record to suggest that defendant was

aware of the various degrees of pressure that, when applied to certain parts of a person’s body,

will cause that person to asphyxiate.

       There is no dispute that defendant and Howell engaged in a fight, and this is not

surprising given the circumstances of the case. Reyes was defendant’s girlfriend and the mother

of his two children. On the day Howell died, Reyes knew where defendant kept his spare key

and she used that key to enter defendant’s apartment without his permission to have sexual

intercourse with Howell. Defendant arrived home early from work and, after walking out of his

bathroom, he found Reyes standing at the apartment door next to Howell. After defendant asked

who Howell was, Howell pushed Reyes into defendant and then left the apartment. When

defendant followed Howell outside, Howell told defendant that he was a police officer and that

defendant did not want to “mess with” him. Although it appears defendant landed the only blows

and the trial court rejected defendant’s claim of mutual combat and self defense, the

circumstances which caused Howell’s death cannot be ignored.

       In finding defendant guilty of first degree murder, the trial court also emphasized the fact

that defendant punched and kicked Howell in the head. On appeal, the State’s response to


                                                 21
1-08-1885

defendant’s argument of recklessness is that defendant’s actions were deliberate and intentional

and that defendant “savagely beat the victim to death.” However, it is clear that the victim was

not beaten to death. The medical examiner testified that “[n]one of the abrasions, lacerations or

bruises” that Howell received, either individually or collectively, caused his death. When asked

whether Howell “die[d] from the fight,” the medical examiner testified that he did not.

          There is a long-standing principle in Illinois that death is not ordinarily contemplated as a

natural consequence of blows from bare fists. See People v. Crenshaw, 298 Ill. 412, 416-17

(1921); Gresham, 78 Ill. App. 3d at 1007; People v. Brackett, 117 Ill. 2d 170, 180 (1987). For

example, in Crenshaw, 298 Ill. at 414, the defendant threatened to kill the victim and

immediately thereafter struck the victim on the side of his face or head with his clenched fist and

knocked him down. The victim was taken to the hospital and died within a few minutes. The

defendant was found guilty of murder and our supreme court reversed that verdict and remanded

the case for a new trial. The court reasoned that “[t]he defendant is presumed to have intended

the reasonable and probable consequences of his act, but death not being a reasonable or probable

consequence of a blow with the bare fist he is not presumed to have intended it to produce that

result, and if he did not, the crime would be manslaughter and not murder.” Crenshaw, 298 Ill.

at 417.

          It has also been recognized that death may be the natural consequence of blows with bare

fists where there is a great disparity in size and strength between the defendant and the victim.

Brackett, 117 Ill. 2d at 180. However, this principle is applicable when the defendant is of much

greater size than the victim. For example, this principle was applied in Brackett to hold that a


                                                   22
1-08-1885

21-year-old, 170-pound, adult male who beat an 85-year-old woman with sufficient force to

break bones could not claim that he was unaware that blows from his bare fists created a strong

probability of death or great bodily harm. See Brackett, 117 Ill. 2d at 180. This is not the case

before us. Given the disparity in size between Howell and defendant, defendant’s actions in

punching and kicking Howell, while certainly suggesting that defendant intended to “beat up”

Howell, do not indicate that defendant acted with the intent or knowledge required for the

offense of murder. Moreover, the record indicates that the entire altercation between defendant

and Howell, from the time defendant discovered Howell in his apartment with Reyes until the

time defendant and Reyes left the scene, was brief. Cervantes also testified that defendant

stopped hitting and kicking Howell when Cervantes pushed defendant away and told him that

“was enough.” At that point, according to Cervantes, defendant stood up next to Howell and

held him down by placing his foot between Howell’s neck and chest.

       Finally, although not mentioned by the trial court, defendant’s actions in leaving Howell

on the ground while Howell was still breathing are inconsistent with the mental state for first

degree murder. The evidence presented at trial established that at the time defendant left the

scene after his altercation with Howell, he had no reason to believe that Howell was going to die

or that he had suffered great bodily harm. Cervantes testified that when defendant left the area

with Reyes, Howell was not choking, his lips were moving, and he was still breathing. Cervantes

believed that Howell had just been “beat up” and so he left a garden hose by Howell’s mouth so

that he could have water and told him to remain still because the police were on their way.

Cervantes testified that although he was not sure, it appeared that Howell even drank some water


                                                23
1-08-1885

from the hose. Cervantes’ undisputed testimony corroborated defendant’s testimony that when

he left the scene, Howell was still breathing and defendant assumed that he would live.

Therefore, although the State points to the fact that defendant intentionally left the scene before

the police arrived, we do not believe that this conduct demonstrates that defendant acted with the

mental state required to be convicted of first degree murder. Cf. Leach, 391 Ill. App. 3d at 177

(where the court noted that, in response to the defendant’s testimony that he performed mouth-to-

mouth resuscitation on the victim after choking her for at least three minutes, “[a]lthough

defendant’s attempt to revive [the victim] was laudable, it also manifested an awareness that the

natural tendency of strangling another human being for three to six minutes is to destroy that

person’s life”). And although the medical examiner testified that Howell could have already

asphyxiated and that the muscles in his lips could have simply been twitching as he died, there is

no basis in the record to infer that defendant would have been aware of this possibility.

       We conclude that the evidence presented at trial was insufficient to establish that at the

time defendant placed and held his foot in the area of Howell’s neck, defendant intended to kill

Howell or that he was consciously aware that his conduct was “practically certain” to cause a

particular result. 720 ILCS 5/4-5(b) (West 2006). The evidence was sufficient, however, to

establish that defendant acted recklessly when he placed his foot in the area Howell’s neck and

exerted sufficient pressure to cause Howell’s death. Accordingly, under the power granted by

Supreme Court Rule 615(b)(3) (134 Ill. 2d R. 615(b)(3), we reduce the degree of the offense for

which defendant was convicted from first degree murder to involuntary manslaughter.

       As modified, the conviction is affirmed and the cause remanded to the circuit court of


                                                 24
1-08-1885

Cook County with directions that a sentence be imposed for involuntary manslaughter.

       Affirmed as modified and remanded with directions.

       CAHILL and R.E. GORDON, JJ., concur.




                                              25
