                       Illinois Official Reports

                              Appellate Court



                  People v. Willett, 2015 IL App (4th) 130702



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



District & No.    Fourth District
                  Docket No. 4-13-0702



Filed             August 4, 2015



Decision Under    Appeal from the Circuit Court of Sangamon County, No. 12-CF-344;
Review            the Hon. Peter C. Cavanagh, Judge, presiding.



Judgment          Reversed and remanded.



Counsel on        Michael J. Pelletier, Alan D. Goldberg, and Chan Woo Yoon (argued),
Appeal            all of State Appellate Defender’s Office, of Chicago, for appellant.

                  John Milhiser, State’s Attorney, of Springfield (Patrick Delfino,
                  David J. Robinson, and David E. Mannchen (argued), all of State’s
                  Attorneys Appellate Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE STEIGMANN delivered the judgment of the court, with
                  opinion.
                  Presiding Justice Pope and Justice Holder White concurred in the
                  judgment and opinion.
                                              OPINION

¶1       In May 2012, a grand jury indicted defendant, Mark Willett, on one count of aggravated
     battery to a child (720 ILCS 5/12-3.05(b)(1) (West 2010)). The indictment alleged that in April
     2012, defendant shook his two-month-old daughter, M.W., causing brain injury. In June 2013,
     a jury found defendant guilty of that offense. In August 2013, the trial court sentenced him to
     16 years in prison.
¶2       Defendant appeals, arguing that he was denied a fair trial because the trial court (1) allowed
     the State to argue an incorrect legal definition of “knowingly” during its closing argument
     without permitting defense counsel to argue the correct definition, (2) refused to instruct the
     jury on the lesser-included offense of reckless conduct (720 ILCS 5/12-5 (West 2010)), and (3)
     allowed the State’s medical experts to describe M.W.’s injuries as “non-accidental.” Because
     we agree that the court allowed the jury to render its decision based upon an incorrect
     definition of “knowingly,” we reverse and remand for a new trial.

¶3                                      I. BACKGROUND
¶4       The grand jury indictment alleged, in pertinent part, that on or about April 27, 2012,
     defendant “knowingly and without legal justification, cause[d] great bodily harm or permanent
     disability to M.W., a child two months of age, in that said defendant shook M.W., causing
     injury to M.W.’s brain.”
¶5       At defendant’s June 2013 jury trial, the parties presented the following evidence, which we
     summarize only as needed to address the issues defendant raises on appeal.

¶6                                  A. Taylor Williams’ Testimony
¶7       Taylor Williams, defendant’s girlfriend and M.W.’s mother, testified that M.W. was born
     two weeks premature in late February 2012, after approximately 30 hours of labor. In April
     2012, Taylor and M.W. were living with defendant in a small, one-bedroom apartment in
     Springfield. Taylor identified photographs of the family’s apartment and an image of a small,
     swinging baby cradle composed mostly of plastic and fabric, which the witnesses referred to as
     a “swing.” Taylor testified that M.W. often slept in the swing, which was lined with a “very
     soft” blanket for extra padding.
¶8       On the morning of April 27, 2012, defendant, a 25-year-old fast-food worker, awoke at
     6 a.m. for his 7 a.m. shift at Wendy’s. Defendant had gone to bed at 3 a.m. and slept for only
     three hours. After defendant left for work, Taylor spent the first half of the day with M.W.
     Although M.W. was somewhat fussy that day, she seemed fine overall. Shortly before 3:30
     p.m., Taylor’s mother drove Taylor and M.W. to IHOP restaurant, where Taylor began her
     afternoon shift as a server. After dropping Taylor off at IHOP, Taylor’s mother drove with
     M.W. to Wendy’s to pick up defendant, who was getting done with his shift around that same
     time. Taylor’s mother drove defendant and M.W. from Wendy’s to the apartment, where she
     dropped them both off. Thereafter, defendant and two-month-old M.W. were alone in the
     apartment.
¶9       At approximately 6 p.m., Taylor called defendant, who reported that M.W. was “having
     troubles.” Taylor could hear M.W. crying in the background. She told defendant to either feed
     M.W. or let her cry herself to sleep. During a second phone call, around 8 p.m., defendant told

                                                 -2-
       Taylor that M.W. “wasn’t responding,” and he needed to take her to the hospital. The trial
       court admitted several photographs, taken at the hospital, showing bruises around M.W.’s
       armpits, shoulders, and jaw, which Taylor testified were not present when she was with M.W.
       earlier that day.

¶ 10                               B. Officer Kathy Martin’s Testimony
¶ 11        Officer Kathy Martin of the Springfield police department testified that at approximately
       10 p.m. on April 27, 2012, she responded to a report of an injured child at the pediatric
       intensive care unit of St. John’s Hospital. At the hospital, Dr. Mogal (whose first name does
       not appear in the record) informed Martin that M.W. arrived at the hospital pale, limp, and
       unresponsive. Mogal diagnosed M.W. with a “brain bleed” and told Martin that the injury “was
       not an accident” but, instead, was potentially caused by “shaken baby syndrome.” (Defense
       counsel objected on hearsay grounds to Martin’s testimony about what Mogal told her, but the
       trial court overruled the objection because the prosecutor claimed the testimony was “being
       offered for purposes of [Martin’s] investigation.” Defendant has not challenged this testimony
       on appeal.)
¶ 12        Martin spoke with defendant at the hospital, who explained that he wanted to take a nap
       after arriving home from work at 3:30 that afternoon, but it was difficult to do so because M.W.
       was crying. According to defendant, M.W. eventually fell asleep, and when he tried to wake
       her, she was unresponsive. Defendant told Martin that he contacted his cousin, who came to
       the apartment and provided defendant and M.W. a ride to the hospital.

¶ 13                             C. Defendant’s Police-Station Interview
¶ 14       Detective Brian Johnson of the Springfield police department testified that he went to
       St. John’s Hospital at approximately 11 p.m. on April 27, 2012, where he spoke briefly with
       defendant. At approximately 1:20 a.m. on April 28, 2012, Johnson, accompanied by Detective
       Scott Kincaid, recorded an interview with defendant, which the trial court admitted into
       evidence and played for the jury.
¶ 15       In the interview, defendant stated that when he arrived home from work shortly after
       3:30 p.m. on April 27, 2012, he made M.W. a bottle, fed her, burped her, and changed her
       diaper. M.W. was crying and being very fussy. At approximately 5:30 p.m., defendant put
       M.W. in her swing next to his bed, where she took a nap. Defendant also took a nap at that
       time. When he woke up at approximately 7:30 or 8 p.m., defendant found M.W. somewhat
       unresponsive, “breathing real heavy,” and “gasping for air.” Around that same time,
       defendant’s cousin arrived at the apartment because the two had planned to hang out that
       evening. Defendant called Taylor to tell her that he and his cousin were taking M.W. to the
       hospital. Taylor told defendant that she would come to the hospital at the end of her shift.
¶ 16       Defendant initially denied shaking or dropping M.W. at all, explaining to the detectives
       that he and Taylor were “pretty fragile” with M.W. The following exchange occurred:
                  “[JOHNSON]: Okay, well the injuries *** would have happened today. They
               would have happened even tonight. And, I mean, the problem with it is *** she’s in
               your care.
                  [DEFENDANT]: Uh huh.


                                                  -3-
                   [JOHNSON]: Okay. And, I have kids, [Kincaid] has kids, and dude, it’s tough. I’m
               not gonna sit here and bullshit you. I’m not gonna sit here and lie to you. And
               sometimes we make mistakes and, and accidents happen. And we don’t mean to do
               them. And that’s what they are. They’re, they’re accidents. It’s not that you’re intent to
               hurt your daughter. We know you didn’t.
                   ***
                   And you’ve got a screaming baby and *** you just don’t know what to do. You
               might set her down on the bed a little hard and that happens.
                   [DEFENDANT]: Yeah.
                   [JOHNSON]: And that’s what could’ve done that. If we get a *** little upset and
               we set her down on the bed a little hard or set her in the seat hard, that could’ve done it.
               But we’ve gotta figure out what did it so the doctors can help her and know what they
               need to do to fix it. Alright?
                   ***
                   So, I mean, my question to you is could you accidentally shake her or set her down
               hard you think?
                   [DEFENDANT]: I, I don’t never shake my baby at all, ever.
                   [JOHNSON]: I’m, not shake her, but if you set her down quick, I mean, babies,
               babies, their bodies, you know you could lay me down hard, you know what I mean,
               and I’d be ok. But babies, you set down hard and the momentum, the brain’s not all the
               way full in their head and that could do it.
                   [DEFENDANT]: Yeah.
                   [JOHNSON]: You know?
                   [KINCAID]: Mark, what happened? Something happened tonight.
                   [DEFENDANT]: That, I mean I might have. But I, I don’t think that I, you know,
               did anything harmful to her.”
¶ 17        After Kincaid pressed that something must have happened to M.W. during the time
       defendant was caring for her, defendant stated that he set M.W. down in her swing when she
       was fussing. When Johnson asked defendant if he set her down “kind of fast,” defendant stated,
       “hard, fast, yeah.” Defendant elaborated, as follows: “She kept screaming, so I set her down.
       You know, not super fast, not, not real gentle or nothing either though. I set her down in her
       swing. She was swinging for a while. I put her pacifier in.” Defendant stated that when he
       woke up, he noticed that M.W. was not “normal” and her breathing “wasn’t right.”
¶ 18        Kincaid then told defendant that M.W. was showing injuries consistent with being shaken.
       He asked defendant to be honest. Defendant responded, “like I said, I woke up, went to go feed
       her, she was a little bit fussy. I shook her a little bit to wake her up a little bit.” (The interview
       video shows defendant physically demonstrating a gentle shaking, moving his hands back and
       forth a distance of one or two inches.) When Kincaid asked defendant to again demonstrate
       how he shook M.W., defendant stated, “You know, shook her, just a little bit. It wasn’t like that
       [(defendant physically demonstrated a violent shaking, moving his hands quickly back and
       forth approximately 10 to 12 inches)]. I was, shook her a little bit [(demonstrating a gentle
       shaking)], she woke her eyes up. I fed her a little bit.” Defendant later stated, “She was a little
       bit fussy so I shook her a little bit.” (We note that defendant stated at times during the interview
       that he shook M.W. that evening so she would stop crying and, at other times during the

                                                     -4-
       interview, he stated that that he shook M.W. to wake her up.) Once M.W. stopped crying,
       defendant set M.W. on the bed, went to smoke a cigarette, and returned to find M.W.
       unresponsive and breathing heavily.
¶ 19       When Kincaid asked defendant why he shook M.W., defendant explained, “I was
       frustrated. *** I had been sick, stressed out, just wanted her to stop crying.” Defendant
       estimated he gave M.W. 5 to 10 shakes while holding her under her armpits. Her head was
       bouncing around “a little bit.” Defendant stated that he did not think he was hurting M.W.
       because she was not crying when he was shaking her. The following exchange occurred:
                   “[JOHNSON]: Mark, I mean, it was an accident, right?
                   [DEFENDANT]: Complete accident.
                   [JOHNSON]: You didn’t, I mean–
                   [DEFENDANT]: I don’t ever want to hurt my daughter, you know, that’s
               something a father never wants to do, I don’t think.
                   [JOHNSON]: But you understand you did, right?
                   [DEFENDANT]: Yes. I feel horrible about it. *** I don’t ever want to see her in
               pain.”

¶ 20                                 D. Dr. Kristine Alba’s Testimony
¶ 21       Dr. Kristine Alba, a St. John’s Hospital resident pediatrician who treated M.W. since birth,
       testified that M.W. was born a healthy baby. Although M.W. was born at 38 weeks (2 weeks
       earlier than the typical 40-week pregnancy), Alba testified that she considered 38 weeks “full
       term.” After M.W. suffered her brain injuries, she developed a seizure disorder and
       developmental delays. The brain damage also made feeding and breathing difficult, which
       required insertion of separate breathing and feeding tubes.

¶ 22                                   E. The State’s Medical Experts
¶ 23        Prior to the testimony of the State’s medical experts, defense counsel made an oral motion
       in limine to prohibit the experts from using the words “intentional” or “non-accidental” to
       describe M.W.’s injuries. Counsel argued that those terms were not medical diagnoses, but
       instead, legal conclusions about defendant’s mental state. The State objected, contending that
       the words were medical terms of art used to describe the characteristics of certain types of
       trauma. The State further asserted that because the witnesses were experts, they could
       permissibly give opinions as to the ultimate issues in the case (i.e., whether M.W.’s injuries
       were caused by accident). The trial court denied defendant’s motion in limine.

¶ 24                                  1. Dr. Leslie Acakpo Satchivi
¶ 25      The trial court found Dr. Acakpo Satchivi qualified to testify as an expert in the field of
       pediatric neurosurgery, a field which the doctor described as follows:
                   “[Pediatric neurosurgery] is surgical and non-surgical management of diseases of
               the brain and spine, specifically in children, and it involves congenital anomalies, so
               disorders that children are born with, and it also involves treatment of acquired
               anomalies, such as trauma.”



                                                  -5-
       Acakpo Satchivi confirmed that, prior to trial, the State had contacted him and asked that he
       review M.W.’s “case” and give his “expert opinion on what could have caused the child’s
       injuries.” To prepare for his testimony, Acakpo Satchivi reviewed (1) M.W.’s hospital records
       and medical images, (2) transcripts of interviews with “the mother and grandmother,” and (3)
       the recording of defendant’s police-station interview.
¶ 26       Based upon his review of computed tomography (CT) scans of M.W.’s brain, Acakpo
       Satchivi determined that M.W. suffered from a “diffuse injury, some kind of global injury to
       the cerebral hemispheres.” He also discovered a subdural hematoma (bleeding under the skull
       in the subdural space between the dura mater and the tissues covering the brain) and a
       subarachnoid hemorrhage (bleeding in the space between the tissues covering the brain and the
       brain itself). A later CT scan revealed a contusion (a bruise) on the back of M.W.’s brain,
       which Acakpo Satchivi opined could have been caused only by an impact. He explained that
       sections of M.W.’s brain had essentially died, resulting in severe and permanent brain damage.
¶ 27       After describing the physical characteristics of M.W.’s injuries, Acakpo Satchivi explained
       the difference between “accidental” and “non-accidental” trauma, as follows:
                   “Accidental trauma, just to use adjectives to make it a little more clearer [sic], it’s
               more focal, so there’s usually a single impact. There’s potentially a skull fracture. You
               can definitely have subdural blood. You can have subarachnoid blood, but there’s not
               the diffuse pattern of injury that you typically see in non-accidental trauma.”
       Acakpo Satchivi testified that M.W.’s injuries were consistent with nonaccidental trauma
       occurring within 24 hours of her admission to the hospital. He explained that subarachnoid and
       subdural bleeding can occur because “the blood vessels are anchored to the skull, but there are
       also fingers of blood vessels that go into the brain substance itself,” which can tear when the
       “brain moves within the skull.” Generally, shaking combined with an impact, or acceleration
       followed by a rapid deceleration, would cause the most damage to an infant’s brain. Acakpo
       Satchivi estimated that a violent, “motor[-]vehicle-collision type force” was necessary to cause
       the damage he observed in M.W.’s brain and that the person exerting the force would realize it
       was “excessive and harmful.”
¶ 28       Acakpo Satchivi opined that M.W. “suffered a closed-head injury most likely at the hands
       of her father.” He stated that he based this conclusion “on the review of the interview, and so
       on and so forth.” When the State asked him whether he “assume[d] everything in [defendant’s
       interview] is correct and true,” he responded as follows:
                   “The biggest issue I have with the interview is that at the start of the interview,
               [defendant] claims that nothing happened, and then as the interview progresses, he
               begins to add facts, the things that occurred, the shaking, the laying down roughly, and
               that progression from saying one thing to saying more, you know, makes me wonder
               how much more there really is, but I’ve got to say there has to be some element of truth
               to what he’s saying.”
¶ 29       When the State asked Acakpo Satchivi whether a baby could suffer brain injury if slammed
       into M.W.’s swing, he stated it was possible that such injuries could occur, even if no external
       bruising was present. When asked whether the same would be true if blankets were on the
       swing, Acakpo Satchivi stated, “Now we are kind of reaching. I don’t know for sure.”
¶ 30       On cross-examination, Acakpo Satchivi testified that he “completely” agreed with the
       following statement, which came from a medical study he relied upon: “The medical and


                                                    -6-
       imaging evidence, particularly where there’s only central nervous system injury[,] cannot
       reliably diagnose intentional injury. Only the child protection investigation may provide the
       basis for an inflicted injury.” When defense counsel asked Acakpo Satchivi why he concluded
       that M.W.’s injuries were nonaccidental, he stated, “because I did not base it solely on this
       imaging or the laboratory studies. I also saw this interview.” Acakpo Satchivi also agreed with
       the statement that “[t]here’s no scientific basis, to date, to indicate how much or how little
       force is necessary to produce a traumatic injury to the developing central nervous system.”
¶ 31       Acakpo Satchivi acknowledged that M.W.’s injuries could “potentially” have been caused
       by “a vascular malformation,” which he described as a type of “abnormality in the blood
       vessels that re-expose them to rupture and caus[e] similar bloody patterns on all the surfaces of
       the brain.” However, he could see no evidence of vascular malformation in M.W. and he did
       not believe her injuries were consistent with that condition. He further testified that although
       childbirth can sometimes result in similar injuries, it was “unlikely” M.W.’s injuries were
       caused by childbirth.
¶ 32       On further cross-examination, Acakpo Satchivi admitted that (1) he could not know
       whether M.W. suffered from a vascular malformation prior to April 27, 2012 and (2) a
       newborn suffering from a subdural hematoma–which can be caused by a vascular
       malformation–may show no symptoms. He explained that subdural hematomas can occur
       during childbirth due to the forces exerted on the baby’s head. Because babies born
       prematurely possess underdeveloped vascular systems, which are not as equipped to handle the
       pressures outside of the womb, premature babies have a higher tendency to suffer from brain
       bleeds. Babies who have suffered from brain bleeds are potentially vulnerable to “re-bleeds,”
       which can be caused by increases in blood pressure. Coughing and shaking can increase blood
       pressure to the brain. Acakpo Satchivi testified that “[l]ittle or no force” can cause a re-bleed
       “[u]nder the right circumstances.” He opined that a subdural hematoma occurring during
       childbirth would heal within two months.
¶ 33       Acakpo Satchivi admitted on cross-examination that he was unaware Taylor gave birth to
       M.W. two weeks prior to her due date following an induced labor that lasted more than 24
       hours.

¶ 34                                   2. Dr. Reuben Nicholas Trane
¶ 35        The trial court found Dr. Reuben Nicholas Trane qualified to testify as an expert in the field
       of pediatric radiology. Based upon his review of medical imagery of M.W.’s brain (and no
       other evidence), Trane opined that M.W. suffered from nonaccidental trauma, as indicated by
       subdural blood on both the left and right sides of the brain. Trane explained that accidental
       trauma, such as that which would occur during a car accident or a fall, usually involves a focal
       point of bleeding on one side of the brain. Nonaccidental trauma, on the other hand, is
       characterized by multiple points of bleeding on multiple sides of the brain. M.W.’s brain scans
       showed diffuse points of bleeding throughout the brain, a type of trauma that Trane said “raises
       the suspicion and says it’s consistent with non-accidental trauma.” He explained that “[i]n the
       literature and in children who have had fatalities related to child abuse or non-accidental
       trauma, they have reported that you see these same changes.”
¶ 36        Defendant did not present evidence.



                                                    -7-
¶ 37                             F. Jury Instructions and Closing Argument
¶ 38       At the jury-instruction conference, defendant asked the trial court to instruct the jury on the
       lesser-included offense of reckless conduct (Illinois Pattern Jury Instructions, Criminal, No.
       11.37 (4th ed. Supp. 2009) (hereinafter, IPI Criminal 4th No. 11.37 (Supp. 2009))). The court
       refused to give the instruction, explaining its reasoning, as follows:
                   “The court does find that reckless conduct is a lesser[-]included offense in this
               particular case, but in light of the evidence[,] and particularly the medical evidence in
               this case[,] and this lack of conflicting evidence, the instruction will not be given.”
¶ 39       Defendant also requested an instruction on the definition of “knowingly” (Illinois Pattern
       Jury Instructions, Criminal, No. 5.01B (4th ed. Supp. 2009) (hereinafter, IPI Criminal 4th No.
       5.01B (Supp. 2009)). The State objected, and the trial court refused that instruction as well,
       reasoning that “the word ‘knowingly’ has plain meaning within a jury’s common
       understanding.” The court explained that it would give a definition of “knowingly” only if the
       jury asked for one. Defense counsel asked the court to reconsider its ruling, arguing that a
       person acts “knowingly” in the context of aggravated battery only if he is “consciously aware
       that his conduct is practically certain to cause great bodily harm.” In response, the State
       contended that the “knowingly” element applies to the actions the defendant performs, not the
       bodily harm resulting from those actions. When defense counsel stated that she would object if
       the State espoused that view of the law during closing argument, the court told defense
       counsel, “you’re going to feel the weight of the court come down on an objection that the court
       has previously made a ruling on[,] if in fact you argue that point in closing argument. So I think
       we need to follow the court’s ruling during closing argument.”
¶ 40       In closing argument, the State argued, among other things, that M.W.’s injuries were
       “indicative of non-accidental trauma, child abuse.”
¶ 41       Defense counsel conceded in her closing argument that defendant shook M.W. out of
       frustration, which at least partially caused M.W.’s injuries. However, defense counsel asserted
       that the State failed to prove that defendant knowingly caused great bodily harm to M.W.
¶ 42       In rebuttal, the State argued, in pertinent part, as follows:
                   “I want to be absolutely clear with you. What we have to show is that when the
               defendant took actions and did things to [M.W.], that he knowingly acted in that way.
               We do not have to prove that when he committed these acts, that he knew the extent of
               what her injuries would be.”
¶ 43       As already stated, the jury found defendant guilty of aggravated battery to a child. In
       August 2013, the trial court sentenced him to 16 years in prison.
¶ 44       This appeal followed.

¶ 45                                         II. ANALYSIS
¶ 46       Defendant argues that he was denied a fair trial because the trial court (1) allowed the State
       to argue an incorrect legal definition of “knowingly” during its closing argument without
       permitting defense counsel to argue the correct definition, (2) refused to instruct the jury on the
       lesser-included offense of reckless conduct, and (3) allowed the State’s medical experts to
       describe M.W.’s injuries as “non-accidental.” We address these arguments in turn.



                                                    -8-
¶ 47                                  A. The Meaning of “Knowingly”
¶ 48        Defendant first argues that the trial court erred by allowing the State to argue an incorrect
       legal definition of “knowingly” in closing argument without permitting defense counsel to
       argue the correct definition. We agree.
¶ 49        During the jury-instruction conference, the State argued that to satisfy the “knowingly”
       element of aggravated battery, the State merely had to prove that defendant knowingly
       committed the acts that resulted in M.W.’s injuries. Defense counsel disagreed and argued that
       the State had to prove defendant was “consciously aware that his conduct [was] practically
       certain to cause great bodily harm.” The court sided with the State and prohibited defense
       counsel from arguing her definition of “knowingly” during closing arguments. We conclude
       that defense counsel had it right, and the court erred by allowing the State to argue an
       erroneous definition of “knowingly” during closing arguments.
¶ 50        Section 12-3.05(b)(1) of the Criminal Code of 1961 sets forth the crime of aggravated
       battery to a child, as follows:
                “A person who is at least 18 years of age commits aggravated battery when, in
                committing a battery, he or she knowingly and without legal justification by any
                means:
                         (1) causes great bodily harm or permanent disability or disfigurement to any
                     child under the age of 13 years ***[.]” 720 ILCS 5/12-3.05(b)(1) (West 2010).
¶ 51        In People v. Psichalinos, 229 Ill. App. 3d 1058, 1067, 594 N.E.2d 1374, 1381 (1992), the
       Second District explained that “when a statute is defined in terms of a particular result, a
       person is said to act knowingly when he is consciously aware that his conduct is practically
       certain to cause the result.” Applying this rule to the aggravated battery statute, the court held
       that “a defendant, if he has been charged with acting knowingly, must be consciously aware
       that his conduct is practically certain to cause great bodily harm.” Id. This well-settled rule is
       consistent with the pattern jury instruction defining “knowingly” (IPI Criminal 4th No. 5.01B
       (Supp. 2009)) and has been explicitly adopted in published opinions by each district of the
       appellate court except for the Fifth District. See, e.g., People v. Steele, 2014 IL App (1st)
       121452, ¶ 23, 19 N.E.3d 1084 (“A person acts knowingly if he or she is consciously aware that
       his or her conduct is practically certain to cause great bodily harm.”); People v. Isunza, 396 Ill.
       App. 3d 127, 132, 917 N.E.2d 1079, 1084 (2d Dist. 2009) (same); People v. Rickman, 73 Ill.
       App. 3d 755, 759, 391 N.E.2d 1114, 1117 (3d Dist. 1979) (same); People v. Dorn, 378 Ill. App.
       3d 693, 700, 883 N.E.2d 584, 589 (4th Dist. 2008) (same).
¶ 52        In this case, the State made the following statements in its rebuttal closing argument to the
       jury:
                     “I want to be absolutely clear with you. What we have to show is that when the
                Defendant took actions and did things to [M.W.], that he knowingly acted in that way.
                We do not have to prove that when he committed these acts, that he knew the extent of
                what her injuries would be.”
¶ 53        In its brief to this court, the State characterizes the prosecutor’s comments as “simply
       informing the jury that [the State] was not required to prove that defendant knew the precise or
       exact nature of the injury he was going to inflict.” We reject this argument because, although it
       is true that the State was not required to prove defendant knew the “precise or exact nature” of
       the injuries he would cause (i.e., a subdural hematoma and a subarachnoid hemorrhage), this is


                                                    -9-
       not what the prosecutor actually said in closing argument. Instead, the prosecutor told the jury
       that the State was not required to prove defendant knew the extent of the injuries he would
       inflict. This statement was plainly incorrect because the aggravated battery statute requires
       proof that the defendant knew the extent of the harm he would cause–specifically, great bodily
       harm. Indeed, the element of “great bodily harm” turns squarely upon the extent of the harm
       inflicted. The trial court erred by permitting the prosecutor to argue his erroneous
       understanding of the law to the jury and by prohibiting defense counsel from arguing her
       correct understanding of the law. The court’s doing so was the functional equivalent of
       instructing the jury on an erroneous definition of “knowingly.”
¶ 54       We further conclude that the trial court’s error was not harmless. Defendant’s mental
       state–specifically, whether he knowingly caused great bodily harm to M.W.–was the critical
       issue of fact in this case. Defendant admitted to detectives that he meant to shake M.W., and he
       acknowledged that his shaking of M.W. was the cause of her injuries, but he claimed that he
       did not think his shaking M.W. would cause the injuries that M.W. ultimately suffered. The
       bulk of the State’s case, particularly the medical testimony, was aimed at discrediting
       defendant’s claim that did not knowingly cause M.W.’s injuries. In its closing argument, the
       State essentially told the jury that it had satisfied the “knowingly” element of aggravated
       battery by proving that defendant knowingly shook M.W. Defense counsel did not contest this
       statement in her closing argument because the court had prohibited her from doing so. Because
       defense counsel–who had been a thorough and vigorous advocate throughout the trial–did not
       bother to dispute the State’s definition of “knowingly,” the jury likely concluded that the
       State’s definition must be accurate. Accordingly, we conclude that the State’s improper
       statement regarding the meaning of “knowingly” constituted a material factor in defendant’s
       conviction. See People v. Wheeler, 226 Ill. 2d 92, 123, 871 N.E.2d 728, 745 (2007). We
       therefore reverse and remand for a new trial.
¶ 55       However, because defendant’s remaining claims involve issues that are likely to arise
       again upon retrial, we address the merits of those claims as well.

¶ 56                            B. The Lesser-Included-Offense Instruction
¶ 57       Defendant argues that the trial court erred by refusing to instruct the jury on the
       lesser-included offense of reckless conduct. We agree.
¶ 58       Giving a lesser-included-offense instruction provides an important “third option” to the
       jury because “[i]f a jury believes that a defendant is guilty of something, but uncertain whether
       the charged offense has been proved, the jury might convict the defendant of the lesser offense
       rather than convict or acquit the defendant of the greater offense.” People v. Ceja, 204 Ill. 2d
       332, 359, 789 N.E.2d 1228, 1246 (2003).
¶ 59       An “included offense” is an offense “established by proof of the same or less than all of the
       facts or a less culpable mental state (or both), than that which is required to establish the
       commission of the offense charged.” 720 ILCS 5/2-9(a) (West 2010). The supreme court,
       recognizing that this statutory definition “offers little guidance because it does not specify the
       factors to be considered when deciding whether an uncharged offense is lesser included”
       (People v. Kolton, 219 Ill. 2d 353, 360, 848 N.E.2d 950, 954 (2006)), has identified three
       possible approaches to determining whether a lesser offense is included in a greater offense:
       (1) the abstract-elements approach; (2) the charging-instrument approach; and (3) the factual
       approach. People v. Miller, 238 Ill. 2d 161, 166, 938 N.E.2d 498, 501-02 (2010).

                                                   - 10 -
¶ 60       If, as in this case, the question is whether an uncharged offense is included in a charged
       offense, the court should use the charging-instrument approach (People v. Kennebrew, 2013 IL
       113998, ¶ 32, 990 N.E.2d 197), which the supreme court has explained as follows:
                    “Under the charging instrument approach, known as the intermediate approach, the
                lesser offense need not be a ‘necessary’ part of the greater offense, but the facts alleged
                in the charging instrument must contain a broad foundation or main outline of the lesser
                offense. [Citations.] The indictment need not explicitly state all of the elements of the
                lesser offense as long as any missing element can be reasonably inferred from the
                indictment allegations. [Citation.] There are two steps to the charging instrument
                approach. First, the court determines whether the offense is a lesser-included offense.
                Next, the court examines the evidence at trial to determine whether the evidence was
                sufficient to uphold a conviction on the lesser offense. [Citation.]” (Internal quotation
                marks omitted.) Id. ¶ 30, 990 N.E.2d 197.

¶ 61                              1. Charging-Instrument Approach: Step 1
¶ 62       The first step of the charging-instrument approach–determining whether an uncharged
       offense is a lesser-included offense of a charged crime–presents an issue of law that we review
       de novo. Id. ¶ 18, 990 N.E.2d 197.
¶ 63       In this case, the trial court found–and the State does not dispute–that reckless conduct was
       a lesser-included offense of aggravated battery to a child, as charged in the grand jury
       indictment. We agree. The indictment alleged that defendant “knowingly and without legal
       justification, cause[d] great bodily harm or permanent disability to M.W., a child two months
       of age, in that said defendant shook M.W., causing injury to M.W.’s brain.” Defendant
       requested the following pattern jury instruction for the offense of reckless conduct: “A person
       commits the offense of reckless conduct when he recklessly performs any act which ***
       causes bodily harm to *** another person.” IPI Criminal 4th No. 11.37 (Supp. 2009).
       Comparing the facts alleged in the indictment with the elements of reckless conduct, it is clear
       that reckless conduct is a lesser-included offense in this case. The indictment alleged that
       defendant performed an act (shaking M.W.) that resulted in bodily harm to another person
       (injury to M.W.’s brain) under a more culpable mental state than the mental state
       accompanying reckless conduct. See People v. Willis, 170 Ill. App. 3d 638, 641, 524 N.E.2d
       1259, 1261 (1988) (“Reckless conduct may be a lesser included offense of aggravated
       battery.”); People v. Roberts, 265 Ill. App. 3d 400, 402, 638 N.E.2d 359, 361 (1994) (same).

¶ 64                             2. Charging Instrument Approach: Step 2
¶ 65       Under the second step of the charging instrument approach, we must determine whether
       the evidence presented at trial was sufficient to uphold a conviction for the lesser-included
       offense of reckless conduct.
¶ 66       In this case, the trial court refused to instruct the jury on the lesser-included offense of
       reckless conduct, explaining that “in light of the evidence[,] and particularly the medical
       evidence in this case[,] and this lack of conflicting evidence, the instruction will not be given.”




                                                    - 11 -
¶ 67                           a. The Core Analysis and Standard of Review
¶ 68       The supreme court has repeatedly described the core analysis as follows: the trial court
       should instruct the jury on a lesser-included offense if the evidence adduced at trial was such
       that the jury could rationally find the defendant guilty of the lesser offense and acquit him of
       the greater offense. Kennebrew, 2013 IL 113998, ¶ 27, 990 N.E.2d 197; People v. Wilmington,
       2013 IL 112938, ¶ 47, 983 N.E.2d 1015; People v. Medina, 221 Ill. 2d 394, 405, 851 N.E.2d
       1220, 1226 (2006); Kolton, 219 Ill. 2d at 360, 848 N.E.2d at 954; People v. Davis, 213 Ill. 2d
       459, 476, 821 N.E.2d 1154, 1164 (2004); Ceja, 204 Ill. 2d at 360, 789 N.E.2d at 1247; People
       v. Baldwin, 199 Ill. 2d 1, 6, 764 N.E.2d 1126, 1129 (2002); People v. Garcia, 188 Ill. 2d 265,
       284, 721 N.E.2d 574, 584 (1999); People v. Novak, 163 Ill. 2d 93, 108, 643 N.E.2d 762, 770
       (1994).
¶ 69       However, the State and defendant disagree as to whether (1) the trial court may weigh
       evidence or assess credibility in making its determination under the core analysis, and (2) the
       reviewing court should give the trial court any deference in its determination under the core
       analysis.
¶ 70       The State argues that the abuse-of-discretion standard applies, and this court should defer
       to the trial court’s determination that the evidence did not support an instruction on reckless
       conduct. See, e.g., Davis, 213 Ill. 2d at 475, 821 N.E.2d at 1164 (“This court reviews a court’s
       decision to decline to give an instruction under the abuse of discretion standard.”). Defendant,
       on the other hand, argues that the exercise of discretion plays no part in the determination of
       whether the evidence rationally supports conviction on the lesser offense and acquittal on the
       greater offense, and, therefore, de novo review applies. See, e.g., People v. Washington, 2012
       IL 110283, ¶ 19, 962 N.E.2d 902 (“The question of whether sufficient evidence exists in the
       record to support the giving of a jury instruction is a question of law subject to de novo
       review.”). The parties’ disagreement over the appropriate analysis and standard of review is
       understandable.
¶ 71       As the seemingly irreconcilable statements from Davis and Washington illustrate, the
       supreme court’s case law in this area is in conflict. The supreme court has not been consistent
       in the way it has described the appropriate standard of review from one case to another. As we
       discuss in further detail below, some cases have cited prior cases for propositions that those
       historical cases clearly do not support. And although most cases involving lesser-included
       offenses have described the same core analysis (i.e., that a lesser-included instruction should
       be given if the evidence was such that the jury could rationally find the defendant guilty of the
       lesser offense and acquit him of the greater offense), the cases have not clearly described the
       amount of deference–if any–that the reviewing court should lend to the trial court’s ultimate
       determination under that analysis.
¶ 72       In addition, the supreme court has not provided a guiding principle to explain how or why
       the type of jury instruction at issue should affect the trial court’s or reviewing court’s analysis.
       If a tendered lesser-mitigated offense instruction in a first degree murder case calls for a
       different analysis or standard of review than a tendered lesser-included offense instruction in a
       routine criminal case, or a tendered affirmative defense instruction, what is the basis for that
       distinction?
¶ 73       The difficulty in drawing a principled distinction between the various analyses and
       standards of review applicable to different types of jury instructions is best illustrated through


                                                    - 12 -
       examples.

¶ 74                                  b. DiVincenzo and Related Cases
¶ 75        In this case, both the State and defendant cite People v. DiVincenzo, 183 Ill. 2d 239, 700
       N.E.2d 981 (1998), a first degree murder case in which the defendant–who caused the victim’s
       death during a weaponless fight–argued on appeal that the trial court erred by refusing to
       instruct the jury on the lesser-included offense of involuntary manslaughter. At trial, several
       eyewitnesses, including the defendant, provided varying accounts of the extent to which the
       defendant beat the victim. Id. at 244-47, 700 N.E.2d at 985-86. Testimony conflicted as to
       whether, or to what extent, the defendant kicked the victim in the head. Id. The State called
       medical experts to testify about the severity of the victim’s brain injuries. Id. at 247-48, 700
       N.E.2d at 986.
¶ 76        The legal issue in DiVincenzo is analogous to the legal issue in this case because the greater
       crimes in both DiVincenzo and this case (first degree murder and aggravated battery,
       respectively) required proof that the defendant acted knowingly, whereas the lesser crimes in
       both cases (involuntary manslaughter and reckless conduct, respectively) required proof that
       the defendant acted only recklessly. Id. at 249, 700 N.E.2d at 987. The supreme court in
       DiVincenzo described the applicable analysis and standard of review, as follows:
                “[A]n instruction is justified on a lesser offense where there is some evidence to
                support the giving of the instruction. People v. Jones, 175 Ill. 2d 126, 132[, 676 N.E.2d
                646, 649] (1997). If there is some credible evidence in the record that would reduce the
                crime of first degree murder to involuntary manslaughter, an instruction should be
                given. People v. Foster, 119 Ill. 2d 69, 87[, 518 N.E.2d 82, 89] (1987); People v. Ward,
                101 Ill. 2d 443, 451[, 463 N.E.2d 696, 699] (1984). Where some evidence supports the
                instruction, the circuit court’s failure to give the instruction constitutes an abuse of
                discretion. Jones, 175 Ill. 2d at 132[, 676 N.E.2d at 649].” Id.
¶ 77        In the above passage of DiVincenzo, the supreme court cited Jones, 175 Ill. 2d at 132, 676
       N.E.2d at 649, for the proposition that a trial court abuses its discretion when it fails to issue an
       instruction on a lesser-included offense if “some evidence” supports the instruction. However,
       the portion of Jones cited in DiVincenzo involved an affirmative defense instruction, not a
       lesser-included offense instruction. From this, one might naturally conclude that the same
       analysis must apply regardless of whether an affirmative defense or a lesser-included offense is
       at issue. After all, the supreme court cited the affirmative defense analysis in Jones as authority
       for its lesser-included-offense analysis in DiVincenzo. However, this natural conclusion
       appears to be wrong.
¶ 78        Regarding the affirmative defense instruction at issue in Jones, the defendant in that case
       argued that the jury should have been instructed that it was a defense to the crime of aggravated
       criminal sexual abuse that the defendant reasonably believed the victim was at least 17 years
       old. Jones, 175 Ill. 2d at 131-32, 676 N.E.2d at 648-49. The Jones court held that the evidence
       required the trial court to give this affirmative defense instruction, explaining that (1) “[v]ery
       slight evidence upon a given theory of a case will justify the giving of an instruction” and (2)
       “ ‘[i]n deciding whether to instruct on a certain theory, the court’s role is to determine whether
       there is some evidence supporting that theory; it is not the court’s role to weigh the evidence.’ ”
       Id. at 132, 676 N.E.2d at 649 (quoting People v. Jones, 276 Ill. App. 3d 1006, 1012, 659
       N.E.2d 415, 420 (1995) (Cook, P.J., dissenting)). These holdings from Jones, which the

                                                    - 13 -
       DiVincenzo court cited as part of its lesser-included-offense analysis, appear to be fairly
       straightforward.
¶ 79        However, the DiVincenzo court–immediately after citing those holdings from Jones–stated
       that the trial court should give a lesser-included offense instruction if some “credible
       evidence” in the record supports the lesser offense. (Emphasis added.) DiVincenzo, 183 Ill. 2d
       at 249, 700 N.E.2d at 987. Notice the tension between the Jones court’s prohibition against the
       trial court weighing the evidence and the DiVincenzo court’s statement that “credible”
       evidence should determine whether the trial court should give the tendered jury instruction.
       Taking DiVincenzo and Jones at face value, we are left with two possible explanations. Either
       (1) the task of weighing the evidence is meaningfully different than the task of determining
       credibility or (2) affirmative defenses call for a different analysis than lesser-included offenses.
¶ 80        As a possible third explanation, perhaps we are simply placing too much weight on the
       DiVincenzo court’s use of the word “credible” in its opinion. Maybe the court simply tossed in
       the word “credible” before the word “evidence” without really intending a credibility
       determination to make the difference as to whether a lesser-included offense instruction is
       required. But if that is true, and the trial court is not actually permitted to consider the weight or
       credibility of evidence when deciding whether a lesser-included-offense instruction must be
       given, why does the supreme court routinely remind us of the trial court’s “discretion” over
       giving lesser-included offense instructions? See, e.g., Garcia, 188 Ill. 2d at 283, 721 N.E.2d at
       584 (“[W]e consider whether the trial court properly exercised its discretion in submitting the
       lesser-included offense instruction to the jury. We observe that the ‘abuse of discretion’
       standard of review must be applied in determining the propriety of the trial court’s action.”);
       People v. Castillo, 188 Ill. 2d 536, 540, 723 N.E.2d 274, 276 (1999) (in the context of a
       lesser-included offense instruction, the supreme court noted that “[t]he instruction of the jury is
       a matter resting within the sound discretion of the trial court”); Davis, 213 Ill. 2d at 475, 821
       N.E.2d at 1164 (in the context of a lesser-included offense instruction, the supreme court
       stated, “[t]his court reviews a court’s decision to decline to give an instruction under the abuse
       of discretion standard”). If the analysis does not involve weighing evidence or assessing
       credibility, what opportunity is there for the trial court to exercise any discretion? And if no
       trial court discretion is involved in the determination, where along the deference spectrum
       should the reviewing court operate?
¶ 81        In further pondering whether the word “credible” in DiVincenzo might actually mean
       something for the trial court’s analysis, we should not forget People v. Everette, 141 Ill. 2d
       147, 565 N.E.2d 1295 (1990), in which the supreme court specifically took note of the
       adjective “credible” being used to modify the noun “evidence.” In Everette, 141 Ill. 2d at
       156-57, 565 N.E.2d at 1299, a murder case in which the propriety of a self-defense instruction
       was at issue, the supreme court specifically noted the following holding from the Seventh
       Circuit Court of Appeals case of United States ex rel. Bacon v. DeRobertis, 728 F.2d 874, 875
       (7th Cir. 1984) (per curiam): “[P]resumably[,] a trial judge should give a requested jury
       instruction only if credible evidence in the record would support a verdict based on that
       instruction.” (Emphasis in original.) The Everette court disagreed with the Seventh Circuit’s
       emphasis on credible evidence and held that “a homicide defendant is entitled to an instruction
       on self-defense where there is some evidence in the record which, if believed by a jury, would
       support the defense, even where the defendant testifies he accidentally killed the victim.”
       (Emphasis added.) Everette, 141 Ill. 2d at 156-57, 565 N.E.2d at 1299.


                                                    - 14 -
¶ 82        The Everette court’s explicit rejection of the “credible evidence” standard in the context of
       a self-defense instruction makes it more difficult to simply ignore the DiVincenzo court’s
       subsequent use of the phrase “credible evidence” in the context of a lesser-included-offense
       instruction. See also People v. Jones, 219 Ill. 2d 1, 31, 845 N.E.2d 598, 614 (2006) (“An
       instruction on a lesser offense is justified when there is some credible evidence to support the
       giving of the instruction.” (citing DiVincenzo, 183 Ill. 2d at 249, 700 N.E.2d at 987)).
¶ 83        Although one might assume that this tension could be cleared up by looking to the cases
       that the DiVincenzo court cited in support of its “credible evidence” statement, doing so only
       adds to the confusion. The DiVincenzo court cited its previous decisions in Foster and Ward
       for the proposition that a lesser-included-offense instruction should be given if some “credible
       evidence” appears in the record that would reduce the crime from the greater offense to the
       lesser offense. DiVincenzo, 183 Ill. 2d at 249, 700 N.E.2d at 987. However, the supreme
       court’s opinion in Foster never stated that credible evidence was required to support the lesser
       offense. On the contrary, Foster stated the exact opposite: “When there is evidence in the
       record which, if believed by the jury, would reduce the crime of murder to manslaughter, an
       instruction defining the lesser crime should be given.” (Emphasis added.) Foster, 119 Ill. 2d at
       87, 518 N.E.2d at 89.
¶ 84        Further, in Ward–as in DiVincenzo–the supreme court referred to “credible evidence.”
       However, in support of the “credible evidence” statement in Ward, the supreme court cited
       People v. Joyner, 50 Ill. 2d 302, 306, 278 N.E.2d 756, 759 (1972), which used the “if believed
       by the jury” standard.
¶ 85        This small sampling of the supreme court’s jurisprudence on jury instructions illustrates
       the difficulty we face in attempting to answer two important questions. First, should the trial
       court refuse to instruct the jury on a lesser-included offense if it finds that the only evidence
       supporting the lesser offense is insufficiently weighty or credible? Second, if the answer to the
       first question is yes, to what extent–if any–should the appellate court defer to the trial court’s
       determination?

¶ 86                                      c. The Guiding Principle
¶ 87       The tensions and inconsistencies that exist between Joyner, Ward, Foster, Jones (1997),
       DiVincenzo, and Jones (2006) are not anomalous. They fairly represent the tensions and
       inconsistencies that permeate the supreme court’s larger jurisprudence concerning the
       appropriate analysis and standard of review in cases involving jury instructions on
       lesser-included offenses, lesser-mitigated offenses, theories of the case, and affirmative
       defenses. To comprehensively catalogue the various points of tension within the enormous
       body of supreme court case law would be too great of an undertaking for this opinion, and our
       doing so would not help resolve this case. Instead, we think the best approach is to set aside the
       conflicting nuances and train our focus, not on the broad category of the instruction at issue in
       this case (a lesser-included-offense instruction), but on the nature of the specific factual issue
       that the instruction targets–specifically, defendant’s mental state when he committed the acts
       against M.W.
¶ 88       This brings us back to Washington, 2012 IL 110283, ¶ 60, 962 N.E.2d 902, in which the
       supreme court noted that “[i]t is the jury’s function to weigh the evidence, assess the credibility
       of the witnesses, resolve conflicts in the evidence, and draw reasonable inferences therefrom.”
       This, we conclude, should be the guiding principle in this case. If the trial court’s own

                                                   - 15 -
       credibility determination were allowed to stand in the way of the jury’s being instructed on a
       lesser-included offense, the court would be usurping the jury’s most basic function. Indeed, at
       the core of the right to a trial by jury is the understanding that lay jurors might weigh evidence
       and assess credibility differently than trial judges. However, the “credible evidence”
       standard–or any standard, for that matter, which purports to give the court “discretion” to
       decide what the evidence does or does not show–invites the court to substitute its own
       credibility determination for that of the jury. In so doing, the court short-circuits the
       defendant’s right to have his guilt or innocence on all applicable charges determined by a jury
       of his peers.
¶ 89        Well over a century ago, in a homicide case in which the defendant requested an instruction
       on manslaughter, which carried a less culpable mental state than murder, the United States
       Supreme Court described the trial court’s limited role, as follows:
                    “A judge may be entirely satisfied, from the whole evidence in the case, that the
               person doing the killing was actuated by malice; that he was not in any such passion as
               to lower the grade of the crime from murder to manslaughter by reason of any absence
               of malice; and yet, if there be any evidence fairly tending to bear upon the issue of
               manslaughter, it is the province of the jury to determine from all the evidence what the
               condition of mind was, and to say whether the crime was murder or manslaughter.”
               Stevenson v. United States, 162 U.S. 313, 323 (1896).
¶ 90        We conclude that the supreme court’s references to “credible evidence” in Ward,
       DiVincenzo, and Jones (2006) do not accurately reflect the limited scope of the trial court’s
       inquiry in determining whether a lesser-included-offense instruction must be given. We note
       that even in DiVincenzo, when the supreme court actually turned to the merits of the case, it
       seemed to disregard its own “credible evidence” language:
                    “It is the function of the jury to evaluate the credibility of the witnesses and to make
               inferences based on the evidence presented. Determination of defendant’s mental state
               may be inferred from the circumstantial evidence [citation], and this task is particularly
               suited to the jury. Based on the evidence, the jury could reasonably have concluded that
               defendant, by punching and kicking the victim, consciously disregarded a substantial
               and unjustifiable risk of death or great bodily harm but did not have the mental state
               required for first degree murder.” DiVincenzo, 183 Ill. 2d at 252, 700 N.E.2d at 988.
       This passage from DiVincenzo helps frame the issue before us in this case–namely, who should
       have decided what was actually going through defendant’s mind when he shook M.W.? The
       trial court took it upon itself to make that determination and, in so doing, it intruded upon the
       province of the jury.
¶ 91        Based upon the evidence presented at trial, we conclude that the trial court abused its
       discretion by refusing to instruct the jury on the lesser-included offense of reckless conduct.
       Defendant stated during his police-station interview that he gently shook M.W. to wake her up,
       or to get her to stop crying, and he did not intend to cause her serious harm. Defendant and both
       detectives characterized defendant’s actions as an “accident.” This certainly amounted to
       “some evidence” that defendant caused M.W.’s injuries recklessly and not knowingly.
¶ 92        The State argues that “[i]n light of the severity of M.W.’s injuries and the amount of force
       shown to be necessary to create those injuries, there is no evidence to support a conclusion that
       defendant was merely reckless.” We reject this contention. When the State asserts that “no
       evidence” supported a reckless-conduct instruction, it really means to say that no credible

                                                    - 16 -
       evidence supported such an instruction because the medical testimony cast serious doubt over
       defendant’s claim that he did not intend to harm M.W. and that her injuries were an accident.
       However, that was an issue for the jury to resolve, not the trial court.
¶ 93       As a final note, we acknowledge why a trial court might reasonably believe that it has
       discretion to refuse a lesser-included-offense instruction when it concludes that the only
       evidence supporting such an instruction is insufficiently weighty or credible. The supreme
       court has repeatedly characterized the giving of jury instructions as a matter resting within the
       sound discretion of the trial court. The term “sound discretion” usually implies that the court
       has some limited flexibility to choose the course of action it deems most appropriate based
       upon the evidence presented. We caution, however, that for all practical purposes, the trial
       court has no flexibility when it comes to determining whether “some evidence” exists that
       would allow the jury to rationally find the defendant guilty of the lesser offense and not guilty
       of the greater offense. Either some evidence supports the lesser offense, or none does. If any
       such evidence exists, a tendered instruction on the lesser-included offense should be submitted
       to the jury, regardless of the relative weight or credibility of that evidence.

¶ 94                      C. The Experts’ References to “Nonaccidental” Injuries
¶ 95       Last, defendant contends that the trial court erred by permitting the State’s medical experts
       to use the term “non-accidental” to describe M.W.’s injuries. We disagree.
¶ 96       Expert testimony is permitted if the expert’s “experience and qualifications afford him
       knowledge which is not common to lay persons and where such testimony will aid the trier of
       fact in reaching its conclusion.” People v. Enis, 139 Ill. 2d 264, 288, 564 N.E.2d 1155, 1164
       (1990). A trial judge is given broad discretion to determine the admissibility of expert
       testimony. Id. at 290, 564 N.E.2d at 1165. In the exercise of that discretion, the court should
       “carefully consider the necessity and relevance of the expert testimony in light of the facts in
       the case before [it] prior to admitting it for the jury’s consideration.” Id. The court abuses its
       discretion only if its rulings are arbitrary, fanciful, or unreasonable. People v. Lerma, 2014 IL
       App (1st) 121880, ¶ 35, 19 N.E.3d 95.
¶ 97       Defendant contends that Dr. Acakpo Satchivi’s and Dr. Trane’s testimony that M.W.’s
       injuries were nonaccidental was more than a mere medical diagnosis of M.W.’s injuries; it was
       a legal conclusion regarding defendant’s mental state. Defendant claims that the trial court
       improperly admitted such testimony because the jurors were capable of determining
       defendant’s mental state “using their own common understanding.” Although we agree that
       describing M.W.’s injuries as “non-accidental” necessarily said something about defendant’s
       mental state–which was the critical issue of fact at trial–we disagree that the State’s medical
       experts improperly used that terminology.
¶ 98       As this court noted in People v. Owens, 372 Ill. App. 3d 616, 620, 874 N.E.2d 116, 119
       (2007), Illinois courts have rejected the so-called “ultimate fact” doctrine, which held that a
       witness may not express his opinion as to the ultimate issue in a case. Instead, “it is now well
       settled that a witness, whether expert or lay, may provide an opinion on the ultimate issue in a
       case. [Citation.] This is so because the trier of fact is not required to accept the witness’
       conclusion and, therefore, such testimony cannot be said to usurp the province of the jury.”
       People v. Terrell, 185 Ill. 2d 467, 496-97, 708 N.E.2d 309, 324 (1998).



                                                   - 17 -
¶ 99        In this case, both Acakpo Satchivi and Trane explained to the jury that nonaccidental
        trauma is generally characterized by a diffuse pattern of injury to the infant’s brain, which is
        unlikely to be caused by a typical accidental injury in which a forcible impact to the head
        creates a single, focused point of brain injury. Although many members of the medical
        community might automatically associate diffuse brain injury with nonaccidental trauma, the
        same is likely not true of the average lay person. Had the State’s medical experts simply
        testified that M.W. had diffuse injuries to her brain, it is unlikely the jurors would have realized
        the significance of this fact without further explanation.
¶ 100       In terms of the specific vocabulary the State’s experts used, it happens that
        “non-accidental” is a good way for the medical experts to describe injuries that are not
        consistent with an accidental cause. The record suggests that in the context of this case, the
        term “non-accidental” is a medical term of art. It is not error to use such terminology in a
        criminal case simply because the medical experts’ interest in accurately describing trauma
        happens to overlap with the State’s interest in proving the mens rea element of its case.
        Accordingly, the trial court did not abuse its discretion by allowing the State’s experts to
        describe M.W.’s injuries as consistent with nonaccidental trauma.
¶ 101       However, defendant also contends that (1) Acakpo Satchivi improperly gave his
        conclusion as to the circumstances and factual cause of M.W.’s injuries, a conclusion which he
        based largely upon statements that defendant and third parties made to police during the
        criminal investigation; and (2) Trane improperly associated M.W.’s injuries with “child
        abuse.” We agree that this testimony from the State’s medical experts was improper. As
        already explained, the State’s experts properly testified, based upon their observations of
        M.W.’s injuries, that those injuries were consistent with what the medical community refers to
        as “non-accidental” trauma. This testimony was appropriate because medical doctors are in the
        business of reading the human body and drawing conclusions based upon what they observe.
        The trial court found the experts qualified to do that, and nothing more.
¶ 102       However, the State did not lay a sufficient foundation for Acakpo Satchivi or Trane to offer
        expert testimony about defendant’s mental state or the actual circumstances under which
        M.W.’s apparently nonaccidental injuries occurred. Such testimony was based upon
        something other than the doctors’ observations of M.W.’s physical injuries. It was therefore
        outside the scope of the doctors’ expertise. The State provided no foundation for Acakpo
        Satchivi or Trane to testify as experts in the field of parenting behavior, criminal or
        child-protection investigations, criminal psychology, or any other such field that might require
        an expert to draw conclusions about a defendant’s mental state or the circumstances
        surrounding a child’s nonaccidental injuries. Although expert witnesses may give opinions
        touching upon the ultimate issue in a case (Owens, 372 Ill. App. 3d at 621, 874 N.E.2d at 119),
        a sufficient foundation must exist to show that the opinion actually derives from the witness’s
        application of his or her expertise.
¶ 103       As a final matter, we commend defendant’s trial counsel, Lindsay Evans, for her work in
        this case. It is clear to us, based upon Ms. Evans’ well-developed legal arguments and intricate
        cross-examination of the State’s expert witnesses, that she engaged in exemplary pretrial
        preparation to become familiar with the pertinent legal and factual issues of trial. Both
        defendant and the trial court were well served by her efforts.




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¶ 104                                   III. CONCLUSION
¶ 105   For the reasons stated, we reverse defendant’s conviction and remand for a new trial.

¶ 106   Reversed and remanded.




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