author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRYAN SMITH, Defendant-Appellant.
    Second District
    Nos. 2—89—0697, 2—89—0698 cons.
    Opinion filed June 7, 1991.

      G. Joseph Weller and Robert C. Cooper, both of State Appellate Defender’s Office, of Elgin, and Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

In this consolidated case, the defendant, Bryan Smith, appeals from 60- and 20-year sentences of imprisonment imposed on him after his plea of guilty to the offenses of felony murder and armed robbery. The court denied his motions for reconsideration of the sentences. Defendant appeals, contending his 60-year sentence for felony murder must be reduced because (a) the trial court failed to give appropriate weight to mitigating factors and his rehabilitative potential and (b) because it is unduly disparate from the sentence of his codefendant, Paul E shorn. He further contends a new sentencing hearing should be held because the murder and armed robbery sentences were improperly based on aggravating factors already inherent in the charged offenses.

The record shows the defendant and his codefendants, John Waldron and Paul E shorn, robbed a Speedway gas station and convenience mart on Milwaukee Avenue in an unincorporated area near Wheeling shortly after 6 a.m. on September 6, 1988. During the course of the robbery, Waldron shot and killed Thomas Goings, a store employee. Less than 24 hours later, Waldron and the defendant committed an armed robbery at a local bar and were apprehended shortly thereafter. Eshom was not involved in the bar robbery, and he turned himself in to the police for his part in the Speedway felony murder offense.

The defendant first met codefendant John Waldron at a bar in the Wheeling area about 8 to 10 days before the instant offenses. Waldron asked the defendant to act as his bodyguard while he made his rounds selling drugs. For his role as Waldron’s bodyguard, the defendant was to receive $50 a day and free drinks and cocaine from Waldron. The defendant and Waldron spent their 8 to 10 days together drinking at various bars and either snorting or shooting up cocaine. The defendant stated he did not see Waldron sleep during that time, and reported that he himself only had about four hours’ sleep on one occasion before the instant felony murder offense and about two hours’ sleep after that.

During the evening of September 5 and the early morning hours of September 6, the defendant and Waldron were at the apartment shared by Dawn Milne and Paul Eshom. Eshom had known Waldron for about one year and had met the defendant once previously. Shortly before 6 a.m., Waldron awakened Eshom and asked him to give him and the defendant a ride to rob a gas station. Eshom agreed, and Dawn Milne gave Waldron and the defendant a hooded sweat shirt and a jacket. Eshom supplied Waldron with two loaded guns, a .22 caliber revolver and a .44 magnum revolver. Waldron gave the .22 caliber revolver to the defendant. Using his van, Eshom drove Waldron and the defendant to a Speedway gas station which, Waldron said, “look[ed] fine.” Eshom gave the defendant a military camouflage-style hat, and the defendant and Waldron entered the gas station. Eshom remained in the van. Waldron and the defendant soon came running out of the station and the group drove away. Eshom heard Waldron say in the van that he shot the man in the station because the man hesitated. According to Michael Kremer, a witness at Waldron’s trial, Waldron said that he shot the man because the man looked at him like he was a “scumbag.”

The record reveals further that when Waldron and the defendant entered the gas station, the manager, Tom Hixon, and employee Thomas Goings were present. Another employee, Steve Fuessle, was back in the kitchen area of the station in the freezer. The three security video cameras were operating at the time the two men entered the station. The two men walked up to the area of the register where Thomas Goings was, and the man in the hooded sweat shirt (Waldron) lifted up a cocked .44 revolver, pointed it at Goings and told him that he wanted all the money. The store manager then saw Goings say something but could not make out what it was. Waldron then fired a shot at Goings at close range, and Goings fell back against the rear counter. Waldron motioned to Hixon with the gun and told him he wanted all the money. Hixon gave Waldron money from both registers, and Waldron and the defendant left.

Steve Fuessle said that when he heard a bang and muffled shouting sounds, he came out of the back area and saw two men holding guns on the station manager. Testimony conflicted as to whether the defendant had his gun out at that time or not. Station manager Hixon testified the defendant did not have his gun out until he saw Fuessle and, at that time, the defendant pointed his gun at Fuessle and told him to get down on the floor, which Fuessle did.

E shorn drove Waldron and the defendant back to his and Dawn Milne’s apartment, where he divided the money into three piles. The defendant went to the bathroom, where he splashed some water on his face because he was “sweating, scared.” The defendant received one of the piles of money.

Waldron wanted to have Dawn Milne buy food and make breakfast, but the defendant wanted all of them to leave to go to a friend’s house in Rolling Meadows to have some cocaine and relax. They did that, and Paul and Dawn left from there about 45 minutes later. Waldron continued to use cocaine; the defendant went to sleep for several hours.

At about 5 or 6 p.m., the defendant and Waldron sought out a friend of the defendant’s, Art Holtin, in order to secure some .44 caliber bullets. According to the defendant, Waldron wanted the chamber filled with live bullets in case the police caught up with them. They went to Holtin’s house and got both .44 and .22 caliber bullets.

Several other stops later, the defendant and Waldron left the trailer of a friend of Waldron’s and went to a bar called J.J. Twigs in Lake Zurich, which Waldron said he wanted to rob. According to witnesses at Waldron’s death penalty hearing, the defendant entered the bar first at about 1 a.m. He asked for cigarettes and change and then “checked the place out.” Waldron then entered, and he and the defendant exited the bar. About five minutes later, a bar employee, Robert Haupt, exited. He saw the two men against the wall, and Waldron pointed a gun at him, saying he wanted to see some identification. Waldron was pretending to be a drug enforcement agent. Waldron then told Haupt to get up against the wall. Waldron thumbed through Haupt’s wallet, took $75 then threw it into the parking lot. Waldron then searched Haupt as a bar patron, Jessie Mayfield, and the bartender, James Arden, came out. After taking their wallets also, Waldron pointed his gun at the ground. It went off and flew out of his hand. The gun landed on the ground, and the defendant said, “If anyone would like to go for it, feel free.” The defendant also had a gun.

Waldron then pretended to find drugs on Jessie Mayfield and proceeded to beat and kick him. According to bartender Arden, both men struck Mayfield with their feet and guns and then the defendant said that it was “enough.” According to Haupt, the defendant intervened when Waldron began beating Mayfield and said: “Don’t do anything to him, he’s only a kid.” Waldron then stopped beating Mayfield and began arguing with the defendant. Acting on an anonymous tip, the police were waiting at the trailer court when Waldron and the defendant returned from J.J. Twigs and arrested them.

The defendant’s sentencing hearing was held June 30, 1989. The judge announced he had in his possession defendant’s presentence investigation report, including a previous Cook County juvenile court social investigation of the defendant. He also had a three-page report from the Lighthouse Counseling Associates and a 21-page report from David Randall, a sentencing consultant. The judge took judicial notice of the trial and sentencing proceedings against John Waldron insofar as they weré relevant to the defendant. The judge noted that there were some factors in the testimony at Waldron’s trial which he would consider to be mitigating factors in sentencing the defendant, namely, that at least one witness said that the defendant did not have his gun out at the Speedway station until Steve Fuessle came out from the back room, and that the defendant appeared nervous throughout the robbery. The judge also stated he would consider as a mitigating circumstance that during the J.J. Twigs’ robbery, the defendant got between Waldron and Jessie Mayfield and “seemed to be of an intent and mind to avoid people getting killed.”

The presentence investigation report revealed that the defendant was 20 years old at the time of the offenses. He had juvenile adjudications for theft, attempted armed robbery and trespass, and adult convictions for battery, resisting a peace officer, aggravated battery, criminal damage to property and criminal trespass to land.

The defendant’s father drank heavily and severely physically abused the defendant from early on in the defendant’s childhood. Defendant’s father’s recent stroke at age 43 caused his father to give up drinking and smoking and, allegedly, marijuana. The defendant’s maternal uncles were reported to be heavy drinkers and his maternal grandfather is a recovering alcoholic. The defendant’s great-grandmother reportedly was an alcoholic prior to her death by suicide.

After a particularly harsh beating by his father, the defendant was placed in a temporary foster home by the Illinois Department of Children and Family Services (DCFS) and was made a ward of the State at age nine. In his early teens, he was placed initially in Sunny Ridge Family Center through DCFS, where he made little improvement. He then entered the Uhlich Children’s Home Temporary Care Haven program, where he did well, adjusting satisfactorily to the program and relating well to both his peers and the supervisors of the program. He was then placed in the Allendale School for Boys, where he did very well, making vast improvements both academically and behaviorally and where he made friendships with staff members, one of whom visited the defendant even after he left Allendale. The defendant’s employment history was sporadic. Shortly before the instant offenses, he worked in landscaping.

Dr. Walter McDonald testified that he was a clinical psychologist at Lighthouse Counseling Associates. He evaluated the defendant for purposes of sentencing after reviewing the police reports, the presentence investigation report, David Randall’s report and reports concerning the defendant’s former institutionalizations. McDonald testified that the defendant exhibited a combination of early and continuing patterns of severe physical abuse and introduction to alcohol (between the ages of eight and nine) and drugs (using marijuana at age seven) which resulted in addiction plus violent behavior which was aggravated by indulgence in alcohol. It was known that the defendant had accumulated at least one-half dozen charges for battery and aggravated battery. McDonald did not believe that the defendant was a psychopath or a sociopath but that he was an alcoholic who had violent patterns triggered in him when under the influence of drugs or alcohol. McDonald believed the defendant had a chance at rehabilitation with the condition that he totally abstain from both alcohol and drugs.

Kim Hall, the defendant’s girlfriend for three years, testified to the defendant’s good character and basically caring nature. She related how he helped her family around the house at a time when he did not have a job and how he chased a purse snatcher one time in order to retrieve a stranger’s purse. She testified he was a hard worker and related how he undertook a major landscaping project for her girlfriend’s mother. She acknowledged that her relationship with the defendant was erratic, and that their relationship ended about five months before the instant offenses because of the defendant’s continued drug use. She also acknowledged the defendant was arrested after their breakup for criminal trespass to land and criminal damage to property for breaking down the screen door of her house.

It was stipulated at the sentencing hearing that there was testimony during the Waldron proceedings that when the defendant and Waldron were at Arthur Holtin’s house (where they obtained bullets for the guns after the homicide but before the J.J. Twigs’ armed robbery), the defendant tried to get away from Waldron but Waldron stayed with him and even followed him into the bathroom.

David Randall, a psychosocial sentencing consultant, testified that the defendant was an alcoholic. According to Randall, the defendant’s alcohol and substance abuse problems were never dealt with in his early placements outside his home. In Randall’s opinion, a large part of the defendant’s problems stemmed from his parents’ premature removal of him from the Allendale school, where he had made significant progress. The removal was against both medical advice and the defendant’s wishes. Randall testified that the defendant seemed to be a person who had a good core which might be tapped into and who was, despite all his hardships, able to form real emotional bonds with people. Randall believed that the goodness at the core of defendant’s personality, combined with drug and alcohol treatment, gave him rehabilitative potential.

The defendant testified at the hearing. He acknowledged that he had testified at the trial of John Waldron. He related how he met Waldron at a local bar 8 to 10 days prior to the shooting and agreed to be Waldron’s bodyguard. During the next 8 to 10 days, they drank alcohol and ingested between one-eighth and one-fourth of an ounce of cocaine per day. The defendant stated he never carried a gun before the shooting.

The defendant said that he was shocked and scared when Waldron shot Thomas Goings at the Speedway station and that he did not know what to do. Back at Paul Eshom’s and Dawn Milne’s apartment after the shooting, he saw Waldron put the money and his gun on the table. The defendant stated he then also put his gun on the table, and testified that he was thinking then that he had to get away from his companion. He also testified he did not want to accompany Waldron to Island Lake later that day, but that Waldron insisted. Waldron had a .44 caliber gun so the defendant felt he could not just knock Waldron out.

When Waldron told him that they were going to J.J. Twigs to rob it, the defendant said he did not at first agree, but Waldron “sort of talked [him] into it,” and the defendant figured that he had no choice. It was Waldron’s idea to stop patrons as they exited the bar and take their wallets. He could tell that Waldron wanted to shoot someone, and he eventually had to hold Waldron off at gunpoint and give people their car keys back. Eventually, defendant explained, he gave Waldron his gun back. When the court inquired why the defendant did not leave Waldron while he had both guns in his possession, the defendant said that he had no choice and that he would either have to shoot Waldron or give him the gun.

The defendant stated that he had been “hanging out in bars” for a couple of years because he was an alcoholic. Although he attended alcohol and drug abuse classes while he was incarcerated, he was unable to finish them because he was placed in maximum security. The defendant explained that he once was arrested for armed robbery (he was armed with a knife) and was placed on probation. His probation was then revoked as a result of him getting into a fight with several men from whom he had received stolen goods which he sold. When the men were apprehended, they tried to say the goods were stolen by the defendant. •

The defendant stated he planned to deal with his substance abuse problem by attending Alcoholics Anonymous and Narcotics Anonymous meetings and taking advantage of all services and counseling offered to him and by learning a trade. In allocution, the defendant expressed his sorrow that Thomas Goings was shot and that he was ever involved in a situation that would lead to that. He reiterated that he intended to receive alcohol and drug counselling and do everything he could to conquer those problems so that nothing like this would ever happen again.

In argument at the sentencing hearing, the prosecutor noted that extended terms and consecutive sentences were dispositions available to the court. He declined to make a specific sentencing recommendation, however, and acknowledged several factors in mitigation which were present in this case. Specifically, he noted the physical abuse the defendant suffered as a child; his alcohol and drug addiction; his nervousness during the Speedway robbery and the fact he did not have his gun out until after the shooting occurred; the fact he stopped Waldron’s beating of Jessie Mayfield at J.J. Twigs; and the fact that he provided truthful testimony at Waldron’s trial.

Echoing those same mitigating factors, defense counsel also argued that Waldron was the most culpable because he acted completely on his own in shooting Thomas Goings and in beating Jessie Mayfield during the J.J. Twigs’ robbery. Counsel noted that Paul E shorn, who was older than the defendant and who had been acquainted with Waldron for a much longer time than the defendant, received only a 20-year sentence for his conviction for first degree murder in the Speedway homicide. Counsel also noted the several witnesses who spoke to the defendant’s basically good character and caring nature, and he commented on the fact that both expert witnesses gave favorable opinions as to the defendant’s rehabilitative potential. Counsel felt that defendant’s age, his positive performance during his time at Allendale and his ability to maintain significant relationships all indicated he had rehabilitative potential. Counsel pointed out the defendant’s prior criminal offenses were alcohol and drug related and involved physical abuse rather than dishonesty crimes such as burglary and theft. Considering the defendant’s prior criminal history and his part in the instant offenses, counsel found it incongruous, in a redeeming sort of way, that the defendant’s tattoo was of Garfield, the cartoon cat. Counsel suggested that if the defendant received a 40-year sentence and received day-for-day, good-time credit, he would be in his 40s when released from prison. At that time, he will have had the benefit of drug and alcohol treatment and will have an understanding of accountability and punishment.

Before pronouncing sentence, the judge stated he considered the factual basis of the defendant’s guilty plea and the agreements and stipulations thereof in addition to the evidence adduced at Waldron’s trial and sentencing hearing, the evidence presented at the defendant’s sentencing hearing, the presentence investigation report, and arguments of counsel. He also considered that the defendant had made an important first step toward rehabilitation by pleading guilty, and he believed the defendant testified truthfully at the proceedings against Waldron. With regard to the defendant’s background, the judge stated:

“And there are mitigating factors as far as his background is concerned, although they’re not excuses or reasons, and never sufficient, for his behavior, or his participation in this offense. People have a responsibility not only [to], in essence, say no to the use of drugs, but when people say, ‘let’s do an armed robbery,’ I mean it goes without question.”

Notwithstanding the fact the defendant testified he was “uncomfortable” with the shooting situation, the judge stated he believed that the defendant had the ability to get away from Waldron if he truly wanted to do so. He considered defendant’s prior criminal activities and the likelihood of rehabilitation inasmuch as he did not view the defendant as some maniacal type of personality. The judge found to be a serious factor in aggravation the fact that the defendant was on felony probation when he committed the instant offenses. The judge acknowledged the applicability of consecutive sentences, but he did not consider same in light of the defendant’s plea to the offenses and the fact that he perhaps saved Jessie Mayfield’s life during the J.J. Twigs armed robbery.

In sentencing the defendant to 60 years for first degree murder and 20 years for armed robbery, the trial judge made the following remarks:

“Because of his plea of guilty, because of his age, because of his actions, both, in giving truthful testimony in the Waldron trial and, most particularly, his actions which surely show that he wanted to protect ’em, didn’t want people killed, and would actually take steps towards it, what I have decided is an appropriate sentence as far as this young man is concerned, is that due to his prior record of criminality, due to the fact that this is a part of an armed robbery, where someone was, in fact, killed, the fact that he was aimed during that armed robbery, brandished a weapon towards other persons, that the type of sentence suggested by the defense is inappropriate. The legislature has a basic range for the offense of murder from 20 to 60 years in the penitentiary.
It’s the judgment of this court that for the offense of murder, he is sentenced to 60 years in the Illinois Department of Corrections. It’s the further judgment of this court that for the offense of armed robbery, he is sentenced to 20 years in the Illinois Department of Corrections. That those sentences will run concurrently.”

As noted above, the defendant’s subsequent motions for reconsideration of the sentences were denied. Those motions included as grounds for reconsideration each of the issues raised here save for the issue concerning aggravating factors inherent in the offenses themselves. Ordinarily, because the trial court had no opportunity to consider and rule on that issue in accordance with the spirit of Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)), we would consider the defendant’s contention as to that issue to be waived. (People v. Carroll (1990), 195 Ill. App. 3d 445; People v. Favelli (1988), 176 Ill. App. 3d 618, 622-23.) However, inasmuch as the error affects the defendant’s fundamental right to liberty and potentially infringes on his right not to be sentenced based on improper factors (People v. Martin (1988), 119 Ill. 2d 453), we will address the merits of the issue in turn.

The defendant first contends his 60-year murder sentence should be reduced because the trial judge failed to give appropriate weight to mitigating factors and his rehabilitative potential. As a factor in mitigation, he points specifically to his history of alcoholism and drug abuse which began in his childhood and may have been genetically predisposed; the 8- to 10-day cocaine and alcohol binge he engaged in with Waldron just prior to the offense; the fact that his entire juvenile and adult criminal record is alcohol and drug related, and the fact that he played a secondary rather than primary role in the offense. As evidence of his rehabilitative potential, he points to his favorable tenure at the Uhlich Children’s Home and the Allendale School of Boys, where he worked his way up to the Honors Cottage program and had good relations with both adult supervisors and his schoolmates; the testimony of two sentencing consultants that he had rehabilitative potential; the successful purse-snatcher chase incident undertaken on behalf of a stranger; and the fact that once he recognized the unprovoked violence Waldron was capable of inflicting, he acted to minimize the opportunities for it by telling Steve Fuessle at the Speedway station to get down on the floor and by stepping in and Í stopping Waldron’s beating of Jessie Mayfield at J.J. Twigs.

This court’s power to reduce a sentence pursuant to Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)) is limited to those cases in which a trial court has abused its discretion in imposing sentence. (People v. Streit (1991), 142 Ill. 2d 13, 19; People v. Perruquet (1977), 68 Ill. 2d 149, 154; People v. Jenkins (1991), 209 Ill. App. 3d 249, 263.) Before this court will interfere with the sentence imposed, it must be manifest from the record that the sentence is excessive and not justified under any reasonable view which might be taken of the record. People v. Williams (1970), 130 Ill. App. 2d 192, 199-200; People v. Glasgow (1970), 126 Ill. App. 2d 82, 90.

Pursuant to the Illinois Constitution, penalties are to be determined according to the seriousness of the offense and with the objective of restoring the offender to his full citizenship. (Ill. Const. 1970, art. I, §11; People v. Nelson (1982), 106 Ill. App. 3d 838.) The trial judge is in the best position to fashion a sentence which balances both the need to protect society and to rehabilitate the offender (People v. Rosa (1982), 111 Ill. App. 3d 384) inasmuch as he has had the opportunity to observe the defendant in person and can better assess his credibility, demeanor, general moral character, mentality, environ- \ ment, habits and age (Streit, 142 Ill. 2d at 19; Perruquet, 68 Ill. 2d at 154), along with a consideration of such other factors as his prior criminal history, rehabilitative potential, the seriousness of the offense, and the need to protect society and to deter others. People v. Goodwin (1991), 208 Ill. App. 3d 829, 831.

The existence of mitigating factors does not automatically oblige the trial court to reduce a sentence from the maximum sentence allowed (People v. Powell (1987), 159 Ill. App. 3d 1005, 1011), and where mitigation evidence is before the court, it is presumed the court considered that evidence absent some contrary indication other than the sentence imposed. People v. Willis (1991), 210 Ill. App. 3d 379, 389-90; People v. Burke (1987), 164 Ill. App. 3d 889; People v. Ulmer (1987), 158 Ill. App. 3d 148.

As a result of his convictions for first degree murder and armed robbery, and considering also his recent prior felony conviction for aggravated battery, the defendant faced a 20- to 60-year term for murder, with the possibility of an extended term of 60 to 100 years, which could be ordered to be served consecutively to the sentence imposed for armed robbery. (Ill. Rev. Stat. 1989, ch. 38, pars. 1005—8—1(a)(1)(a), 1005-8-2, 1005-5-3.2(b)(1), 1005-8-4.) Other than the length of the sentence imposed, the defendant points to nothing in the record which would serve to rebut the presumption that the trial judge considered all of the mitigating evidence presented. Accordingly, the presumption remains intact.

Notably, the record of the hearing on the defendant’s motions for reconsideration shows that the judge had originally indicated to the defendant during plea negotiations that he was considering a possible 70- to 90-year extended term. However, the judge stated at the reconsideration hearing that all of the evidence received at the sentencing hearing, and specifically the defendant’s drug involvement, “made me keep it from being extended or being consecutive.” Consequently, we may not only presume that the judge considered the mitigating evidence presented, but the record affirmatively shows that he considered the fact of the defendant’s drug involvement in deciding to impose a 60-year term rather than a 70- or 90-year one.

Although not specifically one of the statutorily mandated mitigating factors to be considered, the fact that a defendant is and has been an alcoholic for a number of years was considered in People v. Walcher (1969), 42 Ill. 2d 159, 166-67, to be a circumstance which may be considered in determining punishment, and, in that case, the court reduced the defendant’s death sentence to a term of not less than 40 nor more than 65 years. Similarly, drug addiction, also not a statutorily mandated mitigating factor, may be considered as such in appropriate cases. (See People v. Whealon (1989), 185 Ill. App. 3d 570, 573; People v. Downey (1987), 162 Ill. App. 3d 322, 338; People v. Treadway (1985), 138 Ill. App. 3d 899, 904-05.) Where a trial judge considers a defendant’s drug addiction, but nonetheless decides that the addiction, if proved, does not entitle the defendant to lenient treatment, it cannot be said that an abuse of discretion has occurred. Whealon, 185 Ill. App. 3d at 573; Downey, 162 Ill. App. 3d at 338; People v. Bartay (1986), 150 Ill. App. 3d 130, 132-33.

As we read the record, any mitigating value to be afforded the defendant’s unfortunate history of early alcohol and drug addiction was encompassed by the court’s already considerable concessions in not extending the term or ordering it be served consecutive to the armed robbery sentence. In Treadway, we reduced the defendant’s attempted murder and armed violence sentences from 60 to 30 years in part because the crimes were “perpetrated in a fleeting moment of intoxicated rage upon a stranger.” (Treadway, 138 Ill. App. 3d at 905.) In contrast, we see no evidence here that the defendant’s alcohol or drug usage affected him in such a way as to have contributed to his commission of the offense. He testified at Waldron’s trial, in fact, that the cocaine made him feel alert; that he knew what he was doing the morning of the murder, he did not feel tired, the cocaine “overruled” the need to sleep, and he suffered no withdrawal symptoms after he was placed in the Lake County jail. There was evidence also that the defendant drank alcohol during the hours preceding the murder, but there is no evidence he was intoxicated as a result.

As such, it does not appear that the circumstances of the defendant’s alcohol and drug addiction fell within the mitigating circumstance that “there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense” (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—3.1(a)(4)) or any of the other statutory mitigating factors. We agree with the Whealon court’s sentiment that a defendant’s drug addiction, in fact, could be considered an aggravating factor. (Whealon, 185 Ill. App. 3d at 574.) Depending on the substance abused, a defendant’s drug addiction may be considered to be evidence of prior criminal activity (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—3.2(a)(3)), and such addiction would tend to refute the mitigating factors that the defendant has no prior history of criminal activity, that his conduct was the result of circumstances unlikely to recur, that his character and attitude indicate that he is unlikely to commit another crime, or that he is likely to comply with the terms of the period of probation. Ill. Rev. Stat. 1989, ch. 38, pars. 1005—5—3.1(a)(7) through (a)(10).

We conclude the court gave appropriate weight to the mitigating factors in evidence.

Insofar as the defendant’s rehabilitative potential is concerned, it is well settled that a court is not required to give a defendant’s rehabilitative potential more weight in its sentencing decision than it gives the seriousness of an offense. (People v. Tatum (1989), 181 Ill. App. 3d 821.) Before this court will modify the sentence, “it must appear to the reviewing court that the punishment clearly departs from the spirit and purpose of fundamental law, and the requirement of our constitution that the sentence be proportionate to the nature of the offense and measure the possibilities for rehabilitation.” Treadway, 138 Ill. App. 3d at 904.

It is clear there was evidence tending to show that the defendant had rehabilitative potential. There was also evidence which tended to negate it. The court commented it specifically considered the defendant’s commission of the instant offenses while he was on felony probation to be a significant factor in aggravation. It also firmly believed that the defendant had the opportunity to get away from Waldron if he had truly wanted to do so. The court also heard evidence that the defendant had never acknowledged until he was incarcerated that he had a drinking problem. Although the defendant participated in alcohol and drug abuse classes until he was placed in maximum security and was no longer able to, the Lighthouse Counseling Associates’ report shows the defendant himself had doubts about his ability to conquer his alcohol addiction when he commented, “I can’t see not drinking the rest of my life,” and “I gotta stop drinking, but I don’t think I can.” The court also heard evidence of the defendant’s susceptibility to negative — as well as positive — peer pressures; he behaves the way others expect him to behave.

It is evident the court grappled with the knot that confounds all sentencing decisions: How long is long enough? In a dialogue with the judge during the sentencing hearing, consultant David Randall agreed with the court that, considering the penitentiary system “is not particularly rehabilitative resource oriented” and that drugs may still be available to the defendant even while he is incarcerated, there was a possibility that the defendant’s problems would not get better. However, considering also that the tendency to commit crimes decreases with age, that antisocial personality types usually burnout in their 40s, that the defendant had finally realized at least that maybe it would be a good idea if he did not drink, and that many people who had had contact with the defendant had “been able to hook in for whatever period of time into [the] goodness” at the defendant’s core, Randall stated: “I think that after a sufficiently long sentence ***, he’ll get enough treatment in prison, will get into a program, the AA program, where he will develop an abstinence approach, something that will — he’ll be there long enough for such treatment to take hold, and I think that he has rehabilitative potential.”

The “sufficiently long” sentence chosen by the court was 60 years. Assuming day-for-day good time credit, the defendant would be just into his 50s when released. The defendant points to nothing in the record other than the length of the sentence imposed to rebut the presumption that the court considered the evidence of his rehabilitative potential. It is apparent the court was particularly cognizant of its duty to assess the defendant’s rehabilitative potential in fashioning the correct sentence for this grave offense. We believe it gave appropriate weight to all the evidence of the defendant’s rehabilitative potential, both positive and negative, in arriving at its decision.

Defendant contends that his sentence is greatly disparate to Paul Eshom’s 20-year sentence and both have equal culpability. Sentencing disparity occurs when equally culpable defendants who have like backgrounds are given substantially different sentences or when equally culpable defendants with different backgrounds, ages, and criminal propensities are given the same sentence. (People v. Stambor (1975), 33 Ill. App. 3d 324, 326.) A disparity between codefendants’ sentences is justified and will not be disturbed if the disparity is warranted by differences in the nature and extent of each defendant’s participation in the offenses or by the history and character of the defendants. People v. Godinez (1982), 91 Ill. 2d 47, 55; People v. Foster (1990), 199 Ill. App. 3d 372, 393; People v. Dubuisson (1985), 136 Ill. App. 3d 305, 308; Stambor, 33 Ill. App. 3d at 326.

Even if we were to undertake analysis of whether the defendant’s 60-year sentence was disparate from Paul Eshom’s 20-year sentence, no meaningful comparison of the history and character of the codefendants could be undertaken inasmuch as the record does not include a copy of Paul Eshom’s presentence report or the other documents received at his sentencing hearing. Thus, any doubts arising from that particular incompleteness of the record must be resolved against the defendant. People v. Foster (1990), 199 Ill. App. 3d 372, 393.

Based on the record we do have, which includes a transcript of Eshom’s brief sentencing hearing, we know that Eshorn and the defendant each played secondary roles in the Speedway armed robbery, and neither one knew that Waldron would shoot someone. We perceive, as the trial judge clearly did also, a decided qualitative difference between those secondary roles: Eshorn supplied the equipment necessary to facilitate the armed robbery, but the defendant actually went into the station to commit it. Further, rather than subsequently disengaging himself from the company of Waldron as E shorn did, however, the defendant proceeded with Waldron to commit another armed robbery less than 24 hours later and was arrested. E shorn, on the other hand, turned himself in — twice, in fact — for his part in the felony murder and he had no prior criminal record save for disorderly conduct in Colorado years ago. Beyond Eshom’s use of cocaine just before and after the felony murder, there is no evidence of his use of drugs. At a minimum, these factors indicate a difference in character and rehabilitative potential which justifies a disparity.

Finally, the defendant contends the trial court improperly considered aggravating factors already inherent in the felony murder and armed robbery offenses. The defendant argues the following comments of the trial judge at sentencing show the error:

“[W]hat I have decided is an appropriate sentence as far as this young man is concerned, is that due to his prior record of criminality, due to the fact that this is part of an armed robbery, where someone was, in fact, killed, the fact that he was armed during that armed robbery, brandished a weapon towards other persons, that the type of sentence suggested by the defense is inappropriate.” (Emphasis added.)

Defendant argues that being armed and brandishing a weapon are factors necessarily inherent in any armed robbery and the loss of life is inherent in every murder. As such, those factors may not be used to enhance the sentence (People v. Saldivar (1986), 113 Ill. 2d 256; People v. Conover (1981), 84 Ill. 2d 400), since the legislature would already have taken them into account when it established penalties for the crimes (People v. Martin (1988), 119 Ill. 2d 453, 459-60; Conover, 84 Ill. 2d at 405). Citing People v. Bone (1982), 103 Ill. App. 3d 1066, the State argues that because at least one of the witnesses testified that one of the armed robbery victims was kicked and beaten by the defendant with his hands and weapon, it was proper for the court to consider the threat of serious harm as an aggravating factor in sentencing him on the armed robbery count. Alternatively, the State argues resentencing is not necessary where the trial judge obviously did not place great weight on the fact that the defendant’s conduct caused or threatened serious bodily harm.

As we read the court’s remarks concerning armed robbery, they refer only to the felony murder offense and not the armed robbery at J.J. Twigs. Consequently, we reject the State’s argument in that regard and find People v. Bone inapposite.

One of the statutory factors in aggravation that the sentencing judge may consider is that “the defendant’s conduct caused or threatened serious harm.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—3.2(a)(1).) All felony murders include the element that a forcible felony is being attempted or committed. (Ill. Rev. Stat. 1989, ch. 38, par. 9—1(a)(3).) A “forcible felony” includes, inter alia, robbery “and any other felony which involves the use or threat of physical force or violence against any individual.” (Ill. Rev. Stat. 1989, ch. 38, par. 2—8.) We find it was not improper for the court to take into account the specific nature of the forcible felony committed by the defendant as a factor in aggravation. However, we believe the judge’s comment that “someone was, in fact, killed” shows he improperly considered the fact of the victim’s demise in aggravation of the defendant’s sentence where the fact that a death occurred is implicit in every felony murder. Consideration of an improper aggravating factor requires remand for resentencing only where we are unable to determine the weight given to the improper factor. (People v. Bourke (1983), 96 Ill. 2d 327, 332; People v. Green (1991), 209 Ill. App. 3d 233, 248.) Taking the court’s sentencing comments in their entirety, we do not believe its reference to the fact of the victim’s death was a significant factor in the length of sentence imposed.

For the reasons expressed above, the judgment of the circuit court of Lake County in appeal No. 2—89—0697 (first degree murder) sentencing the defendant to a 60-year term in the Department of Corrections is affirmed. The judgment of the circuit court of Lake County in appeal No. 2—89—0698 (armed robbery) is affirmed.

No. 2 — 89—0697, Judgment affirmed.

No. 2 — 89—0698, Judgment affirmed.

REINHARD, RJ., and DUNN, J., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CECIL DARNELL et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 1—87—2681, 1—87—2682 cons.
    Opinion filed December 24, 1990.
    Rehearing denied June 20, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Joseph M. Gump and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant Cecil Darnell.
    Michael J. Pelletier and Leslie Wallin, both of State Appellate Defender’s Office, of Chicago, for appellants Frances Velez and Joseph Swiatkowski.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Gunta A. Hadac, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

This is a consolidated appeal. Following a joint bench trial, defendants, Cecil Darnell, Frances Velez and Joseph Swiatkowski, were each convicted of delivery of a controlled substance (Ill. Rev. Stat. 1983, ch. 56½, par. 1401(a)(2)) and sentenced to six years’ imprisonment. On appeal, Darnell contends that he was entrapped by a police informant into committing the offense. Velez and Swiatkowski contend that: (1) they were denied their right to a fair trial by the admission of the undercover agent’s unreliable hearsay testimony regarding a statement allegedly made by Darnell during the drug deal that implicated Velez and Swiatkowski; and (2) they were not proven guilty of delivery of a controlled substance beyond a reasonable doubt. For the following reasons, the judgment of the trial court is affirmed as to Darnell and reversed as to Velez and Swiatkowski.

The facts underlying the convictions are as follows. At trial, Chicago police detective Thomas Keough testified that on July 16, 1985, Bud Armstrong, a police informant, introduced him to defendant Cecil Darnell at a Chicago tavern. Keough was operating as an undercover agent for the narcotics division at the time. The three men had a drink, and then Keough and Darnell walked out to Darnell’s car and got in. In the car, Darnell produced a plastic bag of cocaine and told Keough that the price was $600. After Keough purchased the cocaine, Darnell asked him if he had any connections from whom he could get codeine-based cough syrup. Keough said he would look into it. The men went back into the bar and exchanged telephone numbers. At no point did Darnell tell Keough that Armstrong was forcing him to sell cocaine or that Armstrong had threatened his life.

Six days later, on July 22, Keough received a message on his pager to call Darnell. When Keough returned the call, Darnell asked if Keough had gotten a price on the cough syrup. Keough told Darnell that he was going out of town for two weeks, but that he had talked to a source. Darnell told Keough that if the price was right, he would be able to take 20 gallons. Darnell then asked if Keough would need any cocaine. When Keough said he could use an ounce when he got back into town, Darnell told him to call on July 31 and he would have it ready.

Subsequently, on July 31, 1985, Keough and Darnell arranged by telephone to meet later that night at a bowling alley. During the call, Darnell asked Keough how much cocaine he would need that day. When Keough said he would need one ounce, Darnell replied that the price would be $2,100, but lowered it to $2,000 when Keough balked at the price. Later that night, when Keough arrived at the bowling alley, he walked up to Darnell and they both walked toward the bar. As they were heading toward the bar, Darnell handed Keough a manila envelope and said, “Take this.” Keough put the envelope into his pocket and the two sat at the end of the bar. Once seated, Keough opened the envelope, saw it contained white powder and paid Darnell $2,000. Darnell put the money into his pocket and asked again about the cough syrup and also asked Keough to check on obtaining some other codeine-based expectorants, some Doraden, and other controlled substances, the names of which Darnell wrote down on a piece of paper.

On August 5, 1985, Keough had another telephone conversation with Darnell during which Keough ordered another two ounces of cocaine. They agreed on a price of $3,700 and were to meet at a local tavern the next night. On August 6, approximately 8 p.m., Darnell arrived at the tavern. Keough and Darnell discussed codeine-based syrup and Darnell asked if Keough had gotten a price. When Keough said that the price was $300/gallon, Darnell replied that the price should not be more than $225. Darnell then offered to trade 10 ounces of cocaine for 40 gallons of codeine-based cough syrup plus $7,900 in cash. Keough told Darnell he would have to talk to his source.

The two men then went out to Darnell’s car to get the cocaine. As they approached the car, Keough saw a female sitting in the passenger seat. As they got closer, she got out of the car and started to walk away. When Keough and Darnell got into the car, Darnell reached under the driver’s seat, grabbed a clear plastic bag of white powder and handed it to Keough. Keough examined the powder, weighed it on a portable scale and paid Darnell $3,700. Darnell then told Keough to contact him as soon as he heard about a source for the codeine-based syrup. Keough testified that the area was under surveillance throughout the transaction.

On August 7, 1985, approximately 9:30 p.m., Keough and Darnell arranged by telephone to meet the following evening so that Darnell could examine a sample of Bromanyl expectorant that Keough had acquired. The next night, approximately 7:45 p.m., Darnell and Keough met in Lincoln Park. Keough showed Darnell the gallon of Bromanyl expectorant he had. Darnell pulled a label out of his pocket and compared it to the label on the bottle Keough had brought. When he was sure that the contents were the same, Darnell ordered 40 gallons and reiterated that he would trade 10 ounces of cocaine for the syrup and $7,900 in cash. They planned to complete the deal the next day. Before leaving, Darnell gave Keough two more cough syrup labels and asked Keough to check with his source on their availability.

The following day, August 9, 1985, approximately 1 p.m., Keough, with surveillance units, went to the Ford City Shopping Center parking lot to meet Darnell. Approximately 1:40 p.m., Keough received a pager message from Darnell. When Keough telephoned Darnell, Darnell told him that he was running late because his cocaine source had just arrived. He asked Keough to wait for him. Finally, approximately 3:30 p.m., Darnell arrived and got into Keough’s car. When Darnell asked to see the 40 gallons of codeine-based syrup, Keough asked to see the cocaine. Darnell replied that he had two people with him and that the other guy did not want the cocaine and the money in the car at the same time. Keough gave Darnell the cash, but said he would have to see the cocaine first before he gave him the syrup.

Darnell then got out of Keough’s car, got into his own and drove out of sight. Approximately five minutes later, Darnell returned and Keough got into Darnell’s car. Darnell said he had it and pointed to a white shopping bag lying open on the front seat. Inside the bag were two large clear plastic bags with rock and powder and one small bag. Darnell told Keough the small bag of cocaine was a bonus for setting up the deal.

When Darnell asked Keough for the syrup, Keough told him that he had four gallons in his trunk and the other 36 gallons were in a van parked about 100 feet away. Keough then got the four gallons out of his trunk, put them in Darnell’s trunk, got into Darnell’s car and told him to pull his car up next to the van. When they reached the van, Keough got out and handed the cocaine to the undercover agent driving the van. The arrest signal was given and the surveillance units began to converge on Darnell’s car. Darnell ducked down into his seat and started to speed away. However, he was blocked by several surveillance units before he got out of the parking lot.

Following Keough’s testimony, Officer Phillip Pariso, a Chicago police officer who had worked surveillance detail at Darnell’s residence, testified that on August 9, 1985, approximately 1:40 p.m., he saw Swiatkowski arrive at Darnell’s house in a blue Chevette and enter Darnell’s house. He did not see Swiatkowski carry anything from his car into the house. Approximately one hour later, Swiatkowski left Darnell’s house with Velez and Darnell. He did not see any of the defendants carrying anything. Swiatkowski drove off in his own car and Velez and Darnell walked through the gangway toward Darnell’s garage and left in Darnell’s car. Pariso followed the cars as they took the Kennedy Expressway to the Stevenson Expressway and exited at Pulaski. In the vicinity of 55th and Pulaski, both cars pulled over and Velez got out of Darnell’s car and into Swiatkowski’s car. Pariso did not see Velez carry anything from one car to the other. Both cars then proceeded southbound to the Ford City Shopping Center parking lot.

Michael Cummings, Chicago police officer, also testified that on August 9, 1985, he was working surveillance and followed two vehicles from Darnell’s house to the Ford City Shopping Center. At the shopping center, he saw Swiatkowski, with Velez as a passenger, park his blue Chevette near the main drive-thru. Darnell then drove his car over to Keough’s car. After a few minutes, Darnell drove his car toward Swiatkowski’s car and parked perpendicular in front of it. The passenger door on Swiatkowski’s car opened and Velez got out, entered Darnell’s car, spoke to him for a few minutes, walked back to Swiatkowski’s car, took a white bag from the front seat and handed it to Darnell. Darnell then drove back to Keough’s car and parked next to it. At that point, Swiatkowski drove his car a little closer to Darnell’s. Keough then took a box out of his car and put it in Darnell’s car, after which Darnell drove both himself and Keough to where the van was parked. Keough exited Darnell’s car, walked up to the van, and handed the white bag to the officer in the van. The surveillance units then moved in to make the arrest.

Next, John Wheaton, Chicago police officer, testified that on August 9, 1985, in the early afternoon, he arrested Darnell at the Ford City Shopping Center while Darnell was attempting to flee in his vehicle. When Wheaton searched Darnell’s car, he found $7,900 in United States currency and a carton containing four gallons of Bromanyl expectorant. Wheaton then showed Darnell a search warrant to search his house. Darnell told Wheaton that he had some guns and Demerol in the garage rafters. When Wheaton searched the garage, he found two handguns, a couple of scales, a large bottle of lactose and two smaller bottles of Demerol. Following Wheaton’s testimony, the State rested its case. The attorneys for the three defendants each moved for a directed finding, which the trial court denied.

On his own behalf, Darnell testified that in the early afternoon of July 16, 1985, he was at a local tavern talking to Bud Armstrong, whom he had known casually for approximately five years, when Armstrong told Darnell that he was in trouble with his cocaine dealer and wanted Darnell to take care of some deals until Armstrong got back into the dealer’s good graces. Although Darnell thought that Armstrong was a “rough character” and knew that Armstrong had once been convicted of a triple homicide, Darnell initially told Armstrong that he would not help him. However, when Armstrong threatened to tell Darnell’s wife that Darnell and Velez had been having an affair, Darnell agreed to deal some cocaine.

Consequently, later that day, in the tavern, Armstrong introduced Darnell to Keough. Darnell and Keough then went out to the parking lot where Darnell sold Keough some cocaine at a price allegedly set by Armstrong. Darnell claimed that he never kept any of the money that he received from the various cocaine deals with Keough. Instead, he gave all of it to Armstrong. Darnell admitted, however, that he had discussed obtaining cough syrup from Keough on two occasions.

Darnell further testified that in late July, Keough telephoned him to order an ounce of cocaine. Darnell got the cocaine from Alfredo, allegedly one of Armstrong’s sources, and met Keough at a bowling alley on July 31,1985, to consummate the deal.

Thereafter, on August 6, 1985, approximately 7:30 p.m., Darnell met Keough at another tavern and sold him two ounces of cocaine for $3,700. Darnell had arrived at the tavern with his stepdaughter in the car, but told her to leave for a few minutes while he spoke to Keough. That night, Keough asked Darnell if he could make an exchange of the cough syrup and cash for 10 ounces of cocaine. Darnell claimed that he agreed to the deal because he knew the Bromanyl cough syrup he had requested was not being made anymore and that it would be impossible for Keough to obtain 40 gallons of it. He figured this would be a way for him to terminate the drug-dealing relationship.

The following day, Keough called Darnell and told him that he had a sample of the syrup for Darnell to examine. They met that night, and Keough showed Darnell the cough syrup. Darnell testified that he was shocked that Keough had been able to get it.

On August 9, 1985, Darnell and Keough were to meet for the cocaine-cough syrup/cash exchange. Approximately 1:30 p.m. that day, Keough left a message for Darnell. When Darnell called him back, Keough stated that he was impatient to consummate the deal. Darnell told Keough that his contact had not yet arrived. At that time, Velez was already at Darnell’s house, but Swiatkowski had not yet arrived. Darnell, Swiatkowski and Velez were going to go to the Hawthorne Race Track. Darnell claimed that he never told Velez or Swiatkowski about the cocaine deals.

When Swiatkowski arrived, the three left to go to the track. Darnell told them that he had to meet someone at the Ford City Shopping Center on the way to the track. Approximately 3 p.m., Darnell delivered the cocaine to Keough at the shopping center. He saw Keough give the cocaine to a man in a van and then saw that man pull a gun. Thinking that he was going to be robbed, Darnell tried to escape.

Regarding the items found in his garage, Darnell testified that he received one of the scales as a souvenir from a doctor he had worked for and that he used the scales to make fishing weights. He denied ever having used the scales to measure drugs. Similarly, Darnell claimed that he used the lactose to fill hollow lures, and not to cut cocaine. With respect to the Demerol tablets, Darnell stated that they had been prescribed to him in 1976 for chronic back pain. However, they had upset his stomach so much, he discontinued using them.

On cross-examination by counsel for Velez, Darnell testified that before reaching the shopping center, he had stopped the car so that Velez could get into Swiatkowski’s car. He did not want her in his car during the transaction. When she got out, he handed her the white shopping bag and asked her to hold it for him. Velez did not know that the bag contained cocaine. Darnell further stated that Swiatkowski had not brought the bag to his house and that Swiatkowski did not know what was in the bag either.

On cross-examination by the State, Darnell admitted that when he agreed to help Armstrong, he knew that it was illegal to deliver cocaine and that, with the exception of the night Armstrong had introduced Darnell to Keough, Armstrong had never been present at any cocaine deal or during any telephone conversation regarding cocaine deals. Approximately twice a week, Darnell went to the local tavern and saw Armstrong there every time. He admitted that he had been having an affair with Velez for approximately three years and stated that he had known Swiatkowski for approximately five years and saw him weekly at the tavern. Darnell further stated that before the August 9, 1985, exchange took place, he thought that Keough might try to rip him off that day. However, he proceeded with the deal anyway.

Next, defendant Frances Velez testified that on August 9, 1985, approximately noon, she arrived at Darnell’s house to meet him and Swiatkowski and then go to the Hawthorne Race Track. When she arrived, Darnell told her that they could not leave until he got a telephone call. After he received the call, the three left. Darnell told her and Swiatkowski that he had to meet someone at the Ford City Shopping Center to pick up some money before they went to the track. Initially, Velez rode with Darnell in his car. On the way to the shopping center, they stopped and Darnell told, her to get into Swiatkowski’s car and to take a white bag with her. She never looked in the bag. At the shopping center, Darnell told Velez and Swiatkowski to wait 10 minutes and he drove out of sight. When Darnell returned, Velez got out of Swiatkowski’s car thinking that she was going to ride with Darnell. However, Darnell said, “no,” and asked her to give him the white bag, which she did. Darnell then drove off and Velez and Swiatkowski followed him. The next thing she knew, a police car stopped them and they were arrested.

On cross-examination, Velez stated that she had never been curious about the contents of the white bag. When they were waiting at Darnell’s house, he told them that he was waiting for a call from a guy who owed him money.

Defendant Joseph Swiatkowski then testified that on August 9, 1985, he arrived at Darnell’s house approximately 12:30 p.m. and left about an hour later with Darnell and Velez after Darnell received a telephone call for which he had been waiting. Darnell told Swiatowski to follow him and that he had to make one stop on the way to the race track. When Velez got into Swiatkowski’s car on the way to the shopping center, she was carrying what Swiatkowski thought was a white clutch purse. Velez told Swiatkowski that Darnell told her that he did not want her in his car when he got his money from the guy at the shopping center. At the shopping center, Darnell drove out of sight, then returned to get the white bag. When Darnell started to leave the second time, Swiatkowski followed him. He was then stopped by two cars and arrested. Swiatkowski claimed that he did not know what was in the white bag and had never discussed cocaine with anybody.

Following closing arguments, the court found the three defendants guilty of delivery of a controlled substance. Defense motions for new trial and arrest of judgment were denied. Following a hearing in aggravation and mitigation, the trial court sentenced each defendant to six years’ imprisonment. Each defendant appealed his or her conviction and the appeals were consolidated for review.

On appeal, the sole contention raised by Darnell is that he was entrapped by Bud Armstrong, a police informant, into committing the offense of delivery of a controlled substance and that the State failed to prove him guilty beyond a reasonable doubt by not rebutting his affirmative defense of entrapment. In response, the State argues that the evidence indicated beyond a reasonable doubt that Darnell was predisposed to the crime and, therefore, no entrapment occurred.

The affirmative defense of entrapment is defined in section 7—12 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 7—12) as:

“A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.”

Once the defendant presents some evidence of entrapment, the State must prove, beyond a reasonable doubt, that the defendant is not entrapped. (People v. Tipton (1980), 78 Ill. 2d 477, 401 N.E.2d 528.) To aid in the determination of whether entrapment has occurred, courts consider the following factors: (1) origination of the idea to commit the offense; (2) active encouragement of the suspect to commit the offense by the enforcement authorities; (3) purpose of the enforcement authorities’ encouragement (People v. Fisher (1979), 74 Ill. App. 3d 330, 333-34, 392 N.E.2d 975); and (4) the defendant’s predisposition to commit the offense. (People v. Schillaci (1988), 171 Ill. App. 3d 510, 526 N.E.2d 871.) In determining whether the defendant has been predisposed, the courts look at the defendant’s initial reluctance or his ready compliance to commit the particular crime and defendant’s familiarity with drugs and his willingness to accommodate the needs of drug users. If a defendant acceded to the crime readily and had a ready source for drugs, he will not be found to have been entrapped. (People v. Schillaci (1988), 171 Ill. App. 3d 510, 526 N.E.2d 871.) Further, entrapment will not be found to exist merely because a government official initiates a transaction with a defendant that leads to the sale of a controlled substance. People v. Cross (1979), 77 Ill. 2d 396, 396 N.E.2d 812, cert. denied sub nom. Thomas v. Illi nois (1980), 445 U.S. 929, 63 L. Ed. 2d 762, 100 S. Ct. 1316; People v. Dennis (1981), 94 Ill. App. 3d 448, 418 N.E.2d 479.

In the present case, defendant contends that the evidence fails to prove that he was predisposed to selling drugs. Defendant asserts that he has no prior criminal record; had never seen, used or trafficked in cocaine prior to the initial sale to Keough; and Armstrong coerced him into selling cocaine to Keough. Although the lack of a criminal record or previous narcotic involvement is relevant, it cannot overcome evidence of defendant’s ability and willingness to make the unlawful sales when the opportunity presented itself. (People v. Dennis (1981), 94 Ill. App. 3d 448, 418 N.E.2d 479; People v. Gonzales (1970), 125 Ill. App. 2d 225, 260 N.E.2d 234.) Similarly, defendant’s alleged fear and reluctance to sell drugs does not overcome the fact that he had engaged in a course of conduct involving similar offenses and had ready access to a drug supply. People v. Beavers (1986), 141 Ill. App. 3d 790, 491 N.E.2d 438.

Facts similar to those at bar were present in People v. Beavers (1986), 141 Ill. App. 3d 790, 491 N.E.2d 438, where the court found that entrapment did not exist. In Beavers, on June 5, 1984, Ira Beavers, defendant’s ex-husband, informed a drug agent that defendant was selling drugs. Although Ira had witnessed only one drug sale by defendant, he told the agent that defendant had told him that she was selling drugs. The following day, Ira telephoned defendant and asked her to go to a drug supplier with him to purchase a gram of cocaine. When she hesitated, he reminded her that she owed him a favor. She then agreed.

After the purchase, Ira and an undercover drug agent arrived at defendant’s house. Outside of the agent’s presence, Ira asked defendant to sell the cocaine to the agent because his drug involvement would jeopardize his job. Ira then handed the gram to defendant and she delivered it to the agent. When the agent asked if she could get more, defendant answered that she could. At trial, defendant claimed that it was the first time she had sold drugs.

Between June 6 and June 8, defendant agreed to sell more cocaine to the agent. Even though Ira had not threatened her, she feared that if she refused, he would physically abuse her as he had in the past. On June 8, the agent called defendant to arrange for another purchase. Defendant obtained some cocaine from a supplier and sold it to the agent.

On June 13, the agent called defendant and asked her about buying some more cocaine. She said she would check with her supplier. When he called her back the next day, she said she could get it, but the supplier had not picked it up yet. Defendant claimed that she tried to stall the agent, but feared problems with Ira if she refused to get the cocaine for the agent. On June 15, the agent called defendant twice. She contended that she tried to stall him again, but eventually sold him one-eighth ounce of cocaine. At that meeting, defendant also told the agent that she could get kilos of cocaine.

Thereafter, on June 20, the agent telephoned defendant to order one gram of cocaine for the next day and one-eighth ounce for the day after that. Defendant claimed that she called Ira on June 21 and told him that she did not like dealing. However, she ordered the cocaine from the supplier and sold two half-gram packets to the agent the next day and arranged to get him another one-eighth ounce.

On June 22, when the agent came to defendant’s house to pick up the one-eighth ounce of cocaine, he waited at her door while she went to get it. When she handed it to him, eight police officers appeared, arrested her and conducted a search of her home. As a result of the search, the police officers found a sifter, two bottles of Anistol powder, two half-gram packages of cocaine, a cocaine mirror, a short straw, razor blades and a gram scale.

Similarly, in the present case, following the initial sale of drugs by Darnell to Keough at Armstrong’s urging, Darnell made four additional sales to Keough. These additional sales were the ones for which he was indicted. There is no evidence that Armstrong was involved in any of the other sales. Further, Darnell not only initiated the cough syrup transaction at the first meeting, but he also negotiated the price with Keough without having to check with anyone and knew how much cough syrup and cash would be the equivalent value of 10 ounces of cocaine. In doing so, Darnell demonstrated a keen awareness of the use of drugs and their monetary value. In addition, Darnell had several labels which he used to check the contents of the bottle Keough had brought to be sure it was the right kind of cough syrup and gave Keough additional labels to see if he could procure other types of controlled substances. As in Beavers, Darnell’s alleged reluctance to continue dealing and his alleged fear of physical harm are irrelevant in light of his continued course of dealing and his ready access to a drug supply.

Darnell’s reliance on People v. Martin (1984), 124 Ill. App. 3d 590, 464 N.E.2d 837, and People v. Poulos (1990), 196 Ill. App. 3d 653, 554 N.E.2d 448, as support for his argument that he had been entrapped is misplaced. In Martin, defendant, age 21, worked in his parents’ jewelry store during the day and went to public lounges at night. In April 1979, defendant met Nello. Nello asked defendant if he had any cocaine, and, if not, if he would like some. Defendant told Nello that he never used cocaine. Nello then struck up a friendship with defendant by offering to help him sell some jewelry.

Thereafter, defendant began socializing with Nello and eventually began to use drugs, which Nello supplied to him free of charge. By the end of June, Nello was pressuring defendant to sell drugs, but he refused. At that point, defendant’s parents sent him out of State for several months to break the drug habit. However, when he returned in September, he began to associate with Nello again and finally agreed to deliver drugs for Nello. At that time, Nello introduced defendant to two undercover drug agents. Nello told defendant that he owed the men a lot of money and he would not get paid if they knew it was Nello’s cocaine.

On September 4, 1979, defendant and Nello met the two agents in a bar. Defendant noticed that one of the agents was wearing some of the jewelry Nello had sold for him, and defendant tried to sell the agent some more of the jewelry. However, the agent said that he was not interested in buying jewelry, but would like to buy some cocaine. Defendant then handed him a package of cocaine and the agent paid him $560, which defendant handed over to Nello as soon as they left the bar.

The next day, the agent called defendant at the jewelry store and wanted to buy more cocaine. Defendant refused to sell him any drugs. The agent kept calling on a daily basis, but defendant refused. On September 13, defendant went to another party at Nello’s and Nello told him that defendant had to do him one more favor. Defendant refused, but Nello persisted. As a result, the next day, defendant called the agent and arranged to meet him at a restaurant. Nello had given him a package of cocaine and defendant was to collect $2,775. After the exchange, defendant gave the money to Nello.

On September 15, the agent called defendant again for more cocaine. Defendant refused. The agent continued to call, but defendant refused to see him again. Subsequently, defendant was arrested, tried and convicted of unlawful delivery of a controlled substance. On appeal, the reviewing court reversed the conviction on the ground that but for the relentless coercion by the informant and the persistence of the agents, defendant would not have been predisposed to commit the offense.

A similar pattern of persistence and informant-involvement was present in People v. Poulos (1990), 196 Ill. App. 3d 653, 554 N.E.2d 448, where defendant, owner of a video game room, was repeatedly asked by Budaj, the previous owner of the game room, to sell cocaine to an undercover agent. Budaj was a police informant and would regularly stop by the game room for business purposes as well as to try to convince defendant to sell some cocaine. This harassment persisted over a two-month period until one evening, Budaj purchased some cocaine from a third party in defendant’s presence at the game room. When the sale was completed, the informant asked defendant to do him a favor and sell the cocaine to another party, the undercover agent, for $1,100. Defendant relented. After the sale, he gave all of the money to Budaj, but Budaj allegedly insisted that defendant keep $100 for himself. Although there was some evidence that defendant discussed subsequent sales with the undercover agent, no subsequent sales took place. Defendant was arrested and convicted of delivery of a controlled substance. On appeal, the Poulos court held that defendant had been entrapped. In reaching its decision, the court noted that: (1) there had been no evidence of subsequent narcotics-related activities; (2) the single offense was committed after two months of persistent urging; (3) the informant supplied the cocaine; (4) the informant directed all conversations between defendant and the undercover agent; and (5) defendant had never been involved previously with drugs.

The coercion and persistence present in Martin and Poulos are markedly absent from the present case. Darnell’s refusal and acquiescence to Armstrong’s demands occurred in a short period of time on one evening. Although Darnell alleges that he had stalled Keough a few times, the record indicates that he promptly followed through on every one of Keough’s requests for drugs. Further, in Martin and Poulos, the respective informants supplied the drugs. By contrast, in the present case, after the first transaction for which Darnell was not indicted, Darnell had direct access to a supplier, did not involve Armstrong, and initiated his own negotiations.

Darnell further argues that the extent of government involvement in the drug transactions demonstrates entrapment. In support of this contention, Darnell cites to his initial reluctance to sell cocaine; the facts that Armstrong supplied the cocaine, price, customer, time and location for the first sale; Armstrong’s alleged badgering; and Keough’s alleged relentlessness. These grounds are unpersuasive. As previously stated, more important than Darnell’s initial reluctance and the fact that Armstrong may have badgered him initially is the fact that Darnell made four subsequent drug sales to Keough. There is no evidence that Darnell told Keough at anytime that he would not sell him cocaine and that Keough continued to harass him until he agreed to do so. To the contrary, Darnell satisfied every drug request made by Keough and never indicated to Keough that he was doing so against his will. Further, although Armstrong had supplied the cocaine, customer, time and location for the first transaction, Darnell took care of those details for every subsequent transaction and took the initiative to enlarge the scope of the transactions to include codeine-based cough syrups. In fact, when Keough indicated that he could secure the first syrup requested by Darnell, Darnell gave him a list of additional cough syrups he was interested in purchasing. Entrapment does not exist when police act to detect such persons as Darnell who are ready and willing to commit further crimes. (People v. Boalbey (1986), 143 Ill. App. 3d 362, 493 N.E.2d 369.) Even viewing Darnell’s testimony in the light most favorable to him (People v. Connor (1988), 176 Ill. App. 3d 900, 531 N.E.2d 966), we conclude that the trial court properly ruled that entrapment did not exist. Finally, although we recognize that the State’s failure to call an informant to testify generally gives rise to an inference against the State (People v. Poulos (1990), 196 Ill. App. 3d 653, 554 N.E.2d 448), in light of the evidence as to Darnell’s willingness and ability to commit future crimes and his consummation of those crimes, we find that inference unpersuasive.

Next, Velez and Swiatkowski contend that they were denied their right to a fair trial by the admission of the unreliable hearsay testimony of Officer Keough regarding statements allegedly made by Darnell which implicated Velez and Swiatkowski. At trial, during the State’s direct examination of Officer Keough, the following questioning took place:

“[STATE]: While you were in your car with the defendant in the Ford City parking lot at that time was there any conversation?
[KEOUGH]: Yes.
[STATE]: Wbat did [Darnell] state to you and what did you state to him?
[KEOUGH]: He wanted to see the 40 gallons of syrup. And at that time I told him that I wanted to see the cocaine. And he said that, T have got 2 people with me.’ And he said, ‘This guy doesn’t want the cocaine and the money in the car at the same time.’
* * *
[STATE]: Did the defendant state to you what the other two people were doing?
[KEOUGH]: He just said that they didn’t want the money and the cocaine at the same time. That they were there to make sure that they didn’t lose the cocaine.
* * *
[STATE]: What happened after the defendant Darnell counted the money?
[KEOUGH]: He gave me the money back and he said, ‘Well, let me go see what they want to do.’ He got out of his car and got back into his vehicle, got out of my car, and got back into his vehicle and drove out of my view.”

Velez and Swiatkowski contend that Officer Keough’s comments constituted inadmissible hearsay because they were used as substantive evidence to prove that Velez and Swiatkowski were partners with Darnell in the cocaine deal, and that the co-conspirator’s exception to the hearsay rule does not apply because a prima facie case as to conspiracy had not been established independent of Keough’s statements. In response, the State argues that Velez and Swiatkowski have waived this issue for review because of their failure to object to the hearsay statements at trial or to allege with specificity in the post-trial motion that the statements constituted error.

It is well established that alleged trial errors not objected to at trial or preserved with specificity in a post-trial motion are waived on review. (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.) Moreover, hearsay evidence admitted without objection is properly considered by the court and is to be given its natural probative effect. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267; People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733.) However, if the evidence is closely balanced and an innocent person may be convicted due to some obvious error which had not been properly reserved for review, the reviewing court may consider the error under the plain error doctrine. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124; 107 Ill. 2d R. 615(a).

In the present case, the record supports the State’s waiver argument. However, in light of the paucity of evidence in the record implicating Velez and Swiatkowski in a conspiracy to sell drugs, we elect to invoke the plain error doctrine and to review the issue as to whether the co-conspirator’s exception to the hearsay rule is a proper ground for admitting Officer Keough’s testimony implicating Velez and Swiatkowski.

The co-conspirator exception permits declarations made in furtherance of and during the pendency of the conspiracy to be admitted provided that there is an independent prima facie showing of a conspiracy. (People v. Parmly (1987), 117 Ill. 2d 386, 512 N.E.2d 1213.) Although proof of the illicit association between declarant and defendant may be totally circumstantial (People v. Duckworth (1989), 180 Ill. App. 3d 792, 536 N.E.2d 469), it must evidence an agreement between the declarant and defendant and the proof must be sufficient, substantial and independent of the declarations. Mere knowledge or acquiescence of an illegal act does not constitute conspiracy. People v. Deatherage (1984), 122 Ill. App. 3d 620, 461 N.E.2d 631.

In People v. Duckworth (1989), 180 Ill. App. 3d 792, 536 N.E.2d 469, this court addressed a situation similar to the one at bar. Defendant Charles Duckworth was tried jointly with codefendant Tammy Duckworth on charges that they had knowingly delivered a controlled substance. Both defendants were found guilty. The facts underlying the convictions were as follows. In July 1987, undercover agent Richard Scott heard through a confidential source about a potential drug contact, Tammy Duckworth. On July 8, 1987, Scott called Tammy. She agreed to sell him three ounces of cocaine every three to four weeks and informed Scott that she would get the cocaine for $1,400 an ounce through an uncle who lived next door to her. They made arrangements to consummate the deal on July 10 at the Village Mall.

On the day of the meeting, Scott and a surveillance team went to the mall. Tammy had told Scott that she would be arriving in a white Buick. When he saw a vehicle matching that description pull into the parking lot, he waved the driver over and asked her if her name was “Tammy.” When she said it was, Scott got into her car. At that point, she told him that her uncle was going to be the source and her uncle had to show his supplier the money before he could get the cocaine. Scott refused to turn over the money without getting the cocaine. However, he suggested that her uncle drive to the mall and park near them. She could then go between the cars with the cocaine and the money.

Tammy left the mall for a brief period and when she returned, told Scott that she could only get V-tz ounces of cocaine. Scott agreed to purchase the lesser amount. Tammy then left the mall again and returned with two bags of cocaine. When Scott started to count the money, he signalled to the surveillance units and they converged on the scene and arrested Tammy.

Robert Putnam, one of the surveillance units who had witnessed the first two contacts between Tammy and Scott, saw a blue van enter the parking lot and park near Scott. Tammy exited from the passenger side of the van and entered Scott’s car. At that point, Scott indicated that a delivery had been made. Putnam and another officer approached the van and ordered the. man inside, defendant Charles Duckworth, to exit.

On appeal, defendant argued that the trial court improperly admitted testimony by Scott that Tammy had told him that her uncle would be the source and that she would speak to her uncle about his coming to the mall. Defendant claimed that the testimony did not fall within the co-conspirator exception to the hearsay rule because the State had failed to prove the existence of a conspiracy through independent evidence. The appellate court agreed on the grounds that the defendant’s mere appearance at the scene did not establish an illicit association between defendant and Tammy.

In the present case, the lack of evidence as to the involvement of Velez and Swiatkowski in Darnell’s drug sales is similar to that in Duckworth. Here, Keough conducted drug buys with Darnell on five different occasions. Velez and Swiatkowski were in the vicinity during the last buy only. At that time, Officer Cummings observed Velez, who was a passenger in Swiatkowski’s car, hand a white bag to Darnell. This bag was subsequently given to Keough and was found to contain cocaine. Similar to Duckworth, there is no independent evidence of an agreement between Darnell and Velez and Swiatkowski. It is axiomatic that, without evidence of an agreement, a conspiracy cannot be established. (People v. Deatherage (1984), 122 Ill. App. 3d 620, 461 N.E.2d 631.) Both Velez and Swiatkowski claim they had never even looked inside the bag. However, even if they had and had discovered that it contained cocaine, mere knowledge of an illegal act or acquiescence to it does not constitute conspiracy. Deatherage, 122 Ill. App. 3d 620, 461 N.E.2d 631.

The present facts are distinguishable from those in People v. Goodman (1980), 81 Ill. 2d 278, 408 N.E.2d 215, where the court found that there was sufficient independent evidence of conspiracy to render applicable the co-conspirator’s exception to the hearsay rule. In Goodman, in defendant’s presence, the declarant announced to the agent that he had the cocaine; declarant and defendant were seen having a discussion immediately after the agent requested a test of the cocaine and agreed to put down $1,000 for security; and defendant was seen affirmatively nodding his head and receiving the $1,000 in cash. The court concluded that this was evidence from which an agreement to sell cocaine could be inferred. No affirmative acts of agreement have been established in the present case.

Next, Velez and Swiatkowski contend that the State failed to prove them guilty of delivery of a controlled substance beyond a reasonable doubt on the accountability theory. Specifically, Velez and Swiatkowski contend that the evidence against them was entirely circumstantial and that the State failed to establish their guilt so as to exclude every reasonable hypothesis of innocence. In response, the State argues that the evidence supports the trial court’s finding that they were accountable for Darnell’s actions and that they were proven guilty beyond a reasonable doubt.

To sustain a conviction of unlawful delivery based on an accountability theory, the State must establish beyond a reasonable doubt that: (1) the defendant solicited, ordered, abetted, agreed or attempted to aid another in the planning or commission of the delivery; (2) the defendant’s participation took place before or during the commission of the delivery; and (3) the defendant had the concurrent, specific intent to promote or to facilitate the commission of the offense. (Ill. Rev. Stat. 1989, ch. 38, par. 5—2; People v. Deatherage (1984), 122 Ill. App. 3d 620, 461 N.E.2d 631.) Defendant’s mere presence at the scene does not render him accountable. There must be proof of the requisite intent and that defendant aided, abetted or attempted to aid another in the perpetration of the crime. (People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520.) Further, if defendant’s involvement rests solely on circumstantial evidence, the facts proved must be inconsistent with any reasonable hypothesis of innocence. People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520.

In the present case, Velez and Swiatkowski argue that there was no evidence that either of them knew that Darnell was involved in a cocaine deal. The testimony of the three indicated that on their way to the race track, they stopped at the Ford City Shopping Center so that Darnell could meet someone who was going to give him some money. Velez left Darnell’s house as a passenger in Darnell’s car and before arriving at the shopping center, changed cars at Darnell’s request and rode with Swiatkowski. When Velez changed cars, Darnell told Velez to take a white shopping bag with her to Swiatkowski’s car. She took it without asking about it or looking at the contents. Later, at the shopping center, when Darnell asked her for the bag, she gave it to him. Further, Darnell testified that neither Velez nor Swiatkowski knew anything about the cocaine deals.

In response to the contention by Velez and Swiatkowski that the State failed to prove them guilty by accountability beyond a reasonable doubt, the State argues that the trial court could reasonably infer from the defendants’ presence at the scene and their active participation in the transaction as well as from the inconsistencies in their testimony that Velez and Swiatkowski had agreed to facilitate the consummation of the delivery of cocaine. We find this argument unpersuasive on the ground that the alleged evidence and inconsistencies relied upon by the State are predicated on speculative implications and a misinterpretation of the record.

With respect to defendants’ presence at the scene, it is well established that mere presence at the scene of the crime, even coupled with knowledge that a crime is being committed, is not sufficient to establish guilt on an accountability theory. (People v. Deatherage (1984), 122 Ill. App. 3d 620, 461 N.E.2d 631.) In Deatherage, defendant and codefendant Cabage were indicted for the unlawful delivery of cocaine. Defendant was tried separately before a jury, convicted and sentenced to three years’ imprisonment. The State’s case was based on an accountability theory. At defendant’s trial, undercover agent Simmons, the sole occurrence witness, testified that defendant was present at the Sports Page Tavern at approximately 1:45 p.m. on February 11, 1982, when Simmons and a fellow agent, DuPoy, walked into the bar. DuPoy and Cabage talked for a while and then went outside to the parking lot. Simmons and DuPoy left and Cabage returned to the bar. A short time later, Simmons and DuPoy returned to the tavern to purchase some cannabis from Cabage. When Simmons entered the bar, he saw Cabage, and the two went outside, where Simmons arranged the purchase. Simmons then asked if he could taste some cocaine. Cabage replied that he would have to contact another “guy.” The two arranged for Simmons to call Cabage at home later that day. Simmons did not see defendant at all during this meeting.

Instead of calling Cabage later that day, Simmons and DuPoy drove to his house. Cabage met them at the door. Defendant was sitting in the living room watching television. When Simmons expressed concern about defendant’s presence, Cabage told him not to worry and showed Simmons a sample of cocaine. When Simmons asked Cabage if he could get more cocaine, Cabage asked defendant what the source had said about the price. Defendant replied that it was $200 a gram.

As Simmons and Cabage were leaving to go outside to get the cannabis, Simmons asked defendant if he could get more cocaine from the source. Defendant started to answer, but was interrupted by Cabage. Simmons and Cabage then went outside, took a carton from Cabage’s car and returned to the house. The cannabis buy took place in the bedroom, outside of defendant’s presence. Simmons then asked Cabage who could get him more cocaine in the future. Cabage answered that he would have to “go through that guy plus another guy.” Simmons understood “that guy” to refer to defendant. Simmons and DuPoy then left the house.

On appeal, the court held that, although defendant was present at Cabage’s home on one occasion and had answered a question about the price of cocaine, mere presence at the scene of a crime and knowledge that a crime was being committed were insufficient to establish guilt. Further, the court stated that when the evidence is circumstantial, guilt must be established so as to eliminate all reasonable hypotheses of innocence. (122 Ill. App. 3d at 624.) With respect to Deatherage, the court recognized that he obviously had some knowledge of the cocaine trade, but found it possible that he was merely an innocent bystander to the sale.

In the present case, there is no evidence that Velez and Swiatkowski knew that a crime was being committed. Nevertheless, based on the following, the State contends that they had actively participated in the offense. First, the State argues that Swiatkowski brought the cocaine to Darnell’s house and transported it to Ford City. The State bases this conclusion on Officer Pariso’s testimony that he did not observe any of the defendants carry packages from Darnell’s house and he did not observe Velez carry anything from Darnell’s car to Swiatkowski’s car when she switched cars. In our view, Officer Pariso’s testimony is nothing more than a statement concerning what he saw from his vantage point on a side street near Darnell’s house and from some point near where Velez switched cars. The implication that Swiatkowski was the supplier is purely speculative and is not supported by the evidence. Moreover, we find that there is even less evidence of accountability in the present case than there was in Deatherage in that there is no evidence that either Swiatkowski or Velez had any knowledge that a cocaine deal was taking place. As in Deatherage, it is possible that they were merely innocent bystanders.

The State further relies on the following alleged inconsistencies in defendants’ testimony as grounds for the trial court’s decision. First, the State contends that Officer Cummings’ testimony that he saw Velez enter Darnell’s car at Ford City, talk to him for a few minutes, get the bag from Swiatkowski’s car and give it to Darnell is inconsistent with Velez’s testimony which “implied” that she did not actually enter Darnell’s car in the parking lot and that she knew a cocaine deal was in progress. A review of Velez’s testimony indicates that she never explicitly stated she did or did not enter Darnell’s car in the parking lot. Moreover, whether or not she had entered the car is irrelevant to the issue of whether she knew a cocaine deal was in progress. The undisputed facts are that Darnell drove up to Swiatkowski’s car, Velez got out, talked to Darnell, walked back to Swiatkowski’s car, got the plastic bag, handed it to Darnell, and got back into Swiatkowski’s car. Darnell then drove back to where Keough was waiting. Again, we find no inconsistent testimony as to the relevant facts.

Second, the State contends that Swiatkowski’s testimony that after the package had been passed to Darnell, he moved his car so that he could see where Darnell was going is inconsistent with Swiatkowski’s statement that he had moved only a few feet. This contention is directly contradicted by the record. On both direct and cross-examination, Swiatkowski was consistent in his testimony that he had moved his car “a little bit” and a “couple of spots” so as to see when Darnell left the parking lot.

Third, the State argues that Swiatkowski’s statement that he had followed Darnell to Ford City was inconsistent with Darnell’s testimony that he had followed Swiatkowski. Contrary to the State’s contention, Darnell did not testify that he had followed Swiatkowski. Instead, Darnell stated, “I said we’re going to Ford City. I had never been there before and Jay [Swiatkowski] had an idea where to go.” Moreover, Officer Pariso corroborated Swiatkowski’s statement that he had followed Darnell to the shopping center. We find no inconsistency in these statements.

Fourth, the State argues that Velez’s statement that she saw Darnell carry the white bag from the house is inconsistent with her later statement that she saw the bag for the first time in Darnell’s car. Contrary to the State’s argument, Velez did not testify that she saw the bag for the first time when she was in Darnell’s car. Instead, she testified that, when she picked up the bag to carry it to Swiatkowski’s car, she realized for the first time that what Darnell had carried out to his car was not his back brace. Again, we find no inconsistency in the testimony.

Finally, the State contends that Velez’s testimony that Darnell had given her no explanation for transferring the bag to her is inconsistent with Swiatkowski’s statement that Velez told him that Darnell had told her that he did not want her in the car when he got his money. Contrary to the State’s attempt to find an inconsistency, the record clearly indicates that Velez and Swiatkowski were discussing two different transfers. Velez was referring to the transfer of the bag from Darnell to her. Swiatkowski was testifying as to the reason given to Velez by Darnell for switching cars. There was no inconsistency. Therefore, based on the foregoing analysis, we conclude that there was insufficient evidence to find Velez and Swiatkowski guilty of unlawful delivery of a controlled substance based on an accountability theory beyond a reasonable doubt.

The present case is distinguishable from the situation in People v. Pintos (1988), 172 Ill. App. 3d 1096, 527 N.E.2d 312, aff'd (1989), 133 Ill. 2d 286, 549 N.E.2d 344, where the court held that defendant was proven guilty beyond a reasonable doubt of intent to deliver a controlled substance on an accountability theory. The Pintos court based its decision on the totality of circumstances, which it found indicated that defendant had knowledge that the package he had transported contained cocaine. The circumstances specifically noted by the court are: defendant and codefendant Sosa arrived in Chicago from Florida, carrying a large, gift-wrapped package which they took to the Chicago hotel room of codefendant Diaz, also from Florida. Diaz had previously made arrangements with an undercover agent to sell the agent eight kilograms of cocaine which he told the agent would be delivered from Florida. Defendant and Sosa stayed in a room next to Diaz’s room and kept the large package in their possession overnight. The next day, after the agent arrived at Diaz’s room to consummate the deal, Diaz went to defendant’s room and brought the package back to his room. The flaps on the box were open and protruded up an inch or two from the surface of the box. The box was found to contain nine individually wrapped kilograms of cocaine. Based on the evidence, the court found Pintos guilty beyond a reasonable doubt of intent to deliver a controlled substance on an accountability theory.

In contrast to Pintos, in the present case, Velez and Swiatkowski were in possession of the white bag for only a matter of minutes and there is no evidence that the bag had been opened during that time and the contents examined. Mere speculation that they may have opened the bag is insufficient to support a finding of guilt beyond a reasonable doubt. See People v. Deatherage (1984), 122 Ill. App. 3d 620, 461 N.E.2d 631.

Moreover, as further support for our decision, the trial court’s comments at sentencing and the minimum sentence itself indicate that the trial court was not convinced beyond a reasonable doubt as to Swiatkowski’s and Velez’s guilt by accountability. Specifically, the court stated:

“If I am wrong in terms of their accountability in this, then the Appellate Court can at will reverse my finding, my judgment, and Swiatkowski and Velez especially I think they’re in somewhat of a different category than Darnell.
* * *
And in the meantime I will allow the Defendant to remain out on appeal so that if the accountability wasn’t there or the entrapment wasn’t there for Darnell, but especially Velez and Swiatkowski, that they will not have been imprisoned for no good sufficient and legal reason.”

Accordingly, based upon the foregoing, the judgment of the trial court as to Darnell is affirmed; and the judgment as to Velez and Swiatkowski is reversed.

Affirmed in part; reversed in part.

O’CONNOR and MANNING, JJ., concur.