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Docket No. 90960-Agenda 3-May 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. TABITHA POLLOCK, Appellant.

Opinion filed October 18, 2002.

CHIEF JUSTICE McMORROW delivered the opinion of thecourt:

On November 3, 1995, defendant Tabitha Pollock wasindicted in the circuit court of Henry County on charges of firstdegree murder (720 ILCS 5/9-1(a)(2), (a)(3) (West 1994)) andaggravated battery of a child (720 ILCS 5/12-4.3(a) (West 1994))after her three-year-old daughter, Jami Sue Pollock (Jami), died asa result of being struck by defendant's paramour, Scott English(Scott). A jury found defendant guilty of felony murder(aggravated battery of a child) and aggravated battery of a child ona theory of accountability. The conviction for aggravated batteryof a child was merged with the murder conviction and defendantwas sentenced to a term of 36 years' imprisonment for the murderconviction.

Defendant appealed her conviction and sentence to theappellate court. In a published opinion, defendant's conviction formurder was affirmed.⁽¹⁾ 309 Ill. App. 3d 400. Thereafter,defendant's petition for leave to appeal was granted. 177 Ill. 2d R.315. For reasons that follow, we now reverse defendant'sconvictions.

BACKGROUND

The evidence of record indicates the following.

At 4:58 a.m. on October 10, 1995, a Kewanee ambulancemanned by two emergency medical technicians (EMTs) arrived at720 Pleasant Street in Kewanee, Illinois, in response to a 911 callthat a three-year-old child was not breathing. Upon their arrival,the EMTs were immediately directed to the upstairs of the home,where they found defendant performing cardio-pulmonaryresuscitation (CPR) on a small child, later identified as Jami.According to James Heisner, one of the EMTs, Jami's skin tonewas bluish and she was unresponsive, but her body was warm.Scott told Heisner that he discovered Jami's lifeless body wrappedin her blankets when he checked on Jami and her brother, Preston,who had been sleeping on a waterbed in another bedroom.

Jami was immediately transported to Kewanee Hospital.Defendant rode in the ambulance and assisted in continuing CPRon Jami while en route. They arrived at the hospital at 5:05 a.m.There the emergency room staff, headed by Dr. Renato Parungao,took over resuscitation efforts. Dr. Parungao and his staff workedon Jami for nearly an hour, but Jami never showed any signs ofrevival. When the hour passed without any success, resuscitationefforts were terminated and Jami was pronounced dead.

Although one police officer who responded to the Englishhome testified that defendant appeared emotionless, several otherwitnesses testified otherwise. Heisner, one of the EMTs, testifiedthat defendant was working diligently at trying to revive Jamiwhen they arrived at the English home. When his partner tookover doing CPR, Heisner said, defendant appeared shaken andfrightened. Defendant asked to accompany Jami in the ambulanceand seemed deeply concerned.

Karen Heying, a nurse at the hospital, testified that she wasassigned to stay with defendant while the emergency room staffworked on Jami. Heying described defendant as "frantic." Heyingsaid she and defendant paced the floor in an attempt to keepdefendant calm, but when defendant was told that Jami could notbe saved, defendant had a complete emotional break down.

After Jami was pronounced dead, defendant was allowed tohold Jami. She sat rocking Jami for a long while. When they tookJami from defendant, defendant collapsed on the floor and crieduncontrollably.

There was no apparent cause for Jami's death. Dr. Parungao,having noticed some bruises on Jami, asked an emergency roomnurse to make a detailed record of Jami's physical condition,documenting every noticeable mark on Jami's body. In addition,the coroner ordered that an autopsy be performed.

Dr. Parungao previously had seen Jami on October 7 whenJami was brought to the emergency room by Scott, who reportedthat Jami hit her head on the sink when she fell off a cookie tin inthe bathroom while trying to brush her teeth. Dr. Parungao sutureda cut on Jami's head. He accepted the story given him by Scott andsaw nothing at that time which made him suspect that Jami wasbeing abused.

Terri Chapman, a registered nurse at Kewanee Hospital, wasworking in the emergency room on the morning of October 10,1995. She assisted Dr. Parungao in attempting to resuscitate Jamiand, when their attempts failed, she called the coroner, who, inturn, reported the death to the police. Upon Dr. Parungao's order,Chapman made a detailed inspection of Jami's body. Accordingto her notes, there were 11 marks on Jami's body, which shedescribed as follows: three nickel- to quarter-sized bruises acrossher upper back; one two- to five-centimeter abrasion down themiddle of her back; one quarter- to half-dollar-sized bruise justabove her left elbow, one half-dollar-sized bruise on her leftbuttock; one half-dollar-sized bruise on her right hip; threequarter-sized bruises on her left rib area; and a bruise on her shin.Chapman also noted the healing laceration on Jami's head, whereJami had received stitches a few days earlier. Chapman latertestified at defendant's trial that, based on her knowledge andexperience regarding bruises and their coloration over time, shewas of the opinion that Jami's bruises were of different ages.Some of the bruises were "bluish," indicating to her that the bruisewas 2 to 3 days old. Some bruises were "greenish," indicating anage of 4 to 5 days and some were "brownish-yellow," indicatingan age of 10 to 14 days old. Chapman said the bruises on the hip,buttocks, and shin appeared to be the oldest, while the ones onJami's rib area and upper back appeared to be newer.

On the afternoon of October 10, 1995, the date of Jami'sdeath, Dr. Violette Hnilica, a forensic pathologist, began anautopsy on Jami's body to determine the cause of her death. Theautopsy first involved an external examination, followed by aninternal examination which was conducted the next day. Dr.Hnilica testified that the autopsy took a great deal of time becauseshe, in conjunction with police investigators and crime-scenetechnicians, collected and preserved evidence throughout theautopsy. Using various techniques, including ultraviolet light,Jami's body, as well as her clothing and bed linens, wereexamined, and attempts were made to match patterns from variousitems to marks found on Jami's body.

In general, Dr. Hnilica's external examination revealed"bruises of various ages over her body" and "splotchiness of colorover her face with areas of pallor or paleness." A detailed visualinspection of Jami's body revealed the following: a greenish-bluebruise on the upper-right chest; a greenish-blue bruise mid-chest,near the right breast; a bluish-green bruise in the right abdomen;a greenish-brownish bruise on the left chest, near the armpit; agreen contusion mid-chest, near the left breast; and a greenishbruise on the mid to upper back. Dr. Hnilica testified that theabove-noted bruises were ones that appeared to be older in age-atleast days in duration. She later admitted on cross-examinationthat none of these older injuries appeared life-threatening and allof the bruises could have been attributable to accidental childhoodinjuries.

With the aid of ultraviolet light, however, Dr. Hnilica foundseveral additional bruises or marks which, in her opinion, hadoccurred just minutes or, at the most, hours prior to Jami's death.The recent injuries included: an area of swelling just above theright ear; a faint purple bruise on the tip of the right ear and alarger purplish bruise on the lower part of the right ear; "splotchycoloration" (mixed areas of paleness and pinkness) of the face(across the cheeks, bridge of nose, and mouth); abrasions on thesides and tip of the nose; a bruise and scraped area under her chin;a large area of bruising (extensive and not well-defined) across herchest, accompanied by "curved claw marks" which were latermatched to Jami's own left-hand fingernails; bruising to the leftbreast area and upper abdomen; and two areas of scrapes in the leftlower chest area. On Jami's back there were bruises to the skinalong the vertebral process (spine) and faint bruises over the upperback area. Slightly older bluish bruises were found on the rightbuttocks, the left hip, and the right forearm, but on the left forearmthere was a newer pinkish bruise.

Dr. Hnilica explained that areas of pallor, such as thatobserved on Jami's face, can occur "when something presses theblood out of the facial tissues," as in smothering. Also, asphyxiacan cause petechia-ruptures of the tiny blood vessels-in theeyelids, face, oral mucosa, as well as the upper neck and in thethymus gland. Petechia were found in the conjunctiva of Jami'seye and her thymus gland, consistent with her being smothered.Further, the clawing marks found on Jami's chest were alsoindicative of smothering. Dr. Hnilica testified that a smotheringvictim often will claw at the thing obstructing their ability tobreath and, in doing so, injure themselves in this manner.

When conducting the internal examination of Jami, Dr.Hnilica peeled back Jami's scalp. In doing so, Dr. Hnilica was ableto determine that the swelling, which had been observed overJami's right ear, was due to torn blood vessels, which allowedblood to pool in the tissues. This type of injury, Dr. Hnilica said,was likely caused by a massive, heavy blow to the head. Inaddition to this one massive injury, the doctor was able to discern13 distinct areas of hemorrhage, each representing an injury to thehead. It was noted, however, that estimating the age of thesebruises is not an exact science and that several, perhaps as manyas eight of these bruises, were not recent injuries.

Dr. Hnilica concluded that the injury to Jami's head,evidenced by the large area of hemorrhage, caused the brain to be"shaken up." This caused Jami's brain to swell to the size of anadult brain. Dr. Hnilica identified several photographs which hadbeen taken during the autopsy, depicting the injury to the brain, aswell as the areas of bruising, as described above.

Dr. Hnilica opined that the swelling of the brain, which waslikely caused by a heavy blow to the head, was the most significantinjury suffered by Jami. However, there was also evidence ofinjury to the abdomen. The injury here was consistent with amassive, rapid or heavy force being applied to the abdomen-aswith being kicked, "stomped," or "kneed" in the abdomen area.

Based on all of the evidence from the autopsy, Dr. Hnilicaconcluded that Jami's death had been caused by blunt force traumato the head (brain edema) and asphyxia. In her opinion, eithercause, standing alone, could have resulted in death. However,since there was evidence of both, it was impossible to say "therelative proportion that each contributed" to causing Jami's death.

On the evening of October 11, 1995, defendant and Scott metwith police at the Kewanee police station, where they werequestioned, individually, about what had transpired prior to Jami'sdeath.⁽²⁾ Defendant, who was 25 years old at the time, told policethat she and her children, Preston, age five, Jami, age three, andDavid, age two, began staying with Scott English, who is David'sfather, after she resumed her relationship with Scott sometime inAugust 1995. In late September 1995, they moved in with Scott atthe home of Scott's parents, Hilda and Raymond English, at 720Pleasant Street in Kewanee. Pam, the girlfriend of Scott's brother(who was in jail), and Pam's young son also lived at the home.Defendant told police that she and Scott slept in one of the upstairsbedrooms. Their son, David, had a bed in the same room. Prestonand Jami slept together in another upstairs bedroom.

When asked if she was aware of any bruises on Jami,defendant stated that she gave Jami a bath on October 9, 1995,sometime between 11:30 a.m. and 1:30 p.m. At that time, shenoticed only a few small bruises. Some of the bruises could havebeen attributed to the fact that, on October 7, 1995, Jami had fallenoff a round tin in the bathroom and hit her head. Jami was takento the hospital and received stitches. This was the only "owie" onJami that defendant knew about. Defendant recalled, however, thattwo to five days before Jami's death, Jami hit her head on thebannister of the stairs as she was going upstairs. Defendant alsoremembered another occasion when Jami's head got bumped intothe bannister as Scott was carrying Jami upstairs. Other than thoseinstances, defendant was unaware of any injuries to Jami.Defendant denied ever striking her children, except for a smallswat on the behind, and she assured police that, to her knowledge,no one in the English home had ever mistreated them.

Defendant told police that, on the evening of October 9, sheand the children ate dinner at about 6:30 p.m. and, when Pam andher son came home at about 7 p.m., the children had some icecream. The children played together downstairs until about 9:15p.m., when defendant took her children upstairs to her bedroom towatch some television. David fell asleep in his own bed in herroom. Preston and Jami fell asleep in her bed. Defendant said shemoved Jami and Preston to their own bed around 11:30 p.m. andthen went downstairs to do some laundry. When she checked onJami and Preston at about 12:15 a.m., they seemed fine.

Defendant noted that Scott arrived home at about 12:40 a.m.and, sometime after his arrival, she noticed that the kids "were alittle restless." She went to check on them and found Scott at thefoot of their bed, telling them to go back to sleep. Defendant saidshe immediately left the bedroom and stood outside the doorbecause she was afraid that the kids would wake up if they sawher. Scott then went downstairs to get something to eat and cameback upstairs to eat with her in the bedroom. She and Scott talkedwhile Scott ate. Then they each took showers.

Defendant explained that, to get to the bathroom, it wasnecessary to walk through the bedroom where Jami and Prestonslept. Defendant recalled that, when Scott returned after taking hisshower, he told defendant that he checked on the children and theywere fine.

Defendant said that after she and Scott showered, theywatched some television until about 3 or 3:30 a.m. and then wentto bed. Before going to sleep, Scott went to the bathroom and, onhis way, checked on the children once again. When he returned, hetold defendant that Jami had been wrapped in her covers and hehad fixed them. Sometime later that morning, defendant and Scottwere awakened by David crying. David had a fever, so Scott gaveDavid some Tylenol. When he did, David spit up on Scott. Scottwent to wash up and, again, passed through the children's room.Shortly thereafter, Scott said something about hearing a noise. Thenext thing defendant remembered was Scott, standing in thebedroom doorway, yelling at her, waking her up, and telling herthat Jami was not breathing. Scott told her that he went into thebedroom, found Jami wrapped in her blankets and, when heunwrapped her, found her lifeless and not breathing. Defendantsaid that she went to Jami's room, picked her up and brought herinto her own bedroom, where she started doing CPR. Shescreamed at Scott to call 911. Defendant said that Scott later toldher that he had tried performing CPR on Jami, too, but she did notknow for how long.

At this point in the interview, Lieutenant Rod Huber, one ofdefendant's interviewers, advised defendant of her Miranda rightsand informed her that a preliminary report from the autopsyrevealed that Jami had not died of natural causes, but that she haddied from swelling of the brain caused by blunt force trauma andasphyxia-cutting off her air supply by suffocation. LieutenantHuber described defendant's response to this information as oneof shock and astonishment. He said she seemed to have difficultygrasping the meaning of what he was telling her. Defendant didnot understand how Jami could have been hurt because, she said,to her knowledge no one in the English household had ever hit ormistreated her children. Defendant also maintained that she haddone nothing to harm Jami in any way.

The interview was then interrupted by Dee Shannahan, aDCFS investigator, who asked to speak with Lieutenant Huber.Outside the interview room, Shannahan informed Huber that Scotthad made admissions regarding hitting Jami. Huber returned to theinterview room and told defendant that Scott admitted strikingJami. Lieutenant Huber said that defendant seemed to havedifficulty believing that Scott had done anything to Jami because,defendant said, she had never known Scott to be abusive towardher children in the past. Defendant maintained that she wascompletely unaware that Scott had done anything to Jami. In fact,after learning of Scott's complicity for her daughter's death,defendant noted that it now made sense that, since Jami's death,Scott had continually sought reassurance from her that she lovedhim and had even asked her to marry him. Defendant also said shenow understood why, before coming to the police station, Scotttold her that he was scared because "they always blame the onewho finds the dead child and I'm just scared I'll get blamed."

As indicated above, while defendant was being interviewedin one room at the police station on the evening of October 11,1995, Scott was being questioned in another room. In the courseof this questioning, he admitted striking Jami on the head on themorning of October 10, 1995. Scott made a voluntary statement,which was tape recorded. His taped statement was played for thejury at defendant's trial. Jurors were also given copies of thetranscript to follow along with as the tape was played.

In this statement, Scott corroborated much of what defendanttold police. He said he had gone to work at 4 p.m. on October 9,1995, and worked until 12:30 a.m. on October 10, 1995, arrivinghome about 12:50 in the morning. When he got home, he checkedon Jami and Preston and found that Jami was "bundled up" in herblanket. He said he went to his own bedroom and told defendantthat Jami was bundled up in her blankets. Scott and defendant thenwent back into Jami and Preston's bedroom to fix the blankets.The children heard defendant's voice and began to wake up andcry for their mom. Defendant hurried out of the room so thechildren would go back to sleep. Scott then "unbundled" Jami and"set them [the blankets] the right way."

Scott said that, after fixing the blankets, he got something toeat, talked with defendant, and then showered. Scott then wentdownstairs to get David his bottle. On the way back, he checkedon the children again and they were fine. He watched televisionuntil about 3 a.m. and, before going to sleep, went to thebathroom. At that time he checked on the children once again.Scott said that when he turned the light on briefly, Preston openedhis eyes, but Scott told him to go back to sleep. Scott said Jamiwas wriggling under her blankets and she was all bundled upagain. Scott said, "Then I yelled at her and I hit her twice in theback of the neck or the head, one of them with the palm of myhand." Scott described the first strike as a "hammering motion,"but said the second strike was softer. He said Jami cried, but notloudly. He said he "didn't mean anything. I just wanted to let herknow that she shouldn't be covering up like that."

Scott said he went back to bed and was awakened around 4:30a.m. by David crying. David had a fever, so Scott got up to get himsome medicine. When he gave David the medicine, David spit itup and Scott spilled medicine all over his hands and the sheets.Defendant took David into their bed to settle him down, whileScott went to the bathroom to wash up. When Scott walkedthrough the children's room to the bathroom, Preston woke upbriefly, but then lay back down. Jami, however, was still allbundled up in her blankets. Scott said,

"Then I pulled the blankets up and she spun and therewas no movement. She was lifeless and I proceeded to doCPR after that. I leaned down to listen if she wasbreathing or if she had any pulse and then I did CPR."

Scott estimated that he performed CPR for about five minutesbefore calling anyone because he was "panicking." He said,

"I didn't want this to happen. When I corrected her Inever knew that I was going to hurt her that bad."

The police asked,

"So at the time you were doing CPR you believed thatit was because of the hitting that you had done?"

Scott responded,

"Yes. Because that's the only thing that I have done toher. I have never layed [sic] a hand on her. I loved her somuch."

Scott told police that defendant was not aware that he struckJami and that, until then, he had told no one what he had done. Hethen asked if he could be allowed to speak to defendant so hecould tell her himself what had happened to Jami.

Scott adamantly maintained that he hit Jami only twice on themorning of October 10, 1995. When asked to explain other bruisesfound on Jami, Scott told police that Jami had bruises as a resultof three accidental incidents which occurred on October 7, 1995.Scott said that, on the morning of October 7, he "accidentally"grabbed Jami by the neck. This happened, Scott said, because Jamihad been misbehaving at the breakfast table-keeping food in hermouth without chewing or swallowing. Both he and defendantcorrected Jami and, when Jami refused to behave, Scott orderedher to her room. Jami got off her chair and started to run towardher mother. Scott grabbed Jami to prevent her from going to hermother. Scott said that he "meant to grab her by the shoulders andmy hand, I caught her by the neck."

Scott also told police that, after breakfast, he gave his son,David, and Jami a bath together. Scott said that, during the bath,Jami stood up in the tub and stepped on David's leg. David startedto scream. Scott said he "leaped toward David to move him out ofthe way and I sort of put my elbow in the way of the collision andJami and I might have pushed her back a little bit. She fellbackwards and hit her head or back or what have you however shelanded." Scott said Jami fell onto the linoleum floor.

Later that same day, October 7, Jami fell in the bathroom andhit her head, requiring stitches. Scott insisted, however, that he haddone nothing to cause the incident. He said that Jami climbed upon a cookie tin to get to the toothpaste when she accidentallyslipped and fell.

On October 12, 1995, Scott was arrested and charged byinformation with two counts of murder and one count ofaggravated battery of a child. On the afternoon of October 12,1995, Sherry Ranos, a criminal investigator with the Illinois StatePolice, accompanied by DCFS Investigator Dee Shannahan andKewanee Police Officer Ken Ince, went to the Pollock residenceat 100 South Burr Boulevard in Kewanee to speak with defendant.At that time, in response to questions regarding Scott's behaviortoward defendant's children and with the benefit of the knowledgethat Scott had murdered Jami, defendant was able to recall otherincidents which she had previously dismissed as accidents, butwhich now suggested that Scott had been abusive to her childrenin the past. One such incident occurred in July 1995 and involveddefendant's son Preston. Defendant explained that Scott had beenbaby-sitting Preston and Jami for her on this occasion. When shepicked up the children, she noticed some scrapes on Preston'sneck. Defendant said that Scott told her that Preston started to slipin the bathtub and, when Scott went to grab him, Scott accidentallycaught Preston by the neck. Preston, who was five years old, gavedifferent explanations for the injury-at first, Preston told defendantthat Scott choked him and held him under the water, but later hesaid that kids hit him with sticks.

Defendant also recalled that, a week or two prior to Jami'sdeath, there was an incident when defendant had been away fromthe home and Scott was watching the children. When defendantreturned home she saw some bruises on Jami. Scott told her thatJami had fallen down the stairs. Defendant said that shequestioned Scott about the fall, but that Scott's father hadcorroborated that Jami had fallen down the stairs. Defendantadmitted that Jami had complained sometimes that Scott wasmean, but she thought it was because Scott made Jami stand in thecorner for "time-out."

In November 1995, the grand jury heard evidence on the caseand returned three-count indictments against both defendant andScott for murder and aggravated battery of a child. Count I allegedknowing murder, count II alleged felony murder based onaggravated battery of a child, and count III alleged aggravatedbattery of a child. The State later dismissed counts I of bothindictments.

Scott was tried by a jury and found guilty of first degree(felony) murder and aggravated battery of a child. He was foundineligible for the death penalty and was sentenced to natural lifeimprisonment. His conviction was affirmed on August 18, 2000,in a Rule 23 order. People v. English, No. 3-96-0767 (2000)(unpublished order under Supreme Court Rule 23).

Defendant's jury trial commenced on June 17, 1996. Inopening statements, the State told the jury that Jami "was beatenand asphyxiated on October 10th of 1995, and prior to that, Jamihad been abused, specifically on October 7th of 1995." The Statealso told the jury:

"In the last few hours of Jami's death, only two adultpeople had contact with Jami: The defendant and herboyfriend, Scott English. In this case, the State is going toprove beyond a reasonable doubt that Jami's mother, thedefendant, either murdered Jami herself or allowed herboyfriend, Scott English, to murder Jami by giving himaccess and control over Jami when she knew or shouldhave known of his abusive nature and his danger to Jami."

This mens rea standard-knew or should have known-wasrepeated numerous times throughout the State's openingstatement. Defense counsel also referred to this standard, statingin opening argument:

"So you are going to hear people, a lot of people, get onthe stand and say that Tabitha apparently was a terriblemother, but a terrible mother doesn't go to prison forkilling her child. You have to specifically find that sheknew or should have known-and I mean a very strongshould have known-that Scott English had done anythingprior to Jami Sue's death to lead her to believe that he wasgoing to do it at the time that he did."

During trial, both the State and the defense produced severalwitnesses. The majority of the evidence focused on the eventssurrounding Jami's death and prior incidents of Scott'smistreatment of defendant's children, which, the State argued,should have placed defendant on notice that Scott was a danger tothe children. However, that evidence was countered by thetestimony of several witnesses, including defendant's mother andsister, as well as Scott's mother and father, who testified that,despite being aware of some bruises on Jami, they never suspectedthat Scott had been mistreating defendant's children. Everywitness stated that, prior to October 11, 1995, they believed thatJami's bruises, none of which were life-threatening, had been theresult of accidental injuries.

Over defense counsel's objection, the State presentedevidence that defendant had neglected her children and that theywere often dirty and disheveled. There was testimony from onewitness that defendant, on one occasion in 1994, slapped Jami onthe head. Also, a nurse practitioner from the Family MedicalClinic in Galva testified that she filed a report against defendantwith DCFS in August 1994. The nurse practitioner testified that,when defendant brought Jami in for a vaccination, she noticed thatJami had a red, swollen area around her right eye. Defendantexplained that this was a bug bite, but the nurse was skeptical. Thenurse also noted a bruise on Jami's left ear, which defendant saidwas caused by a fall against a chair. There was also a bruise onJami's forearm, which the nurse believed looked like a"thumbprint" mark, but defendant said was a bee sting. Later, aDCFS representative testified that, as a result of this report,defendant was "indicated" for environmental neglect, medicalneglect (failure to follow the recommended vaccination schedule),and risk of harm due to cuts and bruises. The report made by thenurse practitioner was defendant's only indicated report and nofurther action was taken. The sum of the evidence established thatdefendant, though neglectful, was not known to be physicallyabusive to her children.

Dr. McCaw testified that, after Jami's death, he was asked byDCFS to examine Preston and David to determine whether theyshowed signs of abuse. Though both had minor bruises, Dr.McCaw testified, he did not feel that the bruises were indicative ofabuse.

In closing argument, the State advised the jury thataccountability may be shown by evidence of a common criminaldesign, which the prosecutor defined as "evidence that adefendant, a parent, knew or should have known about a dangerfrom another person, a boyfriend, and continues to allow thatboyfriend access to the child knowing of that danger." The Statefurther argued:

"It's clear and it's beyond a reasonable doubt in thiscase that she knew or should have known what was goingon here. And that's important: Knew or should haveknown. And you can use your common sense andexperience in life when you look at everything here. Sheshould have known. She should have done something.Because any loving, reasonable, caring parent would haveseen it; they would have done something about it.

But not Tabitha Pollock. All she did was continue toallow Scott English to have control over Jami. Shecontinued to give him access and allowed him in the endto do what he ultimately did. And for that, she's as guiltyas Scott English of murder and aggravated battery of achild. Because for [sic] without Tabitha Pollock, ScottEnglish could not have carried out this murder. WithoutTabitha Pollock, Jami Sue Pollock would have never beenat 720 Pleasant Street, and she would have never beenmurdered.

And the law in the area of accountability has expandedover the years to include just this type of situation. Andit's clear that a parent who does not protect that childfrom a known danger, or when they should have knownabout the danger and continue to allow access to that childby this danger, this person that's a danger, that makes heraccountable for everything that happened."

After hearing all of the evidence, the jurors wereinstructed on the law. In addition to the Illinois Pattern Instruction(IPI) on accountability, three non-IPI instructions (Nos. 10, 11, and13) were given over defendant's objection. Instruction No. 10provided:

"A parent has a legal duty to aid a small child if theparent knows or should have known about a danger to thechild and the parent has the physical ability to protect thechild.

Criminal conduct may arise not only by overt acts, butby an omission to act where there is a legal duty to do so."

Instruction No. 11 provided:

"Actual presence at the commission of the crime is nota requirement of accountability."

Instruction No. 13 provided:

"For accountability, intent to promote or facilitate crimemay be shown by evidence that the defendant shared acriminal intent of the principal or by evidence that therewas a common criminal design."

After four hours of deliberation, the jury found defendantguilty as charged of first degree (felony) murder and aggravatedbattery of a child. The trial court sentenced defendant to 36 years'imprisonment on the murder conviction, stating, "[T]he finding ofguilty was based not upon her own direct action, but upon herfailure to act to protect her child from the actions of her live-inboyfriend."

Defendant's conviction and sentence were upheld on appealby the appellate court. 309 Ill. App. 3d 400. This court thengranted her petition for leave to appeal. 177 Ill. 2d R. 315.

ANALYSIS

The first issue raised by defendant in the appeal before thiscourt is whether the jury was properly instructed. Defendantargues that because her convictions for felony murder (predicatedon aggravated battery of a child) and aggravated battery of a childwere premised on a theory of accountability, an essential elementof the charged offenses is the mens rea requirement foraccountability. Aggravated battery of a child is an offense whichrequires a knowing or intentional state of mind (720 ILCS5/12-4.3 (West 2000)), and "[a]ccountability, tied as it is to thecrime charged, must comport with the requirements of that crime"(People v. Stanciel, 153 Ill. 2d 218, 234 (1992)). Thus, defendantargues that in order for her to be held accountable for the predicatefelony-aggravated battery-the jury was required to find beyond areasonable doubt that she possessed a knowing or intentional stateof mind. Defendant contends, however, that one of the nonpatternjury instructions given to the jury (Instruction No. 10), and theprosecutor's argument based on this instruction, misstated themens rea requirement and told the jury that defendant could beheld accountable for aggravated battery of a child based on anegligent state of mind, that is, the jury was told that defendantcould be accountable if she did not know, but "should haveknown," that Scott had abused Jami in the past.

Defendant also argues that, based on the evidence presentedat trial, no properly instructed jury could find beyond a reasonabledoubt that she was accountable for the aggravated battery of herdaughter, which formed the underlying basis for her felony-murderconviction. In a supplemental brief, defendant further argues that,in light of this court's recent opinion in People v. Morgan, 197 Ill.2d 404 (2001), aggravated battery can never serve as the predicatefelony for a charge of felony murder and, accordingly, her felony-murder conviction cannot stand.

We first consider defendant's challenge to the propriety of thejury instructions. Our task is to determine whether the instructionsgiven to the jury in the case at bar, " 'considered as a whole, fullyand fairly announce the law applicable to the respective theoriesof the People and the defense.' " People v. Terry, 99 Ill. 2d 508,516 (1984), quoting People v. Kolep, 29 Ill. 2d 116, 125 (1963).

It is undisputed in the present appeal that defendant wasconvicted of aggravated battery of a child and felony murder basedon an accountability theory. Accountability is not a crime in andof itself but, rather, a mechanism through which a criminalconviction may result. People v. Hicks, 181 Ill. 2d 541, 547(1998). Section 5-2(c) of the Criminal Code of 1961 (720 ILCS5/5-2(c) (West 2000)) provides that a person may be heldaccountable if, "[e]ither before or during the commission of anoffense, and with the intent to promote or facilitate suchcommission, he solicits, aids, abets, agrees or attempts to aid, suchother person in the planning or commission of the offense."Accountability for felony murder exists only if the defendant maybe deemed legally responsible for the felony that accompanies themurder. People v. Shaw, 186 Ill. 2d 301, 325 (1998).

In the case at bar, the court instructed the jury using IllinoisPattern Jury Instruction, Criminal, No. 5.03 (3d ed. 1992),(hereinafter IPI Criminal 3d No. 5.03), the standard patterninstruction on accountability. Similar to section 5-2(c) of theCode, this instruction provides:

"A person is legally responsible for the conduct ofanother person when, either before or during thecommission of an offense, and with the intent to promoteor facilitate the commission of the offense, he knowinglysolicits, aids, abets, agrees to aid, or attempts to aid theother person in the planning or commission of theoffense." (Emphasis added.) IPI Criminal 3d No. 5.03.

Over defendant's objection, however, the court also instructedthe jury using three nonpattern instructions on accountabilitytendered by the State. Included among these three nonpatterninstructions was Instruction No. 10, which told the jury that "aparent has a legal duty to aid a small child if the parent knows orshould know about a danger to the child." Based on thisnonpattern instruction, the State repeatedly argued to the jury thatdefendant could be held accountable for the murder of her child ifshe should have known that Scott had been physically abusive toJami in the past.

A trial court may, in the exercise of its discretion, draft andgive nonpattern instructions. People v. Simms, 192 Ill. 2d 348, 412(2000); see also People v. Swartwout, 311 Ill. App. 3d 250, 264-65(2000). The decision to instruct a jury using nonpatterninstructions is reviewed for an abuse of discretion. See People v.Pinkney, 322 Ill. App. 3d 707, 720 (2000). Whether a court hasabused its discretion will depend on whether the nonpatterninstruction tendered is an accurate, simple, brief, impartial, andnonargumentative statement of the law. 177 Ill. 2d R. 451(a);People v. Ramey, 151 Ill. 2d 498, 536 (1992). As a general rule,where an appropriate IPI instruction exists on a subject uponwhich the trial court has determined the jury should be instructed,the IPI must be used. Simms, 192 Ill. 2d at 412; People v. Macri,185 Ill. 2d 1, 70 (1998). Illinois pattern instructions were"painstakingly drafted with the use of simple, brief and unslantedlanguage so as to clearly and concisely state the law," and, for thatreason, "the use of additional instructions on a subject alreadycovered by IPI would defeat the goal that all instructions besimple, brief, impartial and free from argument." People v.Haywood, 82 Ill. 2d 540, 545 (1980). Thus, while nonpatterninstructions may be given, the instructions, as a whole, must notbe misleading or confusing. People v. Bush, 157 Ill. 2d 248, 254-55 (1993). Moreover, if conflicting instructions are given, onebeing a correct statement of law and the other an incorrectstatement of law, the error cannot be deemed harmless. Bush, 157Ill. 2d at 254; People v. Haywood, 82 Ill. 2d 540, 545 (1980). Thisis because a jury instructed with contradictory instructions is notgiven proper guidance and, thus, cannot perform its constitutionalfunction. People v. Jenkins, 69 Ill. 2d 61, 67 (1977).

In the case at bar, the State argues that the jury was properlyinstructed. Conceding, as it must, that accountability requires anintentional or knowing mental state of mind or mens rea, the Statecontends that the jury was correctly instructed on this matter whenthe trial court, using IPI Criminal 3d No. 5.03, the standard patterninstruction on accountability, told the jury that defendant, to beaccountable, had to knowingly solicit, aid, abet, agree to aid, orattempt to aid the principal in the commission of the offense.Nonetheless, the State contends that it was necessary to furtherinstruct the jury on a related matter not covered by the patterninstructions-a parent's legal duty to her child. Relying solely onthis court's opinion in People v. Stanciel, 153 Ill. 2d 218 (1992),the State contends that Instruction No. 10, which formed the basisfor much of its argument to the jury, is an accurate definition of "aparent's legal duty to protect her child from harm" and "hasabsolutely nothing to do with the mental state" required forholding a parent accountable for murder. We find the State'sreliance on Stanciel to be misplaced.

In Stanciel, this court addressed the consolidated appeals oftwo mothers (Violetta Burgos and Barbara Peters) who, likedefendant in the present case, were each held accountable for herchild's murder by a live-in boyfriend. The defendant-mothers eachargued that she could not be held accountable for the murder ofher child unless it was proved beyond a reasonable doubt that sheaided and abetted the commission of an offense with theconcurrent specific intent to promote or facilitate the commissionof that offense. Addressing this argument, we held in Stanciel that,to sustain a conviction for murder on an accountability theory, itwas sufficient to show that a defendant had the general intent topromote or facilitate the commission of the offense, i.e., "that thedefendants voluntarily and willfully committed an act, the naturaltendency of which is to destroy another's life." Stanciel, 153 Ill. 2dat 234. Explaining further, we held that the "intent to promote orfacilitate a crime" requirement for accountability could be shownby evidence that a defendant "shared the criminal intent of theprincipal" or by evidence that there was a "common criminaldesign." Stanciel, 153 Ill. 2d at 234-35. Applying this rule to thefacts presented, we decided that there was sufficient evidence thateach defendant-mother intended to promote or facilitate thecriminal offense that led to her child's death. We held that themothers' knowledge that their children were the victims of an on-going pattern of abuse, in conjunction with the mothers' continuedsanctioned exposure of the children to this abuse, was sufficient tosupport the inference that the defendant-mothers shared theprincipal's criminal intent or that there had been a commoncriminal design.

After determining in Stanciel that the "intent to promote orfacilitate" element of accountability had been satisfied, weaddressed the second argument advanced by the defendant-mothers-that they could not be held accountable for the murdersof their children where there was no evidence that the mothers hadvoluntarily or knowingly committed any act which would havedemonstrated that the mothers aided or abetted the criminaloffenses which led to their children's deaths. In rejecting thisargument, we recognized that parents have a common law duty toprotect their children from known threats, such that, under certainconditions, the omission to act will give rise to criminal liability.In the cases under consideration in Stanciel, it was determined thatthe mothers could be found legally responsible for the murders oftheir children based on their failure to protect their children fromwhat they knew was serious on-going abuse. We held: "[T]he aidrendered may be found in [the mother's] act of placing [the child]in the control of the principal, a known abuser." Stanciel, 153 Ill.2d at 237. In response to the mothers' expressed concern that therecognition of such a duty would "result in the prosecution ofparents for crimes committed upon their children solely by virtueof the common law duty to protect and care for them," we held:

"Defendant's argument ignores the point that intent is stilla requirement, and that guilt must still be proven throughthe knowledge and sanction of a danger." Stanciel, 153 Ill.2d at 238.

The State, however, points to additional language in Stancielwhich, it claims, supports the premise that parental dutyencompasses what the parent knew or should have known. Thus,the State contends that Instruction No. 10 and its argument to thejury were accurate statements of the law with regard to parentalduty. We disagree.

The language from Stanciel, relied upon by the State, is asfollows:

"Although both Peters and Burgos argue they did not aidthe principals in the pattern of abuse which resulted in thedeath of the children, the evidence presented against bothdefendants is sufficient to provide the inference that theyboth either knew or should have known of the seriousnature of the injuries which the victims were sustaining."(Emphasis added.) Stanciel, 153 Ill. 2d at 236-37.

It is a misconstruction of Stanciel for the State to claim thata parent's legal duty to protect her child may be imposed if shedoes not know, but should know, of a danger to her child. It isaxiomatic that there can be no breach of the duty to act unlessthere is knowledge of the need for action. The term "knew orshould have known" was used in Stanciel in reference to themother's awareness of the severity of the injuries being sustained,not the mother's awareness of the existence of abuse.

Rather than diluting the knowing or intentional mens rearequirement for accountability, Stanciel, instead, stands for theproposition that when proof that a parent aided and abetted anoffense is to be deduced from an omission to act, the parent mustknow of a serious and immediate threat to the welfare of the child.That is, there must be evidence from which it can be inferred thatthe parent knew that the child was sustaining injury and, based onthe severity of the injuries being sustained, knew that there was asubstantial risk that death or great bodily would result if the parentdid not act to protect the child.

In sum, we conclude that a parent may not sit idly by whileanother person abuses her child. Parents are required to intercedeon their child's behalf and, if they fail to act, they risk being heldresponsible for the other person's criminal conduct. By failing toact, the parent may be deemed to have implicitly sanctioned thecriminal behavior and, therefore, may be held accountable for theabusive conduct. Even in situations where the parent is not presentat the time when the abuse resulting in death takes place, theparent may be held accountable for the criminal conduct resultingin death, if it is proved that the parent knew that the child had beenabused by the principal in the past and, because of the nature ofprevious injuries sustained by the child, also knew there was asubstantial risk of serious harm, yet took no action to protect thechild from future injury by the abuser.

In the case at bar, the law of accountability was misstated,both in Instruction No. 10 and when the prosecutor repeatedly toldthe jury throughout the trial that defendant could be heldaccountable for the offenses charged if she did not know, butshould have known, that Scott was abusing Jami. It is clear that thejury was not held to the task of finding beyond a reasonable doubtthat defendant possessed the requisite mens rea for felony murderpredicated on aggravated battery of a child. Because defendant'sconviction was premised upon the State's theory that defendantwas accountable for the actions of Scott English, accountabilitywas a fundamental element of the offense charged and the error ininstruction cannot be deemed harmless. Moreover, in light of theprosecutor's high degree of emphasis on the "should have known"standard, the fact that the jury was also instructed using the IPIstandard instruction on accountability does not alter our opinionthat reversal is required.

Having decided to reverse defendant's conviction foraggravated battery of a child and, thus, the conviction for felonymurder predicated on that felony, we address defendant'schallenge to the sufficiency of the evidence to determine whetherremand would subject defendant to double jeopardy. See Peoplev. Jones, 175 Ill. 2d 126, 134 (1997); People v. McDonald, 125 Ill.2d 182, 201 (1988). Defendant argues that the evidence, viewedwith a correct understanding of the law of accountability, isinsufficient to support her conviction for felony murder predicatedon aggravated battery. In other words, defendant argues that theevidence presented at trial did not, and could not, establish that sheknew Scott was abusing Jami and, accordingly, she did not possessthe requisite intent to be held accountable for Scott's conductwhich resulted in Jami's death.

A criminal conviction will not be set aside on grounds ofinsufficient evidence unless the proof is so improbable orunsatisfactory that there exists a reasonable doubt of thedefendant's guilt. People v. Maggette, 195 Ill. 2d 336, 353 (2001).The standard for reviewing a challenge to the sufficiency of theevidence is well settled. When reviewing the sufficiency of theevidence to sustain a verdict on appeal, the relevant inquiry is"whether, after viewing the evidence in the light most favorable tothe prosecution, any rational trier of fact could have found theessential elements of the crime beyond a reasonable doubt."(Emphasis omitted.) Jackson v. Virginia, 443 U.S. 307, 318-19, 61L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2788-89 (1979); People v.Cooper, 194 Ill. 2d 419, 430-31 (2000); People v. Thomas, 178 Ill.2d 215, 231-32 (1997). The same standard of review applies whenreviewing the sufficiency of evidence in all criminal cases,regardless of whether the evidence is direct or circumstantial.Cooper, 194 Ill. 2d at 431; People v. Digirolamo, 179 Ill. 2d 24,43 (1997); People v. Gilliam, 172 Ill. 2d 484, 515 (1996).Circumstantial evidence alone is sufficient to sustain a convictionwhere it satisfies proof beyond a reasonable doubt of the elementsof the crime charged. See People v. McDonald, 168 Ill. 2d 420,444 (1995).

As our discussion of Stanciel makes clear, a parent may becriminally accountable for the murder of her child if there isevidence to support the inference that the parent aided and abettedthe commission of the offense, either by acts of commission oromission, while having the concurrent intent to promote orfacilitate the offense. The necessary intent element may be shownby evidence that the parent knew that her child was the victim ofan on-going pattern of physical abuse and, while having thatknowledge, continued to sanction the abuser's control over thechild. Although a defendant's presence during the commission ofthe offense is not required to prove accountability (Stanciel, 153Ill. 2d at 237; 720 ILCS 5/5-2 (West 2000)), absence is a factor tobe considered when deciding whether the defendant possessed therequisite intent.

It is clear from the record that, in the case at bar, defendantwas not present when the aggravated battery leading to Jami'sdeath took place. According to the forensic pathologist, Jami diedas a result of a massive blow to the head, which caused edema orswelling of the brain, and from asphyxiation. The pathologistbelieved the blow to Jami's head occurred shortly before Jami'sdeath. This is consistent with Scott's admission that he discoveredJami's lifeless body at about 4:30 a.m. on October 10, 1995, aboutan hour after he struck Jami near the base of the skull because hefound Jami "wriggling" around and getting tangled in her blankets.According to Scott's statement, defendant was not in the roomwhen Scott struck Jami and defendant knew nothing of Scott'sconduct until after he confessed to police two days later. The trialjudge, who had the benefit of hearing all of the evidence presentedat trial, when ruling on a post-trial motion, said, "I think the Courtwould have to resort to speculation, almost total speculation, toconsider this a murder by the defendant as the principal[;] *** shedid not commit the act of killing, nor did she intend to kill thechild, nor was she present in the room when her boyfriend killedthe child." Certainly, then, there is no proof beyond a reasonabledoubt that defendant aided in the commission of the felony or thatshe was present at the time it was committed.

Having concluded that there is no evidence to support afinding that defendant was present when the aggravated batterytook place, the intent element necessary to establish defendant'saccountability for murder must be founded on evidence thatdefendant knew that the principal (Scott) was abusing her child;that defendant knew, from the extent and severity of the injuriessustained by Jami, that there was a substantial risk of serious harmif defendant did nothing to protect her child from the principal(Scott); and, despite this knowledge, continued to permit theprincipal (Scott) to have access and control over Jami.

In its rebuttal closing argument, the State summarized theevidence which it believed supported defendant's knowledge ofabuse, and thus, her conviction by accountability: (1) that in July1995, Preston had some small scrape marks on his neck, whichPreston said were caused by Scott choking him and holding himunder water; (2) that Scott, on some unspecified occasion,allegedly kicked Preston in the genital area; (3) that Jami, on anunspecified occasion, had an unexplained line of bruises that wentaround her head like a headband; (4) that Jami once said Scotttried to choke her; (5) that Jami's grandmother saw a tiny circularbruise on Jami's foot, which Jami said Scott caused by holding hertoo tight; (6) that Jami fell down the stairs; (7) that Scott admittedthat, on October 7, he grabbed Jami by the neck and "elbowed" herwhen she stepped on David in the bathtub; and (8) that on October7 Jami received stitches to her head after falling in the bathroom.

Viewing these incidents, both individually and collectively,we find insufficient evidence to support the inference that, prior toJami's death, defendant knew Scott was abusing her children orthat defendant sanctioned the abuse of her children by Scott. First,there was no evidence that abuse by Scott was the cause of thebruises on Jami's head which were described as a "headband." Norwas there any evidence that Scott was in any way responsible foreither of the falls Jami had. Scott's father testified at defendant'strial that he heard a noise and, upon investigation, found Jami atthe foot of the stairs. Scott's father also testified, however, that heheard an upstairs door open and then saw Scott come to the top ofthe stairs to see what had happened. The fall, therefore, was simplya fall. It was not evidence of Jami's abuse by Scott.

The same is true of the fall that resulted in Jami's receivingstitches. Scott adamantly maintained, even after admitting tocausing Jami's death, that Jami had fallen off a cookie tin whiletrying to brush her teeth. There was no evidence presented by theState to show otherwise. Dr. Parungao, who treated Jami for theinjury, did not suspect that the injury was the result of abuse,rather than a fall, as reported. The State implies that, because Scottwas caring for Jami when the falls occurred, they were evidenceof his abuse. But to draw such a conclusion, one must resort toconjecture and speculation. Moreover, even if the falls were aresult of Scott's abuse, defendant's awareness of that fact was notestablished.

The other injuries to defendant's children, cited by the State,did not establish that Scott was engaging in an on-going pattern ofabuse against defendant's children. Nor did the evidence establishthat at any time defendant was a witness to Scott's abusing herchildren. Viewing the evidence in a light most favorable to theState, the few isolated incidents of injury to defendant's children that were linked to Scott's conduct suggest, with the benefit ofhindsight, that Scott abused defendant's children. But wheneverdefendant discovered bruises on her children, she alwaysquestioned Scott and received what, at the time, appeared to beplausible explanations for the injuries. Moreover, the injuriessustained by defendant's children were never so extensive orsevere that defendant was put on notice that Scott posed a seriousthreat to her children. This was confirmed by the pathologist, whotestified that all of Jami's bruises which were not the result ofinjuries received in the minutes or hours prior to Jami's death,were not life threatening and could have been attributable tochildhood injury. We also find it significant that, after Jami'sdeath, defendant's other two children were examined by a doctorand, despite the fact that both children had some bruises, thedoctor did not believe that the children showed signs of abuse.

The circumstances surrounding Jami's death do not suggestthat defendant was aware of any foul play. In the early morninghours of October 10, 1995, when Scott discovered that Jami wasnot breathing, defendant immediately sought medical assistanceand began CPR. Even after the paramedics arrived, defendantcontinued to work frantically to resuscitate Jami. By all accounts,defendant was anxious and concerned while efforts were beingmade at the hospital to revive Jami. When defendant was told thatJami did not survive, she was distraught and unconsolable. Therewas no indication that defendant suspected that Jami's death hadbeen due to other than natural causes. Lieutenant Huber testifiedthat when defendant was questioned by police on October 12,1995, defendant maintained that no one in the English householdhad ever mistreated her children and, when told that Jami's deathhad been caused by Scott, defendant appeared genuinely shockedand unable to comprehend what was being told her. Oncedefendant learned of Scott's complicity for the murder of herchild, she cut off all ties with him and did everything in her powerto assist the police in his prosecution.

Although each case must be evaluated on the basis of its ownevidence, we note that the facts of the cases in Stanciel stand instark contrast to the facts of the case at bar. In Stanciel, one of themothers, Violette Burgos, had been warned by DCFS to sever allties with her paramour because of his previous physical abuse ofher child. Burgos, however, not only renewed contact with herparamour, she allowed this known abuser to act as the child'sdisciplinarian. According to both Burgos and her paramour, on theday Burgos' three-year-old daughter died, the paramour"disciplined" the child for urinating on the floor by spanking heruntil her buttocks were raw. Later that same day, when the childthrew up, the paramour punched the child in the stomach and bither. When the child lost consciousness, Burgos did not seekmedical assistance but, rather, carried the child's limp body toBurgos' separate apartment, which she kept to conceal herrelationship with the paramour from DCFS. Only when Burgos'attempts to revive the child failed did she call the paramedics.Forensics showed that Burgos had inflicted some of theapproximately 21 bite marks found on the child. Furthermore, theautopsy revealed that the blunt force trauma which resulted in thechild's death had caused "a ruptured viscus and intestines, as wellas injuries to her bowel and liver." There were numerous oldbruises and scars, as well as evidence of sexual abuse and ascalding burn on the child's leg. When questioned by police abouther child's death, Burgos initially covered up the fact that she hadrenewed her relationship with her paramour and attributed the fatalinjuries to a fall.

In the second case discussed in Stanciel, Peters' 20-month-oldson died as a result of bilateral subdural hematomas from blunttrauma. There was evidence that, when the child was less than 18months old, the child had bruises covering his entire buttocks. Inthe months that followed, the child sustained bruises on his face,a split lip, and welts across his back. Each time the injuries wereattributed to "falls." On one occasion, the child had a "raw andpussy" burn on his leg, which Peters said was caused by thechild's clothes rubbing against his skin. On another occasion thechild was burned when the paramour "accidentally" spilled hot teaon the child. Although there was evidence that this burn went"from the top of his scalp down his neck and one shoulder," thechild was not taken to the hospital, apparently for fear that theparamour would be arrested for abuse. On the day that Peters'child died, a nurse at the hospital overheard Peters tell herparamour, "I told you not to get so angry, I told you not to get soangry, I told you this would happen." The child's autopsy revealedthat "based upon the autopsy, the constellation of injuries, thevarying ages of the injuries, and [the child's] pediatrician'srecords, [the child's] physical condition at the time of autopsy was'the direct result of on-going abuse.' " Stanciel, 153 Ill. 2d at 228.Further, when questioned by police, Peters indicated that shethought her paramour was responsible for her child's death, thatshe had not really wanted the boy, and she did not really care whathappened to him.

In concluding that the facts of these cases supported theinference that the defendant-mothers shared the principals' intent,we held that the defendant-mothers' knowledge of injuries to thechildren, which were both extensive and severe, indicated that themothers had knowledge of the on-going abuse of their childrenand this knowledge, coupled with the mothers' continued,sanctioned exposure of the children to this abuse, was sufficient tohold the defendant-mothers accountable for the murder of theirchildren. Stanciel, 153 Ill. 2d at 232. In other words, a reasonableinference to be drawn from the facts of these cases was that themothers shared the intent of the principals.

In the case at bar, the evidence does not establish thatdefendant intended to promote or facilitate the aggravated batterywhich caused Jami's death. The evidence simply does not supportthe inference that Jami was the victim of an on-going pattern ofabuse that the mother knew about and sanctioned. After reviewingall of the evidence presented at defendant's trial in this case, weare convinced that no rational jury, given proper guidanceregarding the law of accountability, could find beyond areasonable doubt that defendant is accountable for the murder ofher daughter, Jami.

Because we find there is insufficient evidence to supportdefendant's conviction for aggravated battery, we need notconsider the argument raised in defendant's supplemental brief,that a conviction for aggravated battery can never support a felony-murder conviction.

CONCLUSION

For these reasons stated, we reverse defendant'sconvictions without remand.

Reversed.

JUSTICE RARICK took no part in the consideration ordecision of this case.

JUSTICE THOMAS, concurring in part and dissenting inpart:

I agree with the majority that the law of accountability wasmisstated so that defendant's convictions for aggravated battery ofa child and for felony murder based upon a theory ofaccountability must be reversed. I write separately, however,because I disagree with the majority's conclusion that, viewing theevidence under a proper theory of accountability, the evidence atdefendant's trial was not sufficient to support defendant'sconvictions.

A criminal conviction should not be set aside unless theevidence is so improbable, unreasonable or unsatisfactory as tojustify a reasonable doubt concerning the defendant's guilt. Peoplev. Maggette, 195 Ill. 2d 336, 353 (2001). A reviewing court shouldnot substitute its judgment for that of the trier of fact with regardto the weight of the evidence and the credibility of witnesses.People v. Kotlarz, 193 Ill. 2d 272, 298 (2000). Although theevidence in this case certainly was closely balanced, the evidencewas not so improbable, unreasonable or unsatisfactory that norational jury could convict defendant.

As the majority notes, in order to hold defendant accountablefor Scott English's conduct, the evidence must show thatdefendant knew that Scott was abusing Jami, that there was asubstantial risk of serious harm if defendant did nothing to protectJami from Scott, and despite this knowledge, that defendantcontinued to permit Scott to have access and control over Jami. Ibelieve there is evidence to support such a conclusion.

The evidence at trial included testimony that there were morethan 100 bruises in various stages of healing on Jami's body, theoldest of which were at least one week old. There were 13 distincthemorrhagic injuries to Jami's skull, eight of which were three tofour days old. The defendant's mother, her sister, a friend and ababy-sitter testified that they had observed bruises on defendant'schildren only after defendant moved in with Scott. With regard tothe incident where Preston claimed that Scott had choked him andheld him under water, defendant's sister, Sue Ostrowski, testifiedthat Preston had marks on his neck that looked like finger marks.Sue recalled that defendant brought Preston to her mother's houseto show her the injury and to ask her mother's opinion about howPreston could have sustained such an injury. In addition, defendantonce brought Jami to Sue's house to ask Sue's opinion of howJami could have sustained an injury to her ear and neck. Scott hadtold defendant that those injuries were sustained when Jami felldown the stairs. Sue, however, told defendant that Jami's injuriesdid not appear to be of the type that would result from fallingdown the stairs.

Defendant's mother, Sandra Pollock, also testified at trial thatPreston told defendant that Scott had choked him and held himunder water. On another occasion, Jami told Sandra that Scott hadcaused an injury to her foot when he held her foot very tight.When Sandra told defendant about the injury to Jami's foot,defendant told Sandra that Jami was making up the story. Withregard to the injuries that Jami allegedly sustained in a fall downthe stairs, Sandra did not believe that the injuries were the resultof a fall. When Sandra confronted defendant about those injuries,defendant told Sandra that Scott's parents had confirmed the storyabout a fall.

Leslie Huber testified at trial that she baby-sat for defendant'schildren. Leslie testified that a few weeks before the murder, Jamitold her mother in Leslie's presence that Scott had choked her.When Leslie asked defendant if she heard Jami, defendant toldLeslie that Jami could be making up the choking story. Five daysbefore Jami's death, Leslie saw bruises on Jami's head runningacross her hairline and saw a red, knotted mark on Jami'sforehead. Defendant asked Leslie's mother, Sue Huber, to look atthe marks on Jami's head. Defendant told Sue she did not knowwhat had caused those marks.

Sherry Ranos, a criminal investigator with the Illinois StatePolice, testified that she had interviewed defendant after Jami'sdeath. With regard to the incident where Scott told defendant thatJami had fallen down the stairs, defendant told Ranos that she didnot believe the marks on Jami's body were the result of fallingdown the stairs. Defendant also told Ranos that three days beforeJami's death, Jami had three separate "accidents" in one day: (1)the incident where Scott "accidentally" grabbed Jami by the neck;(2) the incident where Scott "accidentally" pushed Jami in thebathtub, causing her to fall backward and hit her head: and (3) theincident where Jami fell in the bathroom and required stitches toher head. Defendant also revealed that Jami told defendant thatScott was mean.

In addition to the foregoing evidence, portions of defendant'sgrand jury testimony were read into evidence at trial. Defendanthad testified before the grand jury that she did not believe Scott'sstory concerning how Preston had received his neck injuries, soshe brought Preston to her mother for a second opinion. While shewas at her mother's home, defendant learned from Preston thatScott had choked him and tried to drown him. Defendant alsotestified that after Jami allegedly fell down the stairs, defendantasked her mother and her sister their opinion concerning theaccident. Defendant's sister told defendant that the injuries looked"kind of funny" for falling down the stairs. At trial, defendantacknowledged that Jami's injuries occurred only when defendantwas away from the home.

I believe the foregoing evidence is sufficient to create aquestion for the trier of fact as to whether defendant knew Scottwas abusing Jami. The injuries to defendant's children firstoccurred after defendant moved in with Scott. In addition, Jamiand Preston told defendant that Scott had choked them. Althoughdefendant testified that Scott had explanations for all of theinjuries to her children, defendant nonetheless was suspiciousenough that she asked her mother, her sister, and Sue Huber fortheir opinions concerning the various injuries. Based upon thisevidence, I believe a rational trier of fact, viewing the evidence ina light most favorable to the prosecution, could have founddefendant guilty beyond a reasonable doubt. In any event, giventhe closeness of the evidence, a determination concerningdefendant's guilt under the proper theory of accountability is betterleft to the trier of fact. Accordingly, I dissent from the majority'sfinding that this case need not be remanded for a new trial.

JUSTICE GARMAN joins in this partial concurrence andpartial dissent.

1. ¹In the appellate court, defendant contested the constitutionality ofthe Truth In Sentencing Law enacted by Public Act 89-404. Based onthis court's holding in People v. Reedy, 186 Ill. 2d 1 (1999), theappellate court ruled that the law was unconstitutional and thatdefendant was entitled to receive credit for good conduct. That rulingis not a part of this appeal.

2. ²Much of what defendant told police during this interview wasadmitted into evidence at defendant's trial through the testimony ofLieutenant Rod Huber, through defendant's grand jury testimony(portions of which were read to the jury), and through defendant's trialtestimony.