                                  Illinois Official Reports

                                          Appellate Court



                              People v. Steele, 2014 IL App (1st) 121452



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


District & No.               First District, Third Division
                             Docket No. 1-12-1452

Filed                        September 30, 2014
Rehearing denied             October 10, 2014

Held                         On appeal from defendant’s convictions for aggravated battery to a
(Note: This syllabus         peace officer and three merged counts of aggravated fleeing and
constitutes no part of the   eluding a peace officer arising from an incident in which he was
opinion of the court but     stopped at a late-night traffic safety check for a seat belt violation, but
has been prepared by the     he sped away rather than pull aside so a citation could be written and,
Reporter of Decisions        in the course of fleeing, an officer was thrown from defendant’s car
for the convenience of       into oncoming traffic, the appellate court reduced his aggravated
the reader.)                 battery conviction to battery based on the State’s failure to present
                             sufficient evidence of “great bodily harm,” two of the aggravated
                             fleeing and eluding convictions were vacated due to the absence of
                             evidence that he was driving 21 miles per hour over the speed limit
                             and that he disobeyed traffic signals, and the cause was remanded for
                             resentencing on the battery conviction; furthermore, the appellate
                             court rejected defendant’s contention that his counsel was ineffective
                             in dealing with the evidence related to the injured officer and found
                             that the trial court did not err in failing to sua sponte conduct a Krankel
                             hearing.

Decision Under               Appeal from the Circuit Court of Cook County, No. 11-CR-11782; the
Review                       Hon. James B. Linn, Judge, presiding.

Judgment                     Affirmed in part, vacated in part and modified in part; cause remanded
                             for a new sentencing hearing.
     Counsel on               Michael J. Pelletier, Alan D. Goldberg, and Kathleen Weck, all of
     Appeal                   State Appellate Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                              Christine Cook, and Mary Beth Kinnerk, Assistant State’s Attorneys,
                              of counsel), for the People.




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




                                               OPINION

¶1         In June 2011, Chicago police conducted a late-night traffic safety check–pulling cars over
       for seat belt violations and other obvious infractions–in Chicago’s River West neighborhood, a
       popular late-night area. Defendant, Rodney Steele, was stopped by police officers for failing to
       wear a seat belt. When asked to pull to the side so a citation could be issued, Steele hit the
       accelerator, ran into Chicago police officer Alvin Porrata, and sped off. Several police officers
       pursued Steele to the south side of Chicago, where he ditched the car and was later caught on
       foot.
¶2         Steele was charged with two counts of attempted murder (720 ILCS 5/8-4(a), 9-1(b)(1)
       (West 2010)) (counts I and II), one count of aggravated battery (720 ILCS 5/12-4 (West 2010))
       (count III), and three counts of aggravated fleeing and eluding a peace officer by attempting to
       elude the police at a rate of speed at least 21 miles per hour over the legal speed limit (625
       ILCS 5/11-204.1(a)(1) (West 2010)) (count IV), causing bodily injury to any individual (625
       ILCS 5/11-204.1(a)(2) (West 2010)) (count V), and disobeying two or more official traffic
       control devices (625 ILCS 5/11-204.1(a)(4) (West 2010)) (count VI).
¶3         Officer Porrata was taken to the hospital and discharged a few hours later. Although
       Porrata had been thrown from the car into oncoming traffic, his hospital discharge report stated
       he was treated only for bruises to his knees and arm. At trial, however, Porrata testified, over
       defense counsel’s objection, that he tore ligaments in both knees and in his right shoulder and
       needed surgery to remove bone fragments from his shoulder. After a bench trial, Steele was
       acquitted on the attempted murder charge but convicted of aggravated battery and aggravated
       fleeing and eluding a peace officer and received concurrent sentences of nine years and three
       years, respectively.
¶4         Steele contends his conviction for aggravated battery should be reversed because the State
       failed to prove beyond a reasonable doubt that he intended to cause great bodily harm to
       Porrata, where the evidence showed him trying to flee the scene and not injure the officer.
       Alternatively, Steele argues the State failed to prove great bodily harm beyond a reasonable


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     doubt because the medical evidence showed Porrata only had leg and arm abrasions. He asks
     us to reduce his aggravated battery conviction from a Class 1 felony conviction to a Class 2
     felony conviction.
¶5        Steele also contends the trial court erred in allowing Porrata to testify about his injuries
     because he was not qualified as a medical expert and that his trial counsel was ineffective for
     not moving for discovery sanctions or asking for a continuance when Porrata’s testimony on
     the severity of his injuries differed from the State’s medical evidence provided in discovery.
     Steele further contends his defense counsel created a per se conflict of interest by raising his
     own ineffectiveness at trial during a posttrial hearing and the case should be remanded either
     for another motion for a new trial with new counsel or a hearing under People v. Krankel, 102
     Ill. 2d 181 (1984), to determine if his trial counsel rendered effective assistance. Lastly, Steele
     asserts two of his three convictions for aggravated fleeing and eluding should be dismissed
     because the State failed to prove each element of the charged offenses.
¶6        We modify in part, affirm in part, and vacate in part. Although the State proved Steele
     intentionally drove into Porrata causing bodily injuries, it failed to present sufficient evidence
     that Porrata suffered “great bodily injury.” Thus, we reduce his aggravated battery conviction
     to a battery conviction and remand for resentencing. We affirm Steele’s conviction and
     sentence on one of the aggravated fleeing and eluding a peace officer counts but find the State
     failed to present sufficient evidence to prove all of the elements on the two other aggravated
     fleeing and eluding a peace officer counts and vacate those convictions.

¶7                                          BACKGROUND
¶8       On June 13, 2011, Chicago police officers were conducting a traffic safety checkpoint in
     the River West area of the city, near the six-corner intersection of Kingsbury Street, Sheffield
     Avenue and Weed Street. This area contains several late-night bars, restaurants, and clubs. Six
     to ten uniformed Chicago police officers worked at the checkpoint or were stationed on foot
     throughout the well-lit intersection. Marked squad cars with emergency lights illuminated took
     positions at the intersection. When vehicles stopped at the intersection’s stop signs, officers
     approached to check for violations. The officers directed vehicles with violations to a staging
     area on Weed Street, where citations were issued.
¶9       At about 2:10 a.m., Steele, alone in a black Jaguar heading southbound on Kingsbury
     Street, approached the six-corner intersection. (Although Steele did not own the car and it had
     been reported stolen, Steele was not charged with possession of a stolen motor vehicle.)
     Officer Wagner testified that at the intersection, he approached Steele’s car from the passenger
     side and told Steele he was being stopped for failing to wear a seat belt. Wagner then asked for
     Steele’s driver’s license and insurance card. Officer Porrata was in front of the Jaguar while
     other officers stood on all sides. Officer Wagner testified Steele drove slowly while Officer
     Christopher Rigan, who also was there, testified the vehicle lurched forward and Steele
     ignored the officers’ orders to pull into the staging area. Wagner, having moved to the driver’s
     side, spoke to Steele through the window. He thought Steele was stalling and being evasive so
     he reached into the car in an attempt to open the driver’s side door. That’s when Steele pressed
     the accelerator and ran into Officer Porrata, who landed on the car’s hood. Porrata tried to hang
     on, but as Steele made a hard turn to the left, Porrata flew off the hood and landed in the street
     underneath a taxicab traveling in the oncoming traffic lane.


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¶ 10        Steele fled westbound on North Avenue to the entrance of the Kennedy Expressway and
       then headed southbound while pursued by Officer Rigan and his partner in an unmarked car
       with the emergency lights activated. Steele continued onto the Dan Ryan Expressway. Rigan
       saw him cross over four or five lanes of traffic and exit at 31st Street. Rigan exited at 35th
       Street and headed north. He found the Jaguar abandoned in a parking lot near the expressway at
       31st Street and Wentworth Avenue. Rigan and his partner conducted a grid search of the area
       and found Steele in a nearby alley. They arrested Steele. He was charged with two counts of
       attempted first degree murder (720 ILCS 5/8-4(a), 9-1(b)(1) (West 2010)); one count of
       aggravated battery (720 ILCS 5/12-4(a) (West 2010)); and three counts of aggravated fleeing
       or attempt to elude a peace officer while (1) traveling at least 21 miles per hour over the legal
       speed limit, (2) causing bodily injury, and (3) disobeying two or more official traffic control
       devices (625 ILCS 5/11-204.1(a)(1), (2), (4) (West 2010)).
¶ 11        Steele waived his right to a jury, and during his bench trial, Porrata, Wagner, Rigan and
       two eyewitnesses–the taxi driver and his passenger–testified about what occurred that night.
       Police surveillance videotape captured the incident, which the State admitted into evidence.
       The witnesses generally agreed on the sequence of events that led to Steele’s arrest. Porrata
       testified that when Steele drove into him, he tried to step out of the way, but Steele stepped on
       the accelerator and Porrata became pinned to the car’s hood. Porrata tried to hold on and felt
       that he was being sucked under the car. Then Steele sharply turned the car to the left, throwing
       Porrata underneath an oncoming taxicab.
¶ 12        Porrata stated that before this incident he was an active person and worked out two hours a
       day for five days a week. Over defense counsel’s hearsay objection, Porrata testified that as a
       result of this incident, he had torn ligaments in both his knees and in his right shoulder and
       loose bone fragments in his right shoulder. On cross-examination, Porrata acknowledged that
       the hospital treated him just for elbow and knee abrasions and released him the same morning.
       He also acknowledged he was not treated for more significant knee or shoulder injuries, nor
       had he undergone surgery on his knee or shoulder. Steele did not testify.
¶ 13        Following closing arguments, the trial judge acquitted Steele of attempted first degree
       murder, finding that the State failed to prove Steele intended to kill Officer Porrata. Instead, the
       court held Steele guilty of aggravated battery of a peace officer causing great bodily harm,
       noting that Porrata testified he had damaged leg ligaments and was “no longer the athlete that
       he once was.” The trial judge also found Steele guilty on three counts of aggravated fleeing and
       eluding of a peace officer.
¶ 14        Steele filed a motion asking the trial judge to reconsider his finding as to the aggravated
       battery charge, arguing Porrata’s testimony regarding his torn shoulder and knee ligaments
       constituted hearsay outside of an exception. Steele’s attorney asserted that to prove Porrata
       suffered great bodily injury the State had to present the testimony of a treating physician. In his
       motion, Steele also argued the State’s evidence regarding Porrata’s injuries amounted to a
       discovery violation because all of the documents, medical records, and transcripts submitted to
       the defense before trial indicated Porrata only had abrasions on his knee and nothing worse,
       and that Porrata’s testimony was not credible because neither he nor the hospital indicated his
       injuries were that serious and he was never treated for torn ligaments in his knee or shoulder.
       As to the fleeing and eluding charges, Steele contended there was no evidence he was driving
       at least 21 miles per hour over the speed limit and there was no evidence he disobeyed two or
       more traffic control devices, necessary elements to those offenses.

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¶ 15       During the hearing on the motion to reconsider, Steele’s attorney told the trial judge that he
       “may have been ineffective” by failing to point out at trial the discrepancies in the hospital
       report regarding Porrata’s injuries and Porrata’s testimony. The trial judge responded there
       was “no possible way you were ineffective whatsoever” and told defense counsel, “You don’t
       need to argue your own incompetence.” At the hearing, trial counsel stated he was
       “blindsided” at trial by Porrata’s testimony regarding torn ligaments and should have received
       some notice or medical record to support Porrata’s testimony.
¶ 16       The trial court denied the motion to reconsider. As to Porrata’s testimony regarding his
       injuries, the trial judge stated, even if Porrata had not said his ligaments were torn, “there was
       enough about the things that happened to him, the things that he suffered as a result of this
       incident. How his body felt so much differently and hasn’t felt the same since. That would be
       enough to show great bodily harm.” The trial court then proceeded to sentencing. Porrata
       testified in aggravation that before he was hit by Steele’s car, he had been in excellent physical
       condition but is no longer able to work out like he used to. He stated that after being treated at
       Northwestern Memorial Hospital he later saw the police department’s orthopedic surgeon,
       who told him he needed surgery on his shoulder. Porrata said he had not yet been able to have
       the surgery but was on medication for his shoulder pain because the “shoulder is falling apart.”
       The defense presented letters in mitigation. The trial judge then sentenced Steele as a Class X
       offender under section 5-5-3(c)(8) of the Unified Code of Corrections (730 ILCS 5/5-5-3(c)(8)
       (West 2010)) to nine years in prison for aggravated battery to a peace officer. The court also
       merged the three counts of aggravated fleeing and eluding of a peace officer and sentenced
       Steele to three years on those counts, with the sentences to run concurrently. Steele filed a
       motion to reconsider the sentence, which the trial court denied. Steele filed a timely notice of
       appeal.

¶ 17                                             ANALYSIS
¶ 18                                         Aggravated Battery
¶ 19        Steele concedes he struck Officer Porrata while fleeing the scene of the traffic safety
       checkpoint, but contends his conviction for aggravated battery should be reversed or reduced
       to, at most, reckless conduct because the State failed to prove beyond a reasonable doubt that
       he intended to cause Porrata great bodily harm. Alternatively, Steele contends that even if the
       State presented sufficient evidence to show intent, the State failed to prove that Porrata
       suffered great bodily harm where Porrata’s testimony that he tore ligaments in both of his
       knees and his right shoulder was hearsay and was not supported by the hospital medical
       records.
¶ 20        To sustain a conviction on criminal charges, the State must prove every element of an
       offense beyond a reasonable doubt. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2. The
       court must determine whether “after viewing the evidence in the light most favorable to the
       prosecution, any rational trier of fact could have found the essential elements of the crime
       beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319
       (1979); People v. Cunningham, 212 Ill. 2d 274, 278 (2004). It is not the court’s function to
       retry the defendant or to substitute its judgment for that of the trial court. People v. Evans, 209
       Ill. 2d 194, 209 (2004). The trial court is responsible for assessing the credibility of witnesses,
       determining the appropriate weight to give to testimony, and resolving inconsistencies in the
       evidence. Id. at 211. Reversal is justified when the evidence is “so unsatisfactory, improbable

                                                    -5-
       or implausible” to raise a reasonable doubt as to the defendant’s guilt. People v. Slim, 127 Ill.
       2d 302, 307 (1989).
¶ 21        Under section 12-3(a) of the Criminal Code of 1961 (Code), a battery is committed when a
       person “knowingly without legal justification by any means (1) causes bodily harm to an
       individual.” 720 ILCS 5/12-3(a)(1) (West 2010). Aggravated battery is, of course, a more
       serious offense that is separated into two general categories. One category, embodied in
       subsection 12-4(a) of the Code, creates the offense of aggravated battery by both the nature of
       the act and its result–“causes great bodily harm, or permanent disability or disfigurement”–and
       it is that result which elevates the battery to an aggravated battery. 720 ILCS 5/12-4(a) (West
       2010). A second category, embodied in subsections 12-4(b), 12-4(c), 12-4(d), 12-4(d-3), and
       12-4(d-5), centers only on the nature of the act–a “simple battery” in subsection 12-4(b) and
       other acts specified in subsections 12-4(c), 12-4(d), 12-4(d-3), and 12-4(d-5)–together with
       surrounding circumstances, such as the location of the offense or the age, occupation, or
       physical state of the victim, which elevate the crime to an aggravated battery. For instance,
       under section 12-4(b)(18) a person commits aggravated battery by committing a battery
       against someone known “to be an officer or employee of the State of Illinois [or] a unit of local
       government *** engaged in the performance of his or her authorized duties” (720 ILCS
       5/12-4(b)(18) (West 2010)), such as a police officer.

¶ 22                                    Defendant Acted Knowingly
¶ 23        The State charged Steele under section 12-4(a) of the Code. 720 ILCS 5/12-4(a) (West
       2010). (The State could have but opted not to charge Steele under section 12-4(b)(18) (720
       ILCS 5/12-4(b)(18) (West 2010)) because Porrata was a police officer.) Section 12-4(a)
       requires the State to prove a defendant intentionally or knowingly caused great bodily harm.
       720 ILCS 5/12-4(a) (West 2010). 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. Vazquez, 315
       Ill. App. 3d 1131, 1133 (2000). In contrast, a person acts recklessly if he or she consciously
       disregards a substantial and unjustifiable risk that the victim would be harmed. People v.
       Moore, 358 Ill. App. 3d 683, 688 (2005). Where the defendant denies intent, as here, the State
       may prove the defendant’s intent through circumstantial evidence. People v. Phillips, 392 Ill.
       App. 3d 243, 259 (2009). Intent can be inferred from the surrounding circumstances, the
       defendant’s words, the weapon used, and the force of the blow. People v. Conley, 187 Ill. App.
       3d 234, 242 (1989).
¶ 24        Steele contends the evidence shows he acted recklessly, but not knowingly or intentionally,
       when he drove into Porrata because he was attempting to flee the scene and striking Porrata
       was an inadvertent result of his fleeing. Thus, Steele asserts his conviction for aggravated
       battery should be reversed or reduced to a Class 2 felony of reckless conduct. We disagree.
¶ 25        The evidence sufficiently supports the trial court’s finding that Steele acted knowingly or
       intentionally. Although, as Steele asserts, no evidence indicates he made threats to the police
       officers indicating he intended to injure any of them, the circumstances surrounding the
       incident show he had the requisite intent under section 12-4(a) of the Code. 720 ILCS
       5/12-4(a) (West 2010). Testimony at trial showed that Steele was stopped by police officers
       and directed to proceed to a staging area so an officer could issue a ticket. Rather than comply
       with the request, Steele inched the car forward and, after Officer Wagner reached into the car,
       Steele hit the accelerator, ramming into Porrata, who was standing directly in front of it. Given

                                                   -6-
       the proximity of Officer Porrata and other officers to the car, Steele must have been
       consciously aware that hitting the accelerator and driving straight at Porrata was practically
       certain to cause bodily harm. Further, after Porrata became pinned to the hood of the car, Steele
       made a sharp U-turn that threw Porrata off and into oncoming traffic. Even if Steele had not
       intended to initially strike Porrata and only intended to flee the scene, his driving maneuver
       dislodged Porrata from the vehicle’s hood and directly into oncoming traffic–showing that he
       knowingly or intentionally caused bodily harm.

¶ 26                                          Great Bodily Harm
¶ 27       Under section 12-4(a) of the Code (720 ILCS 5/12-4(a) (West 2010)), the State was also
       required to prove that Porrata’s injuries amounted to “great bodily harm.” Steele contends the
       State failed to do so because the photographic evidence and medical report showed he suffered
       nothing more than abrasions to his knees and elbow. Steele asserts that although Porrata
       testified that he had torn ligaments in both legs and his shoulder, that testimony constitutes
       inadmissible hearsay and was not corroborated by the medical evidence. Steele further
       contends that on cross-examination Porrata acknowledged that on the day of the incident, he
       was told he only sustained bruises and abrasions. Accordingly, in the absence of evidence of
       great bodily harm, Steel asks that his conviction be reduced from a Class 1 to a Class 2 felony.
¶ 28       As noted, the aggravated battery statute contains two separate categories. A conviction
       under section 12-4(a) requires proof of “great bodily harm,” an injury of a greater and more
       serious nature than simple battery and centers on the injuries the victim actually received. In re
       J.A., 336 Ill. App. 3d 814, 815 (2003). In the context of aggravated battery, great bodily harm
       has been held not susceptible of precise legal definition. People v. Figures, 216 Ill. App. 3d
       398, 401 (1991). Bodily harm as it relates to ordinary battery requires “some sort of physical
       pain or damage to the body, like lacerations, bruises or abrasions.” People v. Mays, 91 Ill. 2d
       251, 256 (1982). Great bodily harm then must be more serious or grave than lacerations,
       bruises, or abrasions. In re J.A., 336 Ill. App. 3d at 817. We review the evidence of great bodily
       harm in the light most favorable to the State, to determine whether any rational trier of fact
       could have found the element proven beyond a reasonable doubt. In re Jessica M., 399 Ill.
       App. 3d 730, 736 (2010).
¶ 29       The State did not prove the element of great bodily harm beyond a reasonable doubt. The
       medical report from Northwestern Memorial Hospital shows doctors treated Porrata for
       abrasions on his knees and discharged him a few hours later, at 5:58 a.m. The State entered into
       evidence a photograph showing Porrata also had abrasions on his right elbow. These injuries
       alone fall short of constituting great bodily harm. In re J.A., 336 Ill. App. 3d at 817 (great
       bodily harm more serious or grave than lacerations, bruises, or abrasions).
¶ 30       At trial, Porrata testified to injuries more severe than bruises and abrasions, stating that he
       had torn ligaments in both knees and in his right shoulder and bone fragments in his right
       shoulder. While these injuries would likely be sufficient to support a finding that Porrata
       suffered great bodily harm, that finding here was erroneous because it is not supported by the
       record. As noted, the hospital report did not indicate Porrata had suffered torn ligaments and,
       as Porrata acknowledged on cross-examination, he was not diagnosed at that time as having
       torn ligaments in his knees or shoulder.
¶ 31       During the sentencing hearing, Porrata did state that some time after being treated at
       Northwestern Memorial Hospital, he saw another doctor who diagnosed him with torn

                                                    -7-
       ligaments and advised him to have surgery on his shoulder. He also said he suffered a lot of
       pain and took pain medications. But this was not “evidence at the trial” because it was argued
       as aggravation during sentencing. (Internal quotation marks omitted.) People v. Ybarra, 156
       Ill. App. 3d 996, 1005 (1987). If Porrata received a medical diagnosis showing more serious
       injuries than originally thought, the State needed to have offered scans, X-rays, medical
       reports, or medical testimony, something, to show that diagnosis. Generally, it is not necessary
       to present expert testimony on the issue of causation when the relationship between cause and
       effect is readily apparent based on common knowledge and experience. People v. Anderson,
       95 Ill. App. 3d 143, 148 (1981). But where the question of causation is beyond the general
       understanding of the public, the prosecution must present expert evidence. Id. Because Porrata
       was treated at a hospital and released with only abrasions and bruising, the cause of the injuries
       to which he testified–torn ligaments and loose bone fragments in his shoulder–would not be
       readily apparent based on common knowledge and experience. Thus, expert testimony that the
       incident with Steele caused Porrata’s injuries was required.
¶ 32        Further, assuming Porrata was diagnosed with those injuries in the months following the
       incident, the State also should have provided that evidence to the defense before trial. Illinois
       Supreme Court Rule 415(b) (eff. Oct. 1, 1971) imposes on a party a continuing duty to disclose
       to the other party (and the court if trial has already commenced) any additional material or
       information which is subject to disclosure. Indeed, had the State obtained evidence showing
       Porrata was diagnosed with more severe injuries after his initial hospital visit, the State was
       obligated to provide that evidence to the defense before Porrata testified.
¶ 33        At trial, defense counsel objected to Porrata’s testimony on hearsay grounds (and also
       raised the issue in his posttrial motions) but the trial judge overruled the objection. Porrata
       contends the trial court erred in permitting Porrata to testify about his medical diagnosis. We
       agree.
¶ 34        Generally, this court reviews a trial court’s evidentiary rulings under an abuse of discretion
       standard. People v. Caffey, 205 Ill. 2d 52, 89 (2001). But a trial court’s ruling on whether a
       statement is hearsay may be reviewed de novo when that determination does not involve fact
       finding or weighing the credibility of the witnesses. People v. Aguilar, 265 Ill. App. 3d 105,
       109 (1994). In ruling on defense counsel’s hearsay objection, the trial judge stated, “No,
       [Porrata] can talk about his own body. One of the allegations is aggravated battery with great
       bodily harm to a peace officer, knowing he [or she] was a peace officer. These are elements of
       the offense and he can talk about–anybody can talk about their own bodies.” We agree that
       Porrata was competent to testify about his physical condition since the accident and any
       adverse effects from it. Ill. R. Evid. 803(3) (eff. Apr. 26, 2012) (excluding from hearsay rule
       “[a] statement of the declarant’s then existing *** physical condition (such as *** pain, and
       bodily health)”). But Porrata was not competent to testify about an apparent medical diagnosis
       that he had torn ligaments or that those injuries were the result of this incident. Robinson v.
       Wieboldt Stores, Inc., 104 Ill. App. 3d 1021, 1026 (1982) (plaintiff could describe her
       symptoms and physical limitations which she did not experience before her false
       imprisonment at department store, and how she felt, but because plaintiff was not qualified as
       expert, she was incompetent to testify regarding specific medical diagnoses).
¶ 35        Aside from the testimony by Porrata, the only evidence presented regarding Porrata’s
       injuries–the discharge report from Northwestern Memorial Hospital and the State’s photo
       exhibits–showed his injuries to (fortunately) be nothing more extensive than bruises and

                                                    -8-
       abrasions. Because Porrata’s testimony was the only evidence offered by the State and no
       medical evidence supported his assertions that he suffered more extensive injures, the State
       failed to prove beyond a reasonable doubt that Porrata suffered great bodily harm. But the State
       did establish under section 12-3(a) of the Code (720 ILCS 5/12-3(a) (West 2010)) that Steele,
       acting intentionally or knowingly without legal justification, caused bodily harm to Porrata,
       and thus committed battery.
¶ 36       We reduce Steele’s conviction to battery as the lesser included offense of aggravated
       battery (People v. Virgil, 19 Ill. App. 3d 744, 747 (1974)) and remand for a new sentencing
       hearing.

¶ 37                                    Effective Assistance of Counsel
¶ 38        Steele next contends he received ineffective assistance of counsel because his counsel
       failed to ask for discovery sanctions against the State or a continuance when Porrata testified
       that he had more serious injuries than indicated in the medical records tendered in discovery.
       Generally, to show ineffective assistance of counsel, a defendant must establish: (1) counsel’s
       representation fell below an objective standard of reasonableness; and (2) counsel’s alleged
       deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
       (1984). We accord substantial deference to an attorney’s decisions as there is a strong
       presumption that an attorney acted adequately. Id. at 689. A defendant must overcome the
       strong presumption the challenged action or inaction “might have been the product of sound
       trial strategy.” People v. Evans, 186 Ill. 2d 83, 93 (1999). Every effort must “be made to
       eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
       challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
       Strickland, 466 U.S. at 689. Because effective assistance refers to competent and not perfect
       representation, mistakes in trial strategy or judgment will not, of themselves, render the
       representation incompetent. People v. Calhoun, 404 Ill. App. 3d 362, 383 (2010). To satisfy
       the prejudice prong of the Strickland test, a defendant must demonstrate that, but for defense
       counsel’s deficient performance, the result of the proceeding would have been different.
       Strickland, 466 U.S. at 694. If a reviewing court finds that the defendant did not suffer
       prejudice, it need not decide whether counsel’s performance was constitutionally deficient.
       People v. Buss, 187 Ill. 2d 144, 213 (1999).
¶ 39        Steele argues, as did trial counsel in a posttrial motion to reconsider, that the State may
       have committed a discovery violation by not disclosing all of the medical records in its
       possession because the medical records the State produced did not indicate torn knee and
       shoulder ligaments. Steele’s trial counsel admitted the State blindsided him.
¶ 40        Steele also asserts his trial counsel was ineffective for failing to seek sanctions against the
       State for a discovery violation or request a continuance to prepare for trial in light of the new
       evidence. Steele contends both prongs of the Strickland test are satisfied because (i) trial
       counsel’s failure to seek discovery sanctions or a continuance to further investigate Porrata’s
       surprise testimony fell below a reasonable level of representation and (ii) he was prejudiced by
       his counsel’s failure to ask for a continuance so as to present any evidence to counter Porrata’s
       testimony. We disagree.
¶ 41        Illinois Supreme Court Rule 412 provides that on written motion of defense counsel, the
       State shall disclose “any reports or statements of experts, made in connection with the
       particular case, including results of physical or mental examinations and of scientific tests,

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       experiments, or comparisons, and a statement of qualifications of the expert.” Ill. S. Ct.
       R. 412(a)(iv) (eff. Mar. 1, 2001). Supreme Court Rule 415(b) places a continuing duty to
       disclose on the parties to disclose, providing that if a party discovers additional material or
       information subject to disclosure, he or she must promptly notify the other party or his counsel
       of the existence of the additional material. Ill. S. Ct. R. 415(b) (eff. Oct. 1, 1971). In his brief,
       Steele acknowledges “the record is silent as to whether the State knew before trial that Porrata
       would testify as he did or whether the State possessed additional medical reports about
       Porrata’s injuries that it failed to disclose.” In the absence of evidence that the State had
       medical reports that it failed to disclose, it is highly unlikely a motion for discovery sanctions
       would have succeeded, and thus, Steele cannot show he was prejudiced by his counsel’s failure
       to request them.
¶ 42       Steele also contends his counsel was ineffective by failing to request a continuance to
       further investigate Porrata’s testimony and the existence of medical records to substantiate his
       claims. Initially, we note that during trial defense counsel cross-examined Porrata regarding
       his injuries, asking whether on the day of the incident he was diagnosed with torn ligaments in
       his knees and shoulder or whether he had surgeries for those injuries, and Porrata responded to
       both inquiries that he had not. At the hearing on Steele’s posttrial motion to reconsider, defense
       counsel suggested he may have been ineffective for failing to “bring out certain things”
       contained in Porrata’s medical records. The trial judge responded there was “no way” trial
       counsel was ineffective, noting he was prepared, skillful, and articulate and presented multiple
       theories. In denying Steele’s posttrial motion, the trial judge stated, “even if [Porrata] had not
       said my ligaments were torn *** I think there was enough about the differences that happened
       to him, the things he suffered as a result of this incident. His body felt so much differently and
       hasn’t felt the same since. That would have been enough to show great bodily harm.” These
       comments indicate that a continuance to gather more information would not have been likely
       to change the result, because the trial judge was inclined to find great bodily harm absent
       Porrata’s testimony about torn ligaments. Thus, the trial judge’s comments, counsel’s success
       in obtaining an acquittal on the two most serious charges, and that Steele cannot show a
       continuance would have aided his case convince us that Steele has failed to show that the
       representation in the trial court was constitutionally deficient or the result would have been
       different had his counsel asked for a continuance.
¶ 43       In addition, Steele argues that he received ineffective assistance because trial counsel
       argued his own ineffectiveness in the posttrial proceedings and asks us to remand for the
       appointment of new counsel to represent him in a motion for a new trial. Alternatively, Steele
       asks that the case be remanded for “an adequate Krankel inquiry.” A criminal defendant’s sixth
       amendment right to effective assistance of counsel includes the right to conflict-free
       representation. People v. Taylor, 237 Ill. 2d 356, 374 (2010). The Illinois Supreme Court has
       identified two categories of conflicts of interest: per se and actual. Id. Steele claims counsel
       had a per se conflict in arguing his own ineffectiveness. Once a per se conflict is found, there is
       no need to show that the conflict affected the attorney’s actual performance. Id. at 374-75.
       Unless a defendant waives his or her right to conflict-free representation, a per se conflict of
       interest requires reversal. Id. at 375.
¶ 44       The Illinois Supreme Court has set out three situations where a per se conflict exists: (1)
       where defense counsel has a prior or contemporaneous association with the victim, the
       prosecution, or an entity assisting the prosecution; (2) where defense counsel


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       contemporaneously represents a prosecution witness; and (3) where defense counsel was a
       former prosecutor who had been personally involved in the prosecution of defendant. Id. at
       374. In People v. Perkins, 408 Ill. App. 3d 752, 761 (2011), the appellate court held that an
       attorney alleging his own ineffectiveness does not fall within any of these three categories
       recognized as per se conflicts of interests. In Perkins, as here, the defense counsel asserted his
       own incompetence. In finding no per se conflict, the court noted that the defendant was
       represented by different counsel on appeal, “who was unencumbered by any conflict in
       arguing ineffective assistance by trial counsel and did so zealously.” Id. at 762.
¶ 45        Steele contends the Perkins rationale does not apply–although he is presented by new,
       conflict-free counsel in this appeal, it appears from defense counsel’s statements at the
       posttrial hearing that he had X-rays and range of motion studies performed on Porrata that
       could have been used for impeachment purposes and his appellate counsel does not have
       access to those documents. But, as noted, the trial judge stated that he would have found great
       bodily injury even if Porrata had not testified regarding torn ligaments based on the effect the
       incident had on his overall physical health (albeit during the sentencing phrase). Thus, Steele’s
       trial counsel was not ineffective.
¶ 46        Defendant alternatively asks us to remand because the trial court erred in failing to conduct
       a sua sponte Krankel inquiry into whether defense counsel provided ineffective assistance
       after defense counsel suggested in the posttrial motion that he may have been ineffective for
       not properly using the medical records to impeach Porrata’s credibility about his injuries.
¶ 47        The supreme court’s decision in Krankel has led to the rule that when a defendant raises a
       pro se posttrial claim of ineffective assistance of counsel, the trial court should examine the
       factual basis of the claim. People v. Moore, 207 Ill. 2d 68, 77-78 (2003). In the absence of a
       sufficient claim of ineffective assistance of counsel by the defendant, that inquiry is required.
       People v. Taylor, 237 Ill. 2d 68, 77 (2010). Steele did not make a pro se complaint; however,
       he maintains that even where a defendant has not raised a claim of ineffectiveness, a trial court
       has a duty to act sua sponte when the record provides a clear basis for an allegation of
       ineffectiveness. In making that argument, Steele relies on People v. Williams, 224 Ill. App. 3d
       517, 524 (1992).
¶ 48        In Williams, the defendant was found guilty of murder, and defense counsel filed a motion
       for a new trial, informing the court of two witnesses who would have supported defendant’s
       alibi defense that had not been called at trial in spite of his knowledge of their existence. Id. at
       521-23. The trial court denied the motion. In doing so, the trial court rejected defense counsel’s
       claim that these witnesses constituted new evidence, referring to counsel’s argument as
       “ ‘ridiculous.’ ” Id. at 522. Before the appellate court, defendant argued that the trial court
       erred in failing to conduct a sua sponte Krankel inquiry into defense counsel’s ineffectiveness,
       which was readily apparent from counsel’s statements regarding the alibi witnesses he did not
       call at trial. Id. at 523. The appellate court noted that the two witnesses would have provided
       critical support of defendant’s alibi defense and that the trial court’s strong comments to
       counsel indicated that it was made aware of counsel’s possible neglect. Id. at 524. The court
       thus held that where the record discloses a clear basis for an allegation of ineffectiveness of
       counsel, a defendant’s failure in explicitly making that allegation does not result in waiver, and
       it remanded the case to the trial court for a preliminary investigation into defense counsel’s
       performance. Id.


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¶ 49        Unlike in Williams, defense counsel’s statements did not concern Steele’s guilt or
       innocence of the charged offense, and the court was not presented with evidence of defense
       counsel neglecting to present witnesses or put on a defense. People v. Henney, 334 Ill. App. 3d
       175, 190 (2002). Further, unlike in Williams, even if defense counsel had questioned Porrata
       about his injuries and the medical reports, it is unlikely the outcome would have been different,
       as the trial judge stated that he was convinced Porrata suffered great bodily injury even without
       the evidence of torn ligaments. Under these circumstances, we find no error by the trial court in
       failing to conduct a sua sponte Krankel inquiry.

¶ 50                          Aggravated Fleeing and Eluding a Peace Officer
¶ 51       In addition to the aggravated battery charge, the State also charged Steele under section
       11-204.1 of the Illinois Vehicle Code (625 ILCS 5/11-204.1 (West 2010)) with three counts of
       aggravated fleeing or attempting to elude a peace officer. Specifically, the State alleged that in
       fleeing or attempting to elude a peace officer, Steele was travelling at a rate of speed at least 21
       miles per hour over the legal speed limit (625 ILCS 5/11-204.1(a)(1) (West 2010)) (count IV),
       caused bodily injury to an individual (625 ILCS 5/11-204.1(a)(2) (West 2010)) (count V), and
       disobeyed two or more official traffic control devices (625 ILCS 5/11-204.1(a)(4) (West
       2010)) (count VI). The trial court convicted on all three counts and sentenced Steele to three
       years on each count. Although the court merged the three counts, the mittimus reflects three
       convictions. Steele contends the State failed to prove him guilty beyond a reasonable doubt as
       to counts IV and VI and that the mittimus must be corrected to reflect the merger of the three
       counts. Because we agree that the State failed to prove guilt beyond a reasonable doubt as to
       counts IV and VI, we need not address the merger contention.
¶ 52       It is fundamental that the due process clause protects the accused against conviction unless
       the prosecution proves beyond a reasonable doubt every fact necessary to encompass the crime
       charged. People v. Carpenter, 228 Ill. 2d 250, 264 (2008). When a defendant challenges the
       sufficiency of the evidence to support a conviction, the relevant question on review is whether,
       after considering the evidence in the light most favorable to the State, any rational trier of fact
       could have found the essential elements of the crime proven beyond a reasonable doubt.
       People v. Beauchamp, 241 Ill. 2d 1, 8 (2011). The trier of fact determines the credibility of
       witnesses, the weight to be given to their testimony, and the reasonable inferences to be drawn
       from the evidence, and this court will not substitute its judgment for that of the trial court on
       these matters. People v. Collins, 214 Ill. 2d 206, 217 (2005). If, after a careful examination of
       the evidence, we “are of the opinion that the evidence is insufficient to establish the
       defendant’s guilt beyond a reasonable doubt, we must reverse the conviction.” (Internal
       quotation marks omitted.) People v. Hernandez, 312 Ill. App. 3d 1032, 1036 (2000). Although
       the determinations of the trier of fact are given great deference, they are not conclusive. People
       v. Ortiz, 196 Ill. 2d 236, 259 (2001). We will set aside a criminal conviction if “the evidence is
       so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendant’s
       guilt.” Id.
¶ 53       Steele concedes the evidence at trial proved that in fleeing the scene he caused bodily
       injury to Porrata and thus does not contest his conviction as to count V. But he contends the
       State presented no evidence that he was traveling at least 21 miles per hour over the speed limit
       or that he disobeyed two or more traffic signals. We agree. Officer Rigan, who pursued Steele
       from the scene of the traffic safety check until he found the car abandoned on the south side,

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       testified he did not know and could not estimate how fast Steele traveled down the Kennedy
       Expressway. Although Steele most likely was speeding, no testimony and no evidence at trial
       indicates he drove at more than 21 miles per hour over the speed limit. Similarly, there was no
       mention of traffic signals at trial and no testimony or evidence that Steele disobeyed at least
       two of them. One can presume that a person fleeing the police may travel at a high rate of speed
       and disobey multiple traffic signals. But, a trier of fact must determine a defendant’s guilt on
       the evidence presented at the trial and not presume evidence when there is none. Due to the
       absence of evidence on these two issues, the State failed to prove beyond a reasonable doubt
       that Steele was guilty as to counts IV and VI. Thus, we reverse those counts and affirm his
       conviction as to count V. Because we are vacating two of the three aggravated fleeing and
       eluding counts, we need not address Steele’s request that the mittimus be corrected due to the
       one-act, one-crime violation.

¶ 54                                        CONCLUSION
¶ 55      In the absence of evidence to support Porrata’s testimony that he suffered torn knee and
       shoulder ligaments, the State failed to present sufficient evidence of “great bodily harm” to
       support a conviction under section 12-4(a) of the Code. 720 ILCS 5/12-4(a) (West 2010).
       Thus, we reduce Steele’s conviction to battery under section 12-3(a) of the Code (720 ILCS
       5/12-3(a) (West 2010)) and remand for resentencing on that count. We also vacate two of the
       aggravated fleeing and eluding counts and affirm the conviction and sentence on the third
       aggravated fleeing and eluding count.

¶ 56       Affirmed in part, vacated in part and modified in part; cause remanded for a new
       sentencing hearing.




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