author: JUSTICE HAASE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDY S. FREEMAN, Defendant-Appellant.
    Third District
    No. 3—91—0680
    Opinion filed September 16, 1992.
    Rehearing denied October 20, 1992.

      Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Erik I. Blanc, State’s Attorney, of Pekin (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

Following a jury trial, the defendant, Andy S. Freeman, was convicted of home invasion (Ill. Rev. Stat. 1991, ch. 38, par. 12— 11(a)(2)). He was sentenced to 10 years’ imprisonment. The defendant appeals his conviction.

At trial, the defendant and the victim, Darren Parrish, presented two different versions of what had happened. The defendant testified that he and Parrish were rivals for the affections of Carrie Smith. Although Smith lived with the defendant and had a child by him, she would occasionally leave to travel with Parrish. Additionally, Parrish would occasionally call the defendant’s home and ask to talk to Smith.

On February 23, 1991, the defendant saw Parrish at a bar called J.J.’s. Parrish followed the defendant and indicated that he wanted to talk about Smith. The defendant told Parrish to leave or he would “knock his head off.”

The defendant further testified that on the night of February 26, he again saw Parrish at J.J.’s. Parrish approached him three or four times and indicated that he wanted to talk, but each time the defendant would walk away. The defendant consumed approximately seven or eight beers and then left.

At approximately 3:50 a.m., the defendant arrived home. Smith accused him of cheating on her and stated that Parrish had stopped by to see her at around 3 a.m. The defendant was upset, so he decided to drive to Parrish’s house to talk to him.

Once at Parrish’s home, the defendant knocked on the door. Parrish asked who was there, but the defendant did not respond and instead knocked again. Parrish again asked who it was, but the defendant again refused to answer. Parrish opened the door and told'the defendant, “Let me put my pants on.”

Although Parrish did not give him permission to enter, the defendant stepped into the home because he was cold. He noticed Parrish reach under his television and pull out a knife. The defendant then punched Parrish on the side of the head. Parrish fell to his knees, and the defendant grabbed him and hit him a couple more times. After taking the knife from Parrish and throwing it to the side, the defendant proceeded to flip up the covers on Parrish’s couch because he had been told that Parrish owned a gun. Noticing that Parrish was trying to get up, the defendant “popped him again” and told him to stay on the floor.

The defendant then went into Parrish’s bedroom, flipped up the mattress, and asked Parrish, “Where’s that goddamn gun?” By that time, Parrish had wet his pants and was on the floor crying. The defendant left after not finding a gun.

While walking down the stairs outside Parrish’s home, the defendant heard Parrish swearing and coming towards the door. The defendant then saw Parrish come out with a crowbar. Parrish swung the crowbar at him, but the defendant caught it with his hand. The two struggled for control of the bar and wound up back inside Parrish’s home. Eventually the defendant got control of the crowbar and stood over Parrish, who was on the floor crying. The defendant used the crowbar to smash a hole in the floor to show Parrish the damage such an object could cause. While the defendant pulled the crowbar out of the floor, Parrish covered his face and repeatedly said, “Please don’t kill me.” After the defendant removed the crowbar from the floor, he left the house and took the crowbar with him. He subsequently threw the bar out on his way back home.

The defendant admitted that he did not need to go to the hospital following the incident. Additionally, he admitted that he did not report the incident to the police.

Parrish testified that on the night in question, he was at J.J.’s bar. He saw the defendant there, but did not speak to him. Parrish left the bar after he had a couple of beers.

On his way home, Parrish stopped at a gas station to call Smith. He told her that the defendant was with another woman. Additionally, he talked to her about getting back together. Following his conversation with her he went home, locked his door, and went to sleep.

At approximately 4:30 a.m., he was awakened by blows to his head. He saw the defendant hitting him, but he could not see what he was being hit with until he managed to get out to the living room, where the lights were on. He then saw that the defendant was hitting and stabbing him with a crowbar-like pipe that belonged to Parrish. The defendant told Parrish, “I’m going to kill you.” Parrish begged for his life, and the defendant stopped beating him. However, the defendant subsequently put a knife Parrish owned to Parrish’s throat and threatened to kill him and hurt his parents if he went to the police. The defendant then left, taking the pipe with him.

After the defendant left, Parrish managed to get up, put on his clothes, and drive to his parents’ house. Once there, the police were called and Parrish went to the hospital. At the hospital he was treated for a cut on his forehead; two black eyes; a swollen nose; a bloody lip; stab wounds to his side, leg, and ankle; and a large cut on his hand.

Police officer William Marion testified that on the morning in question he went to Parrish’s home to investigate a home invasion. He saw Parrish’s injuries and took photographs of them. These photographs were entered into evidence. He also photographed the damage to Parrish’s apartment, which included a broken light, a smashed television, bloodstained couch cushions, holes in the floor, and a broken deadbolt latch. He then went to the defendant’s residence to talk to him. The defendant told Officer Marion that he did not know what Marion was talking about. Officer Marion did not notice any injuries to the defendant at that time.

Carrie Smith testified that on the night in question, the defendant was upset after he came home from the bar. He went to Parrish’s home and returned later that morning. Later that day, she noticed bruises on one of his hands. She also noted that when she helped Parrish move in September of 1990, his door was damaged but the deadbolt was not broken.

Larry Ziegenbein testified that he was a friend of the defendant, On the night in question, he was at J.J.’s bar with the defendant. Once that night, he saw the defendant stand next to Parrish. The defendant then walked away from Parrish. At some point that evening, Ziegenbein told Parrish that he should leave the defendant alone. Ziegenbein admitted that he was too intoxicated to recall much else.

Following all the testimony, a jury instruction conference was held. The court allowed the defendant’s instructions on the lesser included offense of battery, which included as a proposition to be proved that the defendant was not justified in his actions. However, the trial court refused to give the defendant’s justification instruction with respect to the home invasion. In denying the instruction, the court determined that self-defense was not applicable to home invasion.

The jury was instructed to return a verdict of either not guilty, guilty of battery, or guilty of home invasion. The jury found the defendant guilty of home invasion, and he was later sentenced to 10 years’ imprisonment.

On appeal, the defendant contends that the trial court erred by failing to instruct the jury that in order to find the defendant guilty of home invasion, it had to find that the defendant was not justified in causing bodily harm. The defendant argues that although his entry was unauthorized, once he was in the apartment, he acted in self-defense. He suggests that the court recognized the viability of the self-defense claim when it allowed the battery instructions to require a showing that the defendant’s actions were not justified.

A careful review of the record discloses that the trial court refused to allow the requested self-defense instructions on the charge of home invasion because, in its opinion, section 7 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 7 — 4) provided that self-defense was not a defense to home invasion.

We note that section 7 — 4 states the following concerning the use of force by an aggressor:

“The justification described in the preceding Sections of this Article is not available to a person who:
(a) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
* **
(c) Otherwise initially provokes the use of force against himself, unless:
(1) Such force is so great that he reasonably believes that he is in imminent danger of death or great bodily harm, and that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(2) In good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.” Ill. Rev. Stat. 1991, ch. 38, par. 7 — 4.

There may be situations in which a defense of justifiable use of force by an aggressor is permissible as a defense in a home invasion. The language of section 7 — 4 on its face leaves open the possibility for such a defense. As this court stated in People v. Bitner (1980), 89 Ill. App. 3d 1106, 1109, 412 N.E.2d 721 “[I]t is the unauthorized entry which is the mental state proscribed at the time of entry, and no other intent at the time of entry to commit some other criminal act is required.” The intention to cause any injury to any person or persons within such dwelling place can arise subsequently to the unauthorized entry. It does seem to this court possible that situations could arise in which events subsequent to the unauthorized entry would occur which would justify the justifiable use of force as set forth in section 7 — 4. However, we are not called upon here to review all the possible factual situations that might arise in a hypothetical context. Rather, this court must deal with the facts that were presented in the trial of this case. Whether the trial judge was theoretically correct in stating that justifiable use of force could never be a defense in a home invasion case is irrelevant. The real question before this court is the correctness of the trial court’s conclusion applied to the facts of this case, and not the validity of its rationale. (People v. York (1963), 29 Ill. 2d 68, 193 N.E.2d 773.) We hold that the trial court did not err in failing to provide the tendered justifiable use of force instruction in the instant case. Even if the defendant’s version of the story was found to be credible, he was still the aggressor and his actions viewed in the light most favorable to him fell far short of complying with the requirements of section 7 — 4.

Here, the defendant admitted that he had threatened to knock the victim’s head off. A couple days later, the victim visited the defendant’s girlfriend and the defendant became upset. Despite the fact that it was 4 a.m., the defendant drove to the victim’s home and knocked on his door. When the victim asked who was there, the defendant refused to identify himself. He then entered without authority. We find these actions belie the defendant’s claim that his visit was for peaceful purposes. We further find that these actions were sufficient to establish that the defendant was the aggressor. See People v. Sloan (1986), 111 Ill. 2d 517, 490 N.E.2d 1260.

Even if the defendant subsequently felt threatened by the victim, he was still obligated under section 7 — 4 to exhaust every reasonable means of escape other than the use of force. When the defendant saw Parrish pull out the knife, he could have fled. Instead, he chose to remain and engage in a physical confrontation with Parrish. After he struck and disarmed Parrish, the defendant again had the opportunity to retreat. However, he remained in the home and searched for a gun. He also struck Parrish again. By the end of the night’s confrontation, Parrish was begging for his life.

In light of the foregoing facts and the disproportionate injuries suffered by the victim as opposed to the defendant, it is clear that even if the defendant’s testimony was believed, his actions failed to constitute self-defense in light of the limitations of section 7 — 4. (See People v. Sloan (1986), 111 Ill. 2d 517, 490 N.E.2d 1260; People v. Davidson (1987), 160 Ill. App. 3d 99, 514 N.E.2d 17.) Under these circumstances, we find that the defendant was not entitled to self-defense instructions regarding the home invasion.

The judgment of the circuit court of Tazewell County is affirmed.

Affirmed.

GORMAN and McCUSKEY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD FAIRCLOTH, Defendant-Appellant.
    Third District
    No. 3—90—0435
    Opinion filed September 10, 1992.

      Josette Skelnik, of Law Offices of Josette Skelnik, of Elgin (Michael Kalland, of counsel), for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Following a jury trial, the defendant, Edward Ray Faircloth, was convicted of delivery of a controlled substance (Ill. Rev. Stat. 1989, ch. 56½, par. 1401), possession with intent to deliver a controlled substance (Ill. Rev. Stat. 1989, ch. 561k, par. 1401), and drug-induced homicide (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3.3). The defendant was sentenced to consecutive sentences of 30 years for drug-induced homicide, 15 years for delivery of a controlled substance and 15 years for possession with intent to deliver a controlled substance.

Defendant raises three issues on appeal: (1) whether the trial court erred by refusing to submit a jury instruction regarding the offense of involuntary manslaughter (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3); (2) whether the trial court improperly admitted into evidence certain letters written by the defendant without laying a proper foundation; and (3) whether the defendant was denied effective assistance of counsel.

On September 13, 1989, a paramedic with the Romeoville fire department, Valerie Bubica, responded to a call at 625 Glen Street. According to the caller, there was a young person suffering convulsions, having difficulty in breathing, and bleeding from the mouth. Bubica arrived on the scene and found the defendant sitting on the floor and supporting the limp body of Sandra Parise. Bubica concluded that Parise was in cardiac arrest. Bubica called for assistance and, noticing what appeared to be fresh needle marks on Parise’s arms, she also called the police. Parise was transported to the hospital and died soon after. The doctor who performed the autopsy testified that Parise died from the adverse effects of cocaine.

The State’s principal witness at trial was Marie Gilbert. Gilbert was a friend of both the defendant and Sandra Parise. Gilbert testified that on September 11, 1989, she went to Pete Millette’s house to obtain cocaine. Millette gave Gilbert one-half gram of cocaine in return for her having sex with him. While she was at Millette’s house, the defendant showed up there to purchase cocaine. Gilbert was hiding in the bathroom at the time but recognized the defendant by his voice. Millette told Gilbert that he had “fronted” half a gram of cocaine to the defendant. Under this arrangement, the defendant would pay for the cocaine later.

Later that day, Gilbert joined the defendant and Sandy Parise at the house at 625 Glen Street. This house belonged to the defendant’s sister, Robin Oxendine, and her husband. The three of them used up all of the cocaine by Sunday evening and decided to obtain more from Pete Millette. Gilbert believed that the defendant was going to steal the cocaine. Gilbert and Parise waited down the block while the defendant went to Millette’s house. When they heard the sound of glass breaking, they began walking toward Millette’s house. The defendant soon appeared from the direction of Millette’s backyard with a rock of cocaine in his pants. Gilbert believed the rock weighed approximately two ounces. After the three of them arrived back at Oxendine’s house, the defendant began injecting himself and the two girls with the cocaine. They had approximately six to seven injections apiece. The next day, September 12, Parise and Gilbert went to Gilbert’s house to prepare some of the cocaine to be sold. While doing so, they each snorted some of the cocaine.

On September 13, the defendant again got together with Parise and Gilbert to take more cocaine. This time the three of them met at the Oxendines’ trailer on the lake. After receiving two injections from the defendant, Parise began to snort cocaine. When the defendant’s brother-in-law, Tom Oxendine, ordered them to leave the trailer, they went back to the house on Glen Street. The three of them took a brief detour, stopping at a baseball field to take more cocaine. When they eventually arrived back at the Glen Street house at approximately 10 p.m. they again began to take cocaine. Gilbert eventually decided she did not want any more cocaine and went to sleep. Robin Oxendine woke Gilbert up at approximately 5 a.m. to tell her that Parise was having a seizure. Gilbert found the defendant holding Parise’s convulsing body. The defendant told Gilbert not to tell Robin Oxendine what was wrong with Parise.

At the time of Parise’s death, Gilbert told the police that the cocaine belonged to the defendant. Her statement to the police was generally consistent with her testimony at trial. However, she did not mention to the police that she believed the defendant broke into Millette’s house, and she also did not inform them that she had also obtained cocaine from Millette.

While the defendant was in prison awaiting trial he engaged in a mutual correspondence with Gilbert. They each wrote each other many times and also had a few telephone conversations. During the phone conversations and in the letters, the two of them discussed the possibility of Gilbert .changing her statement to the police. The defendant wanted Gilbert to tell the police that the cocaine in fact belonged to Parise. The defendant even went so far as to draft a letter he wanted Gilbert to send to the judge. The letter stated that her original statement to the police was a lie, that the cocaine in fact belonged to Parise, and that the defendant was not to blame for Parise’s death. Gilbert agreed in her letters to go along with the story that the cocaine belonged to Parise. She told this changed story to an investigator from the public defender’s office. At trial, Gilbert went back to her original story, stating that she did not want to go to prison for lying.

The defendant argues that it was error for the trial court to refuse his requested jury instruction on the offense of involuntary manslaughter. When a defendant is charged with a single offense, he can only be convicted of an offense that was not charged if it is a lesser included offense of the one charged. (People v. Schmidt (1988), 126 Ill. 2d 179, 533 N.E.2d 898.) Therefore, a jury instruction on involuntary manslaughter would only be appropriate if involuntary manslaughter is a lesser included offense of drug-induced homicide. An included offense is defined by statute as follows:

“ ‘Included offense’ means an offense which
(a) Is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged, or
(b) Consists of an attempt to commit the offense charged or an offense included therein.” (Ill. Rev. Stat. 1989, ch. 38, par. 2 — 9.)

Drug-induced homicide and involuntary manslaughter are defined as follows:

“A person who violates subsection (a) or subsection (b) of Section 401 of the Illinois Controlled Substances Act by unlawfully delivering a controlled substance to another, and any person dies as a result of the injection, inhalation or ingestion of any amount of that controlled substance, commits the offense of drug induced homicide.” Ill. Rev. Stat. 1989, ch. 38, par. 9— 3.3.
“A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly ***.” Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3.

In the recent case People v. Jones (1992), 149 Ill. 2d 288, the Illinois Supreme Court, relying on its decision in People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413, stated that the proper test to be used in determining whether one offense is a lesser included offense of another is whether the charging instrument, together with the evidence introduced at trial, sets out the main outline of the lesser offense. The charging instrument does not need to expressly allege every element of the lesser offense, but the lesser offense does need to have a broad foundation in the instrument charging the greater offense. (People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413.) In the instant case, the charging instrument does not set out the main outline of involuntary manslaughter. Although it is not required that the charging instrument set out every element of the lesser offense, the indictment in this case does not set out any element of the lesser offense. The indictment in this case, on the charge of drug-induced homicide, charged that the defendant “knowingly and unlawfully delivered a substance containing Cocaine [sic] to Sandra A. Parise other than as authorized by the Illinois Controlled Substances Act, Chapter 5Q1k, Section 1401, and as a result of said delivery Sandra A. Parise died from the injection of said cocaine.”

The elements of involuntary manslaughter are an unintentional killing and reckless performance of an act that causes the victim’s death. The cause of Sandra Parise’s death was the adverse effects of cocaine. The indictment did not charge the defendant with administering the cocaine to Parise or with acting recklessly. Therefore, the indictment did not set out the main outline of the offense of involuntary manslaughter. The drug-induced homicide statute is a unique statute that imposes criminal responsibility for the death of a person on anyone in the chain of delivery of controlled substances that were the cause of that person’s death. The indictment in this case charged the defendant with making such a delivery and that Sandra Parise died from taking those substances. The mental state in this statute is “knowingly,” which comes from section 401 of the Controlled Substances Act of 1971 (Ill. Rev. Stat. 1989, ch. 56½, par. 1401), which prohibits a knowing manufacture, possession, or delivery of a controlled substance. The defendant just needs to make a knowing delivery of a controlled substance, and if any person then dies as a result of taking that substance, the defendant is responsible for that person’s death. That is all that the indictment in this case charged. In the instant case, the indictment charging the defendant with drug-induced homicide did not sufficiently allege the conduct and mental state required for involuntary manslaughter. Therefore, the circuit court was correct in denying the defendant’s proffered jury instruction.

The defendant claims that the test for a lesser included offense is that established by the Supreme Court in Grady v. Corbin (1990), 495 U.S. 508, 109 L. Ed. 2d 548, 110 S. Ct. 2084, and followed by the Illinois Supreme Court in People v. Stefan (1992), 146 Ill. 2d 324, 586 N.E.2d 1239. That test looks at whether the government will seek to prove conduct that constitutes an offense for which the defendant has already been prosecuted. The defendant’s reliance on these cases is misplaced. Grady and Stefan state the proper test to be used in determining whether offenses are the same for double jeopardy purposes. The Illinois Supreme Court’s decisions in Schmidt and Jones state the proper rule for when an instruction on an offense not charged needs to be given to the jury.

The defendant also argues that the trial court erred in admitting into evidence the letters written by the defendant while he was in prison. According to the defendant the letters were not properly authenticated because Marie Gilbert did not recognize the defendant’s handwriting. Prior to receiving the letters, Gilbert had not seen the defendant write anything. Nevertheless, proof of handwriting is not necessary to properly authenticate a private letter; such authentication may be made by circumstantial evidence. People v. Munoz (1979), 70 Ill. App. 3d 76, 388 N.E.2d 133.

In the instant case, the circumstantial evidence that the defendant was the author of the letters was overwhelming: the letters bore the return address of the Will County jail; many of the letters were in response to letters written by Gilbert; the letters were signed “Love, Ray” (the name defendant went by); the letters discussed many subjects that only the defendant knew about, including details of the night Parise died; and the defendant discussed the contents of the letters with Marie Gilbert on the phone. Similar circumstantial evidence was held to be sufficient for authentication in Munoz and also in People v. Buford (1982), 110 Ill. App. 3d 46, 441 N.E.2d 1235.

The defendant claims that the correct rule for authentication of private writings is the rule established by the Illinois Supreme Court in Putnam v. Wadley (1866), 40 Ill. 346. The defendant’s reliance on that case is misplaced. Putnam dealt with the question of proof of signatures on commercial paper, not with proof of authorship of private letters. Based on the decision in Munoz, we find that the circuit court correctly admitted the letters into evidence.

Further, the defendant claims that he received ineffective assistance of counsel, in that defense counsel erred in failing to request a jury instruction that Marie Gilbert’s prior inconsistent statements could be used as substantive evidence. According to the defendant, this error was compounded when counsel himself instructed the jury that Gilbert’s statements could only be used for impeachment purposes. The standard for measuring ineffective assistance of counsel claims was established by the Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; the defendant must show that (1) counsel’s performance was so seriously deficient as to fall below an objective standard of reasonableness under prevailing professional norms and (2) that the deficient performance so prejudiced the defense as to deny a fair trial. It is often easier to dispose of an ineffectiveness claim based on the second prong of the test — lack of prejudice — and counsel’s performance need not be evaluated if it can be shown that the defendant suffered no prejudice. People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.

A witness’ prior inconsistent statement may be used as substantive evidence as well as for impeachment purposes (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10.1). Failure to make use of the statute allowing prior inconsistent statements to be used as substantive evidence can be a basis of a claim for ineffective assistance of counsel. (People v. Wilson (1986), 149 Ill. App. 3d 1075, 501 N.E.2d 863.) However, counsel’s decision not to use a witness’ prior statement substantively may be a reasonable strategic decision. (People v. Steidl (1991), 142 Ill. 2d 204, 568 N.E.2d 837.) Also, counsel does not have to seek a jury instruction that counsel reasonably believes the jury would not believe. People v. King (1991), 218 Ill. App. 3d 248, 578 N.E.2d 217.

The defendant in this case relies most heavily on People v. Wilson (1986), 149 Ill. App. 3d 1075, 501 N.E.2d 863, a case in which the defendant was granted a new trial because defense counsel failed to utilize the statute allowing a prior inconsistent statement to be used as substantive evidence. In that case, a woman who was the victim of a purse snatching originally stated that after the defendant grabbed her purse he fired a shot at her over his left shoulder, without looking back, with a gun he held in his right hand. At trial the victim testified that the defendant held the gun in his left hand, looked back, and fired over his right shoulder. The court in that case found that if the jury would have been allowed to consider the first statement as substantive evidence, a jury instruction on reckless conduct would have been appropriate. Because the prior inconsistent statement did not come in substantively, no instruction on reckless conduct was given and the defendant was found guilty of attempted murder. The court found that counsel’s failure to use the statements as substantive evidence deprived the defendant of an essential element of his defense.

In deciding an ineffectiveness claim, a court must consider the totality of the evidence before the jury. (Wilson, 149 Ill. App. 3d 1075, 501 N.E.2d 863.) In this case, unlike the Wilson case, there was overwhelming evidence that Gilbert’s prior inconsistent statements were made at the defendant’s behest. The defendant wrote Gilbert numerous letters asking her to change her original statement to the police, and also drafted a letter for her to send to the judge in the case saying that her original statement was a lie. Gilbert stated at trial that she agreed to the changed story for a while because she wanted to run away with the defendant. She testified at trial that she would not continue to give the defendant’s version of the events because she did not want to go to prison for lying.

Considering the totality of the evidence before the jury, we do not believe that the defendant suffered prejudice as a result of defense counsel’s failure to use Gilbert’s prior statements as substantive evidence. The statements did come in for impeachment purposes, so the jury would have been entitled to disbelieve Gilbert’s testimony. Also, because the evidence was so overwhelming that the inconsistent statements were made at the defendant’s behest, we do not believe that the result at trial would have been any different if the jury would have been allowed to consider those statements substantively. Therefore, we hold that the defendant suffered no prejudice. Because of this finding, it is unnecessary for us to decide whether or not defense counsel’s performance was actually deficient.

We could find no other cases in this jurisdiction involving the drug-induced homicide statute, and no issue was raised by the parties as to the validity of that statute.

For all of the above reasons, the decision of the circuit court of Will County is affirmed.

Affirmed.

McCUSKEY and HAASE, JJ., concur.


author: PRESIDING JUSTICE INGLIS JUSTICE BOWMAN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL S. JOYCE, Defendant-Appellant.
    Second District
    No. 2—90—0229
    Opinion filed September 4, 1992.

      BOWMAN, J., dissenting.
    G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva, and Craig T. Martin, of Chapman & Cutler, of Chicago (William L. Browers, John X. Breslin, Judith Z. Kelly, and Jay Paul Hoffman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Michael Joyce, was charged by indictment with the offense of child abduction (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 5(b)(10)). Following a bench trial in the circuit court of Kane County, defendant was convicted of child abduction and sentenced to a 30-month term of probation, with the first 12 months to be intensive probation.

Defendant raises the following issues on appeal: (1) whether section 10 — 5(bX10) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 5(b)(10)) is unconstitutionally vague; (2) whether the indictment failed to set forth adequately the nature and elements of the charged offense; (3) whether the attempt language of the child abduction statute violates the principles of due process and proportionate penalties; (4) whether defendant was proved guilty beyond a reasonable doubt; (5) whether the trial court relied on an unconstitutional presumption set forth in the statute; and (6) whether the trial court’s denial of a defense motion for a continuance to obtain an evaluation of defendant’s sanity was an abuse of discretion. We note that defendant raised similar arguments, including the challenges to the constitutionality of section 10 — 5(b)(10) in case No. 88 — CF—52. See People v. Joyce (1991), 210 Ill. App. 3d 1059 (Joyce I).

On February 16, 1988, a Kane County grand jury indicted defendant on three counts of child abduction. Count I of the indictment alleged that, between December 12 and 20, 1987, defendant intentionally attempted to lure B.N., a child under age 16, into a motor vehicle for other than a lawful purpose and without the consent of a parent or lawful custodian.

Defendant sought a bill of particulars to specify both the manner of the alleged attempt to lure B.N. into a motor vehicle and the unlawful purpose that defendant allegedly harbored at the time. The trial court ordered the State to supply the possible unlawful purposes on which it was relying. The State responded by supplying a list of 29 possible unlawful purposes which included homicide, battery, kidnapping, sexual assault, and sexual abuse.

Defendant then moved to dismiss the indictment, alleging, inter alia, that section 10 — 5(b)(10) of the Code is vague, overly broad, and unenforceable and that, by creating an improper presumption, section 10 — 5(b)(10) shifts the burden of proof to the defendant to prove a lawful intent. On June 9, 1988, the trial court denied the motion, finding that section 10 — 5(b)(10) was not unconstitutionally vague or overly broad and that it did not impermissibly shift the burden of proof to the defendant.

Defendant again moved to dismiss the indictment. He sought reconsideration of the trial court’s denial of his June 9 motion and additionally argued that section 10 — 5(b)(10) of the Code improperly combined choate and inchoate offenses since, in contradiction of the attempt statute (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4), luring and attempting to lure a child are treated the same. The trial court denied both reconsideration of its June 9 order and the new motion to dismiss.

On December 23, 1988, defendant’s attorney was allowed to withdraw from the case and the Kane County public defender was appointed to represent defendant. On September 29, 1989, the State filed an additional bill of particulars indicating that the offenses occurred between December 10 and 18, 1987, on a school day. On October 16, 1989, the public defender moved for a continuance because defendant had decided to retain different counsel. The trial court granted the continuance but informed defendant that the next trial date would be final and that the new attorney should be so informed. The court set a status date of October 23, 1989. On October 23, the public defender informed the court that attorney Stephen Komie would enter an appearance for defendant on October 27. At that time, the court set a trial date of December 4, 1989. Defendant appeared before the court with attorney Komie on October 27. Komie indicated that financial arrangements were being finalized and requested a status date. The court agreed to set a date, but informed counsel that the December 4 trial date would not be continued. The court also informed defendant that the public defender would remain as counsel until private counsel entered a formal appearance. On November 9, attorney Komie entered his appearance, and the public defender was allowed to withdraw from the case.

On December 4, 1989, the case proceeded to trial. The State presented the testimony of B.N., her parents, and two Batavia police officers. Defendant presented the testimony of the same two police officers, B.N.’s mother, defendant’s wife and Dr. John Kluczynski.

The following evidence was adduced at trial. B.N. was bom on February 2, 1973, and lived with her parents in Batavia, Illinois, in December 1987. During that time, neither her mother nor her father gave defendant permission to ask B.N. into a car or to give her a ride home from school.

B.N. would normally catch the bus to Valley Lutheran High School at a location that was three blocks north of her home at Washington and State. A church with a parking lot was located near her bus stop. One day in December when there was snow on the ground, B.N. got off the bus at the usual time of 3:25 p.m. No other student got off the bus at the stop that day. As B.N. walked south on Washington toward her home, she heard a vehicle turn into the driveway of the church parking lot behind her. B.N. then heard a man yell, “Do you want a ride?” B.N. turned around and saw a man with his face sticking out of the window of a pickup truck parked in the lot, 10 to 15 feet away. The driver’s side of the track was facing B.N. B.N. said “[n]o” to the man in the pickup track. The man then stated, “Come on, I don’t bite.” B.N. again said “[n]o.” As she continued walking south, B.N. heard tires squealing and turned back to see the truck driving away from the parking lot. B.N. then went home and told her mother what had happened.

B.N. described the track and the driver, whom she had never seen previously. The track was “blue-grayish” with “a lot of rust on it.” She did not recall whether the track had any dents but stated that it was missing its tailgate. According to B.N. the man in the track had dark brown, uncombed hair and a couple days of beard growth. The man was 24 to 26 years old and had little, dark eyes. In court, B.N. identified defendant as the man she saw in the pickup track.

B.N. also testified about an incident that took place on January 15, 1988. As she got off the bus after school on that day, B.N. saw the defendant across the street, driving north on Washington. He was in the same truck he was in in December. Defendant was almost standing up in the driver’s seat, and his upper body was hanging out of the window as he drove at five to seven miles per hour. As B.N. walked south, she saw the truck turn a comer off of Washington. B.N. then stopped to talk to two friends who were in a car driven by the mother of one of the friends. Thirty seconds after seeing the truck turn, B.N. noticed it again behind her friend’s mother’s car, pointed south. Defendant, who was now fully inside the truck, did not say anything. At that point, B.N. said jokingly to her friends, “[t]he child molester is back.”

B.N. next walked to a nearby store. She had already entered the store to get something to eat when the truck passed by, heading west on Wilson. When she came out of the store a minute later and walked south on Washington, the truck was going slowly south on Washington. The truck turned east on Webster Street while 15 feet ahead of B.N. B.N. went home and told her mother that she had seen the man again. B.N. and her father then went to the Batavia police station and spoke with Officer Donald Hubbard. B.N. described the offender and the truck to the police. She looked at a group of photographs and selected defendant’s photograph, stating “[tjhat’s him. I am positive.”

Defendant opened his case with the presentation of a stipulation that the record custodian of defendant’s place of employment would testify consistently with certain defense exhibits, which reflect defendant’s places and hours of work on various days in December 1987. Defendant did not, however, punch a time clock at the jobsites.

Sherida Joyce was married to defendant for one year as of the time of trial and lived with him in Elgin in December 1987. At that time, defendant owned a 1985 Dodge Ram pickup truck which was medium blue with a silver metallic glaze. According to defendant’s wife, the truck did not have any rust spots, but it did have a tailgate. Defendant’s truck was not operational in December 1987 due to a problem with the brakes. Defendant’s wife would drive defendant to and from work each day between December 7 and 31. Defendant normally worked from 7 a.m. to 3:30 p.m. and would usually get home around 4:30 p.m. Two photographs of defendant’s truck which B.N. had previously failed to recognize did in fact show defendant’s truck. Three of the photographs which B.N. picked out did not show the truck. The photographs of defendant’s truck were taken in the spring or summer of 1988.

Dr. John Kluczynski also testified for defendant. Dr. Kluczynski is a clinical psychologist and was the senior psychologist at the Kane County Diagnostic Center when defendant was evaluated in December 1988. Defendant’s tests were administered by a doctoral student in psychology under Dr. Kluczynski’s direction. The student also conducted a clinical interview of defendant. Dr. Kluczynski did not personally meet with defendant, but did supervise the work by the student.

According to Dr. Kluczynski, the tests and interview revealed that defendant suffers from the chronic mental disorder of paranoid schizophrenia. The date of the onset of the disorder was not determined. Due to the disorder, defendant would have difficulty in accurately judging and responding to social or interpersonal situations. He would distort situations and fail to understand circumstances and his role in. them and on occasion would dismiss his judgment and act on his feelings and thoughts. Defendant’s psychotic thinking evidenced a loss of reality and could affect his ability to appreciate the imposition and requirements of the law. The Kane County Diagnostic Center recommended that defendant receive psychotherapy and that a psychiatric evaluation be done to determine if psychotropic medication should be provided.

The diagnostic center did not assess defendant’s fitness or sanity. Dr. Kluczynski would have had to interview defendant and review other background materials, such as police reports, to make a determination whether the disease was in an acute phase or whether defendant was sane at the time of the crime. Defendant was able to control himself on the date of testing, but Dr. Kluczynski was unable to say if defendant had such control in December 1987. Defendant’s actions could have been the product of his mental illness or a manifestation of bad judgment.

At the close of Dr. Kluczynski’s testimony defendant’s attorney moved for a continuance in order to obtain an evaluation of defendant’s sanity at the time of the offense. Counsel stated that he had not had the case for very long and that he had not been able to contact the doctor since receiving the psychological report. The State objected to the motion for continuance, and the trial court denied the motion stating that the case had been pending for a long time and further that defendant had been competently represented.

In convicting defendant of child abduction, the trial court found B.N.’s testimony to be credible and found the identity of the offender to be proven. The court found that defendant’s conduct constituted luring as that term is commonly defined and that defendant’s purpose was demonstrated to be unlawful, whether or not the statutory inference for child abduction cases was relied upon. The court also found that defendant had not established insanity by a preponderance of the evidence. The court then found defendant guilty but mentally ill and ordered a follow-up psychological examination. After denying defendant’s motions in arrest of judgment and for a new trial, the trial court sentenced defendant to a 30-month term of probation, with the first year to be served on intensive probation. Defendant thereafter filed his timely notice of appeal.

As indicated at the outset of our opinion, defendant raises certain issues in the instant appeal that are similar to issues he raised in People v. Joyce (1991), 210 Ill. App. 3d 1059, which case was still pending at the time defendant’s initial appellate brief was filed. In particular, defendant argues that section 10 — 5(b)(10) of the Code is unconstitutional because certain elements of the offense, the luring or attempted luring of a child “for other than a lawful purpose,” are impermissibly vague. In addition, defendant argues that, even if the statute is not unconstitutionally vague, his indictment should have been dismissed because, although the indictment tracks the language of the statute, the offense of child abduction is one which requires greater specificity in the charge.

In his initial brief to this court, defendant states that these two issues, but for the name of the complainant, are identical to issues he raised in Joyce I and further that he incorporates by reference and adopts the arguments presented in the prior appeal as his arguments in the instant appeal. In his reply brief, defendant acknowledges that this court has subsequently ruled adversely to him on these issues.

Specifically, we found in Joyce I that the child abduction statute was not impermissibly vague and stated that “ ‘[gjiven its ordinary meaning, the phrase “other than a lawful purpose” means any purpose which is unlawful.’ ” (Joyce, 210 Ill. App. 3d at 1065, quoting People v. Williams (1990), 133 Ill. 2d 449, 454.) We also found that, since the Williams court held that the meaning of the phrase “other than a lawful purpose” referred to any unlawful purpose, the ordinary meaning of the phrase “for a lawful purpose” therefore referred to any purpose that was lawful. 210 Ill. App. 3d at 1066.

Regarding the sufficiency of the indictment, we noted in Joyce I that the indictment approved in Williams also tracked the language of section 10 — 5(b)(10) and did not specify any particular unlawful purpose. We found, therefore, that defendant was sufficiently apprised of both the nature and the elements of the offense. 210 Ill. App. 3d at 1067, citing Williams, 133 Ill. 2d at 454.

As stated, defendant concedes that we have ruled adversely to him on these identical issues concerning statutory vagueness and the sufficiency of the indictment. Defendant does not argue that we should reconsider our previous holdings in Joyce I, and we see no reason to do so. In the instant case, therefore, the trial court’s rulings in this regard are affirmed.

Defendant also contends that section 10 — 5(b)(10) of the child abduction statute is unconstitutional in that it violates the principles of due process and proportionate penalties. This particular question is at issue pursuant to our order of July 30, 1991, granting defendant’s motion for leave to add another issue to his brief. Specifically, defendant argues that the statute, which punishes both luring and attempting to lure a child into a motor vehicle for other than a lawful purpose as Class 4 felonies, violates article I, section 11, of the Illinois Constitution because it does not punish according to the seriousness of the crime, and it violates due process because its penalty provisions are not rationally related to the statute’s objective. (Ill. Const. 1970, art. I, §§2, 11.) As indicated earlier, defendant’s pretrial motion to dismiss the charge on the basis that choate and inchoate offenses are combined in section 10 — 5(b)(10) contrary to the attempt statute (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4) was denied.

Defendant argues that the child abduction statute violates the proportionality clause of the Illinois Constitution in that it creates impermissible prosecutorial discretion, since the State could have chosen to prosecute defendant under the attempt statute, in which case defendant would have been convicted of only a Class A misdemeanor. (See Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4(c)(5).) We believe this argument to be fatally flawed in at least two respects.

First, the defendant errs in assuming that the State had the option to prosecute him under either the attempt statute or the child abduction statute. Rather, under the “preemption doctrine,” when the legislature specifically made attempted child abduction a Class 4 felony under the child abduction statute, it preempted any opportunity for the State to charge defendant under the more general attempt statute.

This court recently applied the preemption doctrine in People v. Stupka (1992), 226 Ill. App. 3d 567. In Stupka, we held that, where the statute prohibiting the delivery of a controlled substance specifically included attempted delivery of a controlled substance, the State could not prosecute the defendant under the more general attempt statute. (Stupka, 226 Ill. App. 3d at 574.) We made a further observation which is equally applicable here: that the express inclusion of attempt in the specific offense demonstrated the legislature’s intent to treat the attempted offense equally as seriously as the completed offense. 226 Ill. App. 3d at 574.

A second flaw in defendant’s argument is that it is not supported by the case law he cites. In People v. Christy (1990), 139 Ill. 2d 172, the same act (commission of a kidnapping with a category I weapon) supported convictions both of aggravated kidnapping, a Class I felony, and armed violence, a Class X felony. The court held that the possibility of two different penalties for identical offenses violated the proportionality clause. (Christy, 139 Ill. 2d at 181.) The court also rejected the State’s argument that the difference in penalties was simply a matter of prosecutorial discretion. The court reasoned that, given such discretion, prosecutors would usually choose to charge the defendant with the more serious offense, thus nullifying the less serious offense and violating the intent of the legislature in enacting both the statutes. 139 Ill. 2d at 180.

As such, Christy offers no substantive support. Given that the preemption doctrine eliminates prosecutorial discretion in charging defendants with the offense involved here, this case does not involve two different penalties for two identical offenses, but equal penalties for different, though related, offenses. While it is true that the child abduction statute effectively nullifies the attempt statute insofar as this particular offense is concerned, that is exactly what the legislature had in mind. The plain language of the statute itself is the best guide to the legislature’s intent. Clearly, the legislature decided and intended to make attempted child abduction as serious an offense as completed child abduction.

We also disagree with defendant’s argument that the statute violates due process because its penalty provisions are not rationally related to the statute’s objective. Defendant does not deny that the legislature has broad discretion in declaring criminal offenses and assigning punishments thereto. Due process requires only that a statute be “ ‘reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety and general welfare.’ ” (People v. Morris (1990), 136 Ill. 2d 157, 162, quoting Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 159.) Defendant also does not deny that the State has “a substantial interest in the protection of its children, and may validly proscribe the luring or attempted luring of children into motor vehicles for criminal purposes.” (Emphasis added.) (People v. Williams (1990), 133 Ill. 2d 449, 457.) Nor does defendant assert that this offense is so lacking in seriousness that a Class 4 penalty is inherently excessive or shocking to the conscience. People v. Steppan (1985), 105 Ill. 2d 310, 320.

Defendant instead relies on cases that hold that, where the legislature declares its intention to characterize one offense as more serious than another, it may not mandate harsher penalties for the less serious offense (People v. Wagner (1982), 89 Ill. 2d 308; People v. Bradley (1980), 79 Ill. 2d 410) and that a statute must bear some reasonable relationship to the evil it is intended to prevent (People v. Morris (1990), 136 Ill. 2d 157). Here, the legislature has classified the attempted and completed offenses under a single heading, indicated a desire to treat them with equal gravity, and assigned equal penalties to them.

Conceding that the State has a valid and vital interest in preventing and punishing the attempted abduction of children, defendant’s argument comes down to the non sequitur, unsupported by citation of any relevant case authority, that the Class 4 penalty the legislature has set for the offense of which defendant has been convicted is “unnecessarily harsh, and does not reasonably serve the interest that the legislature seeks to protect.” Defendant offers another non sequitur in support of his argument: because there is, according to defendant, less danger to the child from an attempted abduction than from a successful abduction, the punishment should be less as well.

We find now that defendant’s arguments go at most to the wisdom of the legislature’s decision and not to any issue of due process. Defendant essentially argues that due process prevents the legislature from penalizing an attempted offense as harshly as a completed offense. However, defendant cites no authority for a proposition that would necessitate massive revision of our criminal statutes, including the attempt statute. Such relevant cases as we have found instruct us that the legislature has broad discretion to assign identical penalties to offenses even though some might think one offense less serious than the other. See, e.g., People v. Touhy (1956), 9 Ill. 2d 462, 465-66 (no constitutional violation in equal punishment for prison escapee and one who aided in escape); People v. Houston (1976), 43 Ill. App. 3d 677, 681 (upholding legislature’s decision to upgrade all forms of pandering to Class 4 felonies where previously only pandering by compulsion was so punishable).

It is clear that the State may properly proscribe conduct such as that for which defendant was convicted. By outlawing attempted as well as completed child abductions, the State not only promotes the punishment of potential child abductors before they are successful, but also addresses the harm to children that may occur even in unsuccessful abductions. We therefore reject defendant’s arguments in this regard.

We would also point out that, in his motion to add the above-discussed issue, defendant noted that the identical question was raised in People v. Schmidt, a case which was pending in this court at the time defendant’s motion was filed. In the interim, this court has rendered a decision in Schmidt which is contrary to defendant’s stated position. (People v. Schmidt (2d Dist. April 13, 1992), No. 2 — 90—1294 (unpublished order under Supreme Court Rule 23).) Of course, Rule 23 provides that orders issued pursuant to that rule are not precedential and may be invoked only to support certain other contentions, none of which are applicable here.

We next consider defendant’s contention that the trial court abused its discretion by denying defense counsel’s motion for a continuance to obtain an evaluation of defendant’s sanity at the time of the offense. In a related argument, defendant contends that if there was no abuse of discretion, then defendant must have received ineffective assistance of counsel in that his trial attorney failed to adequately and timely prepare the insanity defense. We disagree on both accounts.

As indicated earlier in this opinion, at the close of Dr. Kluczynski’s testimony defense counsel moved for a continuance in order to obtain an evaluation of defendant’s sanity at the time of the offense. The trial court denied the motion, noting that the case had been pending for a long time and further that defendant had been competently represented. Defendant maintains that the trial court’s action in this regard denied him a fair trial and constituted an abuse of discretion.

The case law cited by defendant in support of his argument, however, is either inapposite or actually tends to support the State’s position that the trial court acted properly in denying the motion. In People v. Panker (1970), 120 Ill. App. 2d 203, the court noted that, upon a proper showing that for want of time counsel has not been able properly to prepare the case or that the cause is not ready for trial for want of opportunity for preparation owing to no fault of the accused, the trial court in the exercise of its discretion should postpone or continue the case if necessary. (Panker, 120 Ill. App. 2d at 208.) The court then held that the trial court abused its discretion in denying a motion for a continuance where only 14 days had passed since the defendant’s arraignment, no previous continuances had been requested, and neither defendant nor his attorney had any notice that the matter was going to proceed to trial on the day the continuance was requested. 120 Ill. App. 2d at 208.

In People v. Ramshaw (1979), 75 Ill. App. 3d 123, the defendant moved for a continuance due to the fact that a material witness was ill and could not be present in court to testify. The appellate court held that denial of the motion constituted an abuse of discretion where the trial court recognized that the witness was “absolutely necessary” to the case but still denied the motion and where the case had been carried on expeditiously up to that point. Ramshaw, 75 Ill. App. 3d at 126.

In People v. Johnson (1973), 11 Ill. App. 3d 395, the defendant was convicted of murder in a bench trial. Prior to trial, defendant sought a continuance on the basis that two witnesses, both psychiatrists, would be unavailable to testify in defendant’s behalf at trial as it was then scheduled. Defendant’s sole defense was that he was insane at the time of the offense and the two psychiatrists were his only witnesses in support of that defense. There was no indication that the case involved protracted proceedings or that continuances had been previously granted. Based on these facts, the appellate court held that the trial court abused its discretion in denying defendant’s motion for a continuance. Johnson, 11 Ill. App. 3d at 401.

The facts in this case are quite different from those referenced above. As the State correctly points out, the indictment charging defendant with child abduction was issued in February 1988. Initially, in this case and in case No. 88 — CF—52, defendant retained private counsel. Said counsel represented defendant in both cases until the completion of trial and sentencing in case No. 88 — CF—52 in December 1988. On December 23, 1988, the trial court granted defendant’s attorney’s motion to withdraw from this case and case No. 88 — CF—52 and appointed the office of the public defender to represent defendant in both cases.

Defendant was represented by the public defender’s office from the time of appointment in December 1988 until November 1989. In October 1989, the public defender filed a motion for a continuance to provide defendant the opportunity to retain private counsel once again. On October 16, 1989, the trial court granted the motion, but admonished defendant that the case was to proceed to trial on the next available trial date. Attorney Stephen Komie, defendant’s present counsel, entered his appearance on November 9, 1989. At that time, Komie indicated that he was fully prepared to proceed with the trial of the instant case which was set for trial on December 4, 1989. The State correctly notes, and defendant does not deny, that at no time during the extended period in which this case was pending, nor during case No. 88 — CF—52, did any of defendant’s prior counsel raise the issue of the insanity defense.

Thus, defendant had almost two years from the time of his indictment, or at least 11 months from the time the psychological evaluation relied upon by Dr. Kluczynski was completed, to the time of trial in December 1989 to prepare an insanity defense. While attorney Komie may not have been representing defendant timing most of that time, we cannot say that defendant was denied, through no fault of his own, adequate time to prepare his case. (See People v. Hobbs (1975), 35 Ill. App. 3d 29, 31 (where case had been continued four times, twice at the request of defendant, and where newly appointed counsel had two days in which to talk to client and interview witnesses, denial of motion for continuance was not an abuse of discretion).) Based on the record before us, and considering the protracted history of this case, we conclude that the trial court’s denial of defendant’s motion for a continuance was not an abuse of discretion.

Alternatively, defendant argues that if denial of his motion for a continuance was not improper, then he was denied the effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s substandard representation so prejudiced the defense as to deny the defendant a fair trial. (People v. Albanese (1984), 104 Ill. 2d 504, 525, citing Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Scrutiny of trial counsel’s performance must be highly deferential, and there is a strong presumption that counsel’s conduct is within the wide range of reasonable professional assistance. (People v. Johnson (1989), 128 Ill. 2d 253, 266.) Thus, judicial inquiry into the competency of counsel will not generally extend to the exercise of judgment, discretion, trial tactics or strategy, even where appellate counsel or a reviewing court might have handled the matter differently. (People v. Barfield (1989), 187 Ill. App. 3d 190, 197.) Moreover, defendant may not rely on mere conjecture or speculation that the outcome would have been different with representation of a higher caliber. (Barfield, 187 Ill. App. 3d at 198.) It is axiomatic that competency is determined from an examination of the totality of counsel’s conduct at trial and that a defendant is entitled to competent, not perfect, representation. People v. Treadway (1985), 138 Ill. App. 3d 899, 903.

The record in this case reveals that attorney Komie made numerous objections to various aspects of testimony presented by the State, employed effective cross-examination of the State’s witnesses, and presented evidence supporting defendant’s alibi and insanity defenses. In addition, though not completely successful, Komie’s representation did result in the finding of guilty but mentally ill rather than simply guilty. Throughout the entire proceeding, counsel vigorously tested and challenged the State’s evidence and in general did the best that could be expected of him given the time constraints involved. Accordingly, we conclude that Komie’s representation did not fall below an objective standard of reasonableness. We need not, therefore, consider the second prong of Strickland, whether defendant was prejudiced by counsel’s representation.

We would also note that People v. Rainey (1986), 149 Ill. App. 3d 327, cited by defendant in support of his ineffective assistance argument, is distinguishable. Prior to trial in Rainey, defense counsel moved for a mental examination of the defendant for the purpose of determining whether defendant was fit to stand trial and whether he was legally insane, or at least mentally ill, at the time of the offense. The trial court allowed the motion, and a clinical psychologist was appointed to examine the defendant. The psychologist’s report stated her belief that defendant was fit to stand trial. The report further indicated that he was not legally insane at the time of the offense but was mentally ill at that time. The psychologist confirmed her report at a fitness hearing held immediately prior to the bench trial. No evidence concerning defendant’s mental condition was introduced, however, at the trial. Such evidence was introduced in mitigation at defendant’s sentencing hearing.

On appeal, the defendant argued that he was denied the effective assistance of counsel in that counsel failed to introduce evidence of insanity or mental illness at trial. The appellate court agreed and found that the error did affect the judgment and was prejudicial. (Rainey, 149 Ill. App. 3d at 331.) The court noted that the trial judge had stated that, if the proper evidence had been placed before him at trial, he would have found defendant guilty but mentally ill. In addition, the court noted that the evidence of mental illness was readily available to the defense, having been produced at the fitness hearing and reiterated at the sentencing hearing. As such, it was not a case of newly discovered evidence. (149 Ill. App. 3d at 331.) Such is not the case here, and defendant’s arguments to the contrary are speculative at best.

Defendant’s final arguments are also interrelated. Defendant contends that he was not proved guilty of child abduction beyond a reasonable doubt. Specifically, defendant argues that the State failed to prove that he “attempted to lure” B.N. into his truck, or that he acted for “other than a lawful purpose.” Defendant also argues that the trial court effectively relied on the presumption in the child abduction statute to find that defendant acted with other than a lawful purpose. Defendant maintains that there was no corroborative evidence of his mental state. Therefore, he was not shown beyond a reasonable doubt to have harbored the requisite unlawful intent. We will address first the issue of the statute’s presumption.

Section 10 — 5(bX10) provides:

“(b) A person commits child abduction when he or she:
* * *
(10) Intentionally lures or attempts to lure a child under the age of 16 into a motor vehicle without the consent of the parent or lawful custodian of the child for other than a lawful purpose.
For the purposes of this subsection (b), paragraph (10), the luring or attempted luring of a child under the age of 16 into a motor vehicle without the consent of the parent or lawful custodian of the child shall be prima facie evidence of other than a lawful purpose.
(c) It shall be an affirmative defense that:
* * *
(4) The person lured or attempted to lure a child under the age of 16 into a motor vehicle for a lawful purpose in prosecutions under subsection (b), paragraph (10).” Ill. Rev. Stat. 1987, ch. 38, pars. 10-5(b)(10), (c)(4).

Defendant correctly contends, and the State implicitly agrees, that the State is obligated to prove defendant’s intent was for “other than a lawful purpose.” Defendant initially argues that the statute creates an impermissible mandatory presumption because the statute presumes one element of the offense upon proof of the other elements. He contends that the statement that proof of the other elements of section 10 — 5(b)(10) “shall be prima facie evidence of other than a lawful purpose” clearly indicates a mandatory presumption.

Mandatory presumptions in criminal cases are unconstitutional because they relieve the State of its burden of proof beyond a reasonable doubt and violate the due process clause by shifting the burden of persuasion to the criminal defendant. (Francis v. Franklin (1985), 471 U.S. 307, 313, 85 L. Ed. 2d 344, 352, 105 S. Ct. 1965, 1970.) On the other hand, an entirely permissive inference or presumption, which allows — but does not require — the trier of fact to infer an elemental fact from proof of the basic fact, and which places no burden of any kind on the defendant, is clearly permissible. In that situation the basic fact may constitute prima, facie evidence of the elemental fact. When reviewing this type of evidentiary device, the Supreme Court has required the party challenging it to demonstrate its invalidity as applied to him. County Court v. Allen (1979), 442 U.S. 140, 157, 60 L. Ed. 2d 777, 792, 99 S. Ct. 2213, 2224.

We find that the child abduction statute does not create a mandatory presumption or improperly shift the burden of proof to the defendant and is therefore not unconstitutional per se. (People v. Marcotte (1991), 217 Ill. App. 3d 797, 802; see also People v. Garofalo (1989), 181 Ill. App. 3d 972, 978.) Rather, we believe that nothing more than a permissive inference is created, since the statute speaks in terms of prima facie evidence and there is no restraint on the trier of fact’s ability to accept or reject the inference. (People v. Embry (1988), 177 Ill. App. 3d 96, 101.) As such, the validity of the permissive inference rests on an evaluation of the inference as applied to the particular defendant on the record before the court. (Embry, 177 Ill. App. 3d at 101.) This finding is consistent with our prior decision in Joyce I. (People v. Joyce (1991), 210 Ill. App. 3d 1059.) In Joyce I, we stated that, by failing to instruct the jury that prima facie evidence may be rebutted or contradicted, the trial court, by way of the instructions given, “created a mandatory presumption.” (Joyce, 210 Ill. App. 3d at 1069.) We agree with the State that implicit in such a holding was the belief that the statutory presumption was permissive on its face, not mandatory.

Defendant argues further, however, that for purposes of this issue it does not actually matter if the statutory presumption is held to be permissive or mandatory, since the trial court effectively relied on the presumption alone in finding that the State had proved the unlawful purpose element of child abduction. Defendant contends that, where no corroborative evidence of unlawful intent was presented, he was not proved to have harbored such intent beyond a reasonable doubt.

While the validity of a mandatory presumption is subject to a “beyond a reasonable doubt” test, the validity of a permissive presumption is generally subject to a less stringent test. With permissive presumptions, “there must be a rational connection between the facts proved and the facts presumed, and the ultimate fact must be ‘more likely than not to flow’ from the basic fact. [Citation.]” (People v. Hester (1989), 131 Ill. 2d 91, 99-100.) “Nevertheless, the inference must be supported by corroborating evidence of guilt; if there is no corroborating evidence, the ‘leap from the proved fact to the presumed element’ must still be proved beyond a reasonable doubt. [Citation.]” Hester, 131 Ill. 2d at 100.

In finding defendant guilty of the offense of child abduction, the trial court stated that B.N. was a highly credible witness and that the State had proved the elements of attempted luring and the lack of parental consent beyond a reasonable doubt. Regarding the unlawful purpose element, the court stated as follows:

“The [n]ext issue therefore, is whether the Defendant acted for or with an unlawful purpose. The testimony without wishing to prolong this by going into great detail, was that [B.N.] was walking home, alone, that a pick-up truck pulled off the street into a parking lot near where she was walking, that the driver of that truck who as I indicated earlier had been identified and the Court finds was the Defendant, yelled at her, ‘Do you want a ride?’ After which she turned around and said no, then continued walking on the course. The Defendant persisted by saying, ‘Come on, I don’t bite.’ When [B.N.] again said no and continued walking, then the Defendant rapidly accelerated, squealing his tires, and drove away. The Defendant — the testimony has been he lived in Elgin at the time and was working either in a school district in Aurora or in a school district in Schaumburg. The testimony further was that the Defendant had a two-day growth of beard and his hair was unkempt. The Defendant was identified approximately a month later very near the same location in a vehicle matching that same description. The testimony was he was identified as he was leaning out of the vehicle. I find that this evidence does meet the standard for proof of an unlawful intent, that would be my finding in the absence of the Statute. I find, as I mentioned earlier, that the Statute has what I regard as a permissible inference. This was defined in People versus Embrey [sic] that I previously cited, and I concur in that conclusion that the preference [sic] to prima facie in the Statute constitutes a permissive inference. Of course, if I apply the inference, I arrive at the same conclusion.”

When presented with a challenge to the sufficiency of the evidence, it is not the function of the reviewing court to retry the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 261.) The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Collins, 106 Ill. 2d at 261.) A criminal conviction will be set aside, however, where the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. 106 Ill. 2d at 261.

We have reviewed the evidence and conclude that there was sufficient evidence to support the trial court’s guilty verdict. The totality of the circumstances here provides corroborating evidence that defendant acted for “other than a lawful purpose.” B.N. was the only child who exited the school bus on the day in question. Defendant entered a school bus stop and asked B.N., a stranger, if she wanted a ride. After a rejection, defendant repeated his request with an enticing phrase, “Come on, I don’t bite.” After a second rejection, defendant drove away from the area quickly, squealing his tires. Approximately one month after this incident, B.N. observed defendant’s truck following her as she exited the school bus and walked home. Defendant followed her for a while before he turned and drove away. Under a minute later, B.N. again noticed defendant’s vehicle parked behind her friend’s mother’s car. B.N. then walked to a nearby store and defendant’s truck passed by. When B.N. came out of the store, defendant was again driving slowly on that street before turning away 15 feet ahead of B.N.

Viewing these circumstances in their entirety, a fact finder could infer that defendant had an unlawful purpose. The fact that defendant was a stranger, he repeated his offer of a ride, he fled the scene quickly, and a month later followed B.N., are all actions in which unlawful purpose can be inferred. Taken together, these facts are sufficient corroborating evidence of guilt to support the presumption of unlawful purpose. See Hester, 131 Ill. 2d at 100.

Finally, the dissent claims that defendant was prejudiced by the trial court’s use of the January 1988 incident as evidence of his “unlawful purpose.” Defendant has waived this issue by failing to raise it in a post-trial motion (People v. Burrows (1992), 148 Ill. 2d 196, 229), and by failing to raise this issue in his brief. Under plain error analysis, Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)), we believe the result would be no different. We note that other crimes evidence may be admitted for some purpose other than to establish the defendant’s propensity to commit the crime. (People v. King (1986), 109 Ill. 2d 514, 530.) Thus, the trial court’s use of the January 1988 incident as evidence of defendant’s intent was not error per se.

Further, we believe that defendant was not prejudiced by the trial court’s sua sponte reconsideration of its ruling to limit the admissibility of evidence concerning the January 1988 incident. In People v. Thingvold (1989), 191 Ill. App. 3d 144, affd (1991), 145 Ill. 2d 441, the trial court allowed evidence to be admitted solely for the purpose of enhancing witness credibility, which is error. (Thingvold, 191 Ill. App. 3d at 151.) Here, the trial court used the evidence for a proper purpose: as evidence of intent. In addition, testimony concerning the January 1988 incident had already been presented, albeit for the limited purpose of identification. This is not a case where trial strategy is substantially affected by the trial court’s reconsideration.

For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

DUNN, J., concurs.

JUSTICE BOWMAN,

dissenting:

I respectfully dissent from that portion of the majority opinion which concludes that there exists sufficient corroborating evidence of defendant’s “unlawful purpose” to sustain the trial court’s guilty verdict.

The majority states that “[t]he totality of the circumstances here provides corroborating evidence that defendant acted for ‘other than a lawful purpose.’ ” (234 Ill. App. 3d at 413.) In support thereof, the majority notes (1) that B.N. was the only child that exited the school bus on the day in question; (2) that defendant, a stranger, asked B.N. if she wanted a ride; (3) that defendant repeated his request with the “enticing” phrase, “I don’t bite”; and (4) that defendant then drove away quickly and squealed his tires. The majority also focuses much of its attention on a subsequent incident, occurring approximately one month after the December 1987 incident for which defendant was indicted, wherein defendant again allegedly followed B.N. on her way home from school.

As to the first circumstance relied upon by the majority, that B.N. was the only child that exited the school bus, I fail to see the connection between that fact and the unlawful intent allegedly harbored by defendant. The second and third circumstances, that defendant, a stranger, asked B.N. if she wanted a ride and then repeated the request by stating, “I don’t bite,” relate directly to the first and third elements of the child abduction statute, i.e., attempt to lure without parental consent. Thus, rather than identifying any independent, corroborative evidence of unlawful purpose, the majority simply relies on the above facts, which actually constitute separate elements of the offense that the State is required to prove, and states that such facts constitute corroborating evidence of the final element of the offense. Moreover, I do not believe the phrase, “[c]ome on, I don’t bite,” to be any more “enticing,” as the majority puts it, or any more indicative of an unlawful purpose than the phrase “[c]ome on, I won’t hurt you” or simply “[c]ome on.”

The fourth circumstance noted by the majority is that, after being rejected, defendant drove away from the area quickly, squealing his tires. Although this is not entirely clear, I must assume the majority mentions this fact as evidence of flight from the alleged crime scene, from which a guilty conscience, and therefore an unlawful purpose, might be inferred. However, evidence of flight is usually related in some way to police confrontation. In fact, this court long ago stated that the word “flight” was “commonly understood as connoting evasive action rather than a mere leaving of the scene.” (People v. Hurley (1968), 100 Ill. App. 2d 167, 170.) The accused must be attempting to avoid arrest or detection, actions which imply a consciousness of guilt. People v. Henderson (1976), 39 Ill. App. 3d 502, 507.

Here, I find the defendant’s actions in leaving the scene to be somewhat ambivalent, and not necessarily indicative of a guilty conscience. Instead, defendant’s actions might actually be viewed as inconsistent with a guilty conscience when one considers the fact that, when B.N. again saw defendant in January 1988, he was, as the majority points out, “almost standing up in the driver’s seat and his upper body was hanging out of the window.” (234 Ill. App. 3d at 400.) These do not appear to be the actions of a person “attempting to avoid arrest or detection.” Henderson, 39 Ill. App. 3d at 507.

However, it is the trial court’s, and the majority of this court’s, treatment of the fifth factor, the January 1988 incident, that to me is most troublesome. Prior to trial, the trial court had granted a defense motion in limine to bar the introduction of other crimes evidence. At trial, the court allowed B.N. to testify, over defendant’s objection, about the January 1988 incident. The trial court explicitly stated, though, that it was allowing the evidence for identification purposes only. In fact, the trial judge made it quite clear that he would not consider the later incident as evidence of defendant’s intent.

In finding defendant guilty of child abduction, however, the trial judge then did exactly that which he had expressly stated he would not do. The court stated, in part:

“The [n]ext issue, therefore, is whether the Defendant acted for or with an unlawful purpose. *** The Defendant was identified approximately a month later very near the same location in a vehicle matching that same description. The testimony was he was identified as he was leaning out of the vehicle. I find that this evidence does meet the standard for proof of an unlawful intent, that would be my finding in the absence of the Statute.”

From these remarks, I think it is obvious that the trial court did in fact consider the evidence of the second incident, not only for identification purposes, but also as evidence of defendant’s intent, contrary to the court’s earlier ruling. The majority only compounds the trial court’s error when it too relies on the second incident as corroborating evidence of an unlawful purpose.

In People v. Thingvold (1989), 191 Ill. App. 3d 144, the defendant, who was charged with solicitation in connection with the murder of his wife, successfully moved in limine to exclude evidence of the murder from the trial. As the defense neared the end of its case in chief, however, the trial court, pursuant to a State motion to reconsider its prior ruling, held that evidence of the murder could be admitted for the limited purpose of judging witness credibility. As a basis for reversing the defendant’s conviction, this court found, in part, that the defendant had been prejudiced by the manner in which the evidence of the murder was admitted. (Thingvold, 191 Ill. App. 3d at 152.) Noting that prejudice may result when a decision at trial is made in reliance on an evidentiary ruling that is later reversed, we held that the defendant was in fact prejudiced where the trial court reversed its previous ruling at the end of defendant’s case and where defendant’s trial strategy relied on the court’s order excluding evidence of the murder. 191 Ill. App. 3d at 152; see also People v. King (1986), 109 Ill. 2d 514, 534.

I believe the prejudice to defendant in this case to be even more apparent than it was to the defendant in Thingvold. Here, not only is it altogether likely that decisions were made at trial in reliance on the court’s in limine ruling, the basis for that reliance was reinforced during trial, when the court assured defendant that evidence of the second incident would not be considered as evidence of his intent. Moreover, while the court in Thingvold changed its ruling toward the end of the defendant’s case in chief, here it was not until the court had heard all the evidence and was rendering its verdict that the court apparently changed its ruling to allow and consider evidence of the January incident on the question of defendant’s intent. Under these circumstances alone, I believe a new trial would be warranted. Thingvold, 191 Ill. App. 3d at 152.

In its brief, the State relies on the same evidence as did the trial court in support of its argument that defendant was proved guilty beyond a reasonable doubt. However, neither the State nor the trial court identified any specific, corroborative evidence of defendant’s unlawful intent. Rather, the trial court simply concluded, based on the evidence supporting the other elements, that such intent existed. The State argues that defendant’s actions “certainly smack of insidious design” and that defendant himself offered no evidence that his purpose was lawful. In addition, the State argues that there is a “rational connection” between defendant’s conduct, attempted luring without parental consent, and the inference of unlawful intent. The State also contends it is “more likely than not” that defendant harbored an unlawful intent. I believe it is clear from these statements that the State simply ignores the standard of proof necessary, even with permissive inferences, where no corroborating evidence is presented. People v. Hester (1989), 131 Ill. 2d 91, 100.

Based on the record before this court, I would conclude that there was insufficient evidence to support the trial court’s guilty verdict. There is simply no independent, corroborating evidence that defendant acted for “other than a lawful purpose,” and I fail to see how the trial court could have reached such a conclusion without reliance on the statutory presumption, the trial judge’s statement that he did not so rely notwithstanding. As such, the statutory inference, though constitutionally sound on its face, was impermissibly applied to defendant under the circumstances of this case. Absent corroborating evidence, the “leap from the proved fact to the presumed element” must still be proved beyond a reasonable doubt. (Hester, 131 Ill. 2d at 100.) The State has failed in this regard, as evidenced by its continued reliance on the “rational connection/more likely than not” standard of proof.

As a final observance, I would note that in Joyce I this court held, “without unnecessarily protracted comment,” that defendant was proved guilty beyond a reasonable doubt. (People v. Joyce (1991), 210 Ill. App. 3d 1059, 1069.) In that case, however, the State introduced evidence of three statements made by defendant, before and after his arrest, which suggested a sexual purpose for defendant’s conduct. (Joyce, 210 Ill. App. 3d at 1063-64.) As indicated, no such corroborative evidence was presented in the instant case.