People v. Elsesser

2024 IL App (4th) 230092-U

• Court: Appellate Court of Illinois
• Decided: January 8, 2024
• Docket: 4-23-0092
• Status: Unpublished

Opinion

NOTICE 2024 IL App (4th) 230092-U This Order was filed under Supreme Court Rule 23 and is NO. 4-23-0092 FILED not precedent except in the January 8, 2024 limited circumstances allowed Carla Bender IN THE APPELLATE COURT th under Rule 23(e)(1). 4 District Appellate Court, IL OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Whiteside County NICHOLE R. ELSESSER, ) No. 19CF382 Defendant-Appellant. ) ) Honorable ) Patricia A. Senneff, ) Judge Presiding.

PRESIDING JUSTICE TURNER delivered the judgment of the court. Justices Doherty and Knecht concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed, finding (1) the State proved defendant guilty of first degree murder beyond a reasonable doubt, (2) the court would not reduce defendant’s conviction to second degree murder, (3) counsel did not render ineffective assistance by failing to pursue self-defense and lesser-included offenses, as those were matters of trial strategy, and (4) defendant’s sentence was not excessive.

¶2 In January 2020, the State charged defendant, Nichole R. Elsesser, with first

degree murder (720 ILCS 5/9-1(a)(2) (West 2018)), alleging defendant, without lawful

justification, stabbed Tracy Russell multiple times with a knife, causing his death, while knowing

her acts created a strong probability of death or great bodily harm. The State also charged

defendant with second degree murder (720 ILCS 5/9-2(a)(1) (West 2018)), alleging defendant

committed first degree murder while acting under a sudden and intense passion resulting from

serious provocation by Russell. The State later dismissed that charge. ¶3 Before trial, defense counsel told the trial court defendant was not going to pursue

self-defense as a theory of the case. Counsel also did not pursue theories based on

lesser-included offenses. During trial, counsel focused on evidence defendant believed she

merely “jabbed” Russell once with what she thought was a pencil. Counsel argued the State

failed to prove beyond a reasonable doubt defendant knew her acts created a strong probability

of death or great bodily harm or that she was the person who caused Russell’s death.

¶4 In August 2022, a jury found defendant guilty of first degree murder. The trial

court sentenced defendant to 45 years’ imprisonment.

¶5 On appeal, defendant contends (1) the State failed to prove her guilty of first

degree murder beyond a reasonable doubt because it failed to prove she knew her acts created a

strong probability of death or great bodily harm, (2) if the State sufficiently proved first degree

murder, this court should reduce her conviction to second degree murder, (3) her counsel

rendered ineffective assistance by failing to pursue theories of self-defense and the lesser-

included offenses of involuntary manslaughter and second-degree murder, and (4) her sentence

was excessive.

¶6 We determine the evidence was sufficient to convict defendant beyond a

reasonable doubt and counsel did not render ineffective assistance. We decline to reduce

defendant’s conviction and find her sentence was not excessive. Accordingly, we affirm.

¶7 I. BACKGROUND

¶8 The Stated charged defendant in connection with the December 14 or 15, 2019,

death of Russell at what witnesses referred to as either a house, trailer, or cabin in Rock Falls,

Illinois, co-owned by Catalin Manea and William Bushman. Before trial, the State noted the

defense had not asserted any affirmative defenses. Defense counsel told the trial court they had

-2- not disclosed anything because “we have no intentions on filing a defense of self-defense.”

Counsel stated, “if we would allege self-defense to murder, per the law, she would have to admit

that she committed the murder,” and counsel further explained, “We are not saying that, we are

not arguing self-defense to murder and our position is that she is innocent of first degree murder

and second degree murder.” Counsel then repeated the defense did not intend to raise

self-defense and said “she didn’t commit any act that caused a murder, a first degree murder, a

second degree murder or any act that substantially caused it.” The State subsequently dismissed

the second degree murder charge.

¶9 Evidence at trial showed Russell was a trained, “golden glove champion” boxer,

and his family owned a boxing gym in the area. He was described by defendant and others as

defendant’s best friend. They never dated. At the time of incident, defendant was 45 years of

age. On December 15, 2019, Russell was found deceased on the deck of Bushman’s house. The

house had at least two doors, one of which exited to the front and the other to the side.

¶ 10 Jeff Thew, a crime scene investigator with the Illinois State Police, identified

photos of the crime scene. In the kitchen, a steak knife was found on a peninsula. The blade of

the knife was just under five inches in length. There were blood-like stains on the blade and

handle. A drawer containing an empty cutlery tray was lying in the middle of the floor. There

was an opening in the counter where the drawer should have been. Miscellaneous silverware and

cutlery, including knives similar to the one found on the counter, were on the floor. Otherwise,

the interior of the residence seemed orderly. No pens or pencils with blood-like stains on them

were found, but Thew admitted he did not look for pens or pencils. Thew did not collect

fingerprints from the knife or the drawer. DNA was collected from the knife handle.

-3- ¶ 11 Outside the house on the deck was a “BBQ style grill” and blood-like stains on

the lid of the grill and on the deck. A photo of Russell’s body on the deck depicted large

blood-like stains, a box, inserts from the grill, ash, and an open bottle of alcohol. There were a

couple of footprints around Russell’s body. There were also footprints with ash or blood-like

stains in the living room of the residence. Footwear impressions were taken, but Thew did not

examine defendant’s footwear. A small blood-like stain was found near a recliner. Thew

admitted it was possible Russell was stabbed with a pen or pencil for it to have left such a small

stain. However, he also testified it was possible it came from the end of a knife. There was no

indication of smears in the blood-like stains on the deck or evidence of the body being moved

through the stains. Thew opined the deck was the primary crime scene and the incident occurred

there instead of inside the house.

¶ 12 Thew noted Russell had wounds on the inside of his left leg, on the left side of his

abdomen, and on the upper right side of his back or shoulder blade area. All three had a

blood-like substance in the area of the wound, with most coming from the leg. Thew did not

believe the wounds would have been caused by a pen or pencil. Russell was wearing a coat, and

Thew stated it was possible a pen or pencil would not have gone through such a coat.

¶ 13 Mark Peters, a forensic pathologist, performed an autopsy and testified Russell

had wounds consistent with being stabbed by a kitchen knife. Peters identified wounds to

Russell’s left inner thigh, abdomen, and right arm. The wound to the left thigh was three inches

deep and severed the femoral artery, which would typically cause a person to bleed to death

within 5 to 10 minutes. In Peter’s opinion, that wound was the sole cause of Russell’s death.

Such a wound would also cause a lot of blood to “be spurting out, if not spraying” throughout the

area. However, pants might “muffle any spray.” Seeing puddles or pools of blood in the area

-4- where the wound was inflicted would be expected. On cross-examination, Peters stated a person

most likely would have to be in the medical field to know how dangerous a wound to the femoral

artery could be. He also testified not much force would be required to cause such a wound in a

soft tissue area, but he recognized the knife had to also go through a pair of jeans.

¶ 14 The State presented multiple witnesses whose testimony showed the following

events. Manea testified that, on December 14, 2019, he was at the house with Bushman and

Manea’s friend, Ioan Simandan. Bushman lived there, and Manea had an ownership interest in

the property. In the late morning, defendant stopped by looking for Russell, but he was not

there. Defendant returned with Russell in the afternoon, and the group listened to music, “did

some BBQ,” and drank beer. Nobody was drunk.

¶ 15 Bushman testified they needed steak knives to eat. Bushman kept his steak knives

in a closed drawer. After dinner, defendant did the dishes and put everything away, and the

drawer with the knives was closed. According to Bushman, during that time, Russell and

defendant discussed defendant’s relationship with a younger man, David Cross. Their voices

were not raised, but Russell said he did not want defendant to be with Cross. Around 7 p.m.,

defendant left to return the truck she was driving. Russell and Bushman left to pick her up and

then went to defendant’s home. Meanwhile, Manea and Simandan went to sleep.

¶ 16 Bushman testified Cross was at defendant’s house. A friend of Cross’s showed

up, and the group picked up another one of Cross’s friends. When the group returned to

Bushman’s house, defendant, Russell, and Cross started arguing in the living room. Bushman

saw “them” pick up Russell, “and then it looked like [defendant] pushed him down.” The record

is not clear who Bushman was referring to when he said “them.”

-5- ¶ 17 Manea testified he had been sleeping on the living room couch and woke up

around midnight when defendant, Russell, and three young people came into the house.

Defendant and Russell were drunk and started to argue, with defendant raising her voice. Manea

testified defendant tried to hit Russell with a bottle. Manea told everyone to leave, and they went

outside onto the deck. Manea went to get Simandan, who was in a back room. As he did so, he

heard defendant “screaming like crazy” and saying, “I’m going to kill you. I’m going to kill you.

I’m going to kill you, very hard.” Manea and Simandan left through the “other door,” avoiding

the people arguing on the deck. Manea never saw Russell hit or push defendant and never saw a

physical altercation between the two. He also never saw a steak knife on the peninsula.

¶ 18 Bushman testified he left when Manea told everyone to leave, and Cross got in

Bushman’s car. From outside the home, Bushman could see there was some pushing and

shoving going on back at the house and saw heads moving up and down, but a van was partially

blocking the view. Cross’s two friends were in or near the car. Cross then jumped out of the car

and went up to the deck. Cross returned with defendant and they got in the car. After the group

drove away, defendant said, “I think he is done,” and “I stabbed him.” She then wanted to go

back and tried to jump out of the moving car. Defendant did not say much after that. Bushman

waited to call 911 until later because he was afraid of the group.

¶ 19 Cross testified he began dating defendant when he was 18 years old and they

dated for one to two years. However, at the time of Russell’s death, he was no longer dating her.

Cross was age 22 at the time of the trial. On December 14, 2019, Cross and his friends, Xavier

Buhlman and Isaiah Moreno, went with defendant and Russell to Bushman’s house. Cross could

not remember if he had been drinking, but he recalled that Russell, defendant, and Bushman

were intoxicated. Cross stated there was a “tense vibe going on the whole night.” When they

-6- arrived at the house, Russell was agitated and standing in front of Cross, intimidating him. Cross

testified Russell was raising his voice and was about to hit him. When they were inside the

house, Russell punched and pushed him. Defendant then jumped in front of Russell and said,

“[D]on’t hit the boys.” Cross stated there was a scuffle and defendant got pushed back, but he

could not remember the details. Cross testified Russell then came after him, and Cross ran out

the door to the road. Cross started walking back toward the house and saw Russell hitting or

punching defendant on the deck. No one else was on the deck. Cross continued to go closer to

defendant, and Russell and Cross shoved a grill at Russell to get him to back away. Cross

testified Russell “got like dizzy or something” and fell down on the deck. Cross then stepped in

blood. He thought defendant was bleeding and shoved the grill toward Russell again, but Russell

did not do anything. Cross then went to look for defendant because she had disappeared, but he

did not go back inside the house.

¶ 20 Cross testified he found defendant coming out of the house and she was having

what he referred to as “pass out spells.” Cross got defendant to Bushman’s vehicle. Cross heard

defendant say she “killed her best friend.” As they drove down the road, defendant said they had

to go back and help Russell, and she tried to get out of the moving car. Bushman dropped off

Buhlman and Moreno and then took Cross and defendant to defendant’s home. Defendant said

they could not stay there, so Cross and defendant went to an abandoned house owned by Cross’s

mother. Defendant told Cross she intended to turn herself in the next morning. The next

morning, they went to McDonald’s so defendant could use the Wi-Fi to contact her daughter to

take her to the police station. However, the police found them at McDonald’s before she could

do so.

-7- ¶ 21 On cross-examination, Cross testified he had seen Russell angry and with bloody

knuckles on a previous occasion. He also said Russell had twice threatened him with a knife

earlier in the day on December 14, 2019. He admitted he had a history of confrontation with

Russell. Cross knew Russell was a boxer, and Cross was afraid of him. He testified he did not

want to fight with Russell and indicated he would run away instead of fight or use a weapon

against him. Cross pushed the grill at Russell because he was afraid Russell was going to grab

him. He felt he was defending himself and defendant. Cross never saw a knife during the

incident and did not see defendant stab Russell. He did not call 911 that day because he did not

have a phone.

¶ 22 Moreno testified Russell appeared to be drunk and became hostile toward him and

Buhlman when they arrived at the home on the night of the incident. Russell grabbed or pushed

both Moreno and Buhlman in the living room of the home. Defendant then stepped in front of

them to protect them and asked Russell, “[W]ould you want someone to beat up your kids?”

Moreno said Cross “was getting in [Russell’s] face,” telling him to not touch defendant. Moreno

saw Russell hit defendant several times. Moreno heard Russell, defendant, and Cross yelling,

and he heard Cross say “stop hitting her.” He did not see any physical confrontation between

Russell and Cross.

¶ 23 Moreno testified he and Buhlman left the house, went to Bushman’s car, and saw

Cross run to the road. Defendant was inside the house. He also saw defendant leave the home

but then go back inside to get the rest of her alcohol. When defendant was in the car, she said

she stabbed Russell and wanted to go back and help him. Moreno described her as “freaking out

and passing out.” He did not hear defendant say she killed Russell or that he was dead. Moreno

initially testified he wanted to call 911, but Bushman said he would deal with it. On

-8- cross-examination, he added Cross told everyone not to call the police and that Bushman would

take care of it. When asked if he thought Cross could have stabbed Russell, Moreno said, “I

don’t think he would have it in him.” Buhlman testified he saw Russell argue with Cross. He

confirmed Cross ran out of the house to the road and testified he saw Russell push defendant.

¶ 24 Alexandria Deyo, a detective with the Whiteside County Sheriff’s Office, was

working as a deputy on December 15, 2019. On that date, Deyo was dispatched to look for

defendant. Deyo located defendant at McDonald’s, where defendant complained of pain on the

right side of her face and jaw and said that she had a chipped tooth. Defendant told Deyo her

best friend of many years attacked her and would not stop hitting her, and she stabbed him.

Defendant did not say what she used to stab him.

¶ 25 Nate Macklin, an Illinois State Police sergeant, interviewed defendant. Charles

Davidson, a master sergeant with the Illinois State Police, interviewed defendant the day after

Macklin interviewed her. Video recordings of the interviews were played for the jury.

¶ 26 In the interviews, defendant explained Russell was her best friend. Defendant

stated she had been drinking on the day of the incident but was not drunk. She described Cross

as her boyfriend.

¶ 27 When asked about specifics of the incident, defendant said Russell yelled at

everyone for walking in. Defendant said Russell was intoxicated. Defendant stated they were in

the living room of the house, and Russell said he did not like Cross and threw a punch at him.

Defendant got in between them, pushed them back, and told Cross to go outside. Defendant said

she was “shocked” and “pissed” and asked Russell what he was doing. She told him, “[Y]ou

don’t hit the kids, we don’t do that.” Her next memory was Russell hitting her, and defendant

indicated he was pushing her head down or had her in a headlock. She stated Russell punched

-9- her jaw and she thought it was broken or dislocated. She said she could not see, reached back,

grabbed something behind her, and “jabbed” Russell once in his outer thigh. She did not know

what it was that she grabbed but said it seemed like it might have been a pencil. She insisted she

jabbed Russell only one time, in the living room. Defendant said she was not trying to hurt

Russell and instead was trying to get him to stop hitting her. Crying, she repeated on multiple

occasions that she just wanted to shock Russell to make him stop and snap out of whatever was

happening, which was out of character for him. She also said she thought he was going to keep

punching her and she thought she was going to die. She said no one else was trying to stop him.

¶ 28 Defendant stated, after she jabbed Russell, he let her go and walked out onto the

deck. She again stated numerous times she was positive the incident occurred in the living room.

She next saw Russell leaning against the railing and then lying on the deck. Defendant crawled

over to Russell, and he looked white. Defendant saw only a little bit of blood and did not see any

pools of blood. Defendant testified she was then dragged off the deck. She did not know who

pulled her off of the deck. She also said Cross would probably run away from a confrontation

with Russell. In the second interview, she recounted a previous incident in which Russell

threatened Cross and Cross ran away.

¶ 29 Defendant expressed confusion about what happened next or what happened to

Russell. She could not remember full details but stated multiple times she had been dragged off

the deck by someone and was confused about why she could not stay and help Russell, who was

unconscious. She did not know or understand what caused him to become unconscious. She

could not recall getting in Bushman’s car. She also did not recall going back into the house.

However, she remembered being in Bushman’s car, asking to go back, and trying to get out of

- 10 - the moving car, but Bushman told her Russell was fine. The next thing she remembered was

being in her front yard.

¶ 30 Defendant recalled she next walked with Cross to his house. Cross and defendant

went to McDonald’s to use the Internet. Defendant called her daughter, who told her the police

were looking for her. Defendant said she knew they were looking for her, but she needed to go

to the hospital. Defendant’s daughter came with the police, and defendant went to the police

department and then to the hospital. Defendant said her jaw was not broken but she could not

open her jaw very wide, she had broken teeth, a bump on the back of her head, bruises on her

chest, hand, and arm, and her knee and ankle were injured. Although defendant pointed to

purported bruises in one of the interviews, bruises were not visible in the video.

¶ 31 When told about the knife found on the peninsula, defendant said she did not

know what she grabbed or what happened to it. When told the knife was likely what she used

and asked if she agreed, she said she did. In the second interview, defendant acknowledged,

based on what the officers told her the day before, that what she thought was a pencil at the time

was actually the knife.

¶ 32 When the interviewing officers suggested the incident moved from the living

room to the deck and that defendant “jabbed” Russell multiple times, she continued to insist the

incident occurred entirely in the living room and she “jabbed” Russell only once. When asked if

someone else was there who could have stabbed Russell, she said not that she could recall, but

her memory was spotty. When officers suggested defendant was angry and followed Russell

outside and stabbed him, she denied it and said she was not that type of person and would never

do that. She also did not believe Russell dragged her out of the living room and onto the deck.

- 11 - ¶ 33 Defendant admitted there were parts of the incident she could not recall and,

during the second interview, she stated it was possible Russell dragged her toward the deck

during the incident. However, she repeated that was not her recollection, and she generally

consistently insisted she did not stab Russell on the deck. She could not explain why witnesses

saw her in an altercation with Russell on the deck.

¶ 34 Based on his interview with defendant, Davidson testified it was possible

someone else used a knife to kill Russell. He also conceded it was possible defendant could not

remember everything that happened because she may have suffered from blunt trauma to the

head.

¶ 35 At the end of the State’s case, defendant moved for a directed finding, arguing the

State failed to prove beyond a reasonable doubt she caused Russell’s death because no one saw

defendant with a knife or saw her stab Russell. The trial court denied the motion.

¶ 36 Defendant presented evidence fingerprints were not taken from the inside of the

house, from Russell’s body, or from the knife. There were two DNA profiles found on the knife,

one of which included Russell’s profile. The other profile excluded defendant as a major

contributor. A footprint in the blood on the deck was consistent with defendant’s boot, but the

investigator was unable to make a positive identification or elimination.

¶ 37 Dr. Bharat Raju testified he treated defendant at the hospital emergency room on

December 15, 2019. Defendant reported she had been hit in her jaw, head, chest, and extremities

multiple times. She complained of pain to the back of her head, chest, and jaw. Raju did not

recall seeing any lumps or bruises. Defendant’s jaw was not broken, but she had some chipped

teeth. Raju testified he was unable to tell if the teeth were chipped recently. Raju prescribed

defendant morphine for pain, which he testified was normally reserved for significant pain.

- 12 - ¶ 38 Alyshia Malott, a nurse, testified she also cared for defendant and noted defendant

had ankle pain, bilateral knee bruises, chest and jaw pain, and she was confused and having

memory disturbances. Defendant did not state she had stabbed or killed anyone.

¶ 39 Defendant did not offer any lesser-included offense instructions or a self-defense

instruction. In closing arguments, defense counsel argued the State failed to prove defendant

guilty beyond a reasonable doubt. Counsel noted no one saw defendant stab Russell, there was a

lack of physical evidence such as fingerprints or DNA connecting defendant to the knife, and the

police failed to take DNA or fingerprints from Cross. Counsel further argued defendant stated

repeatedly in her interviews that she did not have a knife and never said she stabbed Russell with

a knife. At most, she “jabbed” him once with an unknown object in the outer thigh. Counsel

also argued defendant would not be strong enough to stab Russell in the inner thigh while he was

beating her. Counsel also suggested, even if defendant did stab Russell with a knife, she did not

intend for it to kill him or know the damage it could cause.

¶ 40 The jury found defendant guilty. Defendant’s motion for a finding of acquittal or

a new trial was denied.

¶ 41 At sentencing, the trial court reviewed the presentence investigation report and

heard victim impact statements. Defendant declined to make a statement in allocution. The

court sentenced defendant to 45 years’ imprisonment. In doing so, the court discussed factors in

mitigation and aggravation at length. The court stated it considered strong provocation as a

mitigating factor but did not give it much weight. The court also found in mitigation the conduct

was not likely to be repeated and defendant had a minimal criminal history, although the court

noted she had numerous past traffic or petty offenses. In aggravation, the court found defendant

left Russell to bleed to death knowing she had stabbed him, did not immediately contact the

- 13 - police, and did not immediately go to the hospital despite her injuries. The court further noted

defendant appeared generally calm in her police interviews. The court also noted the necessity

for deterrence. Defendant’s motion to reconsider the sentence was denied.

¶ 42 This appeal followed.

¶ 43 II. ANALYSIS

¶ 44 On appeal, defendant contends (1) the State failed to prove her guilty of first

degree murder beyond a reasonable doubt because it failed to prove she knew her acts created a

strong probability of death or great bodily harm, (2) if the State sufficiently proved first degree

murder, this court should reduce her conviction to second degree murder, (3) her counsel

rendered ineffective assistance by failing to pursue theories of self-defense and the lesser-

included offenses of involuntary manslaughter or second degree murder, and (4) her sentence

¶ 45 A. Sufficiency of the Evidence

¶ 46 Defendant first contends the State failed to prove her guilty of first degree murder

beyond a reasonable doubt. She argues the Stated failed to prove when she grabbed an object

and “jabbed” Russell, she knew such an act created a strong probability of death or bodily harm.

Thus, she argues the State at most proved she was guilty of involuntary manslaughter based on

reckless conduct.

¶ 47 A reviewing court will not set aside a criminal conviction unless the evidence is

so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt.

People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276 (1985). On a challenge to the

sufficiency of the evidence, “ ‘the relevant question is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the essential

- 14 - elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) Collins, 106 Ill. 2d

237, 261, 478 N.E.2d 267, 277 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This

standard applies regardless of whether the evidence is direct or circumstantial, and circumstantial

evidence meeting this standard is sufficient to sustain a criminal conviction. People v. Jackson,

232 Ill. 2d 246, 281, 903 N.E.2d 388, 406 (2009). The determination of the credibility of each

witness, the weight to be given to his or her testimony, and the resolution of any conflicts in the

evidence is within the province of the trier of fact, and a reviewing court will not substitute its

judgment for that of the trier of fact on these matters. People v. Brooks, 187 Ill. 2d 91, 132, 718

N.E.2d 88, 111 (1999).

¶ 48 Here, the State charged defendant with first degree murder (720 ILCS 5/9-1(a)(2)

(West 2018)), alleging defendant, without lawful justification, stabbed Russell multiple times

with a knife, causing his death, while knowing her act created a strong probability of death or

great bodily harm.

¶ 49 A defendant commits murder when the defendant’s acts cause the death of the

victim, and he or she “knows that such acts create a strong probability of death or great bodily

harm to that individual.” 720 ILCS 5/9-1(a)(2) (West 2018). A defendant acts with knowledge

that the acts will cause a particular result when he or she “is consciously aware that that result is

practically certain to be caused by his [or her] conduct.” 720 ILCS 5/4-5(b) (West 2018).

¶ 50 A defendant commits involuntary manslaughter when he or she unintentionally

kills an individual if the acts which cause the death “are likely to cause death or great bodily

harm *** and he [or she] performs them recklessly.” 720 ILCS 5/9-3(a) (West 2018). A person

acts recklessly when he or she “consciously disregards a substantial and unjustifiable risk that

circumstances exist or that a result will follow *** and that disregard constitutes a gross

- 15 - deviation from the standard of care which a reasonable person would exercise in the situation.”

720 ILCS 5/4-6 (West 2018). Involuntary manslaughter is a lesser-included offense of first

degree murder. People v. Robinson, 232 Ill. 2d 98, 105, 902 N.E.2d 622, 626 (2008).

¶ 51 Inferences concerning a defendant’s mental state are a matter particularly within

the province of the jury. People v. Schmidt, 392 Ill. App. 3d 689, 702, 924 N.E.2d 998, 1011

(2009). “Whether a defendant acted knowingly or intentionally ‘may be inferred from the

circumstances of the incident, defendant’s conduct, and the nature and severity of the victim’s

injuries.’ ” People v. Doolan, 2016 IL App (1st) 141780, ¶ 51, 67 N.E.3d 485. Further, while a

defendant may act recklessly where he or she commits deliberate acts but disregards the risks of

those acts, a voluntary and willful act that has the natural tendency to cause death or great bodily

harm is evidence of an intentional act rather than a reckless act. Doolan, 2016 IL App (1st)

141780, ¶ 51. In particular, when a defendant uses a deadly weapon upon a victim, it may be

inferred the defendant intended to cause death. People v. Koch, 306 Ill. App. 3d 634, 637, 715

N.E.2d 290, 293 (1999). Even a small knife may be considered a deadly weapon. See People v.

Stanley, 369 Ill. App. 3d 441, 445-46, 860 N.E.2d 343, 348 (2006). “A reviewing court must not

substitute its judgment for that of the jury unless the inference of a mental state accepted by the

jury was inherently impossible or unreasonable.” People v. Smith, 149 Ill. 2d 558, 565, 599

N.E.2d 888, 891 (1992).

¶ 52 Here, despite defendant’s assertions to the contrary, there was evidence she

deliberately stabbed Russell multiple times with a knife on the deck. The cutlery drawer was

completely pulled out of the counter and lying on the floor, indicating defendant pulled the

drawer out to retrieve the knife. Multiple people then saw her arguing with Russell on the deck,

refuting her story that Russell had her in a headlock in the living room. She was also heard

- 16 - yelling she was going to kill Russell. Russell had multiple wounds, and the amount of blood on

the deck compared to the lack of large amounts of blood in the house indicated Russell was

stabbed on the deck. The bloody knife was ultimately located on a peninsula inside the house,

indicating defendant then took the knife back inside and set it down after stabbing Russell.

Those facts allowed the jury to infer defendant purposely obtained the knife and knowingly

stabbed Russell with it on the deck instead of merely “jabbing” him once with some other object

she grabbed from behind to get him to stop hitting her when they were inside. From there, the

jury could reasonably infer defendant acted with knowledge that her acts were practically certain

to cause either great bodily harm or death.

¶ 53 Defendant suggests she could not know a “jab” to the inner thigh would cause

death and suggests, at most, the State proved she was guilty of involuntary manslaughter based

on reckless conduct. However, the State was not required to prove specific knowledge of the

danger of a stab to the femoral artery. It was enough for the State to prove she knew her acts

created a strong probability of great bodily harm. Defendant used a knife with an approximately

five-inch blade and was heard stating she would kill Russell, allowing the jury to infer defendant

intended to cause death, an act that also encompasses knowledge that her acts were practically

certain to cause either great bodily harm or death. Thus, the jury’s finding of the mental state for

first degree murder was not inherently impossible or unreasonable. Accordingly, the evidence

was sufficient to convict defendant of first degree murder.

¶ 54 B. Request to Reduce Conviction

¶ 55 Defendant alternatively asks this court to reduce her conviction to second degree

murder, arguing the evidence showed she acted under a sudden and intense passion resulting

from serious provocation. She also suggests she believed she acted in self-defense.

- 17 - ¶ 56 A person is guilty of second degree murder when he or she commits the offense

of first degree murder and at the time of killing he or she (1) is acting under a sudden and intense

passion resulting from serious provocation by the individual killed or (2) believes the

circumstances justify using self-defense, but the belief is unreasonable. People v. Hayes, 2022

IL App (4th) 210409, ¶¶ 55, 217 N.E.3d 327. “A defendant can be found guilty of second degree

murder only if the State first proves all elements of first degree murder.” Hayes, 2022 IL App

(4th) 210409, ¶ 68. “The defendant then has the burden of proving a mitigating factor by the

preponderance of the evidence.” Hayes, 2022 IL App (4th) 210409, ¶ 68.

¶ 57 First, we note defendant forfeited this issue because she did not raise it during the

trial or in her posttrial motion. People v. Meras, 284 Ill. App. 3d 157, 165, 671 N.E.2d 746, 752

(1996). Defendant never sought to prove either mitigating factor; instead, her theory was solely

the State failed to prove first degree murder beyond a reasonable doubt. Defendant had the

opportunity to pursue a conviction of a lesser-included offense at trial. “[H]aving refused to act

on that opportunity, [defendant] cannot now be heard to argue that missed opportunity as a basis

for the reduction of the degree of [her] conviction.” People v. Maxwell, 89 Ill App. 3d 1101,

1104, 413 N.E.2d 95, 97 (1980).

¶ 58 To the extent defendant asks us to nevertheless ignore forfeiture and reduce her

conviction, we note Illinois Supreme Court Rule 615(b)(3) (eff. Jan. 1, 1967) provides a

reviewing court may reduce the degree of the offense for which the appellant was convicted and

reduce the punishment imposed by the trial court. Illinois appellate courts have applied Rule

615(b)(3) under different formulations. “Some courts have held Rule 615(b)(3) applies only

where the evidence is insufficient to prove an element of the offense beyond a reasonable doubt.”

People v. Jones, 286 Ill. App. 3d 777, 781, 676 N.E.2d 1335, 1338 (1997). Other decisions have

- 18 - held Rule 615(b)(3) “extends beyond the general principle that a conviction will not be disturbed

on appeal unless the evidence is so unreasonable, improbable, or unsatisfactory as to justify a

reasonable doubt of the defendant’s guilt.” Jones, 286 Ill. App. 3d at 783, 676 N.E.2d at 1339.

¶ 59 The latter decisions have held the power to reduce the degree of the offense is

available where there is (1) an evidentiary weakness in the State’s case, (2) a mandatory

minimum sentence that is unsatisfactorily harsh, and (3) a conviction for a lesser-included

offense. See, e.g., People v. Godfrey, 382 Ill. App. 3d 511, 513, 888 N.E.2d 1230, 1233 (2008)

(Third District). See also People v. Hooker, 249 Ill. App. 3d 394, 403, 618 N.E.2d 1074, 1081

(1993) (First District); People v. Hernandez, 229 Ill. App. 3d 546, 552, 593 N.E.2d 1123, 1128

(1992) (Third District). However, even under the broader view of Rule 615(b)(3), a court may

not reduce the degree of the offense “solely out of merciful benevolence [because] there must be

some evidentiary weakness before a reviewing court will act.” People v. Jackson, 181 Ill. App.

3d 1048, 1051, 537 N.E.2d 1054, 1056 (1989). In particular, the power to reduce a conviction of

first degree murder to second degree murder should be cautiously exercised. Hooker, 249 Ill.

App. 3d at 403, 618 N.E.2d at 1081.

¶ 60 Here, we will not reduce defendant’s conviction under either approach. As

previously noted, the State proved defendant guilty of first degree murder beyond a reasonable

doubt. Even if we were to apply the broader view of Rule 615(b)(3), there was no asserted

lesser-included offense because defendant purposely chose not to pursue that option. Further,

the trial court did not express any concern or reluctance about the applicability of a mandatory

minimum sentence. Instead, the court sentenced defendant to a term well above the minimum.

Thus, we are not presented with circumstances under which a reduction of defendant’s

conviction is warranted.

- 19 - ¶ 61 C. Ineffective Assistance of Counsel

¶ 62 Defendant next contends her counsel rendered ineffective assistance by failing to

pursue a theory of self-defense and failing to argue lesser-included offenses of second degree

murder or involuntary manslaughter applied.

¶ 63 Claims of ineffective assistance of counsel are governed by the standard set forth

in Strickland v. Washington, 466 U.S. 668 (1984). People v. Cathey, 2012 IL 111746, ¶ 23, 965

N.E.2d 1109. “To prevail on a claim of ineffective assistance of counsel, a defendant must show

both that counsel’s performance was deficient and that the deficient performance prejudiced the

defendant.” People v. Petrenko, 237 Ill. 2d 490, 496, 931 N.E.2d 1198, 1203 (2010). A

defendant must satisfy both prongs of the Strickland standard, and the failure to satisfy either

prong precludes a finding of ineffective assistance of counsel. People v. Clendenin, 238 Ill. 2d

302, 317-18, 939 N.E.2d 310, 319 (2010).

¶ 64 Counsel’s effectiveness is determined by the totality of his or her conduct, and, as

a court of review, we will not inquire into areas involving the exercise of judgment, discretion,

trial tactics, or strategy. People v. Edwards, 301 Ill. App. 3d 966, 981, 704 N.E.2d 982, 994

(1998). There is a strong presumption counsel’s conduct falls within the wide range of

reasonable professional assistance. Strickland, 466 U.S. at 689. “Indeed, strategic decisions are

virtually unchallengeable as long as the strategy was not so unsound that it failed to subject the

State’s case to any meaningful adversarial testing.” People v. Dominguez, 331 Ill. App. 3d 1006,

1014, 773 N.E.2d 1167, 1174 (2002).

¶ 65 1. Lesser-Included Offenses

¶ 66 Counsel’s decision as to what jury instructions to tender is one of several

determinations widely recognized as matters of trial strategy. People v. Lowry, 354 Ill. App. 3d

- 20 - 760, 766, 821 N.E.2d 649, 657 (2004). Further, a defense counsel’s decision to advance an “all-

or-nothing defense” has been recognized as a valid trial strategy. See People v. Walton, 378 Ill.

App. 3d 580, 589, 880 N.E.2d 993, 1000-01 (2007) (citing cases). Such a strategy is generally

not unreasonable unless that strategy is based upon counsel’s misapprehension of the law.

Walton, 378 Ill. App. 3d at 589, 880 N.E.2d at 1001. As the First District has explained:

“The decision of whether to submit an instruction on a lesser-included

offense is considered to be one of trial strategy, which has no bearing on the

competency of counsel, who may strategize legitimately that it was better for the

jury not to have the choice of the lesser-included offense in the hope that they

would be more inclined to acquit. [Citations.] Merciful jurors may disregard

even overwhelming proof of culpability and acquit entirely, or convict of a lesser

crime than the evidence warrants; however, where lesser-offense instructions are

given, a jury may be induced to find defendant guilty of the lesser offense rather

than to continue the debate as to his innocence. [Citations.]” People v. Benford,

349 Ill. App. 3d 721, 728, 812 N.E. 2d 714, 720 (2004).

Thus, the decision whether to submit a lesser-included offense instruction is

“ ‘a calculated risk on the part of defense counsel based on his or her assessment

of the evidence and the perceived likelihood the jury will convict *** defendant

*** rather than acquit altogether. If the instruction is given to a jury that would

have chosen to acquit on the greater offense, then counsel has effectively

subjected defendant to the risk of conviction on an uncharged offense when the

client might otherwise have avoided any conviction. Alternatively, if defense

counsel fails to request the instruction defendant may be found guilty of the

- 21 - greater offense because the jury, in considering closely balanced evidence,

believed it should find defendant guilty of a crime under the circumstances. It is

these types of strategic calculations that a court will not second-guess.’ ”

Benford, 349 Ill. App. 3d at 728, 812 N.E. 2d at 720-21 (quoting People v.

Brocksmith, 162 Ill. 2d 224, 232-33, 642 N.E.2d 1230, 1234 (1994) (Freeman, J.,

concurring, joined by Bilandic, C.J.)).

¶ 67 We recognize the decision whether to request an instruction on a lesser-included

offense belongs exclusively to defendant, as it is analogous to the decision of whether to plead

guilty to a lesser charge. Brocksmith, 162 Ill. 2d at 229, 642 N.E.2d at 1232. However, when a

lesser-included offense instruction was not tendered, we may assume defendant decided not to

tender such instruction after due consultation with counsel. People v. Medina, 221 Ill. 2d 394,

409-10, 851 N.E.2d 1220, 1229 (2006).

¶ 68 Here, counsel pursued an all-or-nothing strategy based on the theory the State

could not prove first degree murder. Defendant argues an all-or-nothing approach was

unreasonable, but defendant’s theory of the case was the State failed to prove she knew her acts

were likely to cause great bodily harm or death or that she did not cause Russell’s death. Those

theories, while ultimately unsuccessful, had evidentiary support, and counsel fully subjected the

State’s case to meaningful adversarial testing. Defendant had repeatedly insisted to the police

she “jabbed” Russell once inside the house with an object she thought was a pencil. She insisted

she did not mean to harm him and only intended to shock him to make him stop hitting her. If

believed, the jury could have found the State failed to prove she knew her acts were likely to

cause great bodily harm or death and thus could have acquitted her of first degree murder.

Meanwhile, no one actually saw defendant stab Russell. There was a lack of physical evidence

- 22 - connecting defendant to the knife or the blood outside of the house, and Cross was present on the

deck around the time of the incident. Thus, there was an inference that Cross actually stabbed

Russell, which counsel reasonably suggested provided reasonable doubt of defendant’s guilt.

Therefore, counsel may have reasonably believed evidence supporting a lesser-included offense

was insufficient, with the stronger argument being the State failed to prove first degree murder.

See Benford, 349 Ill. App. 3d at 729, 812 N.E.2d at 721. Counsel may have also reasonably

believed an instruction on lesser-included offenses might convert a likely acquittal into a likely

conviction of the lesser crime. See Dominguez, 331 Ill. App. 3d at 1015, 773 N.E.3d at 1174-75.

Regardless, it is not the function of the appellate court to second guess counsel on the matter.

The record shows counsel’s decision to not pursue lesser-included offenses was a matter of

reasonable strategy. Counsel’s strategy was unsuccessful, but otherwise legitimate. Thus,

defendant was not denied effective assistance of counsel.

¶ 69 2. Self-Defense

¶ 70 We also find counsel’s decision not to pursue self-defense a matter of strategy.

“Self-defense is an affirmative defense, and once a defendant raises it, the State has the burden of

proving beyond a reasonable doubt that the defendant did not act in self-defense, in addition to

proving the elements of the charged offense.” People v. Lee, 213 Ill. 2d 218, 224, 821 N.E.2d

307, 311 (2004).

“The elements of self-defense are: (1) that unlawful force was threatened against a

person; (2) that the person threatened was not the aggressor; (3) that the danger of

harm was imminent; (4) that the use of force was necessary; (5) that the person

threatened actually and subjectively believed a danger existed that required the

- 23 - use of the force applied; and (6) the beliefs of the person threatened were

objectively reasonable.” Lee, 213 Ill. 2d at 225, 213 Ill. 2d at 311.

¶ 71 A criminal defendant is entitled to a self-defense jury instruction where any

credible evidence whatsoever supports such a defense, no matter how slight. People v. Lewis,

2015 IL App (1st) 122411, ¶ 56, 28 N.E.3d 923. However, the failure to request a self-defense

instruction will not constitute ineffective assistance of counsel when such a failure was the result

of trial strategy. See People v. Haynes, 408 Ill. App. 3d 684, 689, 946 N.E.2d 491, 497 (2011).

More specifically, “it is counsel’s decision, as a matter of trial strategy, whether to assert an

affirmative defense of self-defense.” People v. Edmondson, 2018 IL App (1st) 151381, ¶ 40, 142

N.E.3d 722.

¶ 72 Here, counsel’s decision to forgo arguing self-defense was a matter of trial

strategy. As previously noted, counsel reasonably pursued an all-or-nothing trial strategy.

Before trial, counsel specifically told the trial court the defense was not pursuing self-defense

because defendant was not admitting she committed murder. Instead, the defense theory of the

case was the State could not prove first degree murder beyond a reasonable doubt. Given

defendant’s unwillingness to admit she stabbed Russell, a self-defense approach was untenable.

Further, there was evidence suggesting defendant may have been the aggressor and that she may

have followed Russell onto the deck to stab him, drawing into question whether the use of force

was necessary or if a danger actually existed. Counsel could have reasonably believed pursuing

self-defense would require the defense to abandon the all-or-nothing strategy in favor of a less

viable approach. Accordingly, defendant has not shown counsel rendered ineffective assistance.

¶ 73 D. Sentence

- 24 - ¶ 74 Defendant also contends the trial court erred in imposing a sentence of 45 years in

prison. She argues the sentence was excessive, primarily because it amounted to a de facto life

sentence.

¶ 75 A trial court has broad discretion in imposing a sentence. People v. Patterson,

217 Ill. 2d 407, 448, 841 N.E.2d 889, 912 (2005). When a sentence falls within the statutory

range of sentences possible for a particular offense, it is presumed reasonable. People v. Moore,

41 Ill. App. 3d 3, 4, 353 N.E.2d 191, 192 (1976). “ ‘In determining an appropriate sentence, a

defendant’s history, character, and rehabilitative potential, along with the seriousness of the

offense, the need to protect society, and the need for deterrence and punishment, must be equally

weighed.’ ” People v. Hestand, 362 Ill. App. 3d 272, 281, 838 N.E.2d 318, 326 (2005) (quoting

People v. Hernandez, 319 Ill. App. 3d 520, 529, 745 N.E.2d 673, 681 (2001)).

¶ 76 “Because the trial court is in a better position to observe the witnesses and

consider the relevant factors, its sentencing determination is entitled to great deference.” People

v. Kenton, 377 Ill. App. 3d 239, 245, 879 N.E.2d 402, 407 (2007). “ ‘Absent an abuse of

discretion by the trial court, a sentence may not be altered upon review.’ ” People v. Hensley,

354 Ill. App. 3d 224, 234, 819 N.E.2d 1274, 1284 (2004) (quoting People v. Kennedy, 336 Ill.

App. 3d 425, 433, 782 N.E.2d 864, 871 (2002)). An abuse of discretion will be found “where

the sentence is ‘greatly at variance with the spirit and purpose of the law, or manifestly

disproportionate to the nature of the offense.’ ” People v. Alexander, 239 Ill. 2d 205, 212, 940

N.E.2d 1062, 1066 (2010) (quoting People v. Stacey, 193 Ill. 2d 203, 210, 737 N.E.2d 626, 629

(2000)). Also, an abuse of discretion will not be found unless the court’s sentencing decision is

“arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by

the trial court.” People v. Etherton, 2017 IL App (5th) 140427, ¶ 26, 82 N.E.3d 693.

- 25 - ¶ 77 In this case, defendant was convicted of first degree murder, which carried a

sentencing range of 20 to 60 years in prison. 730 ILCS 5/5-4.5-20(a) (West 2018). The trial

court considered multiple factors in mitigation and aggravation and sentenced defendant to a

term roughly in the middle of the sentencing range. Nothing in the record suggests the court

erred in its description of the factors in mitigation or aggravation. It is true that, given

defendant’s age, a 45-year prison term is a de facto life sentence. However, it is not the rule that

a defendant is entitled to be released once he or she is no longer a threat to society. Rather, in

imposing a sentence, a trial court must strike a balance between rehabilitative potential and the

seriousness of the offense. People v. Murray, 2020 IL App (3d) 180759, ¶ 33, 148 N.E.3d 235.

The former does not necessarily take precedence over the latter. Murray, 2020 IL App (3d)

180759, ¶ 33. Indeed, “[t]he most important factor to consider is the seriousness of the crime.”

People v. Williams, 2017 IL App (1st) 150795, ¶ 44, 87 N.E.3d 353. Here, taking the

seriousness of the crime into account, the court’s sentencing decision was not arbitrary, fanciful,

or unreasonable. Accordingly, it was not an abuse of discretion.

¶ 78 III. CONCLUSION

¶ 79 For the reasons stated, we affirm the trial court’s judgment.

¶ 80 Affirmed.

- 26 -