2021 IL App (2d) 190181-U No. 2-19-0181 Order filed June 10, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of De Kalb County. ) Plaintiff-Appellee, ) ) v. ) No. 18-CF-314 ) TANYA A. BROWN, ) Honorable ) William P. Brady, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE ZENOFF delivered the judgment of the court. Presiding Justice Bridges and Justice Birkett concurred in the judgment.
ORDER
¶1 Held: The State proved beyond a reasonable doubt that defendant committed reckless conduct when, in using bicycle kicks with her infant daughter to relieve constipation, she departed from the pediatrician’s instructions and used a technique that she knew created a substantial risk of injury and that did, in fact, fracture the infant’s femur. Also, there was no error, and thus no plain error, when the State elicited testimony that a DCFS investigator was present for police interviews with defendant. The evidence was relevant for showing the context of the interview, and there was no undue prejudice since it was already apparent from the nature of the criminal charges that the case involved alleged child abuse.
¶2 Defendant, Tanya A. Brown, appeals from her conviction of reckless conduct (720 ILCS
5/12-5(a)(1) (West 2016)). She contends: (1) she was not proven guilty beyond a reasonable doubt 2021 IL App (2d) 190181-U
in that the State failed to establish that, objectively, she was anything more than negligent or that,
subjectively, she consciously risked breaking her baby’s femur, and (2) the State’s introduction of
evidence that the Department of Children and Family Services (DCFS) was involved in her case
was plain error. We conclude: (1) the evidence was sufficient, and (2) the evidence of DCFS’s
involvement was not error and, thus, not plain error. We therefore affirm.
¶3 I. BACKGROUND
¶4 Defendant was charged with several counts alleging that she caused fractures to the femur
of her daughter, M.M., who was two months old at the time. Defendant was charged with one
count each of reckless conduct (720 ILCS 5/12-5(a)(1) (West 2016)) and aggravated battery of a
child (720 ILCS 5/12-3.05(b)(2) (West 2016)) and two counts of domestic battery (720 ILCS 5/12-
3.2(a)(1), (a)(2) (West 2016)).
¶5 At a pretrial conference, the State, in discussing the witnesses it intended to call, noted that
it would “probably not [be] calling DCFS.” Defense counsel commented that the State’s decision
not to call a DCFS witness mooted a concern that would have been the basis of a defense motion.
¶6 On the day of trial, defense counsel commented that he had intended to ask the court to bar
the testimony of DCFS investigator Jessica Bateman “at least until [the State’s] rebuttal.”
However, counsel noted that the State’s assurance that it was not calling Bateman “eliminated the
problem.” Defense counsel opined that the State should not be allowed to introduce information
about “DCFS employees and indicated reports and State investigations” in the State’s case-in-
chief. The State said that it had never intended to introduce information from DCFS reports but
had only considered calling Bateman as a witness to defendant’s statements.
¶7 During jury selection, the State questioned potential jurors about whether they had any
contacts with DCFS; when a juror acknowledged contact with DCFS, the State’s follow-up
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questioning was detailed. The defense did not object to this line of questioning. In one instance,
it followed up on the State’s questions about DCFS contact.
¶8 At trial, Detective Sonny Streit of the De Kalb Police Department testified about his
investigation of M.M.’s injuries. Streit was dispatched to the Kishwaukee hospital on December
15, 2017. When he arrived, he “spoke with hospital staff first and then *** went to the emergency
room where [M.M., M.M.’s father,] and Jessica Bateman from DCFS were.”
¶9 After this exchange, the court asked the State whether Streit knew that he was “not
supposed get into the DCFS stuff.” The State said that Streit was aware.
¶ 10 Resuming his testimony, Streit said that, at the hospital, he asked defendant what she
thought had happened to M.M.’s leg. Also present for Streit’s conversation with defendant was
M.M.’s father and Bateman. Defendant told Streit that she thought that her five-year-old son had
rolled over onto M.M. while they were sleeping.
¶ 11 Before defendant left the emergency room, Streit interviewed defendant a second time with
Bateman again present. Defendant mentioned that she had ongoing concerns about M.M.’s
constipation. She was uncomfortable with some of the pediatrician’s suggestions for relieving
constipation, including “tummy time,” which she did not think was safe. However, she did use
another suggested technique, bicycle kicks. She had used suppositories, but after her pediatrician
told her that they were not recommended, she went back to bicycle kicks.
¶ 12 Streit told defendant that he knew from his investigation that the injuries were not the result
of her son rolling over onto M.M.’s leg. He asked her if she could have “pressed too hard” when
doing the bicycle kicks. She said that she might have but that she was not sure. Streit testified:
“She said that that night she was upset about her child not being able to have a bowel
movement. It’s been approximately two days *** since the child’s last bowel movement.
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She said that she wanted to take the child’s pain away and she’s been constipated in the
past before, so as [M.M.] was crying she couldn’t stop her crying. [Defendant] began to
cry as well so as she’s doing the bicycle kicks and trying to stop [M.M.] from crying she’s
crying and she just wanted to help her have a bowel movement.”
¶ 13 About an hour after defendant left the emergency room, Streit went to her home to further
interview her. The State asked Streit who else was present at the interview, and he responded, “It
was [defendant], her son, [M.M.], there was another friend there at the time, and then Mrs.
Bateman.” The State then asked whether Streit and Bateman had discussed bicycle kicks with
defendant during that interview. Streit said that defendant was asked to demonstrate with a doll
how she had performed bicycle kicks on M.M. Streit continued:
“A. *** Her little finger and her ring finger were on the doll’s thighs. Her ***
middle finger and her index were on the calves of the doll. The thumb was wrapped around
the thighs as she pushed the knees of the doll to the chest of the doll and she did that
multiple times on the bed.
***
[Q.] For the record the witness was holding his hands out as if he was holding legs
and moving in unison.
[A.] *** [She was h]olding the thighs like that, thumb wrapped around, fingers on
the calves and slowly pushing the legs to the chest.
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Q. Detective, when you observed the defendant moving the doll’s legs, was it done
in anything that you would describe as an alternating fashion or was it done in a together
unison fashion?
A. Together at the same time.
Q. How would you describe the amount of force the defendant exhibited when she
moved the doll’s legs?
A. When she was moving the legs it was smooth, normal amount of force with the
doll at the time.
Q. Did you have any conversation with her regarding how much force she used on
[M.M.’s] legs?
A. Yes. I asked her if she did [it] harder that night. She climbed up onto the bed as
if she was the infant. She laid on her back. She grabbed onto the bedding and she explained
that [M.M.] was gripping onto the bed. The two month old was pushing back towards her
as she’s moving her legs. As she pushes back *** [defendant] says she was advised to
push hard as [M.M.] pushes hard back to her, so she said that she was pushing hard trying
to relieve the pain from her daughter.”
Defendant confirmed to Streit that it was immediately after the bicycle kicks that M.M., who was
continuing to cry, held one leg up closer to her body. That was why defendant took M.M. to the
hospital.
¶ 14 On cross-examination, Streit confirmed that defendant had been cooperative with the
investigation. For instance, she signed a medical release for M.M.’s records. In addition, he agreed
that defendant had expressed that she was upset by M.M.’s discomfort but had not suggested that
she felt frustration or anger toward M.M.
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¶ 15 Dr. Laura Marie Lemke, a pediatric orthopedic surgeon, testified for the State as an expert
witness and as one of M.M.’s treating physicians. Dr. Lemke examined M.M. on three occasions,
beginning on December 20, 2017. M.M. had been referred based on her emergency room visits
on December 14 and 15, 2017, and a radiologist’s report noting two fractures to her femur. Dr.
Lemke explained that an infant’s bones are relatively flexible and that it takes “significant trauma”
to cause an infant’s bones to fracture rather than bend.
¶ 16 Along the shaft of the femur was a newer fracture that was already healing. The older
fracture was a “corner fracture” to the outside of the lower end of the femur. Femoral shaft
fractures usually result from twisting or pulling, such as by a child getting a leg caught in
something and pulling. However, a nine-week-old infant would not have sufficient strength to
cause a femoral fracture this way, so fractures of either kind noted in the X-ray are usually the
result of someone pulling on the infant.
¶ 17 When asked if a five-year-old child could cause a femoral shaft fracture in an infant by
lying on top of the infant’s leg, Dr. Lemke answered, “It would require a more abrupt force to
break the leg.” However, she agreed that a “bigger child” could cause the fracture by lying on the
leg, “[i]f there was pressure.” She further noted that performing bicycle kicks on an infant could
cause the fracture if excessive force were used.
¶ 18 Dr. Lemke further testified that the fracture near the end of the femur could be the result of
strong shaking. It could also be the result of bicycle kicks executed too vigorously. This fracture
type could also occur if a larger child rolled on top of the infant’s leg.
¶ 19 Dr. Lemke also opined that the fracture to the femur’s shaft likely occurred two weeks
before the X-ray was taken on December 14, 2017. Healing bone would not show up on an X-ray
any sooner than that. The fracture at the lower end of the femur appeared to be new.
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¶ 20 On cross-examination, Dr. Lemke again affirmed that some action by an older child could
have caused either fracture. She agreed that the injury could have resulted from M.M.’s leg getting
stuck in her crib, but she said that this was an unlikely explanation given M.M.’s age. In her three
examinations of M.M. on different dates, Dr. Lemke never observed any visible signs of injury,
such as bruises or abrasions. M.M.’s behavior was appropriate for a two-month-old and her
interactions with defendant were appropriate. By the time of the first visit on December 20, 2017,
M.M. had no symptoms from either fracture identified by the radiologist.
¶ 21 Dr. Mayuri Morker testified as M.M.’s pediatrician. M.M. was born prematurely at 36
weeks gestation and weighed four pounds eight ounces. Dr. Morker first saw M.M. on October 15,
2017, when M.M. was four days old. M.M. had further routine appointments on October 23, 2017,
and November 2, 2017. At these appointments, defendant shared concerns about constipation.
Morker counseled her on normal bowel movement frequency in infants and practices that could
relieve constipation. One of those practices was the use of bicycle kicks, which, according to her
notes, she explained to defendant at the November 2, 2017, appointment. According to her
testimony, the maneuver is performed as follows:
“[B]icycling of the leg is kind of replicating the motions of if you were seated on a bicycle
and riding your bicycle[,] so one leg up and down. We have them *** gently hold the legs
and one at a time go up and down to kind of help the tummy feel a little bit of that pressure
to hopefully increase movement in the intestines.”
¶ 22 Defendant appeared to understand the procedure. At a November 30, 2017, visit, M.M.
was noted to be in the first percentile for weight but gaining weight normally. Defendant again
indicated concern about constipation, reporting that M.M. appeared to be straining. Dr. Morker
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counseled defendant to avoid suppository use—defendant reported using them on M.M. up to three
times a day. She further counseled increased tummy time and reviewed the use of bicycle kicks.
¶ 23 M.M.’s next appointment, on December 18, 2017, was listed as one to address the fracture.
Dr. Morker’s records show that defendant, in speaking with staff, “ ‘denie[d] any trauma or
unusual activity which may cause fracture.’ ” However, at that visit, defendant’s primary concern
was again constipation. Based on what defendant told her, Dr. Morker believed that M.M. was
not in fact constipated.
¶ 24 Dr. Morker knew of no other infant patient of hers suffering fractured femurs from bicycle
kicks, and the risk of a fracture was not something that she would mention to parents when
discussing the maneuver; injuries to the femurs of infants are rare. Moreover, when she observed
M.M. as a patient, she never noticed any bruises or abrasions.
¶ 25 The defense rested without presenting evidence.
¶ 26 The jury was instructed, among other things, that “[a] person is reckless when he
consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result
will follow and such disregard constitutes a gross deviation from the standard of care which a
reasonable person would exercise in this situation.” The jury acquitted defendant of all charges
except the charge of misdemeanor reckless conduct (during deliberations, the jury had requested
a definition of “knowingly,” but that pertained to one of the offenses of which she was acquitted).
¶ 27 Defendant filed a posttrial motion in which she argued that the State had failed to present
sufficient evidence of recklessness to sustain her conviction. She contended, among other things,
that the State never showed that defendant had not attempted to follow Dr. Morker’s instructions
on bicycle kicks, even if her performance of the kicks was different than what Dr. Morker had
demonstrated. Defendant argued that a failed attempt at following medical instructions is
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insufficient to demonstrate the mens rea necessary for reckless conduct. At a hearing on her
motion, the State argued, in essence, that the fracture spoke for itself.
¶ 28 The court questioned the State at length about how a failure to follow instructions would
translate into recklessness. The State pointed to defendant’s emotional upset at the time of the
injury and her misleading of hospital staff about the injury’s cause. In addition, it argued that
defendant had described herself as pressing M.M.’s legs harder and harder into her chest. At the
end of the hearing, the court said that it needed time to review the testimony.
¶ 29 The court denied defendant’s motion, finding that the question of recklessness was one for
the jury:
“[S]o you have somebody who doesn’t show an intent to harm the child but, of course,
that’s what the jury found, there was not sufficient evidence of showing any intent to harm
the child.
And you could say, well, this was just a compromise verdict. They just agreed to
the reckless conduct because one person may have held out for the intentional stuff. We
don’t know that so we have to look back at the evidence and expect the jury followed its
instructions and listened to the evidence and made the determination. Is there evidence to
support the argument that absent something unusual this should not have happened? Yeah,
I think there is evidence that not for me to judge that evidence in the sense that I wasn’t the
trier of fact. *** Whether I would agree with that evidence or not is not the standard that
I have to follow in this particular case.
*** I can’t say there was no evidence on whether or not the conduct that caused
the injury—first off, that the conduct she followed or used caused the injury. There was
*** also evidence that absent unusual circumstances that those types of injuries or at least
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one of the injuries would have [sic] occurred, and at this stage I think I have to let the jury
make that call. They did. *** They obviously were concerned about the issue because
they came back with not guilties on the intentional offenses. They thought about it. ***
So I’ll deny the motion for new trial.”
¶ 30 The court, commenting that the conduct was not child abuse and was the kind of situation
for which court supervision was intended, sentenced defendant to 18 months’ supervision with
specified conditions. Defendant filed a timely notice of appeal.
¶ 31 II. ANALYSIS
¶ 32 On appeal, defendant argues: (1) the evidence was insufficient to establish that, objectively,
she was anything more than negligent or that, subjectively, she consciously risked breaking her
baby’s femur, and (2) it was plain error for the State to repeatedly elicit evidence of the presence
of DCFS investigator Bateman during Streit’s interviews with defendant.
¶ 33 A. Sufficiency of the Evidence
¶ 34 Under the Illinois Criminal Code of 2012 (Code), a person commits misdemeanor reckless
conduct when “he or she, by any means lawful or unlawful, recklessly performs an act or acts” and
that act or those acts “cause bodily harm to or endanger the safety of another person.” 720 ILCS
5/12-5(a)(1). The Code defines recklessness as follows:
“A person is reckless or acts recklessly when that person [(1)] consciously disregards
[(2)] a substantial and unjustifiable risk that circumstances exist or that a result will follow,
described by the statute defining the offense, and [(3)] that disregard constitutes a gross
deviation from the standard of care that a reasonable person would exercise in the
situation.” 720 ILCS 5/4-6 (West 2016).
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¶ 35 Defendant argues, as we detail below, that the State failed to prove any of the three
elements of recklessness. The State responds as follows:
“Newborns are understandably fragile. Dr. Morker informed defendant, with
demonstration, how to gently perform bicycle kicks to alleviate constipation. In her
attempts to alleviate M.M.’s constipation, defendant used force on M.M.’s legs, which
immediately caused M.M. to hold her leg in pain. Defendant demonstrated her lack of
recollection to Det. Streit by failing to gently bicycle kick M.M.’s legs by moving the legs
in unison. Defendant was informed to use gentle force on her newborn. She recklessly
disregarded this information on more than one occasions [sic] resulting in two separate
fractures to M.M.’s right femur. These are not the actions of a reasonable person. See 720
ILCS 5/4-6 (West 2016). Defendant’s actions were more than mere negligence, she
disregarded the substantial risk of bodily harm, which resulted in M.M.’s fractured femur.”
(Emphasis in original.)
The State does not specifically address any of defendant’s arguments on the sufficiency of the
evidence.
¶ 36 We review the sufficiency of the evidence under the standard of Jackson v. Virginia, 443
U.S. 307 (1979), as adopted by People v. Collins, 106 Ill. 2d 237 (1985). When a reviewing court
decides a challenge to the sufficiency of the evidence, “ ‘the relevant question is whether, after
viewing the evidence in the light most favorable to the State, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.)
Collins, 106 Ill. 2d at 261 (quoting Jackson, 443 U.S. at 319). “Under this standard, a reviewing
court must allow all reasonable inferences from the record in favor of the prosecution.” People v.
Davison, 233 Ill. 2d 30, 43 (2009).
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“Under [the standard of Jackson and Collins], the reviewing court does not retry the
defendant, and the trier of fact remains responsible for making determinations regarding
the credibility of witnesses, the weight to be given their testimony, and the reasonable
inferences to be drawn from the evidence. [Citation.] But merely because the trier of fact
accepted certain testimony or made certain inferences based on the evidence does not
guarantee the reasonableness of its decision. A conviction will be reversed where the
evidence is so unreasonable, improbable, or unsatisfactory that there remains a reasonable
doubt of [the] defendant’s guilt.” People v. Ross, 229 Ill. 2d 255, 272 (2008).
¶ 37 As defendant points out, this standard requires us to reject unreasonable inferences. But
the State is not required to present evidence that excludes every reasonable hypothesis of the
defendant’s innocence. E.g., People v. Larson, 379 Ill. App. 3d 642, 654 (2008).
¶ 38 1. Whether, Objectively, Defendant’s Conduct was More than Negligent
¶ 39 Defendant first argues that, because the State failed to show that she disregarded a well-
known risk, the State did not demonstrate that, objectively, her conduct was more than negligent.
In other words, she contends that it did not present adequate evidence that there was “a substantial
and unjustifiable risk that circumstances exist[ed] or that a result [would] follow, described by the
statute defining the offense,” and that defendant’s disregard of that risk “constitute[ed] a gross
deviation from the standard of care that a reasonable person would exercise in the situation.” 720
ILCS 5/4-6 (West 2016). She argues that “[i]t is not well-known that bringing a baby’s knees to
its chest, even hard, risks breaking a femur” and that, therefore, this case is unlike ones involving,
e.g., unsafe gun use or foolhardy driving. We find this argument unpersuasive. The evidence was
sufficient for a jury to conclude that defendant acted in a way that an ordinary person would
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recognize as creating an unjustifiable risk of injury and that her actions grossly deviated from the
care a reasonable person would exercise in the circumstance.
¶ 40 Before we can address the objective reasonableness of defendant’s actions, we first must
address what a reasonable jury could have concluded defendant’s actions actually were. We deem
that the jury could reasonably conclude that defendant manipulated M.M.’s legs in a way that
deviated from the medical recommendation and that, in doing so, she applied grossly excessive
force to M.M.’s legs.
¶ 41 Defendant does not contest that she caused at least one of the fractures by manipulating
M.M.’s legs. But the evidence is sufficient for the jury to have properly inferred more than that.
Dr. Lemke testified that bicycle kicks, performed with excessive force, could cause both types of
fractures observed in M.M.’s X-ray. Given that defendant noticed that M.M. was showing signs
of pain immediately after defendant manipulated her legs, a reasonable jury could conclude that
defendant indeed used excessive force and that that force was the source of at least one of the
fractures. Dr. Morker testified to teaching defendant to move M.M.’s legs in a gentle cycling
movement. The jury could reasonably infer that defendant should have done this movement by
holding the feet or lower legs of the infant. But, according to Streit, defendant used a doll to
demonstrate a very different grip, one in which her thumbs and her little and ring fingers circled
the thighs while her index fingers extended to the doll’s calves. The jury could have inferred that
this grip would have tended to increase the force defendant applied to M.M.’s leg and make it
difficult for defendant to control the amount of force she was using.
¶ 42 The jury could reasonably conclude that (1) the modified bicycling technique used by
defendant created what an ordinary person would recognize as an unjustifiable risk of injury, and
(2) defendant’s actions were a gross deviation from the care a reasonable person would exercise
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under the circumstances. As the State correctly notes, ordinary people understand that infants are
fragile. This is particularly so of very small infants like M.M., who, although growing properly,
are still in the lowest percentile for weight. An ordinary person may not possess Dr. Lemke’s
specialized understanding of the particular vulnerabilities of infants, and thus may be unaware of
specific injuries to which they are most susceptible. Nevertheless, an ordinary person will
recognize that rough handling of an infant’s legs will create what will be—absent emergency—an
unreasonable risk of injury. Moreover, no objective reason existed for (1) taking a grip on M.M.’s
legs in a manner that encourages greater force than the recommended grip or (2) performing the
kicks with great force. In that light, the jury could reasonably infer that defendant’s actions
represented a gross deviation from the standard of care that a reasonable person would exercise in
the situation.
¶ 43 In so holding, we distinguish People v. Gibbs, 119 Ill. App. 2d 222 (1970). In Gibbs, the
assertedly reckless conduct was failing to adequately supervise and protect a 14-month-old child
who died after falling down a flight of basement stairs. Gibbs, 119 Ill. App. 2d at 224, 227.
According to the Gibbs court:
“The only evidence [relevant to the defendant’s recklessness] is uncontroverted[:
the] defendant admitted in her testimony that she knew of the child’s proclivity for tripping
and falling; that on one occasion, while descending the stairs in her company, the child had
pulled away and fallen down part of the stairway; that she left the child out of the playpen,
unattended, and that she neglected to close the door leading to the stairway.” Gibbs, 119
Ill. App. 2d at 228.
The Gibbs court reversed the defendant’s reckless conduct conviction, stating that to hold that such
conduct was reckless would “mean that if any person were to leave a child in a room, briefly
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unattended, and omitted to close a basement door, whether the child was injured or not, such
individual would be guilty, not of negligence, but of the offense of reckless conduct.” Gibbs, 119
Ill. App. 2d at 231. It deemed that the legislature could not have intended that result. Gibbs, 119
Ill. App. 2d at 231. The lesson we draw from Gibbs is that some kinds of negligence are, in a
sense, ordinary: they arise, for instance, out of competing demands on attention. Because they are
hard to avoid, they are not deemed gross deviations from the standard of care. Further, because
they are not gross deviations, they cannot support a reckless-conduct conviction. Here, however,
defendant’s choice to modify the performance of bicycle kicks was inherently more deliberate than
the kind of negligence at issue in Gibbs; it was thus not ordinary in the same way as insufficient
watchfulness may be. A jury could find that defendant’s decision was a gross deviation from the
standard of care.
¶ 44 Defendant argues that, because injuries to infants’ femurs are rare, it follows that it is not
widely known that actions such as hers pose a risk of causing this sort of injury. We do not accept
this logic. An injury can be rare precisely because people generally know better than to do the
things that will cause it. As that applies here, people know better than to use great force on a small
infant. To be sure, a layperson may not be able to predict the exact type of injury that forceful
manipulation of an infant's legs is most likely to cause. Still, the existence of a risk of some type
of injury is obvious.
¶ 45 Defendant argues that Dr. Morker’s advice to perform the kicks would have made it
reasonable that defendant would not be concerned that the maneuver would cause injury. But, as
we have just held, a reasonable jury could conclude that defendant performed the kicks in an
objectively unreasonable manner.
¶ 46 2. Whether, Subjectively, Defendant Consciously Risked Breaking Her Baby’s Femur
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¶ 47 Defendant next argues that the State failed to provide sufficient evidence that she
“subjectively, consciously risked breaking her baby’s femur.” She contends that, because the
evidence showed, and the State conceded, that she loved M.M. and was trying to relieve M.M.’s
pain, it would be unreasonable to infer that defendant “consciously risked breaking her baby’s
bone.” She argues that, “because she forgot what her pediatrician had demonstrated, and because
forgetfulness cannot be conscious risk awareness, the State’s suggested inferences [of conscious
disregard of a risk] were unreasonable.”
¶ 48 Defendant’s argument is flawed in that (1) the evidence does not require an inference that
defendant forgot Dr. Morker’s instructions, and (2) even if the jury concluded that defendant was
acting to relieve M.M.’s discomfort, that conclusion would not preclude it from properly deciding
that she consciously disregarded a substantial and unjustifiable risk. A reasonable jury could infer
that defendant consciously placed concern for relieving M.M.’s pain or constipation over more
basic concerns for her safety.
¶ 49 First, nothing in the evidence suggests that defendant forgot the directions Dr. Morker gave
her for performing bicycle kicks. The evidence would allow the jury to infer that defendant
deliberately modified the directions. First, according to Streit’s account of defendant’s statements,
M.M. tensed up when defendant tried to move her legs. Thus, the jury could infer that defendant
tried to find a way to perform the movements despite M.M’s resistance, and therefore did not
perform the recommended gentle cycling movement. Second, Streit’s testimony indicated that
defendant knew that the maneuver she was attempting was called a “bicycle kick.” The jury could
infer that, if defendant remembered that descriptive name, she would have remembered that it
called for the legs to move in alternation with the knees bending. Instead, per Streit’s account of
her statement, defendant grasped M.M. around the thighs—which would be inconsistent with
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M.M.’s knees bending in bicycle fashion—and she moved M.M’s legs together, not in alternation.
From those differences, a reasonable jury could infer that defendant deliberately deviated from Dr.
Morker’s instructions.
¶ 50 Second, a desire on defendant’s part to relieve M.M.’s discomfort would not be
inconsistent with her conduct being reckless. Instead, that desire could have allowed her to
override her better judgment concerning what was safe. To be sure, giving excessive importance
to the relief of another’s pain over general safety might be a lesser form of wrongdoing—more a
typical disregard of safety—but that does not prevent it from being a gross deviation from the
¶ 51 We further conclude that a reasonable jury could infer that defendant in fact consciously
disregarded the risk of harm. As stated, the evidence would allow the jury to infer that defendant
used a technique that differed from, and was riskier than, what Dr. Morker taught her. We agree
with defendant that, had Dr. Morker specifically warned defendant against excessive force or
against the modifications that Strait said that defendant made to the technique, the evidence of
conscious disregard would have been stronger. See People v. Buckley, 282 Ill. App. 3d 81, 89
(1996) (proof that the defendant received a warning about the lethal potential of Dimetapp “could
establish that [she] possessed knowledge of the likelihood of death or great bodily harm from an
overdose”). However, as we previously indicated, a person does not need an expert warning that
it is dangerous to handle small infants roughly.
¶ 52 Furthermore, according to Streit’s account of her statement to him, defendant was so
distressed by M.M.’s evident discomfort that defendant herself was crying. That evidence would
allow the jury to infer that defendant was in a mental state such that she could consciously set aside
obvious safety concerns to try to relieve M.M.’s discomfort. Defendant’s argument, taken at face
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value, would require the conclusion that a parent who gives an infant an adult medication, such as
a pain killer, out of the desire to relieve discomfort cannot, due to his or her motivations, be acting
recklessly. That implication is absurd on its face. Thus, we conclude that the State presented
evidence sufficient for the jury to reasonably infer the existence of the subjective element of
recklessness.
¶ 53 We accept that there is a general presumption that people do not consciously risk harm to
themselves or their loved ones (see 2 Wayne R. LaFave, Substantive Criminal Law, § 5.4(d) (3d
ed. 2017), but that presumption was overcome here. Here, as noted, a jury could reasonably find
that the risk of injuring the child was an obvious one and that defendant disregarded it consciously.
¶ 54 B. Whether the State’s Eliciting of Testimony Indicating DCFS Involvement Was Plain Error
¶ 55 Defendant contends that the State caused plain error by eliciting irrelevant testimony from
Streit that mentioned the presence of Bateman, a DCFS child-abuse investigator, during his
interviews with defendant. She contends that the State violated the “spirit” of its “promise” not to
call Bateman by allowing Streit to mention Bateman five times during his testimony. She claims
that this evidence was both irrelevant and prejudicial. She concedes, however, that she failed to
preserve the issue of the comments about Bateman’s presence by failing to raise them in a trial
objection and in a posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 185-86 (1988) (stating
the general rule for preserving error). She thus asks us to review her claim under the plain-error
doctrine.
¶ 56 The State responds, first, that defendant forfeited her plain-error argument by failing to
support it with pertinent authority. Illinois Supreme Court Rule 341(h)(7) (eff. May 25, 2018),
provides that the argument section of the appellant’s brief must contain “[a]rgument, which shall
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contain the contentions of the appellant and the reasons therefor, with citation of the authorities
and the pages of the record relied on.”
¶ 57 The State points out that, on at least one occasion, we have summarized this requirement
as providing, “Arguments unaccompanied by a citation of pertinent authority are forfeited.”
(Emphasis added.) People v. Conway, 2019 IL App (2d) 170196, ¶ 11 (citing Watson v. West
Suburban Medical Center, 2018 IL App (1st) 162707, ¶ 214 (citing Ill. S. Ct. R. 341(h)(7) (eff.
July 1, 2017))). The State contends that we have thus held that an argument not supported by
authority that is reasonably on point is forfeited. We do not read Conway to create a forfeiture
rule stricter than that in Rule 341(h)(7). Moreover, defendant has complied with the rule as
properly construed. She cites case law and an Illinois Supreme Court rule for principles on the
admissibility of evidence. She also cites what she claims is factually analogous case law
recognizing the inflammatory potential of evidence that insinuates possible child abuse. As we
note below, these cases are not closely on point, yet they nonetheless satisfy Rule 341(h)(7).
Accordingly, we hold that defendant has not forfeited her plain-error argument, and we move to
the merits of that argument.
¶ 58 1. Defendant’s Claim of Plain Error
¶ 59 The plain-error doctrine provides a narrow exception to the requirement that claims of error
must be properly preserved. People v. Szabo, 113 Ill. 2d 83, 94 (1986). It allows a reviewing court
to consider unpreserved error when (1) a clear or obvious error occurred and the evidence is so
closely balanced that the error alone threatened to tip the scales of justice against the defendant,
regardless of the seriousness of the error (first-prong plain error), or (2) a clear or obvious error
occurred and that error is so serious that it affected the fairness of the defendant’s trial and
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challenged the integrity of the judicial process, regardless of the closeness of the evidence (second-
prong plain error). People v. Piatkowski, 225 Ill. 2d 551, 564-65 (2007).
¶ 60 To find plain error, we first must find reversible error. See People v. Naylor, 229 Ill. 2d
584, 602 (2008) (“Absent reversible error, there can be no plain error.”). Moreover, that reversible
error must be clear or obvious. See People v. Burton, 2012 IL App (2d) 110769, ¶ 15 (we must
determine whether the error is such that it would require reversal of the defendant’s convictions
before we reach the issue of whether the evidence was closely balanced). Only upon finding clear
or obvious reversible error do we apply the two-prong plain-error analysis. See Burton, 2012 IL
App (2d) 110769, ¶ 15.
¶ 61 Defendant contends that the evidence that Bateman was present when defendant was
interviewed was irrelevant and thus inadmissible. We disagree. Evidence is relevant if it has “any
tendency to make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Ill. R. Evid. 401 (eff. Jan.
1, 2011). Irrelevant evidence is inadmissible. Ill. R. Evid. 402 (eff. Jan. 1, 2011). Alternatively,
defendant contends that the marginal probative value of the evidence was greatly outweighed by
the undue prejudice the admission of the evidence necessarily caused, such that the evidence was
inadmissible under Illinois Rule of Evidence 403 (eff. Jan. 1, 2011) (relevant evidence “may be
excluded” when “its probative value is substantially outweighed by the danger of unfair
prejudice”). Where an issue of the relevance and admissibility of evidence is preserved, we review
it for an abuse of discretion. See, e.g., People v. Tapley, 2020 IL App (2d) 190137, ¶ 88.
¶ 62 On the question of relevance, the State aptly notes that Streit’s testimony as to Bateman’s
presence for the interviews served to provide an accurate account of who witnessed defendant’s
statements. Such context is routinely supplied in testimony about police interviews. Bateman’s
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presence was no less material than that of any other third party, such as M.M’s father, and
defendant did not object to testimony about his presence.
¶ 63 We further hold that it was not error under Rule 403 for the State to present evidence of
Bateman’s status as a DCFS investigator and her presence during the interviews. Although the
evidence was not in any way central to the State’s case, the prejudice was minimal because the
evidence did not reveal anything that the jury would not have independently deduced. First, as the
State notes, the potential jurors were asked about their attitudes toward DCFS, thus priming them
to anticipate that the case involved a DCFS investigation of child abuse. Defendant did not object
to these inquiries. Second, a juror having ordinary familiarity with government functions will
understand that, if a hospital notifies the police about an injury to a child, DCFS will likely become
involved because of possible child abuse. Further, regardless of what the jury would have inferred
about DCFS involvement, they were informed at the outset of voir dire that each of the criminal
charges in the case involved harm to a “minor” or a “child.” Thus, the information that DCFS was
involved did not introduce an implication of child abuse where none existed before. Because
Streit’s challenged testimony could not have added to the jury’s inevitable recognition that
defendant was a child-abuse suspect, the risk of unfair prejudice from the evidence could not have
substantially outweighed its probative value.
¶ 64 Defendant cites United States v. Driver, 945 F.2d 1410 (8th Cir. 1991) and Aguinaga v.
City of Chicago, 243 Ill. App. 3d 552, 562-63 (1993) to suggest that the evidence of DCFS
involvement was unduly prejudicial because it “portrayed her as a child-abuse suspect, at the
least.” We need not consider the facts of either case to see that this is not a persuasive argument.
Again, the presence of a DCFS investigator was not needed to suggest that defendant was a child-
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abuse suspect where the criminal charges involved harm to a child. As it happens, the facts of
neither Driver nor Aguinaga are anything like those of this case.
¶ 65 In Driver, the defendant, who had raised a defense of self-defense, argued that he should
have been permitted to introduce evidence that the person whom he shot was the subject of a child
abuse investigation. Driver, 945 F.2d at 1416. The court of appeals rejected this argument in a
few sentences, concluding: “The evidence of the child abuse investigation involving the victim
would have served merely to portray him as a bad person, deserving to be shot, but did not relate
to [the defendant’s] claim of self-defense.” Driver, 945 F.2d at 1416. Thus, the exclusion of the
evidence was not an abuse of discretion. Driver, 945 F.2d at 1416. Driver’s holding is
inapplicable here, where evidence of DCFS involvement added nothing to what the criminal
charges of harm to a child already suggested.
¶ 66 Aguinaga is equally dissimilar. In Aguinaga, a minor, through his mother, sued the City
of Chicago for damages resulting from an injury he claimed that he had incurred when he fell in a
hole in a Chicago sidewalk. Aguinaga, 243 Ill. App. 3d at 554. The plaintiff argued that the trial
court had erred by allowing an expert witness, Dr. Lelyveld, to testify for the City, rendering an
opinion that it was unlikely that the minor’s injury could have occurred in a way that was consistent
with the minor’s theory of the case. Aguinaga, 243 Ill. App. 3d at 561. In holding that the
admission of Dr. Lelyveld’s testimony was proper, the appellate court noted: “Dr. Lelyveld’s
testimony *** was properly limited to exclude any reference to child abuse [as a possible cause of
the injury,] as that testimony’s prejudicial effect would have outweighed its probative value.”
Aguinaga, 243 Ill. App. 3d at 564. Aguinaga, like Driver, suggests that an implication of child
abuse may be unduly prejudicial where child abuse is not at issue. It does not guide on whether
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such an implication can be unduly prejudicial when the defendant is charged with offenses that
most jurors would naturally identify as child abuse.
¶ 67 Because Streit’s references to DCFS involvement were not error, there was no plain error,
and defendant’s argument is forfeited.
¶ 68 III. CONCLUSION
¶ 69 For the reasons stated, we affirm the judgment of the circuit court of De Kalb County.
¶ 70 Affirmed.
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