NO. 4-00-0359

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from

		Plaintiff-Appellee,			)	Circuit Court of

		v.						)	Ford County

DANIEL E. MILLIGAN II,				)	No. 99CF64

		Defendant-Appellant.		)	

								)	Honorable

								)	Stephen R. Pacey,

								)	Judge Presiding.

_________________________________________________________________

		PRESIDING JUSTICE McCULLOUGH delivered the opinion of the

court:

		Following a January 18, 2000, jury trial in the circuit

court of Ford County, defendant, Daniel Milligan, was convicted of

one count of home invasion (720 ILCS 5/12-11(a)(2) (West 1998)) and

one count of aggravated battery (720 ILCS 5/12-4(a) (West 1998) (as

amended by Pub. Act 91-357, §237, eff. July 29, 1999)).  The trial

court sentenced defendant to 25 years' imprisonment and 3 years'

imprisonment, respectively, the sentences to be served concur

rently.  On appeal, defendant claims (1) the evidence of great

bodily harm to the victim was not sufficient to support the

aggravated battery conviction; (2) the court erred by failing to

conduct a Montgomery balancing test before admitting evidence of 5 prior felony convictions (see People v. Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695 (1971)); and (3) the 25-year sentence imposed for

his home invasion conviction was excessive.  We affirm.

		The events leading to the charges in this case took place

on September 5, 1999.  The victim was Melancholy Granger.  In any event, defendant and Granger had been drinking and visiting various

other people in Ford County on September 5.  Granger had been

driving, and an argument ensued because she did not want defendant

to drive after he had been drinking.  Granger left defendant at the

side of the road and returned home.  Defendant later returned to

Granger's.  As he came running up, she shut and locked her door. 

In spite of the fact that defendant testified that he had keys for

the garage and back doors of Granger's residence, defendant

proceeded to kick in the front door.  He beat Granger with his

fists, an answering machine, and a telephone.  He struck her in the

head, back, and arms; grabbed her throat and choked her; threatened

to make her hang herself; and broke a chair over her legs. 

Granger's parents arrived and called the police.  Defendant fled

and was later arrested.

		Defendant argues that the victim's injuries are insuffi

cient to support the finding of great bodily harm necessary to his

aggravated battery conviction.  Relying on People v. Figures, 216 Ill. App. 3d 398, 401, 576 N.E.2d 1089, 1092 (1991), he argues that

if the offense of "simple" battery is to have any import at all,

the amount of damage necessary for a finding of great bodily harm

must be more severe than simple bruises and abrasions.  

		When considering a challenge to the sufficiency of the

evidence in an appeal from a criminal conviction, the reviewing

court does not retry the defendant.  Instead, this court determines

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 proved beyond a reasonable doubt.  This court will not reverse the conviction unless the evidence is

so unreasonable, improbable, or unsatisfactory as to justify a

reasonable doubt of defendant's guilt.  People v. Smith, 185 Ill. 2d 532, 542, 708 N.E.2d 365, 370 (1999).  

			"Whether the victim's injuries rise to

the level of great bodily harm is a question

for the trier of fact.  People v. Figures, 216 Ill. App. 3d 398, 401, 576 N.E.2d 1089, 1092

(1991).  In making that determination, the

relevant inquiry is 'not what the victim did

or did not do to treat the injury but what

injuries the victim in fact received.' People v. Edwards, 304 Ill. App. 3d 250, 254, 710 N.E.2d 507, 509 (1999); see also Figures, 216 Ill. App. 3d at 401, 576 N.E.2d at 1092

(whether the victim's injuries constitute

great bodily harm is 'neither dependent upon

hospitalization of the victim, nor the perma

nency of his disability or disfigurement')."  People v. Garry, 323 Ill. App. 3d 292, 297, 752 N.E.2d 1244, 1248 (2001), appeal denied, 196 Ill. 2d 552, ___ N.E.2d ___ (2001).

		We have examined the photographs of Granger's injuries

taken by City of Paxton police officer Salvatory Maacaluso and the

parties' stipulation of the testimony of the victim's treating

physician, Dr. Napolean B. Knight.  The photographs depict Granger

with bruises under her eyes, on her back, and on one arm.  They also show scratches or cuts on her throat and on one leg.  Knight

diagnosed Granger as having multiple contusions, a closed head

injury, and leg abrasions.  Given the closed head injury and the

extent of Granger's abrasions and bruising, we find that the

evidence as presented was sufficient to find defendant guilty of

aggravated battery beyond a reasonable doubt.

		Defendant next argues that the trial court improperly

allowed evidence of his four prior burglary convictions and a prior

attempt (burglary) conviction without conducting a balancing test

under the familiar standards of Montgomery.  We must review the issue as plain error, if at all, for Defendant failed to properly

preserve the claim in the trial court.  See 134 Ill. 2d R. 615(a). 

We find no error, plain or otherwise.

		In the present case, the following colloquy was had at

the close of the State's evidence:

			"THE COURT:  We are still out of the

presence of the jury, Mr. Welch, after the

recess, you are now indicating that Mr.

Milligan is going to testify?

			MR. WELCH [(defense attorney)]:  Yes.

			THE COURT:  All right.  And there is a

matter of some prior felony convictions, is

that correct?

			MR. WELCH:  Yes.

			THE COURT: And the State and the defense

are in agreement about how many there are and

what they are?

			MR. WELCH:  Yes.

			THE COURT:  And?

			MR. WELCH:  Well, we misspoke earlier off

the record.  It is--it's four burglary convic

tions and an attempt.  I think we said three

and an attempt; it's actually four and an

attempt.

			THE COURT:  So there are five felony

convictions within ten years, four for bur

glary, one for attempt burglary.

			MR. LEE [(prosecuting attorney)]:  Right.

			MR. WELCH:  Yes. 

			THE COURT:  Some of them are different

counts out of the same--

			MR. WELCH:  I'm sorry, what now?

			THE COURT:  There are five convictions

with which he can be impeached?

			MR. WELCH:  Five convictions; two cases,

but five separate convictions were entered.

			THE COURT:  Okay.  And the jury's enti

tled to know of the five convictions and what

they were for?

			MR. WELCH:  According to the Supreme

Court.

			THE COURT:  We follow the Supreme Court. 

Agreed, Mr. Lee?

			MR. LEE:  Agreed.

			MR. WELCH: And I would agree on that

procedure, but I would object.

			THE COURT:  You're objecting for the

record?		

			MR. WELCH: To preserve the issue in case

they change their mind at some point, yes.

			THE COURT:  You would like the Supreme

Court to reverse itself on the mere fact--

			MR. WELCH:  Yes.

			THE COURT:  Method of impeachment?

			MR. WELCH:  Yes, or perhaps that would be

taken up higher, but I know if I don't object

I waive that issue.  So, yes, I don't have any

objection to him being impeached under the

previous procedure where they would just be

told he's been convicted of a felony or felo

nies, but I do object to the change where they

will be told specifically what he's been

convicted of.

			THE COURT:  Okay.  I assume you don't

anticipate eliciting any additional informa

tion regarding the circumstances of those out

of your client, so that would preclude the

State from making any other inquiry.

			MR. WELCH:  No, he will acknowledge these

five convictions, and that's where we intend

to leave it.

			THE COURT:  Okay."

		During his direct examination, defendant acknowledged

that he had been convicted of four separate burglaries and one

attempt (burglary).  Generally, a defendant may not complain of

error which he invited or in which he acquiesced.  People v. Lowe, 153 Ill. 2d 195, 199, 606 N.E.2d 1167, 1169 (1992).  Further,

defendant does not cast his argument on appeal in terms of

ineffective assistance of his trial counsel; rather, he merely

faults the trial court for not conducting a Montgomery balancing test. 

		Montgomery requires that the trial court conduct a balancing test before allowing the use of prior convictions to

impeach a defendant, weighing the probative value of the evidence

against the prejudice to defendant.  People v. Atkinson, 186 Ill. 2d 450, 456, 713 N.E.2d 532, 535 (1999); Montgomery, 47 Ill. 2d at 516, 268 N.E.2d at 698.  The evidence in this case was not admitted

as impeachment.  Instead, the defendant's trial counsel elicited

defendant's testimony on direct examination.  The State attempted

no impeachment on the basis of this prior convictions.

			"'If evidence of the prior conviction is

admissible independently of impeachment

purposes--and therefore independent of Mont gomery--then the Montgomery test becomes inapposite.'  People v. Hester, 271 Ill. App. 3d 954, 959, 649 N.E.2d 1351, 1356-57 (1995)." 

People v. Williams, 317 Ill. App. 3d 945, 949, 742 N.E.2d 774, 778 (2000), appeal denied, 194 Ill. 2d 581, 747 N.E.2d 357 (2001).

		No error occurred.  The evidence was not offered by the

State to impeach defendant, but by the defense.  For that purpose,

the Montgomery balancing test had no application.

		The final issue is whether defendant's 25-year sentence

for home invasion was excessive.  Defendant argues that the

sentence was excessive because he was 22 years old when sentenced

and had significant potential for rehabilitation.

		The trial court is the proper forum for sentencing, and

its sentencing decision is given great deference and will not be

disturbed on appeal absent an abuse of discretion.  People v. Coleman, 166 Ill. 2d 247, 258, 652 N.E.2d 322, 327 (1995).

		In this case, the mitigating evidence was presented to

the trial court.  The trial court is presumed to have considered

the mitigating evidence.  People v. Payne, 294 Ill. App. 3d 254, 260, 689 N.E.2d 631, 635 (1998), appeal denied, 182 Ill. 2d 587, 712 N.E.2d 822 (1999).  Moreover, as noted in Payne, defendant's history of drug and alcohol abuse does not require a more lenient

treatment of defendant.  Payne, 294 Ill. App. 3d at 260, 689 N.E.2d at 635.  In addition, the defendant's criminal history and the

nature of the offense in this case demonstrate that, in spite of

defendant's relatively young age, he has a diminished potential for

rehabilitation.

		At trial, defendant admitted five prior felony convic

tions, four burglaries and one attempt.  The presentence investiga

tion report further disclosed convictions of battery, resisting a

peace officer, and escape.  There was also evidence at sentencing that defendant had fraudulently cashed an insurance check and

struck another inmate while in jail.

		As to the nature of the offense, defendant repeatedly

struck Granger with his fists, battered her with a telephone and

chair, and choked her.  The victim's impact statement related the

psychological damage inflicted on her by defendant as a result of

his invasion of her home and the attack upon her person.  The

record does not demonstrate an abuse of sentencing discretion.

		The judgment of the circuit court of Ford County is

affirmed.

		Affirmed.

		STEIGMANN, J., concurs.

		COOK, J., dissents.	

		JUSTICE COOK, dissenting:

		I respectfully dissent.  I would reverse and remand

because of the trial court's failure to conduct a proper Montgomery balancing test.  See Atkinson, 186 Ill. 2d at 459, 713 N.E.2d at 536-37 (rejecting mere-fact method as a halfway measure which

admits all convictions without the required balancing test). 

"Under that test, if prejudice to the defendant substantially

outweighs the probative value of admitting the impeachment

evidence, the prior conviction must be excluded."  Atkinson, 186 Ill. 2d at 459, 713 N.E.2d at 537. 

		I disagree with the majority's conclusion that defendant

waived any objection by not waiting until the State offered

evidence of the prior convictions, i.e., "The evidence was not offered by the State to impeach defendant, but by the defense" 

(slip op. at 7).  It is not inconsistent for a defendant to request

the exclusion of evidence and, after the court's denial of that

request, to disclose the evidence himself in the hope of lessening

its impact upon the jury.  People v. Williams, 161 Ill. 2d 1, 34, 641 N.E.2d 296, 310 (1994) (challenge on appeal not thereby

precluded); cf. Williams, 317 Ill. App. 3d at 950, 742 N.E.2d at 779 (evidence not offered by State to impeach but by defense to

explain why defendant lied to police).  The majority has not

suggested any reason why defendant would introduce his prior

convictions other than in anticipation of the State's impeachment. 

There is no waiver in this case. 

		I have previously suggested that a defendant's request

that the mere-fact method be used, after the court has conducted a balancing test, waives any Atkinson error.  People v. Sparks, 314 Ill. App. 3d 268, 272, 731 N.E.2d 987, 990-91 (2000).  That is not

the situation here.  A defendant may logically request use of the

mere-fact method and still insist that the court apply the

balancing test.  It is difficult to understand why a defendant

would ever fail to insist on a balancing test.  People v. Moore, 279 Ill. App. 3d 152, 158, 663 N.E.2d 490, 496 (1996) (irrelevant

that trial was conducted before 1994 Williams decision (Williams, 161 Ill. 2d 1, 641 N.E.2d 296), when judicial trend "was to allow

impeachment with virtually all prior felony convictions").   

		Although Atkinson rejected the use of the mere-fact method, it affirmed in the case before it, because of the clear

indications that a balancing test had been performed.   The

Atkinson court stressed that defense counsel specifically referred to the balancing test, the trial judge recognized that he had to

determine whether the probative value of the evidence outweighed

its prejudice, and "it is clear from the trial judge's comments

that he was aware of the Montgomery balancing test."  Atkinson, 186 Ill. 2d at 463, 713 N.E.2d at 538.  That is not true in the case

before us.  In fact, all indications are to the contrary.  A fair

reading of the colloquy here is that the trial court and counsel

were unaware of any issue concerning impeachment by prior convic

tions other than the mere-fact issue.  There was no discussion that

introduction of evidence of similar crimes could be prejudicial to

defendant or that the admission of more than one burglary convic

tion was likely to lead the jury to convict defendant simply

because of his propensity to commit crime, simply because he was a "bad man."  There was no motion in limine, no reference by defense counsel to the balancing test, and no mention by the court of the

balancing test.  

		Recent decisions of the supreme court have reasserted the

need for performance of the balancing test.  "It is a fundamental

tenet of our criminal justice system *** that the introduction of

evidence of other crimes to show or suggest a propensity to commit

crime is an improper purpose and is prohibited."  Williams, 161 Ill. 2d at 39, 641 N.E.2d at 312.  "[T]rial courts should not admit

prior-conviction evidence as probative of guilt, rather than

credibility."  People v. Cox, 195 Ill. 2d 378, 384, 748 N.E.2d 166, 170 (2001).  "Convictions for the same crime for which the

defendant is on trial should be admitted sparingly."  Cox, 195 Ill. 2d at 384, 748 N.E.2d at 170.  It must also be recognized that

admission of a number of prior convictions may suggest only a

propensity to commit crime.   		

		In People v. McKibbins, 96 Ill. 2d 176, 449 N.E.2d 821 (1983), the supreme court upheld the admission of 20 prior

convictions.  In that case, however, the failure to limit the

number of convictions did not "indicate[] a failure to balance the

probative value of this evidence against its prejudicial impact,"

because defense counsel had filed a motion in limine, had argued the balancing test must be applied, and the court had stated it

understood the balancing test.  McKibbins, 96 Ill. 2d at 187, 449 N.E.2d at 826. 

		In McKibbins, the defendant was charged with murder, and the 20 prior convictions admitted were theft misdemeanors, demonstrating "a consistent pattern of dishonesty."  McKibbins, 96 Ill. 2d at 188, 449 N.E.2d at 827.  None of the 20 "priors" "were

crimes of violence from which the jury might infer that the

defendant had a propensity for committing such crimes."  McKibbins, 96 Ill. 2d at 188, 449 N.E.2d at 827.  Again, the present case is

different.  Defendant was charged with home invasion and aggravated

battery, and the prior convictions were for burglary and attempt

(burglary).  One of the factors in determining prejudice is

"whether the crime was similar to the one charged."  McKibbins, 96 Ill. 2d at 188, 449 N.E.2d at 826-27, quoting Montgomery, 47 Ill. 2d at 518, 268 N.E.2d at 700.  

		It may be easier to admit a number of convictions based

on untruthfulness, to show the defendant's "consistent pattern of

dishonesty," and harder to admit other convictions.  "'The focus of

Montgomery was on crimes which bear [up]on the defendant's truthfulness as a witness.'"  (Emphasis in original.)  Cox, 195 Ill. 2d at 384, 748 N.E.2d at 170, quoting Williams, 161 iIll. 2d at 39, 641 N.E.2d at 312; see also State v. Ashley, 160 Vt. 125, 127- 28, 623 A.2d 984, 986 (1993) (error to admit 16 convictions even

though most involved untruthfulness); State v. Bohe, 447 N.W.2d 277, 283 (N.D. 1989) (Levine, J., dissenting) (same-crime evidence

should be sparingly used); State v. Walker, 29 S.W.3d 885, 891 (Tenn. App., 1999) (error, in prosecution for sale of cocaine, to

admit five priors for sale of cocaine).   Some jurisdictions, such

as New York, which allow high numbers of prior convictions into

evidence, also allow or even require mere-fact impeachment, and are

not persuasive authority in Illinois, which does not allow mere- fact impeachment.

		Whether we address this case in terms of plain error or

ineffective assistance of counsel, there is no indication that the

required balancing test has been performed, despite concerns about

the number of convictions admitted and their similarity to the

offense with which defendant was charged.