April 10, 2001

PRESIDING JUSTICE STEIGMANN delivered the opinion of thecourt:

In September 1999, a jury convicted defendant, JohnnyDewayne Grayson, of aggravated battery (720 ILCS 5/12-4(a) (West1998)) and domestic battery (subsequent offense) (720 ILCS 5/12-3.2(a)(2) (West 1998)). In October 1999, the trial court granteddefendant's posttrial motion to set aside the aggravated batteryconviction, finding that the State had failed to prove thatdefendant caused great bodily harm. The court then sentenceddefendant to two years in prison on the domestic battery convictionand ordered him to pay $200 for his court-appointed attorney,pursuant to section 113-3.1 of the Code of Criminal Procedure of1963 (Code) (725 ILCS 5/113-3.1 (West 1998)).

Defendant appeals, arguing that (1) the State failed toprove beyond a reasonable doubt that he did not act in self-defense; and (2) the trial court erred by (a) admitting intoevidence, under section 115-10.1 of the Code (725 ILCS 5/115-10.1(West 1998)), a tape recording of the victim's 911 call and awitness' written statement to the police, and (b) ordering him topay $200 for his court-appointed attorney. We affirm in part,vacate in part, and remand with directions.

At defendant's trial, Jesse Fullilove, defendant'sbrother, testified that on the evening of April 16, 1999, he anddefendant were playing cards with their sister, May Grayson, at herhouse. They were playing for money, and Jesse had been winningmore than defendant and May. Around 6 p.m., defendant grabbedJesse's money and then Jesse's nose somehow "got bumped." Jessestated that he could not recall how it happened, although he "mighthave bumped [his] nose on the coffee table rail." He also statedthat he had not made any physical contact with defendant prior tohis nose being broken. Jesse and May then left to go to thehospital.

After leaving the hospital, Jesse and May went todefendant's house, where Jesse called 911. Jesse testified asfollows regarding his conversation with police on the night of theincident:

"Q. [PROSECUTOR:] What, if anything, didyou tell [the police] about your nose?

A. [JESSE:] My nose was broke[n].

Q. Did you tell them how that happened?

A. I told them how I thought it happened.

Q. What did you tell them about yournose?

A. My nose was broken and I told them Ithought [defendant] broke it because I wantedmy money back.

Q. How did you tell them your nose wasbroken?

A. I told them--I think I told them[defendant] hit me in the nose.

Q. And you told the officers that evening that [defendant] hit you in the nose?

A. I don't know whether I stated that. I said my nose was broke[n]. I didn't say hehit me in the nose. I don't know. I mighthave. I know when I got to the hospital mynose was broken. I thought it was just bleeding. I didn't know it was broken."

Jesse further testified that on the night of theincident, he gave a signed, written statement to the police but Mayactually wrote the statement and he signed it without reading it. The trial court later admitted into evidence Jesse's statement,which read as follows: "I, Jesse, was over to my sister['s][;][defendant] hit me in the nose because I won his money[.] He gotmad & upset[.] He said he wasn't going for that bullshit."

May testified that on April 16, 1999, her brothers, Jesseand defendant, had a fight at her house because defendant wantedhis money back. However, she claimed to be uncertain as to how thefight started or who did what to whom. She testified that duringthe incident, she was in and out of the room and did not actuallysee Jesse's nose being broken. She also stated that defendant was"tossed into a coffee table."

May also testified that on the night of the incident, shegave a written, signed statement to the police. Over defendant'sobjection, the trial court later admitted that statement intoevidence. In that statement, May essentially says defendant gotupset, cursed, and jumped Jesse.

An emergency room physician testified that on the eveningof April 16, 1999, he treated Jesse for a lacerated and brokennose. During this treatment, Jesse told the physician that he wasinjured when he was punched in the nose during a fight.

Bloomington police officer Tim McCoy testified thataround 11 p.m. on April 16, 1999, he responded to a domesticdisturbance at defendant's house. When McCoy arrived, he spokewith Jesse, who told McCoy that defendant hit him in the nose aftera dispute over some money. McCoy also spoke with defendant, whotold McCoy that he hit Jesse because Jesse grabbed him around theneck. McCoy then arrested defendant and recovered a roll of blood-covered dollar bills. McCoy stated that Jesse then gave a writtenstatement, using a Bloomington police department "voluntarystatement" form. McCoy observed Jesse writing on the form, andMcCoy signed the completed statement to acknowledge Jesse'ssignature. The prosecutor also showed McCoy photographs that hetestified depicted the injuries to Jesse's nose and the blood onhis shirt on the night of the incident.

McCoy also noticed that defendant had scraped knuckles,which defendant told him happened when defendant scraped hisknuckles on the ground. McCoy observed no other injuries todefendant.

The trial court then allowed the State to recall Jesse toask him about the 911 call he made on the night of the incident andto lay a foundation for the introduction of the tape recording ofthat call. In that tape recording, Jesse said that defendant hithim in the nose and broke his nose.

On this evidence, the jury found defendant guilty ofaggravated battery and domestic battery. The trial court later setaside the aggravated battery conviction and sentenced defendant asearlier stated. This appeal followed.

Defendant first argues that the State failed to provebeyond a reasonable doubt that he did not act in self-defense. Wedisagree.

Self-defense is an affirmative defense, and once adefendant raises it, the State has the burden of proving beyond areasonable doubt that the defendant did not act in self-defense, inaddition to proving the elements of the offense charged beyond areasonable doubt. (Defendant concedes that the State proved beyonda reasonable doubt that he committed domestic battery. See 720ILCS 5/12-3.2(a)(2) (West 1998).) The elements of self-defense arethat (1) unlawful force is threatened against a person; (2) theperson threatened is not the aggressor; (3) the danger of harm isimminent; and (4) the use of force was necessary. People v. White,293 Ill. App. 3d 335, 338, 687 N.E.2d 1179, 1181 (1997). If theState negates any one of these elements, the defendant's claim ofself-defense must fail. People v. Shields, 298 Ill. App. 3d 943,947, 700 N.E.2d 168, 172 (1998).

The jury, as the trier of fact, determines witnesses'credibility, draws reasonable inferences from testimony, andresolves conflicts in evidence. A jury therefore need not accepta defendant's claim of self-defense. People v. Boyd, 307 Ill. App.3d 991, 995, 719 N.E.2d 306, 309 (1999). "The standard of reviewfor this issue is whether, taking all of the evidence in the lightmost favorable to the State, any rational trier of fact could havefound beyond a reasonable doubt that defendant did not act in self-defense." People v. Lee, 311 Ill. App. 3d 363, 367, 724 N.E.2d557, 561 (2000).

In this case, the only evidence suggesting that defendantacted in self-defense came from Officer McCoy, who testified thaton the night of the incident, defendant told McCoy that he hitJesse because Jesse grabbed him around the neck. May testifiedthat after defendant took the money, both he and Jesse started thefight. However, May acknowledged that on the night of theincident, she gave a written statement to the police, in which shestated that after defendant lost money in a card game, he becameupset and "start[ed] jumping" Jesse. Jesse testified that afterdefendant grabbed the money, Jesse "bumped" his nose, although hecould not recall how it happened. He also testified that he hadnot made any physical contact with defendant prior to his nosebeing broken. Jesse's testimony regarding his conversation withpolice on the night of the incident was internally inconsistent. At one point, he acknowledged that he told the police thatdefendant broke his nose because he wanted his money back but laterstated that he could not remember whether that is what he told thepolice. Jesse's written statement to the police, which he admittedsigning but denied writing, indicated that defendant hit Jesse inthe nose after Jesse won defendant's money. In addition, themedical and photographic evidence reveals that Jesse suffered alacerated and broken nose. In contrast, defendant was unscathedexcept for scraped knuckles. The apparent one-sided nature of thestruggle supported the State's theory that defendant did not act inself-defense.

Viewing the evidence in the light most favorable to theState, we conclude that a rational trier of fact could have foundbeyond a reasonable doubt that defendant did not act in self-defense, but instead instigated the entire incident or mutuallyentered into it. See White, 293 Ill. App. 3d at 338, 687 N.E.2d at1182 (the defense of self-defense is not available when bothparties fought willingly upon equal terms).

In so concluding, we note that the only evidencesuggesting that defendant acted in self-defense came through thetestimony of Officer McCoy when, during the prosecutor's directexamination, McCoy testified that defendant told McCoy that he hitJesse because Jesse grabbed him around the neck. McCoy sotestified when the prosecutor asked McCoy if defendant told McCoyanything about the incident.

The record reveals no possible benefit to the State fromthe prosecutor's eliciting defendant's self-defense claim througha police officer's testimony. Had the prosecutor not asked McCoyabout defendant's version of the incident--thus establishingdefendant's self-defense through McCoy's testimony--defendant wouldnot have been permitted on cross-examination of the officer toelicit the same testimony. That is because, although statementsmade by a party opponent are admissible as an exception to thehearsay rule if otherwise relevant (People v. Shaw, 278 Ill. App.3d 939, 951, 664 N.E.2d 97, 105 (1996)), the party himself cannotintroduce his prior statements (People v. Patterson, 154 Ill. 2d414, 452, 610 N.E.2d 16, 33 (1992) ("[s]elf-serving statements byan accused are inadmissible hearsay")). See also People v. Woods,292 Ill. App. 3d 172, 178, 684 N.E.2d 1053, 1057-58 (1997)(defendant's exculpatory statements made to police regarding hisalibi constitute inadmissible hearsay); People v. Barnwell, 285Ill. App. 3d 981, 989, 675 N.E.2d 148, 154 (1996) (criminaldefendant's exculpatory statements made to police constituteinadmissible hearsay, as would be the case with any out-of-court,self-serving declaration by a party not subject to any exceptionrecognized by the hearsay rule); M. Graham, Cleary & Graham'sHandbook of Illinois Evidence