Rule 23 order filed
September 20, 2004;
Motion to publish granted
October 5, 2004.

John H. Rolfe, III, the defendant, was convicted by a Jasper County jury of one countof home invasion, three counts of attempted first-degree murder, and one count of aggravatedbattery. He was ultimately sentenced to serve 22 years' imprisonment for the home invasionconviction, 7 years' imprisonment each for two of the attempted first-degree murderconvictions, 9 years' imprisonment for the third attempted first-degree murder conviction, and30 months' probation for the aggravated battery conviction. The court found that it wasmandatory that the sentences be served consecutively, under section 5-8-4(a)(i) of the UnifiedCode of Corrections (Unified Code) (730 ILCS 5/5-8-4(a)(i) (West 2002)). The courtordered the defendant to serve 85% of his sentence.

On appeal, the defendant asserts that the trial court erroneously ordered the sentencesto be served consecutively, because "severe bodily injury" was inherent in the offenses ascharged, and that, thus, the use of the infliction of severe bodily injury to impose consecutivesentences constituted an improper double enhancement of his sentence. He also claims thatthe trial court abused its discretion by giving a nonpattern jury instruction that improperlyemphasized the State's theory of the case. He seeks the reversal of his conviction and a remandof the case to the circuit court for a retrial.

The record on appeal, which is viewed in the light most favorable to the prosecution inorder to preserve the role of the jury as the weigher of the evidence (see People v. Taylor, 349Ill. App. 3d 839, 844, 812 N.E.2d 759, 764 (2004)), discloses the following information.

On November 8, 2001, the defendant armed himself with a claw hammer and a knife andwent in the early hours of the morning to the home of his mother-in-law, Robyn Spicer. Hewas motivated to do so because he correctly suspected that his estranged wife, Shana Rolfe,was having an affair with her coworker, Steve Stout. The defendant saw Stout's vehicle parkedoutside the darkened Spicer residence, surmised that Stout was inside the home with Rolfe, andentered the front door. Having gained entry to the darkened dwelling, the defendant stood inthe kitchen with his back pressed against the wall in an attempt to conceal his presence fromSpicer, who had risen to use the bathroom. Spicer noticed him, walked into the kitchen, andasked what he was doing in her house. The defendant retorted that Spicer knew what he wasdoing, and Spicer turned to retreat to her bedroom. As she walked into her bedroom, Spicersaw the defendant's arm rising behind her head, prompting her to put her hand up defensivelyto deflect the blow struck by the defendant. Spicer's memory of the events that immediatelyfollowed the initial blow was obliterated by her injuries, but she did recall regainingconsciousness in her bloody bedroom, drenched in blood and in great pain. She was consciouson intake at the hospital and told the emergency room physician that she had sustained multiplehammer blows to the head, as well as blows to the hands and left forearm.

The record substantiates that Spicer had sustained a broken hand, with "two puncturewounds that looked like the claw marks of a hammer," and a large bruise on her palm, bruisesto her left forearm, a large laceration on her forehead, and head injuries. She had a depressedskull fracture that was consistent with being struck with a rounded object like a hammer head. It was so severe that bone fragments pressed into her brain and created a pneumocephalus,meaning that outside air entered the brain through the fracture. Spicer was airlifted to theCarle Clinic, where a part of her brain was removed and five steel plates and 18 screws wereinserted in her skull to repair the damage caused by the defendant's attack. Spicer developedbalance problems, expressive aphasia, pain, and increased fatigue, and she sustained permanentfacial scarring as a result of the attack. She also has the potential to develop seizures in thefuture due to her brain injury.

After he attacked Spicer, the defendant entered the bedroom where Steve Stout andShana Rolfe were sleeping, and he attacked the couple. The emergency room physician whotreated Stout when he arrived at the emergency room testified at the sentencing hearing thatStout was conscious when he was admitted and told the personnel that he had been attackedwith a hammer and that he had been stabbed in the face. He sustained hammer and stab woundsthat required his evacuation by airlift to the Carle Clinic. Once there, he endured surgery, an8-day stay in the intensive care unit, and an additional 14 days in the rehabilitation unit. He hadmultiple facial bone fractures over his upper jaw that extended into his sinuses, a depressedskull fracture with bone fragments and air penetrating the brain, stab wounds to his face andhands, and a through-and-through stab wound in his upper left thigh. After surgery and physicaltherapy, Stout was left with multiple permanent scars, many of which were on his face, and hehad memory loss and permanent damage to his leg, arm, and hand, which left him with a limpand the inability to write well with his dominant hand. Stout was no longer able to work in therestaurant industry as a result of his injuries, and he had no assurance that all his muscle tonewould ever return.

Shana Rolfe woke to find the defendant in her bedroom yelling as he reached over herand struck Stout with a hammer. She fled the room and went to her mother's bedroom, whereshe found her mother lying on the floor, breathing oddly. Rolfe grabbed a portable telephoneand ran out of the house to summon aid from the neighbors. The defendant caught up with herand attacked her with the hammer and his fists, striking the top of her head. The neighborintervened when he got up to investigate who was screaming outside his bedroom window andsaw the defendant beating Rolfe. He chased the defendant away from Rolfe, the defendant ranback into Spicer's home, and the neighbor returned to help Rolfe. The neighbor called theauthorities, and Rolfe was transported to the hospital at the same time that her mother andStout were taken there. The emergency room doctor testified at the sentencing hearing thatRolfe was able to tell hospital personnel that she had been struck with a hammer on her face,head, and right hand and that she possibly had been stabbed. The emergency room physiciantestified that the injuries to her lower jaw and cheekbones were consistent with being struckwith a hammer or some other weapon and were inconsistent with being struck with a fist.

Rolfe was found to have multiple lacerations over her scalp, pain and swelling over hercheekbones and her entire lower jaw, and pain over her left forearm, wrist, and hand, as wellas scattered areas of bruising and swelling over her right lower leg and right buttock. Shesustained permanent damage to her right hand and her face. She had two hand surgeries, whichresulted in the installation of a plate in her hand, held by five screws, and two maxillofacialsurgeries to implant a plate in her jaw, which had multiple fractures. The injuries to Rolfe'shead resulted in permanent scarring, and she had lessened utility of her hand as a result of theinjuries to her hand.

The doctor who performed triage on all three of the victims when they were brought tothe hospital was of the opinion that all three victims sustained "great bodily harm," a term thathe believed to be synonymous with "severe bodily injury." He assessed the injuries to Spicerand Stout as "life-threatening" depressed skull fractures and stressed that Rolfe's facial injuriesresulted in marked disfigurement and a threat to her health.

The defendant returned to Spicer's home after his attack on Rolfe had been interruptedby the neighbor. Once there, he slashed his wrists and throat. He was later taken to thehospital for treatment.

The defendant's trial testimony was somewhat convoluted and was clearly intended tominimize the ferocity and severity of the attacks on the victims. He exhibited selectiveamnesia about various aspects of his assaults on his victims. He claimed not to even rememberseeing Spicer and asserted that his attack on Stout was mutual combat during which he"probably" had the hammer in his possession. This claim was belied by his recorded statementto the police, in which he stated as follows: "I was beating Steve with a hammer that I'd grabbedfrom my car[,] mind you[,] like[,] two or three times [sic]. He got up out of bed. He wasdefending himself pretty good." The defendant maintained that he had pursued his terrified wifefrom the house because he "just wanted to converse with her" and that he struck Rolfe with hishand once or twice. He testified that he only intended to "scare the hell" out of his wife andStout and that he had conceived the idea of going to his mother-in-law's house to place a knifebetween his unfaithful wife and her lover after seeing a "medieval" television show thatdepicted such a scene.

At the final instructions conference, the trial court informed the parties that it wouldgive the State's instruction number 17, a nonpattern jury instruction on the law of intent, overdefense counsel's renewed objection that it unduly emphasized the State's theory of the caseand that a nonpattern instruction should not be given "on [a] crucial element of the case." During closing argument, the State argued that the defendant's intent to kill the victims couldbe inferred from the manner and circumstances of the attack, that his attack on Spicer had beenprompted by her interruption of the defendant's planned attack on her daughter and her lover,and that defendant had "wanted a murder/suicide" but "his plan got messed up" and he failed toeither murder his three victims or kill himself. Defense counsel responded by claiming thatthe defendant's lack of intent to kill was evident because "if [he] wanted those people to bedead[,] they would be dead." This assertion echoed the defendant's opening statement, in whichcounsel told the jury that although the basic facts of the attack were not disputed, the jurywould have to determine what the defendant's intentions were when he committed the attacks. Counsel stated that the jury was going to have to decide what the defendant's intentions were,"based on the type and nature of the injuries, [the] attendant circumstances of everything thathappened[,] and the relationship of the parties." He implied that the defendant had not intendedto kill the victims, stating that they had been "virtually helpless against the defendant's attacks"but noting that all of them were there to testify.

Following his June 13, 2002, convictions, the defendant filed various posttrial motions,which were denied at the July 26, 2002, sentencing hearing. The trial court found that thegiving of the State's instruction number 17 was an appropriate exercise of its discretion, thateven defense counsel conceded that it was an accurate statement of the law, that the instructionwas short and simple, and that it was not argumentative. The State's instruction number 17 wasgiven in order to fill a gap in the instructions to assist the jury in reaching a just resolution. In sentencing the defendant, the court found, inter alia, that consecutive sentences wererequired under section 5-8-4(a)(i) of the Unified Code (730 ILCS 5/5-8-4(a)(i) (West 2002))and that section 5-8-4(b) of the Unified Code (730 ILCS 5/5-8-4(b) (West 2002)) also appliedbecause the public needed to be protected from further criminal conduct. The defendant'sAugust 23, 2002, motion to reduce his sentences was granted in part on November 8, 2002,and the instant appeal was pursued.

On appeal, the defendant contends that the trial court imposed improper mandatoryconsecutive sentences, because bodily injury was inherent in the offenses of home invasionand attempted first-degree murder as charged, thereby creating a double enhancement of hispunishment. He also asserts that the trial court erroneously allowed a nonpattern juryinstruction on intent that unduly emphasized the State's theory of the case.

The defendant was convicted of Class X crimes in which the infliction of severe bodilyinjury was an element and was then sentenced to serve consecutive terms under section 5-8-4(a)(i) of the Unified Code, which authorizes consecutive sentences where the crimes werecommitted as a part of a single course of conduct, there was no substantial change in the natureof the criminal objective, one of the offenses for which he was convicted was a Class X felony,and the defendant inflicted severe bodily injury. He asserts that he was subjected to improperdouble enhancement, warranting the modification of his sentence by this court to make theterms of imprisonment run concurrently with one another.

The recent Illinois Supreme Court case of People v. Phelps, 211 Ill. 2d 1, 809 N.E.2d1214 (2004), is dispositive of this issue. The Phelps court noted that double enhancementoccurs when a single factor is used both as an element of an offense and as the basis forimposing a harsher sentence than would have otherwise been imposed. It went on to find thatwhere a defendant is sentenced for Class X felonies that had as an element of the crimes theinfliction of severe bodily injury, consecutive sentences may be imposed pursuant to section5-8-4(a)(i) of the Unified Code. It found that "no double enhancement occurred becauseconsecutive sentencing is not a sentencing enhancement"; rather, it " 'determines only themanner in which a defendant will serve his sentences for multiple offenses.' " Phelps, 211 Ill.2d at 14, 809 N.E.2d at 1222 (quoting People v. Carney, 196 Ill. 2d 518, 532, 752 N.E.2d1137, 1145 (2001)).

The imposition of consecutive sentences was appropriate under section 5-8-4(a)(i) ofthe Unified Code, and the defendant's sentence was clearly not the product of doubleenhancement.

The defendant contends that the court's giving of the State's jury instruction on intentwas an abuse of discretion because the jury was already adequately informed of the law and thenonpattern instruction unduly stressed the State's theory of the case, that being that thedefendant's attacks had been perpetrated with the express intent to kill the victims.

To prove the defendant guilty of attempted first-degree murder, the State must provethat the defendant performed an act constituting a substantial step toward the commission ofthe murder and that he possessed the specific intent to kill; a specific intent to kill may beshown by the surrounding circumstances, including the character of the assault and the use ofa deadly weapon. People v. Brown, 341 Ill. App. 3d 774, 781, 793 N.E.2d 75, 80 (2003).

"Because intent is a state of mind, it can rarely be proved by direct evidence. As aresult, this court has recognized that where intent is not admitted by the defendant, itcan be shown by surrounding circumstances [citation], including the character of theassault and the nature and seriousness of the injury [citation].

In discussing the proof necessary to satisfy the intent element of attempt tocommit murder, this court has further held:

' "Since every sane man is presumed to intend all the natural and probableconsequences flowing from his own deliberate act, it follows that if one wilfullydoes an act, the direct and natural tendency of which is to destroy another's life,the natural and irresistible conclusion, in the absence of qualifying facts, is thatthe destruction of such other person's life was intended." ' [Citation.]" Peoplev. Williams, 165 Ill. 2d 51, 64, 649 N.E.2d 397, 403-04 (1995).

The law governing the giving of nonpattern jury instructions was succinctly set forth bythe supreme court as follows in People v. Pollock, 202 Ill. 2d 189, 780 N.E.2d 669 (2002):

"A trial court may, in the exercise of its discretion, draft and give nonpatterninstructions. [Citations.] The decision to instruct a jury using nonpattern instructionsis reviewed for an abuse of discretion. [Citation.] Whether a court has abused itsdiscretion will depend on whether the nonpattern instruction tendered is an accurate,simple, brief, impartial, and nonargumentative statement of the law. [Citations.] As ageneral rule, where an appropriate IPI instruction exists on a subject upon which thetrial court has determined the jury should be instructed, the IPI must be used. [Citations.] Illinois pattern instructions were 'painstakingly drafted with the use ofsimple, brief[,] and unslanted language so as to clearly and concisely state the law,' and,for that reason, 'the use of additional instructions on a subject already covered by IPIwould defeat the goal that all instructions be simple, brief, impartial[,] and free fromargument.' [Citation.] Thus, while nonpattern instructions may be given, theinstructions, as a whole, must not be misleading or confusing." (Emphasis added.) Pollock, 202 Ill. 2d at 211-12, 780 N.E.2d at 682.

The nonpattern instruction at issue was proffered by the State and ultimately given tothe jury over the defendant's objections, although the defendant conceded that it was anaccurate statement of the law. It offered a definition of proof of the intent to kill that read asfollows:

"Intent to kill can be established by proof of surrounding circumstances[,]including the character of the assault, the use of a deadly weapon[,] and other mattersfrom which an intent to kill may be inferred[,] and such intent may be inferred when ithas been demonstrated that the defendant voluntarily and willingly committed an act,the natural tendency of which is to destroy another's life."

As noted above, the defendant's opening statement to the jury emphasized that the jurywas going to have to determine the defendant's intentions for the attacks, "based on the type andnature of the injuries, [the] attendant circumstances of everything that happened[,] and therelationship of the parties." That statement, while not as carefully crafted as the instruction,embodied the gist of the nonpattern instruction that was given to the jury. The instruction isa simple, straightforward, brief, impartial, and accurate statement of the law that fills in a gapin the instructions. Thus, its tender to the jury cannot be viewed as an abuse of the trial court'sdiscretion.

We note in passing that the defendant's suggestion on appeal that the alleged prejudiceresulting from the giving of the State's instruction number 17 would have been mitigated hadthe trial court given the jury a nonpattern instruction that emphasized his theory of thecase-that the survival of the victims reflected that he did not intend to kill them-is meritless. Not only did he not proffer such an instruction to the trial court, but had he done so, the courtwould not have given it to the jury. His contention is reminiscent of the defendant's stance inPeople v. Green, 339 Ill. App. 3d 443, 791 N.E.2d 134 (2003), where the defendant arguedthat had he intended to kill the police officers at whom he had fired four or five shots fromclose range from a moving vehicle, he could easily have done so. The court observed that thefacts supported the inference that the defendant's lack of competence with a pistol was just aslikely a conclusion to draw from the facts and that "[p]oor marksmanship is not a defense toattempt (murder)." Green, 339 Ill. App. 3d at 452, 791 N.E.2d at 141; accord People v.Johnson, 331 Ill. App. 3d 239, 771 N.E.2d 477 (2002).

The shocking injuries and the ferocity with which the defendant inflicted those upon hisvictims were such that no sane adult would have engaged in such brutality or inflicted suchinjuries unless he intended to extinguish their lives. See Williams, 165 Ill. 2d at 65, 649N.E.2d at 404 (an extraordinarily brutal attack on a toddler resulting in extensive head injurieswas indicative of the intent to kill, regardless of the fact that the child's death was averted byheroic medical intervention). The fact that the objects of his rage and violence survived thedefendant's attacks speaks to the wizardry of modern medical practice and the extraordinarydedication of their physicians, not to any intention on the part of the defendant to spare theirlives.

For the foregoing reasons, the defendant's convictions and sentences are affirmed.

Affirmed.

KUEHN and DONOVAN, JJ., concur.