author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CORNELL WRIGHT, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 90—3108
    Opinion filed December 14, 1992.
    Rehearing denied June 3, 1993.

      Michael J. Pelletier and Todd Avery Shanker, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Susan Schierl, and Andrea Bonin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial, defendant, Cornell Wright, was found guilty of attempted first degree murder, armed violence and aggravated battery and sentenced to a prison term of 15 years for attempted murder. On appeal, defendant contends that: (1) the prosecutor made improper remarks during closing argument which denied his right to a fair trial; and (2) the trial court considered improper factors in sentencing him to a term of 15 years’ imprisonment. For the following reasons, we affirm the judgment of the trial court.

The following facts were adduced at trial. Terry Allen testified that on July 24, 1989, he lived on the first floor of a two-flat building at 1700 N. Mayfield, Chicago, with his wife and three children. Terry’s parents and two sisters, Bridgette and Pamela, lived in the upstairs apartment, and his brother, Willie, lived in the basement.

Terry worked at a glass factory that day until 5:30 p.m., arriving home at approximately 6:15 p.m. At that time, his three sons were playing outside in the grass on the side of his house, and his wife was sitting on the back porch. Terry’s friend Dwight Sparks was also present, as well as his sister Pamela and her one-year-old daughter Danielle. Terry went inside to eat dinner, and during that time, Sparks left. Terry did not change out of his work clothes, a blue coverall outfit.

Terry finished dinner at about 6:30 and went back outside. At that time, Terry heard Denardo Barnes and approximately 10 to 12 other people playing basketball in the alley behind Terry’s house. Terry did not join them, but instead, played frisbee with his sons.

Soon Terry heard an argument in the alley. He recognized Barnes’ voice, and then heard defendant say that he “didn’t want them feeling on his girl friend’s ass.” Terry did not know defendant at that time. Terry then heard Barnes call defendant a “punk motherfucker,” and heard more arguing back and forth. He heard defendant walk out of the alley saying he would be back. Terry first saw defendant when defendant came out of the alley and walked west on Wabansia. At that time, defendant was with a girl, and she was pushing a baby carriage.

Terry remained outside, playing with his sons. Terry then saw his friends Wayne Chapman and Maverick Rush walking toward him, west on Wabansia. Rush walked up to the side entrance of the house and stopped to talk to Terry’s wife, Doris Denise. Chapman was walking toward Terry when Jimmy Hall and defendant drove up Terry’s driveway in Hall’s car, looked around, and then backed down the street. Hall parked the car on the corner of Mayfield and Wabansia, right at the side of Terry’s home. Hall is Terry’s brother-in-law.

Hall, defendant and Warren Barfield got out of the car and walked over to Terry. Terry turned to talk to Hall and asked him what he was doing there. At that point, defendant approached Terry, standing on his right. Terry told Hall not to start a fight and then defendant became angry and said to Terry, “What? Punk motherfucker, I’ll pop you.” Terry then turned to defendant and said, “Well, I wasn’t even talking to you,” and then turned back to Hall. Defendant then reached into his pocket, pulled out a gun, and fired a shot at Terry. The shot did not hit Terry, but went under his arm, brushing his shirt and landing in the bushes. Terry turned around to run, then heard another gunshot and felt something in his back. Terry fell to the ground, and after he,fell, he heard three more shots. As Terry was lying on the ground, he saw defendant, Hall and Chapman run to their car, get in and back down the street.

An ambulance arrived and Terry was taken to the hospital. He was operated on to remove his spleen, part of his pancreas, and one of his kidneys. Terry remained in the hospital for 30 days following his operation and was not able to go back to work for three months. Following his release, Terry had to return to the hospital regularly for therapy.

Next, Maverick Rush testified on behalf of the State, corroborating Terry’s testimony. Rush stated that he and his co-worker, Chapman, arrived at Terry’s house close to 7 p.m. He heard three shots fired and then saw Terry rolling around on the ground. Rush did not see who fired the three shots, because his view was blocked from where he was standing, but afterward, he saw defendant running toward the car with a gun in his hand. As defendant ran toward the car, he continued shooting. After the car drove away, he saw that Terry was lying on the grass holding his side. Rush went over to Terry and noticed that he was wounded. Rush never saw Terry or anyone else with a gun that day.

Pamela Allen, Terry’s sister, then testified that at 7 p.m. on July 24 she and her daughter were sitting on the back porch of her second-floor apartment at 1700 N. Mayfield. They left the porch via the back stairs to go for a walk. She saw Doris Denise Allen talking to Rush and saw Terry playing frisbee with his children. Pamela talked to Doris Denise for a few minutes and then crossed the street with her daughter.

Pamela stated that defendant, Hall and Barfield pulled up to the side of 1700 N. Mayfield, got out of the car and walked towards Terry. Terry was talking to Hall and defendant cut in and said, “I will shoot your punk ass right now.” Then defendant pulled out a gun and shot at Terry. When defendant fired the shot, Terry backed up and threw his hands into the air. Terry turned to run, and defendant shot him again, this time striking him. Pamela saw defendant continue to shoot as he ran to his car.

Pamela stated that during the incident, Terry never had anything in his hands and never reached into his pockets. During the incident, there were a lot of people in the alley playing basketball. Pamela did not see any of those people with guns in their hands, nor did she see any of them come out of the alley.

Jimmy Hall testified on behalf of the State. On July 24, 1989, Hall saw defendant at his cousin Warren Barfield’s house. At that time, defendant stated that he and Denardo Barnes had been in an argument in the alley over defendant’s girl friend, Sonja Short. Defendant told Hall that a group of guys was playing basketball in the alley and that one of them “felt on Sonja.” Defendant asked Hall and Barfield to go over there with him to “get things straight.”

Hall then drove defendant and Barfield over to 1700 N. Mayfield. They all got out of the car and Hall talked to Terry. Terry told Hall that they should not be out there starting trouble. At that time, they were standing by Hall’s car, which was parked at the side of Terry’s house. Terry then walked back toward his garage. At that time, Terry did not have anything in his hands.

Hall then saw Terry and defendant talking and although he could not hear what they were saying, an argument broke out. Hall saw defendant pull a gun out. Hall then heard shots fired and saw Terry turn sideways and start to run with his hands up above his shoulders. He did not know who fired the shots because he started to run to his car when he heard the shots fired.

Defendant got into Hall’s car and they drove two blocks to Hall’s sister’s house. Once there, defendant changed into a pair of Hall’s pants and Hall drove defendant to the “el” station. When Hall and defendant were in the car, defendant said that Terry made him mad enough to shoot him. At the time of the shooting, some guys were playing basketball in the alley, but Hall did not see anyone with a weapon.

On cross-examination, Hall stated that when he first saw defendant, defendant told him that people in the alley snatched a gold rope chain from around his neck, but Hall did not look to see if defendant was wearing a chain.

Wayne Chapman testified to the same essential facts, stating that he saw defendant pull a gun out of his right pocket and shoot at Terry. Chapman started running and saw defendant point his gun at Terry again. Chapman ran around the building. After the shooting, Chapman saw Terry lying on the ground. He did not see Terry reach into his pockets before defendant fired the shots, nor did he see Terry with a weapon at any time.

Denardo Barnes testified that on July 24, 1989, he was playing basketball in the vicinity of Mayfield and Wabansia with' five other guys. Between 5:30 and 6 p.m., defendant and Sonja Short were passing through the alley. As they passed the group, the ball came close to them. Barnes grabbed the ball and Short flinched as if Barnes was going to hit her. Barnes grabbed Short and said, “Did you think I was going to hit you?” Then defendant stated to Barnes, “I will fuck you motherfuckers up.” Following that, a couple of the other guys said the same thing back to defendant, and defendant stormed angrily away, saying he would be back.

Barnes continued playing basketball, and after 10 or 15 minutes, he thought he heard Terry say that defendant was back. Barnes could not see Terry at that time, though, because Terry was in his driveway playing with his children. Barnes then heard defendant say, “Where is the pussy motherfucker Nardo?” When Barnes heard defendant, he started to walk out of the alley. He picked up the basketball to take one last shot and then heard three gunshots. Willie Allen ran through the alley and said that defendant had just shot Terry.

Barnes saw everyone gathering around the mouth of the alley, so he walked over and saw defendant getting into a car that was parked in front of Terry’s house. The car then drove off in reverse down Wabansia. Barnes did not have a gun with him that day, nor did he see anyone else with a gun that day. Barnes did not notice whether defendant was wearing a gold chain at the time of the altercation.

Chicago police detective Roland Paulnitsky testified that he investigated the crime scene, and identified photographs showing a blood spot on the grassy parkway in front of Terry’s house and bullet holes in the garage door.

The State presented the stipulated testimony of Dr. David Dries. Dr. Dries’ stipulation stated that he treated Terry Allen on July 24, 1989, in the emergency room of Foster G. McGaw Hospital of Loyola University. He observed that Terry received a gunshot wound to his back, and performed surgery to remove Terry’s spleen, kidney and a portion of his pancreas. X rays revealed the presence of a bullet in Terry’s upper abdomen below his lower ribs. Terry was taken to the intensive care unit after the operation and remained there for nine days. After 30 days, Terry was released from the hospital. The State rested its case.

Sonja Short then testified on defendant’s behalf. She stated that on July 24, 1989, defendant came to her house at around 5 p.m. Defendant and Short took her one-year-old baby and left Short’s house to walk to the bus stop at Austin and Wabansia, cutting through the alley. When they reached the end of the alley, they encountered a group of guys playing basketball. At that point, Barnes touched Short’s rear end and called her a bitch. Then defendant and Barnes started arguing. Soon the other guys joined in the argument. Short moved out of the way, taking the baby with her.

Short stated that the guys surrounded defendant. She saw one of the guys reach toward defendant and take his gold chain. Short started to walk quickly toward Austin, and then defendant ran past her. She did not see defendant again that day.

On cross:examination, Short stated that she saw Terry standing by the bushes and that he was also playing basketball. After defendant ran off, she. went to the corner of North and Austin and sat on a bench for about 20 minutes. Then she saw a lot of police and she returned to the scene.

Warren Barfield testified that on that day at about 3:30 p.m., defendant and Hall came over to his house and that defendant seemed very upset. After Barfield talked to defendant, the three men drove to Terry’s house to try to get defendant’s chain back. When they got there, Hall parked the car about a car length from Mayfield. Barfield stated that there was no driveway from Terry’s garage leading onto Wabansia.

They got out of the car and Terry walked toward them saying, “Oh you brung your boys back.” Terry called Barfield some names, and at that time defendant was a few paces behind Barfield. Barfield saw Barnes and Terry’s brother, Willie, peeking around the corner, so he kept walking toward the alley.

Barfield saw Terry and defendant arguing, then heard Terry say to defendant, “Punk motherfucker, I will shoot you.” Defendant then said, “Man, let’s go. I just want my chain back.” Then Terry lifted up his arm to about waist level and pulled out a gun. As Terry pulled his gun out, Barnes came out of the alley and started shooting. At that point, Barfield ran toward the car. When he got in the car, the shooting was still ongoing. Altogether, he heard five or six shots fired.

Defendant then testified on his own behalf that on July 24, 1989, he went to Short’s house between 5 and 5:30. They left out of the back door with Short’s baby and proceeded to walk down the alley behind Mayfield Street southbound toward Wabansia. They approached a group of people playing basketball. As they were passing, Short said, “Excuse me.” Then Barnes bumped into Short, grabbed her rear end, and said, “Who are you bumping into?” Short replied, “I said excuse me,” and Barnes responded, “Get out of my way, bitch.”

Defendant then called Barnes a bitch, and they started an argument. They argued for 5 to 10 minutes, and during that time, Short took her baby and walked away from the crowd. As defendant was speaking to Barnes, the crowd gathered around him. Barnes said, “I have been waiting on you anyway.” Defendant told Barnes, “So what,” and they continued to argue. Then Barnes swung at defendant and hit him in the jaw. Defendant did not swing back. At that point, defendant’s gold chain emerged from behind his jacket. Another guy reached out of the crowd and yanked the chain off of defendant’s neck.

Defendant then saw Barnes move his right hand as though he was going to show a gun. Defendant broke away from the crowd, running past Short and down Mason toward North Avenue. Defendant saw Terry in the alley.

Defendant ran to Barfield’s house, where he found Barfield and Hall sitting on the porch. Defendant told Barfield and Hall about the guy who took his chain, and they got into Hall’s car and drove to Terry’s house. When they arrived, Hall pulled into an open parking space in front of the house. They all got out of the car and approached Terry. Terry turned around and yelled, “Jimmy and his bad boys,” in the direction of the alley.

They approached Terry, who was standing alone. Terry walked to the middle of his driveway and stood in front of the garage. Defendant stood five to six feet from Terry. He waited to see if Hall was going to discuss the situation with Terry. At that time, the people in the alley stopped playing basketball.

Defendant watched Terry and Hall talk. Then defendant asked Terry if he told Hall where his chain was and where Barnes and the others had gone. Terry responded that he did not know what defendant was talking about and said, “You better get out of my face with that shit.” Defendant then said, “Why did you have him jump on me, step up and make that comment?” Terry responded, “Get your young ass out of my face before I do something to you.” Then Terry stepped backwards towards the garage.

Defendant then saw “an object like a gun” emerge from the bushes near the alley, pointed straight at him. Defendant saw Terry pull out a gun and aim it at defendant, and defendant saw a shot fired from the alley. Defendant then pulled a gun from his pocket, shot it and hit the garage. Defendant then started to ran towards the car and he saw Terry spin around. Defendant saw Barfield run and proceeded to ran after him. Defendant then fired the gun a second time toward the garage and ran toward the car. As he reached the car, defendant heard another shot fired. Defendant heard four shots fired altogether. Defendant stated that he had found the gun in a vacant lot earlier that day and intended to get rid of it, but did not.

The defense then entered the stipulated testimony of Chicago police detective John Boyle. Boyle stipulated that he interviewed Pamela Allen on July 24, 1989, after the incident. Pamela told Detective Boyle that she was on the rear porch of her house when she saw Jimmy Hall park his car on Wabansia. At that time, Hall was accompanied by a black male whom she recognized from the neighborhood. She heard the black male say, “[W]here’s the mark?” Then she heard five shots and saw her brother, Terry, fall to the ground. The black male and Hall then fled.

The defense further entered the stipulated testimony of Jamie Aurieamma, an official court reporter. Aurieamma testified that she transcribed the proceedings of the preliminary hearing in this matter and that at that time Terry Allen testified that he did not see defendant fire the second shot. The defense then rested.

Detective Richard Curley then testified as a rebuttal witness for the State. Detective Curley stated that on July 26, 1989, Warren Bar-field voluntarily came into the police station, and Detective Curley interviewed him. Detective Curley advised Barfield of his Miranda rights and Barfield stated that he understood his rights. Barfield then agreed to talk to Detective Curley about the incident. Barfield told Detective Curley that during the argument between Terry Allen and defendant, defendant suddenly, and without warning, pulled out a weapon and shot Terry two or three times.

Defendant then testified as a witness on his own behalf in surrebuttal. Defendant stated that after his arrest, he told Detective Curley that Terry Allen and some guys in the alley had guns and tried to fire at him. The defense then rested.

Each side presented closing arguments, and the jury returned a verdict of guilty. Following a hearing in aggravation and mitigation, defendant was sentenced to a prison term of 15 years. This timely appeal followed.

Initially, defendant contends that he was prejudiced by four areas of comments made by the prosecutor during closing argument and thereby denied a fair trial. The State asserts that seven of the nine comments about which defendant complains were not preserved as issues for review by either objection at trial or in defendant’s written motion for a new trial and are therefore waived. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Nevertheless, we may address the prejudicial effect of those comments here. People v. Williams (1992), 228 Ill. App. 3d 981, 997, 593 N.E.2d 968.

In general, courts allow a great deal of latitude to the prosecution during closing and rebuttal arguments. (People v. Williams (1991), 147 Ill. 2d 173, 231, 588 N.E.2d 983; People v. Smith (1990), 199 Ill. App. 3d 839, 854, 557 N.E.2d 596.) When reviewing allegations of prosecutorial misconduct, the complained-of remarks must be considered in the context of the entire closing arguments of both the State and the defendant. (People v. Cisewski (1987), 118 Ill. 2d 163, 175-76, 514 N.E. 2d 970.) In closing argument, a prosecutor may comment on the evidence and legitimate inferences arising therefrom, and such comments do not exceed the bounds of proper argument. (People v. Williams, 147 Ill. 2d at 231.) A defendant may not claim prejudice from comments by the prosecutor when those comments were invited by defendant’s argument. People v. Richardson (1988), 123 Ill. 2d 322, 356, 528 N.E.2d 612.

Defendant initially calls into question the following group of comments made during the State’s closing rebuttal argument, arguing that the prosecutor’s comments improperly shifted the burden of proof to the defendant:

“And did you hear any evidence that any one of the other eyewitnesses told a different story that night than they did here today?
* * *
Have you heard any evidence, any evidence from that witness stand or from anywhere about why these people would all come in here and make this up, or any evidence at all about who started this whole frame-up?
* * *
PROSECUTOR: *** In addition, there is no physical evidence to support his story.
DEFENSE: Objection, your Honor.
PROSECUTOR: Have you heard—
DEFENSE: The State has the burden. No physical evidence need support the defendant’s story.
THE COURT: Well, the jury is going to decide what facts there are. That is their job. Go ahead.
PROSECUTOR: Have you heard any evidence of any bullets found anywhere else but where the State’s Witnesses said they went? If someone is shooting the other way, you heard the detective out there for over an hour, have you heard any evidence about any bullets found over there? He could have had an investigator go out and look if supposedly it happened as he said it did. There is no physical evidence supporting his story.”

The record reveals that during closing argument, defense counsel stated: “If he can get people to come in and say things that help him, he would be more than happy to say that.” Defense counsel also implied that defendant fired shots in self-defense:

“[Defendant’s] defense is that these men had guns. He went back to take some measures to try to get that chain back and to talk to these guys with people who he knew and who knew them. And guns were fired at him and he fired in response.”

Defendant relies on People v. Tyson (1985), 137 Ill. App. 3d 912, 485 N.E.2d 523, and People v. Popely (1976), 36 Ill. App. 3d 828, 345 N.E.2d 125, both of which are distinguishable from the present case on their facts. In Tyson, the court found that the prosecutor made a serious error when he insinuated in his closing statement that the defendant had a burden to present evidence to support his innocence. The prosecutor stated, “First of all, you have to have been presented in this case with a theory of innocence.” (Tyson, 137 Ill. App. 3d at 920.) The court sustained defense counsel’s objection to this comment and failed to admonish the jury to disregard the comment.

In Popely, in both closing argument and in rebuttal, the prosecutor repeatedly commented at length on defendant’s failure to call a certain witness, concluding that the witness “would destroy defendant’s own story.” (Popely, 36 Ill. App. 3d at 836, 345 N.E.2d at 130.) The court noted that the defendant testified at trial as to who this third party was, but in no way indicated that this third party would support his theory of the case. The court also noted that the prosecution was aware prior to trial that the defendant was attempting to locate the witness, but could not find him. Under these circumstances, the court found that the prosecutor’s comments were so seriously prejudicial as to prevent defendant from receiving a fair trial. Popely, 36 Ill. App. 3d at 836.

The record in the present case indicates that the above comments objected to by defendant were invited by defense counsel’s closing argument. Here, the prosecutor neither intimated that the defendant had to present a theory of innocence nor commented that the defense failed to present a witness who would have destroyed defendant’s case.

The second area of argument which defendant alleges was prejudicial involves the credibility of defense witnesses:

“PROSECUTOR: *** But if you are going to believe the defense theory of the case, all of those witnesses are lying.
Now let’s see. When did they get together and make this story up? I guess it would have to be while Terry’s lying there gunned down, bleeding from the back *** Here’s what we’re going to say. Let’s all get this together so that when the trial comes up [defendant] won’t be able to assert a self-defense theory.
* * *
You think that is what they did, ladies and gentlemen? You think when Terry’s lying there just shot that they are thinking about [defendant] trying to prevent a self-defense theory about making up all these lies? Of course not.
* * *
But if you want to believe the defense theory, you have to believe that Terry wasn’t their priority, that getting the story straight was their priority at that time.”

Defendant argues that these comments misstate the law. Defendant’s reliance on People v. Cole (1980), 80 Ill. App. 3d 1105, 400 N.E.2d 931, is unavailing, however, as the facts are not comparable. There, the prosecutor listed all of the witnesses by name, informing the jury that in order to believe the defense witnesses the jury must find that each of the State’s witnesses was lying. The court found that such a statement was a misstatement of law. (Cole, 80 Ill. App. 3d at 1108, 400 N.E.2d at 933.) Defendant’s further reliance on People v. Davidson (1992), 235 Ill. App. 3d 605, is similarly distinguishable. There, the prosecutor was found to have misstated the law when he told the jury that it would have to disbelieve all of the State’s witnesses in order to find defendant not guilty. (Davidson, 235 Ill. App. 3d at 612.) The above comments do not rise to the level of the comments in either Cole or Davidson.

Regarding the third area of argument, defendant complains that the prosecution improperly injected personal opinion into its closing and rebuttal arguments. Defendant first complains of the following exchange:

“PROSECUTOR: *** And then he [defendant] tells you, and this is the most ridiculous thing I have heard throughout this trial — .
DEFENSE: Objection, your Honor, to what she considers ridiculous.
THE COURT: Overruled.
PROSECUTOR: —He tells you that Terry spins around after being shot at.”

Generally, it is improper for a prosecutor to vouch for the credibility of a witness or to express a personal opinion on the issues. (People v. Emerson (1987), 122 Ill. 2d 411, 522 N.E.2d 1109; Williams, 228 Ill. App. 3d at 1001.) Fair comments on the evidence, or on legitimate inferences derived therefrom, are permitted, however. People v. Johnson (1987), 119 Ill. 2d 119, 518 N.E.2d 100; Emerson, 122 Ill. 2d at 434.

The record indicates that the prosecutor’s comment was based on the testimony presented at trial, that Terry was shot in the back and fell to the ground. Therefore, the comment was not an improper assertion of personal opinion based on facts not in evidence.

Defendant makes a similar objection to the following remark made later by the prosecutor:

PROSECUTOR: *** And he [defendant] gets his buddy, Warren, to change his story too. *** Well, we know they’re both lying. We know for a fact they both changed their stories.”

Viewed in the context of the entire argument, the above comment was fair comment on the evidence. The record indicates that Bar-field’s testimony at trial differed from the story he told to Detective Curley on July 26, 1989. The prosecutor’s comment, therefore, properly foreshadowed the jury instruction on the believability of the witnesses. See Williams, 228 Ill. App. 3d at 1001.

Finally, defendant complains of the following statements, arguing that the prosecutor’s use of the word “I” indicated that he was expressing his own opinion:

“PROSECUTOR: *** Now I don’t want to believe that is a warning shot as the defendant alleges.
* * *
I am going to preface what I am going to say by telling you that Terry Allen has no motivation to come in here and lie to you.”

In the present case, the prosecutor expressed opinions as to the proof offered against defendant, and these opinions were legitimate inferences based on the trial record. Error does not result every time a prosecutor uses sentences beginning with, e.g., “I believe.” People v. Baker (1990), 195 Ill. App. 3d 785, 788, 552 N.E.2d 421.

Regarding the fourth and final area of argument, defendant argues that comments by the prosecutor improperly bolstered the credibility of the State’s witnesses. Defendant complains of the following exchange:

‘ “PROSECUTOR: She [Pamela Allen] told the police the same story when she talked to them the day of the shooting ***. They all went to the police station; Denardo Barnes, Wayne Chapman, and their stories all matched.
DEFENSE: Objection your Honor. There is no evidence that they did.
THE COURT: Well, the jury has heard the evidence. They will make that decision. Go ahead.
PROSECUTOR: Two days after the shooting Jimmie Hall and Warren Barfield go into the police station. They tell the same story as the other witnesses told. They saw the same thing happen.
When Terry Allen, the victim in the case was able to talk to the police, he told the same story, the same version of the events as everyone else saw.
* * *
PROSECUTOR: *** [H]e [Jimmy Hall] came in here and he told you what he saw the same as he did to the police a year ago, the same story.”

Defendant argues that the above statements were improper because the prosecutor referred to prior consistent statements by witnesses which were not adduced at trial. Defendant further argues that the comments were inconsistent with the evidence presented at trial.

The record indicates that Pamela Allen related the same facts to Officer Boyle on July 24, 1989, as she testified to at trial. As to the comments of the prosecutor regarding the credibility of the other State’s witnesses, the record indicates that the jury could reasonably infer from the evidence that the witnesses’ stories were consistent. The record does not reveal that any of the witnesses were impeached in their testimony by defense counsel.

Next, defendant contends that the trial court improperly considered his guilty verdicts for aggravated battery and armed violence in imposing his sentence for attempted murder. Defendant further argues that 15 years is an excessive sentence and should be reduced in light of his potential for rehabilitation.

The trial court’s decisions regarding sentencing are given great weight and deference. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 884; People v. LaPointe (1981), 88 Ill. 2d 482, 492-93, 431 N.E.2d 344.) It is well established that the imposition of a sentence is a matter of judicial discretion and that absent an abuse of that discretion, the sentence as determined by the trial court should stand. Perruquet, 68 Ill. 2d at 153.

In sentencing a defendant, the trial court may consider the gravity and circumstances of the offense, as well as defendant’s mental capacity, age, demeanor and credibility. (E.g., Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884.) Furthermore, the trial court must balance the objectives of protecting society and rehabilitating the defendant. (See People v. Harris (1989), 187 Ill. App. 3d 832, 844, 543 N.E.2d 859, 866.) A reviewing court will hesitate to upset this balance, especially where the sentence falls within the statutory limitation. People v. Lambrechts (1977), 69 Ill. 2d 544, 559, 372 N.E.2d 641, 649.

The record in this case indicates that defendant was sentenced to 15 years’ imprisonment, which is well within the statutory guidelines for attempted murder. (See Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(3) (attempted murder is punishable with a term of not less than 6 years and not more than 30 years).) The record indicates that the court considered that defendant was a high school graduate and was employed at the time of his arrest. The court further considered that defendant had no prior convictions and that he was progressing at the PACE Institute, an educational program at the Cook County jail. The court also considered the testimony of defendant’s minister, Lament Coakley, that defendant attended church services and tried to excel. In addition, the court considered that Terry Allen was seriously injured on his own property, and that defendant returned to Allen’s property with two other men and a gun rather than calling the police. The trial court found that in light of the jury’s verdict of guilty on all three counts, a sentence of 15 years for attempted murder was appropriate.

Defendant’s reliance on People v. Hurt (1988), 175 Ill. App. 3d 970, 530 N.E.2d 698, is misplaced. There, the court found that the trial court improperly sentenced the defendant on all of the verdicts returned against him, and vacated three of the convictions that arose from the same physical act. (Hurt, 175 Ill. App. 3d at 981; see also People v. Mack (1984), 105 Ill. 2d 103, 137, 473 N.E.2d 880, 898.) In the present case, although the trial court considered all of the jury verdicts, defendant was only sentenced for attempted murder.

Accordingly, defendant has failed to show that the trial court erred in sentencing him to a prison term of 15 years.

For the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

O’CONNOR and MANNING, JJ., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN BROOKS, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 90—3313
    Opinion filed April 19, 1993.

      Michael J. Pelletier and Todd Avery Shanker, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Barbara Jones, and Carolyn A. Reynolds, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant John Brooks appeals his conviction and three-year sentence for aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 16(d)). Defendant raises the following errors on appeal: (1) the court erred in admitting testimony which insinuated that he had previously engaged in sexually abusive misconduct; (2) the court erred in allowing the State to substantively amend the indictment on the day of trial; (3) section 12 — 16(d) of the Criminal Code of 1961 is unconstitutional as a violation of the equal protection clauses of the United States and Illinois Constitutions; (4) improper prosecutorial comments during closing argument denied him a fair trial; (5) the court erred in instructing the jury with the definitions of sexual conduct and aggravated criminal sexual abuse, which employ the word “victim” without an accompanying definition, thereby indicating the court’s belief that the complaining witness was indeed a victim — a contested factual issue; and (6) defense counsel’s many errors before and during trial denied him effective assistance of counsel. We affirm.

On September 1, 1988, a complaint for preliminary examination was filed against defendant charging a violation of section 12 — 16(d) of the Criminal Code of 1961. The complaint stated in relevant part:

“John A. Brooks has, on or about August 13, 1988, at 1 West Bartlett Road, Cook County, Illinois (Division of the Department of Children and Family Services), committed the offense of Aggravated Criminal Sexual Abuse in that he knowingly committed an act of Sexual Conduct with [M.W.], who was at least 13 years of age but under 17 years of age, in that the defendant fondled the breast and buttocks of [M.W.] and the defendant was least [sic] 5 years older than [M.W.].”

Defendant was then indicted by the September 1988 grand jury of the circuit court of Cook County for aggravated criminal sexual abuse. The returned indictment provided:

“[0]n or about August 1, 1988 and continuing on through August 31,1988 at and within the County of Cook
JOHN BROOKS
committed the offense of AGGRAVATED CRIMINAL SEXUAL ABUSE
in that HE, A PERSON AT LEAST 5 YEARS OLDER THAN [M.W.], COMMITTED AN ACT OF SEXUAL PENETRATION, UPON [M.W.], TO WIT: CONTACT BETWEEN JOHN A. BROOKS FONDLED [M.W.] BREASTS AND BUTTOCKS WITH HIS HAND AND [M.W.] WAS A PERSON AT LEAST 13 BUT UNDER 16 YEAR OF AGE: IN VIOLATION OF CHAPTER 38, SECTION 12-16(d) OF THE ILLINOIS REVISED STATUTES 1985, AS AMENDED.”

On September 24, 1990, the day before trial commenced, the State asked leave of court to amend the grand jury indictment. The State first asked to change “sexual penetration” to “sexual conduct.” In support, the State argued that the acts alleged within the indictment were actually those of sexual conduct, not sexual penetration. Furthermore, during the grand jury proceedings, Sergeant Paula Lemke, the only witness to testify, answered questions dealing with sexual conduct, not penetration, with the “conduct” in question concerning defendant’s alleged fondling of M.W.’s breasts and buttocks. The term “penetration” was never mentioned during the proceeding. The State accordingly argued that the amendment would conform the returned indictment to the grand jury proceedings.

The State next asked to change “under 16 years of age” to “under 17 years of age.” The State referred the court to the grand jury transcript wherein the State referred to M.W. as “approximately 16 years old.” The State argued that a typographical error had occurred, resulting in “16” being typed rather than “17.” Over defense objection that the State was seeking substantive amendments to the indictment, the court allowed the amendment.

At trial, M.W. testified that on August 19, 1988, she was a 16-year-old resident at Herrick House, a facility for children. M.W. had been removed from her mother’s house after the mother stabbed M.W.

On the above date, most of the residents of Herrick House were on a field trip to the Illinois State Fair. M.W. did not go on the trip because she was recovering from a minor head injury.

At about 4 p.m. that day, M.W. went to the kitchen to get something to eat. M.W. saw defendant, whom she knew to be a counselor for the boys, in the hallway area near the kitchen door. No one else was present during the events which followed.

Defendant asked M.W. how her head was feeling, and she replied that she was doing fine. Defendant approached M.W. and put his hands inside her blouse, under her bra, and began to fondle her breasts. Defendant asked M.W. if she wanted to go home with him after work. M.W. declined defendant’s invitation. Defendant then put his hands into the back of M.W.’s pants and began to fondle her buttocks. M.W. pushed defendant away and returned to her room.

M.W. did not immediately tell anyone about the incident because she felt that no one would believe her. A week after the incident, she told Denise Cox, a Herrick House counselor. She next told Tanya Robertson, a friend of hers at the Herrick House. M.W. was taken to the police station a few weeks after the incident.

Bruce Hirsch testified for the State that in 1988 he was the director of the Herrick House Youth Center in Bartlett, Illinois. The center houses abused or neglected children who are wards of the State. As director, Hirsch hired defendant as a child care worker. Defendant worked a 3 to 11 p.m. shift on August 19, 1988. Hirsch terminated defendant on October 24, 1988. An arbitration hearing was subsequently held regarding defendant’s termination. These proceedings resulted in defendant resigning his position, receiving no back pay, and defendant agreeing to never work for the State again.

Hirsch first learned about M.W.’s allegations when the Bartlett police began their investigation. M.W. first talked with Hirsch about the assault on the day of trial.

Defendant testified on his own behalf, stating that he began at the Herrick House in March 1987. Defendant served as a child care service worker, attending the everyday needs of the children.

On August 19, 1988, defendant arrived to work at about 2:30 p.m. Many of the facilities’ residents were attending the State Fair; however, some were left behind, including three to four boys for disciplinary reasons and one female. Defendant did not see M.W. that day, and defendant was only at the facility’s kitchen one time, at about 5 p.m., when he obtained the four boys’ dinner. After the boys ate, defendant accompanied them back to the dorm area. Defendant first became aware of the allegations against him on September 1, 1988. Defendant denied ever touching M.W. on August 19,1988.

Following argument, the jury convicted defendant of aggravated criminal sexual abuse. The court subsequently sentenced defendant to three years’ imprisonment. This appeal followed.

Defendant first contends on appeal that the court erred in admitting “irrelevant and inflammatory” testimony which insinuated that defendant “was a person of bad character” who “had previously engaged in sexually abuse misconduct at his workplace.” Defendant’s allegation of error arose from the following cross-examination of State witness Bruce Hirsch:

“Q. Were any complaints made to you that night [August 19, 1988] by anybody regarding M.W.
A. No, sir.
Q. When was the first time that you heard any complaints about M.W. and her allegations against [defendant].
A. I believe I first heard mention about complaints about [defendant] and some of the residents —
Q. I’m just asking about [M.W.], nobody else. What was the first time you heard anything about M.W. and [defendant].
A. When the Bartlett Police were investigating.
* * *
Q. Did a Miss Carole Hines ever come to you — strike that. Were you ever told by any counselors at the Herrick House about this allegation against [defendant] involving M.W.1
A. Yes, sir.
Q. Who told you]
A. One of the social workers, Miss Vivian Lund, told me about allegations that she had heard against [defendant] from residents of Herrick House.
MR. WILLIS [Defense attorney]: I will ask that be stricken from the record. I ask this witness be admonished to deal with the specific questions I’m asking him.
MR. SPECTOR [Assistant State’s Attorney]: I think he is trying to answer that.
THE COURT: Read the question and the answer back.
(record read back.)
THE COURT: Overruled.
Q. When did she tell you?
THE COURT: The answer is responsive.
Q. When did she tell you?
A. In August of 1988.1 don’t recall the exact date.
Q. On that date in August of 1988, she told you about [M.W.] having made allegations against Mr. Brooks, is that correct?
A. Yes.” (Emphasis added.)

Following the above passage, defense counsel continued along this line of questioning, asking seven other questions concerning how the witness came to know about M.W.’s “allegations” against defendant.

Apart from Hirsch’s cross-examination, defendant directs this court to the State’s closing argument, wherein defendant alleges the State continued the improper character assassination, by alleging defendant was a repeat offender:

“He (defendant) picks the right kind of a victim, you know, troubled children, from broken homes, who have been abused and used to being taken advantage of, who may submit willingly, but even if they don’t, would be afraid to tell anybody anyway. He knows what his victims are like.” (Emphasis added.)

Finally, defendant directs this court to the reading of defendant’s indictment to the jury following closing argument. The court there stated that: “The indictment states that the offense charged was committed on or about August 1, 1988 and continuing through August 31, 1988.”

Relying on a long line of cases which assert that it is reversible error to admit irrelevant other crimes evidence (e.g., People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238), defendant asserts that reversal is required in this case because other crimes evidence was improperly interjected on numerous occasions during trial. We disagree.

Initially, the State correctly states that defendant failed to include any of the alleged errors within his post-trial motion. Defendant has accordingly waived review of the issue. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert, denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) However, under the plain error doctrine, a reviewing court may reach the merits of an issue not properly preserved where the case is closely balanced or the alleged error is so fundamental and of such magnitude that the accused was denied a fair trial. (People v. Herrett (1990), 137 Ill. 2d 195, 209-10, 561 N.E.2d 1.) Here, despite the State’s contention to the contrary, the evidence in this case was closely balanced. In short, guilt or innocence turned on whether the jury believed defendant or M.W. Given this posture, we will reach the merits of defendant’s argument. Additionally, given defendant’s final contention on appeal — that defense counsel’s repeated failure to preserve error on review denied him effective assistance of counsel — we need to assess alleged errors to determine if defendant was indeed denied effective assistance of counsel.

On the merits, defendant’s arguments are unpersuasive. Regarding Hirsch’s cross-examination, the record simply does not reflect an interjection of other crimes evidence. M.W. testified that she told two residents about the incident. Hirsch could properly respond to defense counsel’s questioning that more than one person had told him about M.W.’s “allegations” against defendant. In everyday usage of the English language, the word “allegations” is frequently employed to describe the occurrence of one act of misconduct committed by an accused. Indeed, defense counsel liberally used the word himself during his cross-examination of Hirsch. We find that no error occurred.

Turning to the State’s rebuttal argument, we agree with the State that defendant has taken the complained-of remarks out of context. The argument as heard by the jury was as follows:

“Let me talk about corroboration. Mr. Willis [defense counsel] says, ‘corroboration, where is it?’ Well, when this occurred, it was a crime of opportunity. The opportunity was there. He took advantage of it. If there had been witnesses, people around to see what he was doing, would he have done it? He is not a dumb man. Of course, he wouldn’t. Crimes like this don’t happen — you don’t invite an audience to witness it. You don’t do it when there is a chance you may get caught. Who would be that stupid? Well, maybe there are people that stupid, but Mr. Brooks isn’t. He’s familiar with that home. He knows the routine. He knows where everybody is. He knows there’s a State Fair, and nobody is around, and he’s thinking he might get something, and she’s there for it. He picks the right kind of a victim, you know, troubled children, from broken homes, who have been abused and used to being taken advantage of, who may submit willingly, but even if they don’t, would be afraid to tell anybody anyway. He knows what his victims are like.”

The above quotation in full demonstrates the reason for the rule that statements in closing argument must be viewed in the context wherein made. Further, in assessing the propriety of an argument, we are not obligated to assume that the jury accepted a comment’s most damaging interpretation:

“Such arguments, like all closing arguments of counsel, are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less thán crystal clear. While these general observations in no way justify prosecutorial misconduct, they do suggest that a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through a lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.” People v. Phillips (1989), 127 Ill. 2d 499, 529, 538 N.E.2d 500, cert, denied. (1990), 497 U.S. 1031, Ill L. Ed. 2d 798, 110 S. Ct. 3290.

Here, our reading of the State’s argument leads us to conclude that the State was not attempting to portray defendant as a repeat child molester. The evidence showed that defendant and M.W. were together at a time when most residents were gone. The thrust of the State’s argument was that defendant was an opportunist, taking advantage of an individual like M.W. when no one else was around. While it would have been preferable for the State to use singular nouns, its use of plural nouns within the context of the quoted argument did not amount to the interjection of other crimes evidence into this case.

Turning to the circuit court’s reading of defendant’s indictment to the jury following closing argument, no error occurred. In the paragraph preceding the court’s reading of the indictment, conveniently omitted by defendant, the court stated: “If you find the offense charged was committed, the State is not required to prove that it was committed on a particular day charged.” The jury was additionally instructed shortly thereafter that the indictment was not evidence and did not create any inference of guilt. Defendant’s claim of error is without merit.

Defendant next contends that the circuit court erred in allowing the State to amend on the day of trial its indictment against defendant. Defendant asserts that the amendments were substantive changes, not merely formal. We find the amendments to be formal.

The State correctly notes that defendant has waived review of this issue by failing to raise the issue in his post-trial motion. However, as previously, we reach the merits of the issue under the plain error doctrine. Accord People v. Payne (1990), 194 Ill. App. 3d 238, 550 N.E.2d 1214 (plain error doctrine invoked to address the merits of a similar argument).

Section 111 — 5 of the Code of Criminal Procedure of 1963 governs amendments to indictments. Indictments may be amended at any time “because of formal defects, including: (a) Any miswriting, misspelling or grammatical error; [or] *** (d) The presence of any unnecessary allegation.” Ill. Rev. Stat. 1987, ch. 38, par. 111 — 5.

Defendant was charged under section 12 — 16(d) of the Criminal Code. The 1985 version of this section provided:

“(d) The accused commits aggravated criminal sexual abuse if he or she commits an act of sexual penetration with a victim who was at least 13 years of age but under 16 years of age and the accused was at least 5 years older than the victim.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 16(d).)

The section was later amended, effective January 1, 1988, adding sexual conduct to the types of impermissible acts and changing the relevant age bracket of the victim:

“(d) The accused commits aggravated criminal sexual abuse if he or she commits an act of sexual penetration or sexual conduct with a victim who was at least 13 years of age but under 17 years of age and the accused was at least 5 years older than the victim.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, par. 12-16(d).

The statutory amendment made relatively minor changes. However, in this day and age of computer forms and busy criminal dockets, the State official responsible for charging defendant failed to correct the grand jury indictment form charging a violation of section 12 — 16(d) as amended. Upon our review of the returned indictment contained in the record, it becomes clear that a simple mistake was made: When the statute was amended, the computer form in question was not. The form still employed the term “sexual penetration,” which was, prior to the amendment, the only impermissible act under section 12 — 16(d), and the outer age bracket of the victim, now 17, remained 16 years old. When defendant’s indictment came to be printed, “sexual penetration” should have been changed to “sexual conduct” and “16” changed to “17.” This did not occur. The resulting indictment, as again the record makes clear, had loose remnants of the old statute, even though it was predicated on the amended version of section 12 — 16(d).

Defendant asserts in this case that he was charged under the prior version of section 12 — 16(d) yet convicted under the amended version. This is false.

First, section 12 — 16(d) in its prior form ceased to exist as of the effective date of the amendment, January 1, 1988. The assault in question occurred August 18, 1988. Charging defendant with sexual conduct before the amendment was a legal impossibility because a defendant could not be so charged; only sexual penetration could be charged.

Second, the history of the charges against defendant reflects the State’s intent to charge defendant under the amended version of section 12 — 16(d). Both the preliminary complaint and the indictment were predicated on sexual conduct involving fondling, not penetration. The first time the word “penetration” ever occurred was when the indictment in question was returned. During the entire grand jury proceeding, a transcript of which is contained in the record, the State and its witnesses spoke of fondling, not penetration. Indeed, at the end of the proceeding, the State asked “for a true bill against John Brooks for the offense of aggravated criminal sexual abuse that being that he fondled the breast and buttocks and she is approximately 16 years old.” The grand jury returned from its deliberations with a “true bill.” Apparently, when the foreperson was given the indictment to sign, he was given a defective one. He signed it without reading it. The State must have tendered it without reading it, too.

Section 111 — 5 permits this court to allow an amendment to cure a “miswriting” or “the presence of any unnecessary allegation.” Based on the foregoing analysis, we find that the amendment here cured a miswriting — a formal defect. Thus, contrary to defendant’s argument, this is not a case where the amendment changed the offense with which the defendant was charged. Aggravated criminal sexual abuse under section 12 — 16(d) has always been the charged offense, both before and after the amendment. People v. Betts (1979), 78 Ill. App. 3d 200, 397 N.E.2d 106, upon which defendant relies to support his argument, is thus distinguishable, as it involved an amendment which changed the statutory subsection under which the defendant was initially charged.

Nor is the amendment here similar to that occurring in People v. Payne (1990), 194 Ill. App. 3d 238, 550 N.E.2d 1214, another case upon which defendant relies, where the accompanying mental state to burglary was amended from intent to commit theft to intent to commit a felony. Payne was clearly a change in the underlying charge which, again, did not occur here.

Finally, defendant’s complaint of prejudice is not persuasive. Section 111 — 5 permits amendments “at any time” where the conditions for such an amendment are met. Here, defendant’s principal defense at trial was that the assault never occurred. He so responded in his answer to the State’s interrogatories and so testified at trial. Thus, his principal defense could not have been affected by the amendment. The only defenses defendant lost as a result of the amendment were two technical ones which he never should have had in the first place. Defense counsel did not even raise the issue of prejudice when the State sought to amend the indictment. For these reasons, we find that the circuit court properly allowed the State to amend the indictment.

Defendant next asserts that section 12 — 16(d) of the Criminal Code violates the equal protection clauses of the United States and Illinois Constitutions. Defendant claims that section 12 — 16(d) and section 12 — 15(c) permit similarly situated defendants to be treated differently. This latter section provides:

“(c) The accused commits criminal sexual abuse if he or she commits an act of sexual penetration or sexual conduct with a victim who was at least 13 years of age but under 17 years of age and the accused was less than 5 years older than the victim.” Ill. Rev. Stat. 1987, ch. 38, par. 12 — 15(c).

In People v. Reed (1992), 148 Ill. 2d 1, 10, 591 N.E.2d 455, the Illinois Supreme Court rejected defendant’s exact argument. There, the court concluded that persons violating section 12 — 16(d) can justifiably be held more accountable than persons violating section 12 — 15(c) because the victim under section 12 — 16(d) is more exploitable than the victim under section 12 — 15(c). The court found the statutory differences to be supported by a rational basis. Reed is dispositive.

Defendant next argues that numerous statements during the State’s final argument denied him a fair trial. Initially, we find that defendant has waived review of any alleged comment. Defendant failed to make a contemporaneous objection and did not raise the matter in his post-trial motion. For the previously stated reasons, however, we will reach the merits of defendant’s argument.

We are first directed to the prosecutor’s argument that defendant could not recall the names of the four boys who were left behind from the fair for disciplinary reasons. Defendant testified that he watched these boys all day. Defendant asserts that no evidence existed that he could not remember their names.

At trial, the State asked defendant during cross-examination: “Now, these four disciplinary individuals, who reviewed discipline, do you remember their names?” (Emphasis added.) Defendant responded that he did not remember. The comments in question were apparently predicated upon this question and answer.

A prosecutor is given great latitude during closing argument, and the propriety of his comments is within the trial court’s discretion. (E.g., People v. Morrison (1985), 137 Ill. App. 3d 171, 484 N.E.2d 329.) The prosecution may base its argument on the evidence presented or reasonable inferences therefrom, respond to those comments by defense counsel which invite or provoke a response, denounce the activities of defendant and urge that justice be administered. (Morrison, 137 Ill. App. 3d 171, 484 N.E.2d 329.) In order for a prosecutor’s remarks to constitute grounds for reversal, they must be of substantial magnitude when viewed in the context of the entire record. People v. Scott (1990), 194 Ill. App. 3d 634, 645, 551 N.E.2d 288, appeal denied (1990), 132 Ill. 2d 552, 555 N.E.2d 383.

Here, the State could properly argue to the jury that defendant could not provide the names of the four boys whom he watched on the day in question. No testimony existed that four individuals “reviewed discipline.” The only subject matter that came in “fours” during the entire trial was the four boys in question. The State’s question was designed to ask about those boys and not some other subject matter. We find that no error occurred or, alternatively any error insufficiently prejudicial, as defendant’s lack of recollection was a minor point at trial, and the jury was subsequently instructed that closing arguments were not evidence and to disregard arguments not based on the evidence.

Defendant next directs this court to comments which he claims amounted to an improper shifting of the burden of proof. Defendant directs this court to two sets of such comments, with the first occurring during the following passage:

“Now, you heard from Mr. Hirsch. Mr. Hirsch told you of the nature in which Herrick House runs, that those persons did, on the date of August 19th, go to the State Fair. Mr. Hirsch has testified. He is credible. What reason would Mr. Hirsch have to lie? What reason would [M.W.] have to lie? None. What reason would John Brooks have? Many. You must remember he is the person on trial here; they are not. [M. W.] and Mr. Hirsch are not on trial. They need not establish why they did things the way they did them.
It’s our burden to prove, beyond a reasonable doubt, the [sic] John Brooks committed an offense, and the State has done that with the two witnesses you have seen here today.” (Emphasis added.)

“There is a great deal of difference between an allegation by the prosecution that defendant did not prove himself innocent and statements questioning the relevance or credibility of a defendant’s case. [Citations.] Not every prosecutorial statement questioning relevance or credibility rises to an impermissible shifting of the burden.” People v. Phillips (1989), 127 Ill. 2d 499, 527, 538 N.E.2d 500, cert. denied (1990), 497 U.S. 1031, Ill L. Ed. 2d 798, 110 S. Ct. 3290.

We believe that the prosecutor’s comments did not rise to the level of impermissible burden shifting; rather, the comments addressed the credibility of the witnesses. Thus, no error occurred; alternatively, any error was minimal. The prosecutor informed the jury that the State had the burden of proof within the very same passage. Other instructions given to the jury informed it of defendant’s presumption of innocence, the State’s burden of proof and that closing arguments were not evidence. In light of the entire record, the complained-of comments could not have been a material factor in defendant’s conviction.

The second set of alleged improper burden of proof comments occurred during the following discourse:

“The defense said we didn’t call a witness to the stand, Denise Cox. What was she going to say? What [M.W.] said. That, I would submit to you, Ladies and Gentlemen, could never be presented in front of you because its hearsay, and furthermore, I submit counsel knows that. I have something to tell you. It works two ways. How do you get witnesses in court? You give them a subpoena, and they have to come to court, and he has the same power to subpoena any of those witnesses, and if for one moment, he thought any of them would say anything different, that any of them would say [M.W.] never told us that, that any of them would say [M.W.] never spoke to us or [M.W.] never said that happened, he would have subpoenaed them himself and brought them in front of you. This case doesn’t rest on what she said to anybody or not. It certainly would make a difference if she said something different happened to those people, and I would be the first to say that. This case rests on simply one thing, her word, her believability when she said what happened to her.
* * *
Ask yourself, every one of you, this question — talking about the subpoena power as to witnesses he could have brought you, where was Jesse Bellford, the guy who drove him to work that day who could say he came in at 2:00 o’clock.”

Defendant’s burden of proof argument is again without merit. Defendant cannot complain of remarks which his own closing argument invited. (People v. Mahaffey (1989), 128 Ill. 2d 388, 539 N.E.2d 1172, cert, denied (1989), 493 U.S 873, 107 L. Ed. 2d 156, 110 S. Ct. 203.) In his closing remarks, defendant argued that M.W.’s telling of others about defendant’s assault was not corroborated by the in-court testimony of those so told. Defense counsel argued: “Not one police officer, not one State’s Attorney, not one official involved in law enforcement on any level appeared in this courtroom to tell you that they were told by [M.W.] that this incident occurred.” Counsel continued to argue that the State had the burden of proof and had not brought in even “one iota of corroborative evidence to support it, nothing, not one thing.” We believe that the State could respond that defendant had as much capability as the State, although not the obligation, to subpoena witnesses. See People v. Richardson (1988), 123 Ill. 2d 322, 354-55, 528 N.E.2d 612, cert, denied (1989), 489 U.S. 1100, 103 L. Ed. 2d 943, 109 S. Ct. 1578 (State could respond to defendant’s similar argument that witnesses were equally available).

Defendant next contends that the trial court erred in instructing the jury with the definitions of aggravated criminal sexual abuse and sexual conduct (see Illinois Pattern Jury Instructions, Criminal, Nos. 11.61(d), 11.65D (3d ed. 1992)), which employ the term “victim” without an accompanying definition, thereby demonstrating the court’s belief that M.W. was in fact a “victim,” a debated issue the State was required to prove. We disagree.

Initially, defendant has waived review of this issue by failing to tender an alternative instruction or raising the matter in his post-trial motion. As previously, however, we reach the merits of the issue, which we reject.

Defendant omits from his argument the fact that the Illinois Pattern Jury Instruction which defines the term “victim” was given to the jury in this case. (See Illinois Pattern Jury Instructions, Criminal, No. 11.65F (3d ed. 1992).) Any argument, therefore, that the jury received a “loaded” charge is without merit. Illinois has long held that jury instructions are not to be considered in isolation, but the entire charge to the jury must be viewed. (People v. Matthews (1984). 126 Ill. App. 3d 710, 467 N.E.2d 996.) Here, the jury was properly instructed.

Defendant finally complains that he was denied effective assistance of counsel because of counsel’s failures to preserve numerous issue for review. We disagree.

An ineffective assistance of counsel claim may be rejected on the ground that counsel’s ineffectiveness did not prejudice defendant. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Merely showing that-counsel erred is insufficient.

Here, under the plain error exception to the waiver rule, each of defendant’s claimed errors has been addressed on the merits. After analysis, we found each to be either without merit or insufficiently prejudicial to warrant reversal. Accordingly, counsel’s failure to properly preserve them for review in this case was inconsequential. Defendant’s Strickland argument thus fails.

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE LUND

text:
    THE CITY OF QUINCY, Plaintiff-Appellee, v. LINDA DANIELS, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0980
    Argued May 11, 1993.
    Opinion filed June 17, 1993.

      John J. Ammann (argued), of Land of Lincoln Legal Assistance Foundation, Inc., of Alton, for appellant.
    Anthony B. Cameron, of Quincy, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Following a bench trial in the circuit court of Adams County, defendant was found guilty of trespass under section 31.138 of the Municipal Code of the City of Quincy (Municipal Code) (Quincy, Ill., Municipal Code §31.138 (1980)) and fined $55 plus costs of $45. Defendant appeals claiming, among other things, that the trespass ordinance is inapplicable to a person whose presence on the property is at the express invitation of the tenant in possession. Furthermore, defendant contends that the Forcible Entry and Detainer Act (Forcible Entry Act) (Ill. Rev. Stat. 1991, ch. 110, par. 9 — 101 et seq.) is the exclusive remedy for settling disputes of this nature. The City of Quincy (City) states the Forcible Entry Act may be the exclusive remedy for landlords, but contends it does not preempt the City under its home-rule power to prosecute and civilly punish nontenant trespassers who have been properly warned. Based upon the facts in the present case, we reverse.

In December 1991, Terry Jones rented an apartment from George and Pat Davis. He signed a written rental agreement which appears, based upon court testimony, to have created a month-to-month tenancy. The rental agreement included a provision stating that the tenant shall not house permanent guests on the premises or assign or sublet the premises without the landlord’s permission.

In early March 1992, the Davises became aware that Jones’ mother, defendant Linda Daniels, was staying in the apartment. Her son had initially rented the apartment because of marital problems. By early March, he and his wife had begun to work out their problems and he was only staying in the apartment off and on. He gave permission to his mother to stay in the apartment.

Defendant was unemployed and, when she learned that her son was moving out, she contacted the Two Rivers Regional Council (Two Rivers) to determine whether it would pay her rent. The Davises testified that they first learned of defendant’s presence when they received a call from Two Rivers offering to pay rent. They refused the offer and immediately went to the apartment and notified defendant that she was trespassing and had 48 hours to move out. No attempt was made to collect rent or create a tenancy with defendant. At the same time, they contacted Jones and told him to get his mother out of the apartment. Jones advised the Davises he was planning to move out of the apartment and suggested that his mother be allowed to assume the tenancy. The Davises refused.

The trial record presents conflicting evidence regarding the status of Jones’ tenancy at the time the Davises learned of the presence of his mother. At one point, Pat Davis stated that Jones told her he had already moved out of the apartment. She believed the information received from Two Rivers verified this fact. This testimony should be compared with the somewhat contradictory exchange quoted below:

“Q. [Defense attorney in cross-examination:] At no time did you give Mr. — Mr. Jones a five[-]day notice to terminate his tenancy, or 10 day or 30 day.
A. [Pat Davis:] No.
[Defense attorney]: Thank you. I have nothing further.
REDIRECT EXAMINATION BY [Prosecutor]:
Q. Why not?
A. Oh, why didn’t I?
Q. Sure.
A. Because we (Inaudible) — oh, why didn’t we terminate his lease?
Q. Correct.
A. Okay. Because we didn’t know if he had moved. He was renting from us, which was fine, and then we found out that he had moved. He had terminated the lease.
Q. So he—
[Defense attorney]: I’m going to object to the foundation how she found out he had moved.
[Pat Davis]: He told us that he—
THE COURT: Sustained.”

She testified that when she inspected the apartment, it was clear to her that he no longer lived there. This conclusion was based upon the fact that she saw a lot of defendant’s things in the apartment and Jones was not present.

Jones testified that he resided at the apartment up until a week before the Davises changed the locks. He had given his mother permission to live there and never withdrew his permission. Although he was in the process of moving out, he still kept personal possessions such as clothes and furniture in the apartment. Contrary to Pat Davis’ statement, Jones testified, “I told her that I would move — I was moving out.”

After the 48 hours had elapsed, George Davis called the Quincy police department. Officer Window went to the apartment and told defendant he was there at the direction of Deputy Chief LaTour to inform her that anyone residing in the apartment other than the person who had signed the lease was trespassing and they were to vacate the property by the same time the following day. If she did not vacate the apartment, she would be arrested for trespassing. Defendant responded that it was her son’s apartment and that they would be talking to their attorney.

The following day, Officer Martin came to the residence and, after confirming that defendant had spoken with Officer Window on the day before, advised defendant she was trespassing and that she was to leave the premises. Defendant advised Martin that Jones was her son and that he lived there off and on. At this time, Martin formally charged defendant with trespassing and issued a citation. Sometime later, defendant left the apartment and the Davises had the locks changed.

There is no question that Jones created a valid tenancy in this apartment when he signed the rental agreement. Although staying in the apartment on an irregular basis at the time the citation was issued, Jones still kept personal possessions, including clothing and furniture, in the apartment. No notice was given that his lease had been terminated. Pat Davis testified that Jones had terminated the lease, but we find no evidence that he had willfully and completely abandoned the apartment. At best, Jones expressed an intention to terminate his tenancy at some future date.

Our court has held that a person on leased premises at the express invitation of the tenant is not a trespasser as a matter of law. (Karow v. Student Inns, Inc. (1976), 43 Ill. App. 3d 878, 883, 357 N.E.2d 682, 687; see also People v. Rynberk (1980), 92 Ill. App. 3d 112, 415 N.E.2d 1087.) This principle is reflected in section 21 — 3(c) of the Criminal Code of 1961 (Code), which states that a charge of criminal trespass to real property does not apply to anyone living on land by occupancy, leasing, or other agreement with the owner, nor to anyone invited by such a person to visit him at the place he is leasing. (Ill. Rev. Stat. 1991, ch. 38, par. 21 — 3(c).) This principle is absent from the Municipal Code under which defendant was charged and convicted. Section 31 — 138 of the Municipal Code provides in pertinent part that unlawful trespass can be defined, inter alia, as a failure or refusal to depart from the premises of another in case of being requested, either orally or in writing, to leave by any owner or occupant thereof. Quincy, Ill., Municipal Code §31.138(c) (1980).

The City agrees that a landlord’s exclusive remedy for evicting a person occupying property without right is the Forcible Entry Act. However, because the City has no property interest in this apartment building, it contends that it should not be preempted from asserting its home-rule power to prosecute trespassers under the municipal ordinance. We agree that the Forcible Entry Act does not preempt the City’s home-rule powers in this case. However, the trespass ordinance itself, to the extent that it creates a criminal offense for conduct which the legislature has deemed to be noncriminal, is void.

The Illinois Constitution of 1970 authorizes a home-rule unit to “exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare.” (Ill. Const. 1970, art. VII, §6(a).) The municipality may exercise and perform concurrently with the State any power or function of a home-rule unit to the extent that the General Assembly does not specifically limit the concurrent exercise or specifically declare the State’s exercise to be exclusive. (Ill. Const. 1970, art. VII, §6(i).) However, the committee on local government of the constitutional convention stated:

“[I]f the state legislates but does not express exclusivity, home-rule units retain the power to act concurrently, subject to limitations provided by law. (This last phrase referring to statutory limitations is intended to cover the case where the legislature intends to permit concurrent local legislation, but only within limits that are consistent with the state statutory scheme. Surely if the state is permitted to exclude local governments from areas where the state has acted, it also should be able to restrict the nature and extent of concurrent local activity.)” (Emphasis added.) 7 Record of Proceedings, Sixth Illinois Constitutional Convention 1643-44.

The committee notes clearly envision a home-rule unit’s concurrent exercise of power with the State as being subject to limitations provided by State law. This limitation is found in section 1 — 2(b) of the Code, which establishes that a primary purpose of the Code is to “limit the condemnation of conduct as criminal when it is without fault.” (Ill. Rev. Stat. 1991, ch. 38, par. 1 — 2(b).) Proof that the committee on local government anticipated this restriction is shown in its statement that “confusion could result if the state were powerless to impose one criminal code upon the entire state and forbid municipalities from defining crimes in differing ways.” (7 Record of Proceedings, Sixth Illinois Constitutional Convention 1642.) The legislature’s adoption of section 21 — 3(c) of the Code to our State law of trespass reflects a distinct statewide policy, underscored by court decisions, that criminal trespass may not be charged against invited guests on leased property. To the extent that it conflicts with this policy, the trespass statute of the City is invalid.

It is well settled that a landlord cannot use a criminal trespass statute to settle a dispute over the right of possession of land. (People v. Evans (1987), 163 Ill. App. 3d 561, 564, 516 N.E.2d 817, 819.) The City argues the ruling in Evans is limited to relationships between landlords and tenants. Because defendant has no transactional privity with the landlord, the City argues, the prohibition against prosecution disappears. Citing Curtis v. Hollenbeck (1900), 92 Ill. App. 34, the City contends that a person with no transactional privity does not enjoy the presumption of tenancy.

Leaving aside this strained interpretation of the Curtis decision, we find the issue of defendant’s tenancy irrelevant to the case at hand. As defendant was occupying the apartment at the express invitation of the leaseholder, the only question of any relevance is whether this lease was still valid. The determination of the validity of a lease or whether the terms of a lease have been violated requires the application of landlord-tenant law, an analysis particularly unsuited to the criminal courts. The Forcible Entry Act provides the complete remedy at law for settling such disputes. Evans, 163 Ill. App. 3d at 564, 516 N.E.2d at 819.

Reversed.

KNECHT and COOK, JJ., concur.