                       Illinois Official Reports

                                 Appellate Court



                  People v. Pollard, 2015 IL App (3d) 130467



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




District & No.    Third District
                  Docket No. 3-13-0467




Filed             June 2, 2015




Decision Under    Appeal from the Circuit Court of Peoria County, No. 11-CF-870; the
Review            Hon. Stephen Kouri, Judge, presiding.




Judgment          Affirmed.




Counsel on        Jay Wiegman (argued), of State Appellate Defender’s Office, of
Appeal            Ottawa, for appellant.

                  Jerry Brady, State’s Attorney, of Peoria (Judith Z. Kelly (argued), of
                  State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                  People.
     Panel                      JUSTICE CARTER delivered the judgment of the court, with opinion.
                                Justice Schmidt concurred in the judgment and opinion.
                                Presiding Justice McDade dissented, with opinion.



                                                  OPINION

¶1         After a bench trial, defendant, Astria Pollard, was found guilty of first degree murder (720
       ILCS 5/9-1(a)(2) (West 2010)), involuntary manslaughter (720 ILCS 5/9-3(a) (West 2010)),
       and endangering the life or health of a child (720 ILCS 5/12-21.6(a) (West 2010)) relating to
       the death of her two-month-old son. Defendant was sentenced on the first degree murder
       charge to 29 years in prison. Defendant appeals the first degree murder conviction, arguing that
       she was not proven guilty beyond a reasonable doubt because the State failed to prove that she
       knew that her conduct created a strong probability of death or great bodily harm to her child.
       We affirm the trial court’s judgment.

¶2                                                  FACTS
¶3          On September 13, 2011, defendant was charged with two counts of first degree murder and
       one count of endangering the life and health of a child in connection with the death of her
       two-month-old son, J.P. Count I of the indictment alleged that defendant, without lawful
       justification and while under a duty to provide care for J.P., committed first degree murder in
       that she knowingly withheld adequate nutrition and hydration from J.P., knowing those acts
       would cause great bodily harm or death to J.P. and thereby causing the death of J.P. Count II of
       the indictment alleged that defendant, without lawful justification and while under a duty to
       provide care for and monitor the health of J.P., committed first degree murder in that she
       knowingly withheld adequate nutrition and hydration from J.P. and ignored his heart and apnea
       monitor knowing those acts would cause great bodily harm or death to J.P. and thereby causing
       the death of J.P. Count III of the indictment alleged that defendant committed the offense of
       endangering the life and health of a child in that she willfully caused or permitted the life or
       health of J.P. to be endangered by failing to provide adequate nutrition and hydration to J.P.
       and by ignoring his heart and apnea monitor functions and that those violations were a
       proximate cause of the death of J.P.
¶4          Defendant’s case proceeded to a bench trial in September 2012. The evidence presented at
       trial established that at the age of 15, defendant gave birth to S.P., the first of her three children.
       S.P. was cared for by defendant’s mother. Shortly after the birth of S.P., defendant dropped out
       of high school in her freshman year. At the age of 16, defendant gave birth to her second child,
       L.J. The father of L.J., Landrean J., was not the father of S.P. L.J. lived with, and was cared for
       by, Leslie J., Landrean’s mother. At the time, defendant lived with her mother, who was still
       caring for S.P.
¶5          On July 6, 2010, the then-18-year-old defendant gave birth to her third child, J.P., the infant
       who died in this case. J.P. was born prematurely at just under 30 weeks gestation and weighed
       only 2½ to 3 pounds. According to defendant, she did not know that she was even pregnant at
       the time. Because of his fragile condition, J.P. remained in the hospital for about a month and
       was provided with around-the-clock medical care from the hospital staff. During that time

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       period, defendant visited J.P. at the hospital on occasion but was not a daily visitor, even
       though she lived only a few miles from the hospital.
¶6         On August 7, 2010, J.P. was healthy enough to be discharged from the hospital and to
       defendant’s care. J.P. weighed a little over four pounds, was growing appropriately, and was
       feeding from a bottle. Because of defendant’s lack of frequent visits to the hospital, the hospital
       staff members were concerned about defendant’s ability to care for J.P. To assist defendant in
       doing so and to alleviate some of those concerns, the hospital provided to defendant at no cost
       to her: (1) a heart and apnea monitor; (2) a car seat/carrier (carrier); (3) baby formula; (4)
       bottles; (5) diapers; (6) a prescription of caffeine, which would help stimulate J.P.’s breathing;
       (7) information on public aid sources for refilling the prescription; and (8) access to home
       health nurses who would regularly visit defendant to assist her with J.P. and to monitor J.P.’s
       condition. In addition, the hospital staff made sure that defendant knew how to feed J.P. a
       bottle, to add caffeine to the bottle, and to change J.P.’s diaper. The hospital staff members had
       defendant perform those tasks in their presence so that they could confirm that defendant was
       able to perform the tasks correctly.
¶7         Defendant was also given numerous instructions to follow in caring for J.P. A training
       session was scheduled for defendant to be trained on the use of the heart and apnea monitor,
       but defendant failed to show up for that session. A second training session was scheduled, for
       which defendant arrived late. Defendant was told during the training session that the heart and
       apnea monitor was to be kept on J.P. at all times, except when he was being bathed, and that the
       monitor’s alarm would sound if J.P. stopped breathing or if his heart rate was too high or too
       low (collectively described as an event). When the alarm sounded, lights on the monitor would
       light up to indicate the type of event that was occurring. The alarm on the monitor would
       continue going off until the event had ended, but the indicator light would remain lit until the
       monitor was reset. Defendant was told that if the alarm went off and she could not quickly
       resolve the problem with J.P., she was to immediately call 9-1-1. Defendant was also given a
       24-hour hotline number to call if she had any questions or concerns about the functioning of
       the monitor.
¶8         Additional instructions that defendant received pertained to the carrier and to feedings.
       Defendant was told not to leave J.P. in the carrier for an extended period of time beyond 90
       minutes and to never place J.P. in the carrier facedown. Defendant was also instructed that J.P.
       had to be fed (given a bottle of formula) every three hours around the clock and that she was to
       wake J.P. up to be fed if he was sleeping at a time when a feeding was due. Defendant was told
       to put a certain amount of the caffeine into J.P.’s bottle each morning or in the afternoon if she
       forgot.
¶9         Upon leaving the hospital with J.P., defendant resided at Leslie’s residence with Leslie,
       Landrean, Shirley J. (Leslie’s mother), and L.J. (defendant and Landrean’s daughter).
       Defendant’s other child, S.J., continued to reside with defendant’s mother. While living at
       Leslie’s residence, defendant slept in an upstairs bedroom on a mattress on the floor with
       Landrean, and, at times, with L.J. Despite the instructions she had been given, defendant had
       J.P. sleep next to them on the floor in his carrier.
¶ 10       During the first three weeks of defendant and J.P.’s stay at Leslie’s house, Leslie provided
       a substantial amount of J.P.’s care and did many of the feedings. J.P. remained healthy and
       continued to grow during that time period. At a doctor appointment on August 25, 2010, J.P.
       was examined from head to toe and was considered to be healthy and doing well. His weight

                                                    -3-
       had climbed to 4.62 pounds. After that three-week period, however, Leslie decided to step
       back and to let defendant take on a larger role in caring for J.P.
¶ 11        After defendant started being the primary caregiver for J.P., J.P.’s health began to
       deteriorate. Defendant had to be prompted repeatedly by other members of the household to
       feed and check on J.P., although she did make efforts to do so after the prompting had
       occurred. When the prescription for caffeine ran out, defendant did not have the prescription
       refilled because she allegedly did not have the money. Defendant’s only source of income at
       the time was $200 per month that her mother would give her from a public assistance account,
       and she did not attempt to use the public aid sources that the hospital had given her to have the
       prescription refilled. At times, J.P. would not feed well for defendant. Leslie, however, still
       tried to feed J.P. when she had time and apparently had no problem doing so. On one occasion
       a few days before J.P.’s death at about 10 or 10:30 a.m., Leslie went into the bedroom after she
       heard J.P. making a muffled crying sound and found J.P. facedown in the carrier struggling for
       breath. J.P. had his heart and apnea monitor on his body, but the monitor itself was turned off.
       Leslie woke up defendant, who was sleeping in the bed.
¶ 12        On September 20, 2010, at 4:49 a.m., the heart and apnea monitor sounded a series of
       alarms because J.P.’s heart rate was over 230 beats per minute. The alarm sounded 7 times in a
       50-minute period before being shut off at 5:39 a.m. The monitor was turned back on about two
       hours later. During that day, Leslie fed J.P. at least one of his bottles. According to Leslie, J.P.
       fed well at that time and she did not notice anything about J.P. that caused her concern.
¶ 13        The following day, on September 21, 2010, defendant took J.P. to see defendant’s mother.
       During the visit, defendant’s mother told defendant that J.P. did not look well and that she
       should take J.P. to the doctor. Defendant did not do so. Defendant tried to feed J.P. a bottle later
       that night at about 8 or 9 p.m., but J.P. would not take the bottle.
¶ 14        On September 22, 2010, at 5:38 a.m., the heart and apnea monitor sounded an alarm
       approximately 10 times in a 14-minute period because J.P.’s heart was beating over 230 beats
       per minute. Defendant woke up, turned the alarm off, and went back to sleep. Shortly after 8
       a.m., defendant got up and went downstairs. She left J.P. in his carrier in the upstairs bedroom.
       Present at the residence at that time were Leslie, Landrean, defendant, L.J., J.P., and
       Landrean’s cousin, Da’Rian B., who had stopped by earlier that morning. Leslie left for work
       at about 8:35 a.m., and Da’Rian’s friend or girlfriend, Daejunique B. (Daja), arrived at the
       residence at about 9:30 a.m. According to Landrean, at some point between 11 and 11:30 a.m.,
       he told defendant to go check on J.P. because J.P. was not moving like he normally did.
       Defendant later denied that Landrean told her any such thing. At about 11:30 a.m., Landrean
       left the residence to go to the plasma center. While he was at the plasma center, Landrean had
       a text-message conversation with defendant. Defendant told Landrean that she missed him,
       that she was “horny,” and that she would perform oral sex on him when he got home. At about
       12 p.m., while defendant, Da’Rian, and Daja were all in the living room, Da’Rian told
       defendant to go check on J.P. According to Daja, prior to that time, she was not even aware that
       there was a baby in the house. Defendant went upstairs and came back down a short while later
       with J.P. in the carrier. As soon as defendant came into the living room, J.P.’s heart and apnea
       monitor sounded an alarm. Defendant was in a panic. J.P.’s face was blue, his hands were
       balled up, and he was not breathing. Daja took J.P. out of the carrier and tried to determine
       what was wrong with him, while defendant or Da’Rian called 9-1-1. Following the instructions
       of the 9-1-1 operator, Da’Rian performed cardiopulmonary resuscitation on J.P. until help

                                                    -4-
       arrived shortly thereafter. Defendant told the first emergency person that arrived that she did
       not know what had happened and that J.P. was moving less than 10 minutes earlier. J.P. was
       rushed to the hospital and resuscitation efforts were made, but they were unsuccessful. While
       trying to treat J.P., the emergency room doctor noticed that rigor mortis had already set in and
       that J.P.’s body temperature was only 89 degrees. J.P. was declared dead on September 22,
       2010, at 1:10 p.m. J.P.’s weight at the time of his death was 4 pounds, 6.6 ounces.
¶ 15       Officials began to question defendant at the hospital because of J.P.’s death and his
       condition at the time of his death. J.P. was extremely dehydrated and emaciated, his ribs and
       vertebrae were showing, and his fontanel and eyes were sunken in. Defendant was
       unemotional at the time. Defendant initially stated that she had fed J.P. at 8 or 9 o’clock that
       morning and again at 11:30 a.m. or 12:30 p.m. and that J.P. appeared to be fine at those times.
       A later conducted autopsy indicated, however, that J.P. had been dead for several hours and
       that he had died from dehydration and malnourishment due to neglect, with J.P.’s prematurity
       being a contributing factor.
¶ 16       The forensic pathologist who conducted the autopsy on J.P. found no food in J.P.’s
       stomach or small intestine and only one drop of urine in J.P.’s bladder. Based upon the lack of
       any type of food (formula) in J.P.’s stomach or intestines, the forensic pathologist opined,
       conservatively, that J.P. had not had anything to eat for a minimum of 6 to 12 hours and that
       J.P. had missed 2 to 4 of his last feedings and possibly a lot more. According to the forensic
       pathologist, J.P. was starving–he had no fat stores and his muscle tissue had atrophied. The
       malnutrition was a chronic condition that had gone on for some time. In addition, J.P. was
       dehydrated to the point where his blood had become sludge-like, and blood pooling in J.P.’s
       body indicated that J.P. had been lying on his stomach when he died. Based upon the level of
       dehydration present in J.P.’s body, the forensic pathologist estimated that J.P. had not had any
       liquids for a minimum of 12 to 24 hours before he died. When told about the series of alarms on
       J.P.’s heart and apnea monitor at 5:38 a.m. on September 22, the forensic pathologist opined
       that the high heart rate was caused by dehydration and that J.P. likely died a few minutes
       thereafter. The forensic pathologist opined further, however, that J.P. could have been saved if
       he had been brought to the hospital immediately after the alarms had sounded that morning.
¶ 17       Expert testimony presented at trial indicated that because of J.P.’s premature condition, he
       had a very tight window of required care and had to be fed every three hours, around the clock.
       Without such feeding, J.P. would become dehydrated and would suffer malnutrition within a
       12- to 24-hour period. Once dehydration and malnutrition set in, a baby in that condition could
       become too weak to take food from a bottle and would rapidly starve to death. According to the
       experts, however, even under those circumstances, if professional medical care was sought
       promptly, treatment providers would likely be able nourish the baby back to health through
       rapid intravenous feeding.
¶ 18       Defendant gave two lengthy videotaped statements to police, one on September 22, 2010,
       and the other on October 1, 2010. During those statements, defendant gave numerous different
       accounts on what had happened in the day or days leading up to J.P.’s death. Defendant’s
       version of events changed repeatedly as to how often she would put J.P. in the carrier, how
       long she would leave J.P. in the carrier, whether she would lay J.P. in the carrier faceup or
       facedown, when she last tried to feed J.P., when she checked on J.P. during the morning of
       September 22, whether the heart and apnea monitor was working properly, and how the


                                                  -5-
       monitor got turned off that morning. After watching defendant’s videotaped statements, the
       trial judge characterized defendant’s demeanor during those statements as unemotional.
¶ 19        The records from the monitor itself showed that the monitor had been turned off at 5:52
       a.m. on September 22 and that it was not turned back on until 12:45 that afternoon. Additional
       testimony indicated that as a safety feature to prevent accidental turn off, two buttons or
       switches on the monitor had to be pushed at the same time to turn the monitor off. According to
       the expert who reviewed the monitor records, there had been four or five nights during the
       approximately one-month period leading up to J.P.’s death when the monitor had been shut off
       for the entire night.
¶ 20        Additional evidence presented at trial, some of which was defendant’s own statements,
       showed that defendant had not used the home health nurses that the hospital had arranged for
       her. Defendant gave the nurses her mother’s address, rather than Leslie’s address, and did not
       return the nurses’ phone calls when they called her and tried to set up home health visits.
       Defendant commented in her statement that she chose not to use the home health nurses
       because she wanted to feel like she could take care of J.P. on her own.
¶ 21        During the bench trial, after all of the evidence had been presented, the trial court asked the
       attorneys to provide authority on the question of whether defendant’s conduct constituted first
       degree murder or involuntary manslaughter. The attorneys did so. The trial court later issued a
       lengthy written decision. The trial court found as to count I, which alleged only the failure to
       provide adequate nutrition and hydration, that defendant was guilty of the lesser-included
       offense of involuntary manslaughter. In so doing, the trial court stated that it could not find that
       the withholding of food and water, under the totality of the evidence, was done with knowledge
       by defendant of a strong probability of death. As to count II, however, which alleged both the
       failure to provide adequate nutrition and hydration and the failure to provide medical care by
       reason of defendant ignoring the heart and apnea monitor alarms, the trial court found that
       defendant was guilty of first degree murder because there was a high probability that death or
       great bodily harm would result to a premature infant, such as J.P., under those circumstances.
       The trial court stated that defendant’s conduct in this case was similar to an example in a legal
       treatise regarding a person firing a gun into a crowded room–in that a high probability of death
       or great bodily harm was likely to follow. The trial court opined that it was not a mitigating
       factor that defendant had turned off the alarm just two days earlier during a similar incident
       with no death occurring and stated that a kindergarten teacher could not ignore a fire alarm and
       continue to teach simply because two days earlier there was a false fire alarm. According to the
       trial court, “[w]hen defendant dismissively turned the alarm off at 5:52 a.m., as if it were a
       snooze button on an alarm clock, she knew her actions created a strong probability of death or
       great bodily harm.” As noted above, the trial court also found defendant guilty of count III,
       endangering the life and health of a child.
¶ 22        Defense counsel subsequently filed a motion for new trial, alleging that defendant had not
       been proven guilty beyond a reasonable doubt. The trial court denied the motion and proceeded
       to sentencing on the first degree murder charge. Because the victim, J.P., was under the age of
       12, defendant faced a sentencing range of 20 to 100 years in prison. The evidence presented at
       the sentencing hearing showed, among other things, that defendant suffered from a physical
       disability and was unable to use her left arm; that defendant had no criminal history; that
       defendant had only a borderline intelligence; that defendant functioned at about a third- or
       fourth-grade reading and comprehension level; and that defendant’s judgment, insight, and

                                                    -6-
       ability to reason abstractly were all mildly impaired because of her limited cognitive ability.
       The evidence also showed that in June 2009, defendant gave birth to stillborn twins in her
       then-boyfriend’s home. Defendant placed the fetuses in plastic bags, set them outside the
       house, and did not contact medical personnel or authorities until about six hours later. In June
       2011, before she was charged in this case, defendant gave birth to her sixth child. In
       considering the appropriate sentence to impose, the trial court commented that the “reality
       [was] that [defendant] couldn’t care for a child, much less a child in the condition of [J.P.], a
       baby,” and that it did not believe that defendant could even take care of herself. At the
       conclusion of the sentencing hearing, the trial court sentenced defendant to 29 years in prison.
       After her motion to reconsider her sentence was denied, defendant filed this appeal.

¶ 23                                              ANALYSIS
¶ 24        On appeal, defendant argues that she was not proven guilty beyond a reasonable doubt of
       the first degree murder of her infant son, J.P. Defendant asserts that the State failed to prove
       that she had the requisite mental state for first degree murder as charged in count II of the
       indictment in the present case–knowledge that her actions created a strong probability of death
       or great bodily harm to J.P. At worst, defendant contends, her conduct was done recklessly, not
       with the mental state of knowledge. More specifically, defendant contends that: (1) it was
       impossible for the trial court to find that the knowledge element had been proven under count
       II of the indictment based upon both defendant’s failure to provide adequate nutrition and
       hydration for J.P. and defendant’s ignoring of J.P.’s heart and apnea monitor when the trial
       court had already found that the first half of that conduct–the failure to provide adequate
       nutrition and hydration–was done recklessly, rather than with knowledge that it would cause
       death or great bodily harm to J.P., as evidenced by the trial court’s finding of guilty to the
       lesser-included offense of involuntary manslaughter on count I of the indictment; (2) a rational
       trier of fact could not have found from the facts of this case that defendant knew that her failure
       to respond to the series of alarms from the heart and apnea monitor on September 22 created a
       strong probability of death or great bodily harm to J.P., especially since defendant’s past
       experience with the monitor during the similar incident on September 20 had shown her that a
       series of alarms did not necessarily mean that J.P. was in danger of imminent harm; (3) the
       analogies made by the trial court in making its decision regarding a person firing a gun into a
       crowded room and a teacher ignoring a fire alarm were not applicable and had no basis in the
       facts of this case or in the law; (4) the State failed to prove that defendant ignoring the heart and
       apnea monitor was the cause of J.P.’s death, as the State had charged in count II of the
       indictment; (5) the lack of any published case with a comparable fact pattern to the instant case
       shows that the circumstances of J.P.’s death were unique and that defendant could not have
       foreseen that her actions in this case would lead to such dire consequences; and (6) defendant’s
       conduct as alleged in count II of the indictment much more closely approximated involuntary
       manslaughter, rather than first degree murder, as the trial court correctly found as to count I of
       the indictment. For all of the reasons stated, defendant asks that we reverse her first degree
       murder conviction outright, or, if we believe that defendant had acted recklessly, that we
       reduce her first degree murder conviction to involuntary manslaughter and that we remand this
       case for defendant to be sentenced on that charge.
¶ 25        The State argues that the evidence was sufficient to prove beyond a reasonable doubt that
       defendant acted with knowledge that her conduct, as alleged in count II of the indictment,

                                                     -7-
created a strong probability of death or great bodily harm to J.P. and that defendant’s
conviction for first degree murder, therefore, should be upheld. The State asserts the trial
court’s ruling that the knowledge element had been proven was supported by the following
findings of fact, made by the trial court, which were not manifestly erroneous: (1) when J.P.
was discharged from the hospital on August 7, 2010, he was a healthy, growing, premature
baby; (2) because of J.P.’s premature condition, he had to be fed every three hours around the
clock; (3) without such feedings, J.P. would become dehydrated and suffer malnutrition within
6 to 12 hours; (4) once dehydration and malnutrition set in, J.P. could have become too weak to
take food from a bottle; (5) although defendant had been told of the reason for adding caffeine
to J.P.’s bottle, had been instructed how to do so, had been given a prescription for caffeine,
and had been given public aid resources to refill that prescription, she failed to obtain more
caffeine after the initial prescription ran out one to two weeks prior to J.P.’s death; (6)
defendant had not fed J.P. every three hours, even though she had been instructed to do so; (7)
defendant did not use the services of a home health nurse, even though those services had been
arranged for her by the hospital staff; (8) defendant kept J.P. in the carrier much longer than
what she was instructed was permissible; (9) defendant had put J.P. in the carrier facedown
although she had been instructed not to do so; (10) defendant was provided with a heart and
apnea monitor for J.P., instructed on its use, and told to keep it connected to J.P. at all times,
except when J.P. was being bathed, but she did not do so; (11) defendant was told to call 9-1-1
if the alarm on the monitor went off and the problem with J.P. could not be resolved
immediately, but she failed to do so; (12) defendant had been given a 24-hour hotline number
to call if she had any questions or concerns about the monitor; (13) defendant had provided a
number of untrue versions of what had occurred prior to J.P.’s death; (14) defendant knew that
J.P. had been on his stomach in the carrier for seven hours without feeding and that the alarm
had sounded numerous times in a row when she shut the monitor off and went back to sleep
instead of checking on J.P. or calling for help; (15) after shutting the monitor off at 5:52 a.m.
on September 22, defendant did not turn the monitor back on until 12:45 p.m. that day; and
(16) defendant lied to the medical treatment providers and to police, insisting that J.P. had been
feeding well every three hours. The State asserts further that it disagrees with defendant’s
claim that she could not have known that turning off J.P.’s monitor on September 22 created a
strong probability of death or great bodily harm to J.P. since she had done the same thing two
nights before with no harm resulting to J.P. According to the State, if that claim were taken to
its logical conclusion, there would be no need for defendant to even connect J.P. to the monitor
because her past experience had taught her that a monitor alarm did not necessarily indicate a
threat of imminent harm to J.P. The State asserts in addition that because of J.P.’s failure to
feed, defendant knew that J.P.’s condition was much worse on September 22 (the second
incident of repeated alarms) than it was on September 20 (the first incident of repeated alarms).
The State also does not agree with defendant’s claim that it failed to prove that turning off the
heart and apnea monitor was the cause of J.P.’s death. In response to that claim, the State
points out that the medical experts testified that J.P.’s medical issues could have been reversed
and that J.P. could have been saved if defendant would have sought prompt medical treatment
after the alarms sounded on September 22. For all of the reasons set forth, the State asks that
we reject defendant’s argument on this issue and that we affirm defendant’s conviction of first
degree murder.



                                            -8-
¶ 26       Pursuant to the Collins standard (People v. Collins, 106 Ill. 2d 237, 261 (1985)), a
       reviewing court faced with a challenge to the sufficiency of the evidence must view the
       evidence in a light most favorable to the prosecution and determine whether any rational trier
       of fact could have found the elements of the crime proven beyond a reasonable doubt. People
       v. Jackson, 232 Ill. 2d 246, 280 (2009). Under the Collins standard, “a reviewing court must
       allow all reasonable inferences from the record in favor of the prosecution.” People v. Bush,
       214 Ill. 2d 318, 326 (2005). The reviewing court will not retry the defendant. People v. Austin
       M., 2012 IL 111194, ¶ 107. Determinations of witness credibility, the weight to be given
       testimony, and the reasonable inferences to be drawn from the evidence are responsibilities of
       the trier of fact, not the reviewing court. People v. Jimerson, 127 Ill. 2d 12, 43 (1989). Thus,
       the Collins standard of review gives “ ‘full play to the responsibility of the trier of fact fairly to
       resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
       from basic facts to ultimate facts.’ ” Jackson, 232 Ill. 2d at 281 (quoting Jackson v. Virginia,
       443 U.S. 307, 319 (1979)). This same standard of review is applied by the reviewing court
       regardless of whether the evidence is direct or circumstantial or whether defendant received a
       bench or a jury trial, and circumstantial evidence meeting this standard is sufficient to sustain a
       criminal conviction. Jackson, 232 Ill. 2d at 281; People v. Kotlarz, 193 Ill. 2d 272, 298 (2000).
       In applying the Collins standard, a reviewing court will not reverse a conviction unless the
       evidence is so improbable, unsatisfactory, or inconclusive that it leaves a reasonable doubt of
       the defendant’s guilt. Austin M., 2012 IL 111194, ¶ 107.
¶ 27       A defendant is guilty of first degree murder when he kills a person without lawful
       justification and knows at the time that his acts created a strong probability of death or great
       bodily harm. 720 ILCS 5/9-1(a)(2) (West 2010); Illinois Pattern Jury Instructions, Criminal,
       No. 7.02 (4th ed. 2000); People v. DiVincenzo, 183 Ill. 2d 239, 249-50 (1998). A defendant is
       guilty of involuntary manslaughter, on the other hand, when he unintentionally kills a person
       without lawful justification by recklessly performing acts that are likely to cause death or great
       bodily harm. 720 ILCS 5/9-3(a) (West 2010); Illinois Pattern Jury Instructions, Criminal, No.
       7.08 (4th ed. 2000); DiVincenzo, 183 Ill. 2d at 250. The difference between first degree murder
       and involuntary manslaughter is the mental state that accompanies the conduct resulting in the
       victim’s death. DiVincenzo, 183 Ill. 2d at 249. “ ‘The mental state for murder is knowledge,
       while the mental state for involuntary manslaughter is recklessness.’ ” People v. Weeks, 2012
       IL App (1st) 102613, ¶ 34 (quoting People v. Jones, 404 Ill. App. 3d 734, 742 (2010)). A
       person acts knowingly or with knowledge when he is consciously aware that his conduct is
       practically certain to cause a particular result (720 ILCS 5/4-5(b) (West 2010); Illinois Pattern
       Jury Instructions, Criminal, No. 5.01B (4th ed. 2000); Weeks, 2012 IL App (1st) 102613, ¶ 34),
       whereas a person acts recklessly or with recklessness 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 a reasonable person would use
       in that situation (720 ILCS 5/4-6 (West 2010); Illinois Pattern Jury Instructions, Criminal, No.
       5.01 (4th ed. 2000); Weeks, 2012 IL App (1st) 102613, ¶ 34). The mental state required may be
       inferred from the character of the defendant’s acts and from the circumstances surrounding the
       commission of the offense (People v. Tye, 141 Ill. 2d 1, 15 (1990); DiVincenzo, 183 Ill. 2d at
       252; Weeks, 2012 IL App (1st) 102613, ¶ 34), and the trier of fact is in the best position to
       determine whether a particular mental state is present (see DiVincenzo, 183 Ill. 2d at 252).



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¶ 28       In the instant case, there is no dispute that J.P. died as a result of defendant’s conduct. The
       only question is whether that conduct amounted to the mental state of “knowledge” as required
       for first degree murder, the mental state of “recklessness” as required for involuntary
       manslaughter, or some lesser mental state as required for an outright reversal. The distinction
       is based upon the level of certainty that death or great bodily harm would result from
       defendant’s conduct. See 720 ILCS 5/4-5(b), 4-6 (West 2010); DiVincenzo, 183 Ill. 2d at 252;
       Weeks, 2012 IL App (1st) 102613, ¶ 34. When we view the evidence in the light most
       favorable to the State and consider that defendant was told at the hospital that J.P. had to be fed
       every three hours and that the heart and apnea monitor was not to be turned off unless she was
       giving J.P. a bath, we find that the evidence was sufficient to establish that defendant acted
       with “knowledge” that her acts created a strong probability of death or great bodily harm to J.P.
       See Jackson, 232 Ill. 2d at 280; DiVincenzo, 183 Ill. 2d at 249-52; Weeks, 2012 IL App (1st)
       102613, ¶ 34. Despite the instructions defendant had been given, she had not provided
       nutrition or hydration to J.P. for several hours, had stopped drawing a dosage of caffeine into
       J.P.’s bottles as necessary to stimulate his breathing, had placed J.P. in his carrier facedown for
       a lengthy period of time, had shut off the heart and apnea monitor during a period of repeated
       alarms, had left the monitor off for several hours, and had gone back to sleep without checking
       on J.P. and without seeking immediate emergency medical treatment for J.P. We, therefore,
       affirm the trial court’s ruling that defendant was guilty of first degree murder.
¶ 29       We are not persuaded to reach a conclusion to the contrary by the fact that defendant had
       only borderline intelligence; by the fact that the trial court found that the failure to provide
       nutrition and hydration was done recklessly, rather than knowingly; or by a concern over
       whether the trial court’s analogies were applicable. Our role in this case is merely to determine
       whether, under the Collins standard of review, any rational trier of fact could have found that
       the knowledge element of the first degree murder charge had been proven beyond a reasonable
       doubt. See Jackson, 232 Ill. 2d at 280. Viewing the evidence in this case in the light most
       favorable to the State, as we are required to do, we believe that a rational trier of fact could
       have so found. See Jackson, 232 Ill. 2d at 280; DiVincenzo, 183 Ill. 2d at 249-52; Weeks, 2012
       IL App (1st) 102613, ¶ 34. The evidence of defendant’s knowledge, although circumstantial in
       this case as it often is (see Tye, 141 Ill. 2d at 15; DiVincenzo, 183 Ill. 2d at 252; Weeks, 2012 IL
       App (1st) 102613, ¶ 34), was not so improbable, unsatisfactory, or inconclusive as to leave a
       reasonable doubt of defendant’s guilt. See Austin M., 2012 IL 111194, ¶ 107. As the trier of
       fact, the trial court was in the best position to determine whether defendant had the requisite
       mental state for first degree murder as alleged in count II in the indictment. See DiVincenzo,
       183 Ill. 2d at 252. Under the Collins standard of review, we cannot find that the trial court’s
       determination in that regard was erroneous. See Jackson, 232 Ill. 2d at 280; Austin M., 2012 IL
       111194, ¶ 107.

¶ 30                                       CONCLUSION
¶ 31      For the foregoing reasons, we affirm the judgment of the circuit court of Peoria County.

¶ 32      Affirmed.




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¶ 33        PRESIDING JUSTICE McDADE, dissenting.
¶ 34        The majority affirms the defendant’s conviction for first degree murder despite the fact that
       the circuit court found in count I that the defendant recklessly failed to provide adequate
       nutrition and hydration to her son, but then found the same conduct to be performed knowingly
       with respect to count II. Because I cannot agree with this conclusion, I respectfully dissent
       from the majority’s decision.
¶ 35        When faced with a challenge to the sufficiency of the evidence, “the relevant question is
       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.”
       (Emphasis in original and internal quotation marks omitted.) Collins, 106 Ill. 2d at 261.
¶ 36        At the time of J.P.’s death, the first degree murder statute provided, in relevant part:
                    “(a) A person who kills an individual without lawful justification commits first
                degree murder if, in performing the acts which cause the death:
                        ***
                        (2) he knows that such acts create a strong probability of death or great bodily
                    harm to that individual or another[.]” 720 ILCS 5/9-1(a)(2) (West 2010).
       An act need not be the sole and immediate cause of death to prove first degree murder, only
       that the act contributed to the victim’s death. People v. Brown, 169 Ill. 2d 132, 152 (1996).
¶ 37        The involuntary manslaughter statute provided, in relevant part, that “[a] person who
       unintentionally kills an individual without lawful justification commits involuntary
       manslaughter if his acts whether lawful or unlawful which cause the death are such as are
       likely to cause death or great bodily harm to some individual, and he performs them
       recklessly.” 720 ILCS 5/9-3(a) (West 2010).
¶ 38        The difference between first degree murder and involuntary manslaughter, in essence, is
       the mental state behind the conduct that causes the victim’s death. People v. Leach, 405 Ill.
       App. 3d 297, 312 (2010). First degree murder requires knowledge, which the Criminal Code of
       1961 (Code) defines as:
                “A person knows, or acts knowingly or with knowledge of:
                        (a) The nature or attendant circumstances of his or her conduct, described by
                    the statute defining the offense, when he or she is consciously aware that his or her
                    conduct is of that nature or that those circumstances exist. Knowledge of a material
                    fact includes awareness of the substantial probability that the fact exists.
                        (b) The result of his or her conduct, described by the statute defining the
                    offense, when he or she is consciously aware that that result is practically certain to
                    be caused by his conduct.” 720 ILCS 5/4-5 (West 2010).
¶ 39        Involuntary manslaughter requires recklessness, which the Code defines as:
                “A person is reckless or acts recklessly when that person consciously disregards a
                substantial and unjustifiable risk that circumstances exist or that a result will follow,
                described by the statute defining the offense, and that disregard constitutes a gross
                deviation from the standard of care that a reasonable person would exercise in the
                situation.” 720 ILCS 5/4-6 (West 2010).
¶ 40        I believe the State failed to prove the defendant committed first degree murder. There is a
       dearth of evidence–circumstantial or otherwise–in the record to suggest that the defendant was


                                                    - 11 -
       “consciously aware” that J.P.’s death was “practically certain to be caused by [her] conduct”
       (720 ILCS 5/4-5(b) (West 2010)). Contrary to the majority’s view, this lack of evidence is not
       satisfied in favor of a conviction simply because she “was told at the hospital that J.P. had to be
       fed every three hours and that the heart and apnea monitor was not to be turned off unless she
       was giving J.P. a bath.” Supra ¶ 28.
¶ 41        In addition, while the majority may not have been influenced by the defendant’s borderline
       intelligence (supra ¶ 29), it certainly was not lost on the circuit court, as evidenced by the
       court’s comment at sentencing that it did not believe the defendant could take care of J.P., or
       even herself. I agree with the circuit court that the defendant’s borderline intelligence was an
       important factor in this case–one that, in my opinion, ought to be relevant to the question of
       whether the defendant acted knowingly or recklessly. But cf. People v. Hulitt, 361 Ill. App. 3d
       634, 640-41 (2005) (discussing the doctrine of diminished capacity and noting that while
       Illinois does not recognize it as a defense, it may be used to counter the State’s evidence that a
       defendant possessed the mental state required for a conviction). As the majority noted,
       testimony presented at sentencing indicated that the defendant functioned at the reading and
       comprehension level of a third- or fourth-grade child and that her judgment, insight, and
       capacity for abstract thought were mildly impaired due to her limited ability. Supra ¶ 22. I find
       it disturbing that, in essence, this case results in an adjudication that an individual who
       functioned at the age of an eight- or nine-year-old formed the requisite mental state to commit
       first degree murder.
¶ 42        More significantly, the circuit court found that the defendant did not act with knowledge
       when she withheld nutrition and hydration from J.P. with regard to count I but, rather, that she
       acted recklessly. However, for count II, the court raised her mental state to knowledge for that
       same conduct when it was combined with the additional allegation of her shutting off the heart
       and apnea monitor. I am not persuaded by the majority’s claim that the Collins standard of
       review forgives this inconsistency in the court’s reasoning, and this inconsistency leads me to
       the conclusion that no rational trier of fact could have concluded that the defendant committed
       first degree murder as alleged in count II after the court made the finding with regard to count
       I that her acts of withholding nutrition and hydration from J.P. were done recklessly. See, e.g.,
       People v. Fornear, 176 Ill. 2d 523, 531 (1997) (holding that “recklessness and knowledge are
       mutually inconsistent culpable mental states”).
¶ 43        For the foregoing reasons, I respectfully dissent. I would reverse the defendant’s
       conviction for first degree murder and remand for the circuit court to resentence the defendant
       for involuntary manslaughter.




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