author: JUSTICE COLWELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VICTOR MORALES et al., Defendants-Appellants.
    Second District
    Nos. 2—92—0098, 2—92—0154 cons.
    Opinion filed November 9, 1993.

      G. Joseph Weller, Paul Alexander Rogers, and Thomas A. Lilien, all of State Appellate Defender’s Office, of Elgin, for appellants.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COLWELL

delivered the opinion of the court;

Defendants, Victor Morales and Francisco Aguirre, appeal from their convictions in the circuit court of Lake County of aggravated battery, causing great bodily harm (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 4(a) (now codified, as amended, at 720 ILCS 5/12 — 4(a) (West 1992))). Defendant Aguirre also appeals from the trial court’s imposition of the maximum extended term of 10 years.

Defendants argue on appeal that the State’s evidence was insufficient to prove guilt beyond a reasonable doubt and that defendants were unfairly surprised by the complainant’s testimony because the State failed to supply them with notice of it in the discovery materials. Defendant Aguirre further argues that the trial court improperly admitted evidence regarding his alleged role as the chief of the Latin Lovers, a Waukegan street gang, and that two of the extended-term factors considered by the trial court are unconstitutional. We affirm.

On August 16, 1991, defendants were charged by information with two counts of aggravated battery. Each defendant retained his own counsel. On August 28, the Lake County grand jury returned a three-count indictment supplanting the complaint. The indictment charged the two defendants, along with Roberto Dominguez and Carlos Cortez, with the commission of offenses against Keith Smith on August 15, 1991. The counts charged in the indictment were attempted murder, aggravated battery (great bodily harm form), and aggravated battery (public way form).

Dominguez pleaded guilty to a charge of aggravated battery and has a separate appeal pending before this court (No. 2 — 92—0429). Cortez was not apprehended.

The cause proceeded to a joint bench trial on December 9, 1991. Both defendants moved for an examination of Smith’s competency before he testified, based on his having sustained brain damage and his lacking recollection. The motion was denied as not sufficiently raising a question of competency to require a hearing in advance of the witness testifying. The trial court directed a finding for defendants on the attempted murder count and acquitted them on the count of aggravated battery involving public property. The court convicted each defendant of the count of aggravated battery causing great bodily harm.

Aguirre filed a motion to reconsider and for a new trial. Morales also filed a motion for a new trial. On January 17, 1992, the court sentenced Morales to a term of 41/2% years’ imprisonment and Aguirre to an extended term of 10 years’ imprisonment. Aguirre’s motion to reconsider the sentence was denied. Both defendants timely appealed, and their appeals were consolidated by this court.

Accounts of the events of August 15, 1991, vary considerably. All of the witnesses concur, however, that, after dark that evening, Keith Smith entered Yeoman Park with several fellow members of the Latin Lovers, including Morales, Aguirre, Dominguez, and Cortez, where he underwent a three-minute “violation,” or beating, in order to be released from membership in the gang. Smith fell unconscious during the beating and was subsequently taken to St. Therese Hospital in the truck of another gang member, Jacid Prado.

The parties stipulated to the testimony of Dr. Avilla of St. Therese Hospital, as reflected in his medical reports. Dr. Avilla examined Smith on August 16 and thereafter and performed a craniotomy. According to medical reports, Smith suffered from an acute subdural hematoma on the left side, multiple facial injuries, and blunt trauma to the abdomen with hematuria. He was transported from the hospital to the Rehabilitation Institute of Chicago on September 9, 1991. He was released from the institute on November 14, 1991, and at the time of trial was attending a rehab program on a daily basis from 8 a.m. to 4 p.m.

Witnesses called by the State included several members of the Latin Lovers gang. Keith Smith, the complainant, was 15 years old at the time of the incident and stated that he had been a member of the Latin Lovers for about eight months. Jacid Prado, who described himself as a close friend of Smith, was a member of the gang for 8 to 12 months before August 15, 1991, and got Smith a job with his father’s construction company. Felipe Diaz, 20 years old at the time of trial, testified that he had been in the Latin Lovers for three years, had been chief of the gang three months prior to August 15, 1991, but had gotten out by the time of trial. Diaz testified before the grand jury on August 28, 1991, in exchange for the State’s promise not to prosecute him for the offenses against Smith.

The State also called 16-year-old Jose Olivero, who testified that he was a friend of Smith and not a member of any gang on August 15, 1991; 17-year-old Jose Medina, who, after beginning his testimony by denying ever being a gang member, admitted on cross-examination to being in the Satan’s Disciples, an allied gang of the Latin Lovers; Officer Hendley, a Waukegan police officer; and Lolita Torrez, Morales’ fiancee.

Each defendant called one witness. Morales called Officer Hendley and Aguirre called Roberto Dominguez. Dominguez had been a member of the Latin Lovers for a year as of the time of trial and was in jail awaiting sentencing, having pleaded guilty to aggravated battery. Dominguez testified that only he and Cortez inflicted the beating on Smith.

The significant differences in testimony revolve around precisely who was present before, during, and after Smith was “violated”; what were the rules and protocol of a violation; who was the chief of the Latin Lovers on August 15, 1991; and what role Morales and Aguirre may have played in the incident. The chronology of the events is generally agreed upon.

Around 9 or 10 p.m. on August 15, Smith and his friend Jose Olivero were walking near Yeoman Park when they were approached by Aguirre, Morales, Dominguez, Cortez, and Diaz. Diaz testified that he was riding a bicycle alone on August 15 when he came upon Smith and the others and that individuals called “Face” and “Oh Boy,” whom Diaz identified as the leader of the Satan’s Disciples, were also present, along with “a couple of the other gang members.” Diaz also stated that Smith was in the company of members of a gang called the Last Deeds.

According to Smith, the Yeoman Park area was in the territory of the Satan’s Disciples. Smith testified that he wanted to leave the Latin Lovers and had spoken about joining the Satan’s Disciples, although he did not really want to go to another gang. Jacid Prado testified that the Latin Lovers had a rule against not hanging around with the members. He stated that both he and Smith, who saw each other daily, stopped spending time with fellow gang members prior to August 15, 1991. Dominguez also testified that Smith had stopped hanging around with the gang for some time before August 15. Prado said he was warned prior to August 15 that members were going to beat up those who did not hang around with the gang.

Initiation into the gang required undergoing a one-minute violation, which evidently consisted of fighting one, two, or three members of the gang for one minute and did not include contact with the face. Getting out of the gang required undergoing a three-minute violation, which, by all but one witness’ account, meant fighting with three members for three minutes. Dominguez offered the conflicting testimony, stating that the number of members administering the beating for leaving the gang was the same as for entering: “[i]t can be 1, it can be 10.” Use of the hands and the feet was permitted, as well as contact from head to toe, including the face.

Smith testified that he had witnessed “maybe about two” violations as a member of the gang. Diaz testified that the gang instituted the rule requiring a three-minute beating to get out of the gang one month prior to August 15. Although Diaz said he had witnessed four or five one-minute violations, his statements are ambiguous as to whether the August 15 violation of Smith was the first three-minute violation he had personally witnessed or the first that the Latin Lovers had attempted.

According to Smith, Aguirre was chief of the Latin Lovers throughout the eight months Smith was a member. Smith stated that in the prior violations he had witnessed Aguirre named the three persons who would take part; he did not hear anyone name who the three violators would be on August 15. Diaz testified that he was chief until three months before Smith’s violation, but that Aguirre was chief on August 15. Diaz stated that the chief decided who would administer the one-minute violations he had observed. Dominguez testified that Diaz was chief on August 15 and that Diaz designated who the violators would be. Prado testified that Diaz was never chief during the 8 to 12 months that Prado was a member; rather, Aguirre was chief.

When Smith and Olivero encountered Aguirre, Morales, and the others near Yeoman Park, Smith was asked whether he wanted to get out of the gang. Smith replied that he did and, according to Diaz, that he wanted to move on to the Satan’s Disciples. According to Olivero and Diaz, Aguirre then told Smith that he would have to take his violation to get out. Smith testified that, although he realized he had to undergo a violation in order to leave the gang, he wanted it one-on-one but that Aguirre replied it had to be his way: Smith had to fight three men for three minutes. According to Olivero, Smith also stated that he did not want the violation done that night, but Aguirre said that he could “get it now” or “whenever they see him.”

Smith testified that he agreed to take his violation, although he did not want to do so at any time. Aguirre, Morales, Dominguez, Cortez, Diaz, Olivero, and Smith then proceeded to the park. Either before entering the park or after, Smith went to get a watch so that the three-minute violation could be timed. Diaz testified that, as they walked to the park, Aguirre asked him if he “wanted some exercise,” and Diaz replied that he did not. Diaz stopped across the street from the park and remained there on his bike; he estimated he was 50 or 60 feet from a ditch or ravine that the others entered. Olivero testified that he stopped some 70 feet from where the fight occurred.

The violation took place down a hill in the park, in a ditch. Morales, Aguirre, Cortez, and Dominguez were present in the ditch. According to Diaz, “Face,” a member of the Satan’s Disciples, was also there as an observer and timekeeper. Dominguez stated that a member of the Satan’s Disciples named “Rat” entered the ditch to keep time and that Morales and “Jose” also entered the ditch but stood 10 feet from the fight. According to Smith, it was Aguirre who kept the time. By all accounts, Aguirre stood up the hill from the ditch by some trees, 20 or 25 feet from the others.

Smith testified that Morales threw the first punch, followed by the other two violators, Dominguez and Cortez. He stated that he fought back for awhile but then “got hit with a blunt, blunt object” and “went into a coma.” He had no" further recollection of what occurred. Diaz testified that he could see and hear nothing from his position across the street. Olivero stated that he could make out “shadows” moving in the ditch and could hear “punches and kicks” and “a little bit of yelling.” Dominguez testified that he and Cortez administered the beating by kicking and punching Smith.

Olivero testified that he could see that Smith fell to the ground after about 30 seconds. At the two-minute point, Olivero heard someone say, “[s]top because he looks like he’s dead.” Olivero started toward the ditch when he heard a voice he thought was Aguirre’s say, “[t]he 3 minutes are not up” and “[k]eep on going.” Twenty to thirty seconds of further activity in the ditch ensued before Olivero heard someone say “[t]hat he was just badly hurt.” Olivero then went into the ditch.

Dominguez testified that after he and Cortez beat Smith for two minutes, they stopped to let him get up. Dominguez did not recall anyone saying “I think he’s dead” but stated that Smith did not get up. He and Cortez then beat Smith for another minute after the timekeeper said the time was not up.

Olivero testified that Smith lay on the ground in the ditch, mumbling; he appeared stiff and felt cold. Morales, Dominguez, Cortez, Aguirre, and “Face,” whom Olivero had not seen enter the park or the ditch, stood about five feet from Smith. According to Olivero, Dominguez and Cortez had their shirts off. Olivero tried to get Smith to respond or get up, but Smith would not do so. Olivero testified that someone, perhaps Oswaldo Perez, “came back” with some warm water and threw it on Smith. Olivero then went to a nearby home and got some cold water to splash on Smith. After Smith failed to respond, someone said, “Call an ambulance.” Morales said not to do so because they might get arrested. By this time, Diaz, whom Olivero had seen earlier on a bicycle on the street, had joined the others in the ditch.

Diaz testified that 15 or 20 minutes after the others entered the ditch Morales, Dominguez, and Cortez walked up out of the ditch, and Diaz went over to them and Aguirre. According to Diaz, “Face” came up after the others and told Diaz to go get Smith some water. Diaz could see Smith lying on the ground. He went to a nearby alley and got water from some Satan’s Disciples partying there. About 20 minutes after the men came out of the ditch, Jacid Prado arrived at the park.

Prado testified that he and Smith had worked together until 6 p.m. and then rode around together until 8:30 p.m. Prado dropped Smith off near Yeoman Park and went to see his girlfriend. Around 10:30 p.m., Prado went looking for Smith. He encountered Jose Medina, who told him that Smith had been hurt. The two drove in Prado’s truck to Yeoman Park, where they were approached by Aguirre, Morales, Cortez, Dominguez, and Diaz. Prado got back in his truck. A few of the gang members were in front of the truck, a few in back. Cortez had his shirt off and was hitting his back to cool off. Aguirre came to the door and told Prado to get out of the truck to talk. Prado got out and said, “What do you guys want?” Aguirre responded, “What do you mean what do we want?” The others then started arguing with Prado and telling him he was going to get his “ass kicked.”

According to Prado, Diaz said, “Do you want to get out? Do you want to get out? Do you want to get your beating right now?” Prado testified that it was Aguirre who told him Smith was hurt and that Prado was to get hurt like that, too. Diaz testified that “a couple of other guys” were also there, including “Rat.” Diaz stated that he told Prado “that he’d get out the same way Keith had gotten out” and that “Keith had already got his, he ain’t shit any more, he got his, and he isn’t one of us.” According to Diaz, Morales and Dominguez also told Prado that he would get out the same way Keith had gotten out.

Jose Medina, who stated that he did not know Aguirre or Diaz, testified on direct examination that Aguirre asked Prado “[i]f he wanted to get it done with.” On cross-examination, he stated that Diaz told Prado that “he was going to get the same thing that Keith got.” He also acknowledged that the latter statement was consistent with his testimony before the grand jury.

According to Prado, Aguirre at this point told the others to shut up, grabbed Prado, said he wanted to talk, and escorted him a few steps in front of the truck. Diaz testified that Aguirre pulled Prado aside and talked to him but that he could not hear the conversation. Prado testified that he told Aguirre that he did not want to be a part of the gang anymore. Questioning about what Aguirre said was not permitted by the trial court upon defense counsel’s objection.

Prado stated that he asked Aguirre where Smith was. Someone was screaming that Smith was hurt and would not wake up. Prado then ran to the ditch and knelt next to Smith, who was shaking and having difficulty breathing. Prado asked how long Smith had been there and was told “45 minutes.” Prado put Smith in his truck; others including Medina and Olivero jumped in. Prado then took Smith to St. Therese Hospital.

Olivero testified that Smith lay in the ditch for 30 to 45 minutes before being taken to the hospital. He also stated that he got Prado to assist him in carrying Smith to the truck. Medina testified that Olivero and Diaz got Smith, who was bruised and wet, and put him in the back of the truck. According to Medina, he, Olivero, and Olivero’s “brother Perez” rode along to the hospital. Diaz testified that those taking Smith to the hospital were told to say that they had found him on the street and that “he had got jumped by a rival gang.”

Diaz testified that, after Smith was taken to the hospital, Diaz rode his bicycle to a friend’s house and then ended up at a birthday party for Cortez. Aguirre, Morales, and Dominguez were present.

Officer Hendley testified that Morales told him he was not at Yeoman Park the night of August 15, 1991. Lolita Torrez, Morales’ fiancee, testified that Morales was not, as he had claimed to Officer Hendley, at their home during the hours that the incident occurred that evening. Called by the defense, Officer Hendley also testified that when he spoke with Smith on November 15, 1991, Smith recalled only that he had gone for a ride with Prado to get his truck repaired and had no recollection of how he had been injured.

The first issue raised by defendants on appeal is whether the State’s evidence failed to prove either defendant guilty beyond a reasonable doubt under the theory of accountability. Defendants challenge the credibility of Smith’s testimony, asserting that Smith had sustained serious brain damage and had clearly been coached. Defendants maintain that, even allowing Smith’s testimony, the State’s evidence is insufficient either to prove defendants’ direct participation in the aggravated battery or to establish the elements of accountability.

When an appellate court reviews the sufficiency of the evidence, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis omitted.) (People v. Young (1989), 128 Ill. 2d 1, 49, quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89; People v. Irby (1992), 237 Ill. App. 3d 38, 57.) A reviewing court cannot overturn a guilty verdict unless the proof is so unsatisfactory and unconvincing that it raises a serious doubt of defendant’s guilt in light of all the evidence. People v. Szudy (1982), 108 Ill. App. 3d 599, 605; see also People v. Coulson (1958), 13 Ill. 2d 290, 296; People v. Bennett (1991), 222 Ill. App. 3d 188, 196.

We note initially that, contrary to the State’s assertion, the issue of Smith’s competency was properly raised below by motions filed before he testified and in Morales’ motion for a new trial. The questions of competency and credibility were argued by defendants’ attorneys, and the trial court made specific findings. We find that the issue of Smith’s competency to testify is not waived.

The trial court found Smith competent to testify and found his testimony credible. A reviewing court will not substitute its judgment for that of the trier of fact on questions involving the credibility of the witnesses. (People v. Snulligan (1990), 204 Ill. App. 3d 110, 118.) After hearing arguments, the trial court stated its finding that the victim had no problem understanding questions and that there were “[n]o indications of [a] lack of competency to testify.” Although the trial court found that the victim’s comment about being hit with a “blunt object” made no sense, the court found the rest of the victim’s testimony “very, very credible.”

We do not agree with defendants that Smith’s use of the “blunt object” language clearly indicates coaching. The opposite conclusion might as readily be reached, since it is logical to presume that a witness who is a layperson would not be instructed to use terminology that lay people do not use. Moreover, the trial court stated, “I don’t think that [Smith’s testimony] was made up. I don’t think it was imposed by other persons.” We decline to disturb the trial court’s judgment as to the competency and credibility of Smith’s testimony.

Two other matters of credibility need to be addressed. First, defense witness Dominguez was found by the trial court to be unbelievable, “a very polished liar.” It was Dominguez who stated that only he and Cortez administered the violation and that they did so at the direction of Diaz, who, according to Dominguez, was the chief of the gang. Secondly, we agree with defendants’ characterization of State’s witness Diaz as an accomplice witness, and, accordingly, we scrutinize with caution any uncorroborated testimony. (See People v. Ash (1984), 102 Ill. 2d 485.) Moreover, Diaz’s testimony carries with it the inherent weakness of his promise not to be prosecuted and should not be accepted unless it carries with it an absolute conviction of truth. Ash, 102 Ill. 2d at 493; People v. Gnat (1988), 166 Ill. App. 3d 107, 110.

To convict a person of an offense on a theory of accountability, the State must prove beyond a reasonable doubt that: (1) the defendant solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense; (2) this participation took place either before or during the commission of the offense; and (3) the defendant had the concurrent, specific intent to promote or facilitate the commission of the offense. Ill. Rev. Stat. 1991, ch. 38, par. 5 — 2(c) (now 720 ILCS 5/5-2(c) (West 1992)); People v. Taylor (1991), 219 Ill. App. 3d 47, 49.

While mere presence at the scene of a crime does not render an accused accountable for the offense (People v. Johnson (1991), 220 Ill. App. 3d 550, 554), active participation is not a requirement for imposing liability under a theory of accountability (People v. Reid (1990), 136 Ill. 2d 27, 61). The factors to be considered in determining a defendant’s legal accountability include the accused’s presence during the commission of the crime without opposing or disapproving it, the accused’s failure to report the crime, and the accused’s continued association with the perpetrator or perpetrators after the criminal act. People v. Grice (1980), 87 Ill. App. 3d 718, 725; see also People v. Walker (1992), 230 Ill. App. 3d 377, 388.

We believe that the State’s evidence is sufficient to prove defendants guilty beyond a reasonable doubt under the theory of accountability. Although the testimony varies as to the details of the procedure, it is not disputed that the Latin Lovers intended to “violate” those members wishing to leave the gang. There is no question that Smith was beaten and sustained great bodily harm on August 15, 1991. It is also undisputed that both Morales and Aguirre were present during the commission of the beating. The trial testimony consistently places Morales in the ditch during the violation and Aguirre some 20 to 25 feet away. There is no evidence that either defendant opposed or disapproved of the beating, and neither of them reported the incident. The evidence suggests that defendants continued to associate with at least one of the perpetrators after the act. Diaz testified that, following the events in the park, Morales and Aguirre went to a party for Cortez and that Dominguez, who pleaded guilty to being a perpetrator, was also there. The record further indicates that Dominguez was still a member of the Latin Lovers at the time of trial and that neither defendant had given up his own gang membership before the trial began.

We agree with the trial court that Smith’s statement that Morales threw the first punch is direct evidence of Morales’ participation in the commission of the offense, whether or not that swing actually caused bodily harm. We also agree that Smith’s testimony, corroborated in varying degrees by that of Olivero, Prado and Diaz, sufficiently established that Aguirre was in charge of the events on August 15, and, accordingly, that he aided, abetted and facilitated the planning and commission of the offense.

For the above reasons, we affirm the trial court’s finding that each defendant committed the offense of aggravated battery based on the theory of accountability.

The next issue defendants raise on appeal is whether they were unfairly surprised by Smith’s testimony in contravention of the rules of discovery (see 134 Ill. 2d Rules 412(a)(i), (a)(ii), 415(b)). Specifically, defendants contend that they should be granted a new trial because they had no notice in the discovery materials that Smith would remember damaging details against each defendant with respect to the ultimate issue of accountability.

The State counters by arguing that the prosecution provided defense attorneys with as much information as it could as soon as it was possible and that it did not know exactly how much Smith would recall at trial. The State also argues that Smith’s testimony was similar to that of Diaz and Olivero and, moreover, that the issue is waived.

We agree with the State that the issue of possible discovery violations with respect to Smith’s testimony is waived. An assértion of unfair surprise is waived by failing to object (People v. Zarebski (1989), 186 Ill. App. 3d 285, 291) and by failing to request a continuance or otherwise to develop the record (People v. Walls (1992), 224 Ill. App. 3d 885, 897; People v. Jastrzemski (1990), 196 Ill. App. 3d 1037, 1041). Defendants challenged the victim’s competency to testify but did not claim that they were surprised or needed a continuance to investigate further. As the trial court stated at the post-trial motion hearing, there was no motion for mistrial, nor were there any allegations of prejudice. Defendants did not raise the issue of late modifications of discovery until the filing of their motions for a new trial.

Defendants assert that the failure to seek a continuance should not preclude them from relief because the evidence is closely balanced. Defendants cite People v. Weaver (1982), 92 Ill. 2d 545, in which the supreme court recognized reversible error in part because the case was a close one. Alternatively, defendants urge that we apply the plain error exception to the waiver rule (see 134 Ill. 2d R. 615(a)). The plain error doctrine is applicable when the evidence is so closely balanced that the verdict may have resulted from the alleged error. (People v. Musitief (1990), 201 Ill. App. 3d 872, 879.) However, we do not perceive the evidence in this case to be close and, therefore, decline to follow the example of Weaver or to apply the plain error doctrine.

The next issue raised on appeal is defendant Aguirre’s contention that the trial court abused its discretion in admitting testimony of Aguirre’s involvement in the Latin Lovers. Specifically, Aguirre maintains that the trial court erred by admitting the testimony of Smith and Diaz that he, as chief of the gang, ordered violations and selected the participants on previous occasions, where an adequate foundation to show habit or routine practice or otherwise justify admission was lacking.

We agree with the State that this issue is also waived. Both a trial objection and a written post-trial motion raising an issue are necessary, in both jury and nonjury cases, in order to preserve an alleged error for review. (People v. Enoch (1988), 122 Ill. 2d 176, 186-88.) Although several objections were offered below to the testimony of Diaz and Smith about prior gang “violations,” Aguirre’s motion for a new trial does not mention the issue of improperly admitted evidence.

Aguirre contends that the issue is raised in Morales’ motion for a new trial. Morales’ motion states that “the court erred in allowing testimony of customs and usage of the Latin Lover Street Gang over objection of the Defendant.” It is arguable whether that allegation raises the precise issue before us sufficiently to have afforded the trial court full opportunity to consider it, since it does not specify that foundational requirements were not met. However, we do not need to decide that question because the issue as raised on appeal has no bearing on Morales, only on Aguirre. The record does not indicate that either defendant intended to adopt the other’s post-trial motion, and Aguirre does not advance that argument on appeal. Aguirre’s statement that the issue should be considered adequately preserved is not backed by citation to legal authority.

We are again urged to apply the plain error exception to the waiver rule on the ground that the evidence is closely balanced, and again we decline. The case cited by Aguirre, People v. Smith (1990), 141 Ill. 2d 40, is distinguishable from the case before us. In Smith, which was tried before a jury, the supreme court was concerned that the weight which the jury attributed to a witness’ testimony may have been influenced by other evidence alleged to have been incompetent. (Smith, 141 Ill. 2d at 55.) Here, we are dealing with a bench trial, and the trial court specifically stated at the hearing on defendants’ post-trial motions that it did not consider the evidence it admitted about gang habits to be particularly significant.

Finally, defendant Aguirre raises constitutional objections to two of the factors in aggravation considered by the trial court in imposing the maximum extended-term sentence of 10 years’ imprisonment. The State argues that Aguirre waived these issues because he failed to object at the sentencing hearing and failed to raise the issues in his motion to reconsider sentencing. However, our supreme court has determined that a challenge to the constitutionality of a statute can be raised at any time. People v. Bryant (1989), 128 Ill. 2d 448, 454.

Aguirre first challenges section 5 — 5—3.2(bX2) (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—3.2(5X2) (now codified, as amended, at 730 ILCS 5/5 — 5—3.2(bX2) (West 1992))) as being unconstitutionally vague. That section states that the court may impose an extended-term sentence when “the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—3.2(b)(2) (now codified, as amended, at 730 ILCS 5/5-5-3.2(bX2) (West 1992)).

We find that defendant’s claim is without merit. As defendant concedes, the statutory language “exceptionally brutal and heinous behavior indicative of wanton cruelty” has been upheld against a vagueness challenge, and we see no reason to disturb our previous holding.

In People v. Hernandez (1990), 204 Ill. App. 3d 732, this court reiterated that, in the absence of a proportionality challenge to a term-of-years sentence, an eighth amendment vagueness analysis applies only in death penalty cases and does not apply to an extended term of imprisonment. (Hernandez, 204 Ill. App. 3d at 744; People v. Brown (1990), 195 Ill. App. 3d 78, 89.) Defendant does not claim on appeal that his term-of-years sentence, which is within statutory limits, is disproportionate to his offense; rather, he argues only that the statute itself is unconstitutional in that it creates the possibility that extended-term sentences under it could be capriciously and arbitrarily imposed. See generally Brown, 195 Ill. App. 3d at 89-90; People v. Peeples (1989), 184 Ill. App. 3d 206, 211.

Defendant asserts that the Illinois courts must give a limiting construction to save section 5 — 5—3.2(b)(2) from a vagueness challenge. We believe that sufficiently limiting construction has been given. In People v. Andrews (1989), 132 Ill. 2d 451, the supreme court observed that the word “exceptionally” serves to restrict the terms “brutal or heinous” and went on to state that the extended-term sentencing statute “ ‘was not intended to convert every offense into an extraordinary offense subject to an extended-term sentence.’ ” Andrews, 132 Ill. 2d at 466, quoting People v. Evans (1981), 87 Ill. 2d 77, 88-89.

In People v. Pirrello (1991), 207 Ill. App. 3d 208, this court confirmed the supreme court’s determinations and further stated that the concept announced in Andrews did not involve new law. (Pirrello, 207 Ill. App. 3d at 216.) Moreover, in Brown, we concluded that the extended-term statute was not unconstitutionally vague because it required not only that the offense be exceptionally brutal or heinous, but that it be “indicative of wanton cruelty” as well. Brown, 195 Ill. App. 3d at 91; see also Peeples, 184 Ill. App. 3d at 212.

In his reply brief, defendant urges that his sentence should be reconsidered by the trial court in light of People v. Lindsay (1993), 247 Ill. App. 3d 518, a case decided by this court after defendant was sentenced. Defendant maintains that our opinion in Lindsay “mandates” a narrower construction of section 5 — 5—3.2(b)(2) than was in effect when defendant was sentenced. We do not agree.

We believe our analysis and holding in Lindsay only confirm our previous determinations that section 5 — 5—3.2(b)(2) is not unconstitutionally vague. In Lindsay, we examined whether a finding of exceptionally brutal or heinous behavior was foreclosed in a case where the defendant had been convicted of second-degree murder based on an unreasonable belief in the need for self-defense. We held that no per se rule existed but that the evidence before us was insufficient to show that defendant’s crime was accompanied by exceptionally brutal and heinous conduct.

In the course of our analysis, we reemphasized the importance of the word “exceptionally” and repeated the supreme court’s admonishment, quoted above, that extended-term sentencing was not intended to enhance the punishment for every offense. We further observed that “[t]he stringency of this standard accounts for the extraordinary readiness with which courts of review have in recent years found that trial courts abused their discretion in imposing extended-term sentences on this ground [of section 5—5—3.2(b)(2)].” (Emphasis added.) (Lindsay, 247 Ill. App. 3d at 531-32.) The cases we cited to support this statement were decided before defendant was sentenced and demonstrate, we believe, an application of the exceptionally brutal or heinous standard comparably stringent to our application in Lindsay. See People v. Andrews (1989), 132 Ill. 2d 451, 464; People v. Curtis (1990), 207 Ill. App. 3d 628; People v. Fields (1990), 198 Ill. App. 3d 438, 442-45; People v. Bedony (1988), 173 Ill. App. 3d 613, 620-22; People v. Price (1987), 158 Ill. App. 3d 921, 929-30; People v. Gil (1987), 155 Ill. App. 3d 436, 439.

We find that Lindsay does not cast doubt upon the constitutionality of section 5 — 5—3.2(b)(2) at the time defendant was sentenced, and we hold, therefore, that defendant is not entitled to a resentencing hearing.

Aguirre also challenges section 5 — 5—3.2(b)(6) (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—3.2(b)(6) (now codified, as amended, at 730 ILCS 5/5 — 5—3.2(bX6) (West 1992))), which provides that the court may consider the following factor as a reason to impose an extended-term sentence:

“When a defendant is convicted of any felony and the offense involved any of the following types of specific misconduct committed as part of a ceremony, rite, initiation, observance, performance, practice or activity of any actual or ostensible religious, fraternal, or social group:
(i) the brutalizing or torturing of humans or animals.”

Aguirre maintains that this extended-term factor is unconstitutionally irrational since it does not allow for the consent of the person harmed and thereby conflicts with the treatment of consent as a defense and mitigating factor in Illinois law.

We are not persuaded that such a conflict exists. Section 5— 5 — 3.2(bX6) is one of the factors in aggravation that a court may consider when determining whether to impose an extended-term sentence. Factors to be considered in mitigation are listed in section 5 — 5—3.1. (See Ill. Rev. Stat. 1991, ch. 38, par. 1005-5-3.1 (now 730 ILCS 5/5 — 5—3.1 (West 1992)).) One potentially mitigating factor is whether “there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—3.1(a)(4) (now 730 ILCS 5/5 — 5—3.1(a)(4) (West 1992)).) Defendant contends that this section provides for raising consent as a mitigating factor at sentencing. Assuming, without deciding, that defendant’s interpretation is correct, section 5 — 5—3.1(a)(4) provides the opportunity to introduce consent of the victim, thus countervailing the aggravating factor set forth in section 5 — 5—3.2(b)(6).

Viewed in the light of defendant’s own assertions, the sentencing scheme does not appear unconstitutionally irrational. The two sections arguably counterbalance one another; therefore, we cannot agree with defendant’s contention that a conflict of constitutional proportions exists between section 5 — 5—3.2(bX6) and the remainder of Illinois law.

We further note that both defendants’ broad assertion that consent is a defense to a charge of battery under Illinois law is unsubstantiated. The single case defendants cite in support, People v. Dudgeon (1950), 341 Ill. App. 533, is not helpful. Dudgeon is a sex case that focuses on a masked man’s assault upon a woman. Dudgeon argued that, because the complainant consented to the ultimate act of sexual intercourse, she also consented to every act, including assault and battery, that led up to the ultimate act. This court emphatically rejected Dudgeon’s consent defense and held that, because the complainant did not consent to Dudgeon’s assault upon her, Dudgeon was properly found guilty of assault and battery by the court below.

Nor does the legal treatise cited by defendants support their contention that consent is a defense to battery. Decker’s Illinois Criminal Law cites Dudgeon only for the proposition that consent has been recognized as a defense to assault. (J. Decker, Illinois Criminal Law ch. 9, at 305 n.113 (1986).) The treatise further states that “[wjhere a defendant brutally beats a victim, he or she has no defense to a battery charge assuming the victim agreed to the beating.” J. Decker, Illinois Criminal Law ch. 19, at 724 (1986).

Defendants propose that their belief that Smith consented to the violation is legal justification for their actions. Defendants cite People v. Reagan (1983), 99 Ill. 2d 238, as authority for the proposition that there can be no intent to commit an offense if the defendant believes that there is justification for his actions. We find Reagan to be entirely distinguishable from the case at hand. In Reagan, the defendant was charged with “attempted manslaughter.” The justification proffered for his actions was self-defense. Here, the purported legal justification for beating Smith is his consent. Defendants’ attempt to equate self-defense with license is unconvincing.

Furthermore, an accused is not entitled to raise the defense of justifiable use of force against a charge of aggravated battery if the accused was the aggressor. (People v. Lockwood (1976), 37 Ill. App. 3d 502, 505.) The record indicates to us that the participating gang members were the aggressors here. Smith’s friend Prado testified that the gang was out to get those who, like Prado and Smith, had stopped hanging around with them. Diaz testified that the new violation rule was adopted by the gang only one month prior to Smith’s beating. No evidence was introduced to suggest that Smith played any part in the gang’s decision to adopt the new rule. Smith testified that he did not want to undergo a violation at any time. Olivero testified that Smith was told he would have to take a violation and that he could “get it now” or “whenever they see him.” Olivero further testified that Smith asked for one-on-one but was told that he had to fight three people.

For the reasons stated above, we affirm the judgments of the circuit court of Lake County.

Affirmed.

INGLIS, P.J., and DOYLE, J., concur.


source: Caselaw Access Project

author: JUSTICE QUETSCH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN GAGLIANI, Defendant-Appellant.
    Second District
    No. 2—91—1441
    Opinion filed November 10, 1993.

      Josette Skelnik, of Law Offices of Josette Skelnik, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE QUETSCH

delivered the opinion of the court:

Following a jury trial in Du Page County, the defendant, Steven Gagliani, was found guilty of home invasion (Ill. Rev. Stat. 1987, ch. 38, par. 12 — ll(aXl) (now codified, as amended, at 720 ILCS 5/12— 11(a)(1) (West 1992))), residential burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 3(a) (now 720 ILCS 5/19 — 3(a) (West 1992))), armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2(a) (now 720 ILCS 5/18 — 2(a) (West 1992))), and two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(a)(1) (now codified, as amended, at 720 ILCS 5/12 — 14(a)(1) (West 1992))). The trial court sentenced the defendant to 30 years’ imprisonment for the home invasion conviction, 30 years’ for the aggravated sexual assault convictions, and 8 years’ for the residential burglary conviction, each term to run concurrently. The court also sentenced the defendant to 12 years’ imprisonment for armed robbery to run consecutively to the other sentences. The defendant filed a timely notice of appeal.

The defendant contends on appeal that: (1) the trial court erred by refusing to give jury instructions on the lesser included offenses of robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 1(a) (now 720 ILCS 5/ 18 — 1(a) (West 1992))) and criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13 (now codified, as amended, at 720 ILCS 5/12 — 13 (West 1992))); (2) his conviction of armed robbery must be vacated because it is carved from the same act underlying the home invasion conviction; and (3) the court abused its discretion in imposing a cumulative sentence of 42 years’ imprisonment. We affirm.

The victim, Gwen, testified at trial that she arrived home from work on August 2, 1988, shortly after 10 p.m. She parked her car in the driveway, locked the doors, and then went inside the house. Shortly after entering her house, Gwen walked into the bedroom, turned on the television at the head of the bed, and lay down. When she first went to bed, Gwen was wearing a T-shirt, bra, and underwear. She later took off the shirt and bra and fell asleep while watching television. No other lights were on in the room. Gwen woke up when she heard a noise, and she then saw the defendant standing in the bedroom. He was holding a “long thin club” in his right hand.

Gwen asked the defendant what he was doing in her house, and he told her to “shut up” or he would kill her. Gwen asked him to leave, and he repeatedly told her to “shut up.” The defendant then walked to the doorway of a bathroom which was connected to her bedroom. Gwen again asked him to leave, and he again told her to “shut up” or he would kill her. The defendant walked over to the television set and spent a few minutes attempting to turn it off. Gwen was able to see the defendant’s reflection in the mirrors located near the television set.

After he successfully turned off the television, the defendant hollered at Gwen to come to the edge of the bed and put his penis in her mouth. The defendant held the club at the back of Gwen’s head and told her that if she bit him he would kill her. After Gwen complied, the defendant hollered at her to move over. He then lay down in the bed and told her to again put his penis in her mouth. The defendant continued to hold the club at the back of her head. Gwen complied for a second time. The defendant then told her to take off her underwear, and he proceeded to have vaginal intercourse with her.

The defendant got up and told Gwen that he wanted the keys to her car, and he followed her downstairs to retrieve them. After Gwen gave the defendant the car keys, he went to the front door and told her that if she called the police he would come back and kill her. The defendant left, and Gwen closed and locked the door.

After Gwen heard the defendant start her car, she put on some clothes, ran over to a neighbor’s house, and asked the neighbor to call the police. A police officer arrived at the neighbor’s house and talked with Gwen. The officer went with Gwen back to her house, at which time Gwen noticed that a pair of jeans and some jewelry had been moved from the bedroom to the basement. She also discovered that some money, a watch, and a ring were missing. An ambulance then took her to the Glendale Heights Community Hospital, where she submitted to an examination.

The following afternoon, Gwen went to the police station and spoke with Detective Harrison. He showed Gwen a series of photographs, and she identified the defendant from the photographs as the person who had assaulted her. Detective Harrison told Gwen that they had found her car, and he took her to the garage. Gwen testified that the exterior of the car looked the same, but the car radio was “broken off.” A club which she usually kept under the front seat was on top of the seat, and a hand-held radio had been moved from the backseat to the front seat.

On cross-examination, Gwen stated that she could not recall telling Officer Kirstein, the officer who spoke with her at the neighbor’s house, that she had been unable to see the intruder’s face. Gwen stated that she did remember telling Officer Kirstein that she did not know the person who had assaulted her. Gwen also testified that on the night in question the drapes in her bedroom were closed, the shades were drawn, and the only light in her bedroom came from the 13-inch television set which was angled toward the headboard of the bed.

Defense counsel asked Gwen whether the club she had kept locked in her car was the same club she had seen in the intruder’s hand. Gwen first replied that she was not sure whether it was the same club, but later stated that she believed it was the same club. Gwen also testified that the intruder had not been wearing gloves while holding onto the club.

Jerome Zacny, Gwen’s neighbor, testified that shortly after 1 a.m. on August 3, 1988, he was awakened by a pounding on the door. Zacny opened the door, and Gwen “jumped” into the house and grabbed him by both arms. Gwen was crying, and she asked Zacny to call the police. Zacny called the police, who arrived shortly thereafter.

Paul Frey, a police sergeant with the Village of Glendale Heights, testified that he discovered Gwen’s car near her home at about 5:40 a.m. on August 3. There was nobody in the vehicle at that time. Frey called for a police tow truck and an evidence technician and then followed the tow truck and vehicle back to the police garage. Frey never went into the interior of the car.

Officer Ronald Kirstein testified that on August 3, 1988, at approximately 1:40 a.m., he was dispatched to the Zacnys’ residence. Kirstein spoke with Gwen, who appeared “emotionally upset.” Kirstein then accompanied Gwen back to her house, where he noticed a pair of jeans, a purse, and some jewelry in the basement. The basement window was open and the screen was up. On cross-examination, Kirstein stated that Gwen told him that she had been unable to see the intruder’s face.

Officer Gary Harrison testified that on August 3, 1988, at about 2 a.m., he was dispatched to Gwen’s residence. He took photographs of the scene and recovered fingerprints from the screen window in the basement and the television set in the bedroom. Harrison then drove to the Glendale Heights Hospital, where he spoke with Gwen and obtained a description of the intruder. Harrison went back to the police station, where he photographed Gwen’s car and dusted it for fingerprints.

On August 4, at approximately 1 p.m., Harrison met with Gwen at the Glendale Heights police department and showed her a photographic lineup which included a picture of the defendant. Gwen picked out the defendant’s photograph within seconds of viewing the lineup. Harrison and his partner arrested the defendant at 9:15 p.m. on August 4 and brought him back to the police station.

At 10:30 p.m., Harrison met with the defendant and told him that “if you are not going to be honest with me, at least be honest with yourself and get yourself some help if you need it.” The defendant began crying and told Harrison that he had “done it.” The defendant also told Harrison that he had only intended to commit a burglary, but he did not know “what came over him” when he saw the woman lying in her underwear. Harrison asked the defendant where he had gotten the club, and the defendant replied that he had gotten it out of her car.

On cross-examination, Harrison stated that although the police department owned both a videotape camera and a tape recorder, he did not use any such equipment to record his conversation with the defendant. On re-cross-examination, Harrison stated that he wrote down notes while the defendant was making his statement, but that those notes were destroyed once a police report was written.

Paul Sahs, a detective with the Du Page County sheriff’s office who specializes in fingerprint, tire mark and footwear identification, testified that the fingerprint found on the control panel of Gwen’s television set matched the defendant’s left thumb print. Fingerprints found on the inside top edge of the passenger window of Gwen’s car matched the defendant’s left ring and middle fingerprints. A fingerprint found on the broken stereo component in Gwen’s car matched the defendant’s right thumb print. Sahs was not able to obtain any prints from the club which Gwen kept in her car.

Kristin Sahs, a forensic chemist at the Du Page County crime lab, testified that a microscopic examination of vaginal and rectal smears taken from Gwen during a physical examination on August 3, 1988, revealed the presence of sperm.

The defendant did not testify or offer any evidence in his behalf. After closing arguments, the jury returned guilty verdicts as to each offense charged. The defendant’s motion for a new trial was denied, and the court sentenced the defendant to the previously mentioned terms of imprisonment. This appeal followed.

A common element of two of the offenses of which the defendant was convicted, aggravated criminal sexual assault and armed robbery, is that the defendant has a dangerous weapon when he commits the crime. The defendant contends, however, that there was evidence in the record from which the jury could conclude that he did not have a dangerous weapon when he allegedly robbed and sexually assaulted Gwen. He argues that the trial court therefore erred by refusing to give his tendered jury instructions on the lesser included offenses of robbery and criminal sexual assault, which do not require the presence of a dangerous weapon.

It is well settled that an instruction on a lesser included offense is required only if the trier of fact could rationally find the defendant guilty of the lesser offense and not guilty of the greater offense. (People v. Perez (1985), 108 Ill. 2d 70, 81; People v. Austin (1991), 216 Ill. App. 3d 913, 916-17.) An instruction on the lesser offense is properly refused where the evidence shows that the defendant is either guilty of the greater offense or not guilty of any offense. Austin, 216 Ill. App. 3d at 917.

The defendant argues that he could have been found guilty of the lesser offenses because there were no fingerprints found on the club which he allegedly used. Further, Gwen testified that she locked the club in her car on the night of the offense. The club was later found in her car, and there were no signs of damage to the exterior of the vehicle to establish a forced entry into the car in order for the defendant to obtain the weapon. The defendant also points out that Gwen confronted her assailant in a darkened room. The defendant contends that from this evidence the jury could have reasonably found that Gwen was mistaken or had not testified truthfully regarding the presence of a weapon.

We disagree. Gwen consistently testified that the defendant was holding a weapon, a long thin club, the entire time he was in her house. She also testified that the defendant held the club at the back of her head and threatened to kill her while he forced her to engage in oral sex. Detective Harrison testified that the defendant confessed to the crime and admitted that he had used the club from Gwen’s automobile. Furthermore, although Paul Sahs testified that he was unable to develop fingerprints from the club, he also stated that the club has a painted, grainy wood surface which is less amenable to fingerprints than a smoother, “hard type of surface.” We hold that from this evidence the jury could not have rationally convicted the defendant of robbery and criminal sexual assault and acquitted him of armed robbery and aggravated criminal sexual assault.

This holding is consistent with People v. Austin. There, the defendant was charged with two counts of residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-3(a) (now 720 ILCS 5/19 — 8(a) (West 1992))) for knowingly and without authority entering the victim’s home with the intent to commit therein a theft. (Austin, 216 Ill. App. 3d at 914.) At the instructions conference, the defendant asked the trial court to give two jury instructions on the lesser included offense of criminal trespass to residence. (Austin, 216 Ill. App. 3d at 915.) Criminal trespass to residence is committed when a person knowingly enters or remains within a residence without authority. (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 4(a) (now 720 ILCS 5/19 — 4(a) (West 1992)).) The trial court refused to give the tendered instructions, and the defendant was subsequently found guilty of the charged offenses.

We affirmed the trial court because the jury could not have rationally convicted the defendant of criminal trespass to residence and acquitted him of residential burglary. (Austin, 216 Ill. App. 3d at 917.) The victim had testified that when she awoke at 2:30 a.m. on July 22, 1986, an intruder wearing rubber gloves was standing next to her. (Austin, 216 Ill. App. 3d at 915.) His right hand was near her mouth and his left hand was reaching to turn off a nearby lamp. (Austin, 216 Ill. App. 3d at 915.) The victim pulled the glove off the intruder’s right hand and screamed. (Austin, 216 Ill. App. 3d at 915.) The intruder then ran out the patio door. He never touched the victim nor did he take anything from her home. (Austin, 216 Ill. App. 3d at 915.) The victim identified the defendant as the intruder. Austin, 216 Ill. App. 3d at 915.

The defendant did not testify or offer any evidence in his behalf. (Austin, 216 Ill. App. 3d at 915.) In his opening statement and closing argument defense counsel argued that the defendant was misidentified. (Austin, 216 Ill. App. 3d at 915.) We held that since the only defense arising from the evidence and defense counsel’s arguments was misidentification, the defendant was either guilty of the offenses as charged or not guilty. Austin, 216 Ill. App. 3d at 917.

Similarly, in this case, the defendant offered no evidence refuting Gwen’s testimony that she had been assaulted and robbed by a man holding a long, thin club. However, Gwen testified that the bedroom was dark on the night of the attack and that the only light in her bedroom came from the 13-inch television set. Officer Kirstein testified that Gwen told him that she had been unable to see her attacker’s face. The only defense arising from this evidence was misidentification. The defendant was either guilty of the offenses as charged or not guilty. The trial court properly refused the defendant’s instructions on the lesser included offenses.

We next address the defendant’s argument that only one act formed the basis for his convictions of home invasion and armed robbery and, therefore, his conviction of and sentence for armed robbery should be vacated. The defendant was convicted of home invasion based upon his alleged entry into Gwen’s house and the use of force or threat of the imminent use of force against her while armed with a dangerous weapon. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — ll(aXl) (now codified, as amended, at 720 ILCS 5/12 — ll(aXl) (West 1992)).) The defendant contends that the use of force or threat of imminent use of force had to consist of either the aggravated criminal sexual assault or the armed robbery. The defendant asks that his conviction of and sentence for armed robbery be vacated because that offense was carved from the same act as that resulting in his conviction of home invasion and, based upon the trial court’s sentence, it was the least serious of the offenses of which he was convicted.

In People v. King (1977), 66 Ill. 2d 551, the supreme court set forth the standard by which we are to determine the propriety of multiple convictions and sentences:

“Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. *** ‘Act,’ when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense.” King, 66 Ill. 2d at 566.

We hold that the use of force or threat of imminent use of force underlying the home invasion conviction was not carved from the aggravated criminal sexual assault or the armed robbery. Gwen’s testimony revealed that when she first woke up on the night of the offense, the defendant was standing in her bedroom holding a nightstick. She asked him to leave, and he repeatedly told her to “shut up” or he would kill her. This threat of the imminent use of force was an act independent of the aggravated criminal sexual assault or the armed robbery. See People v. Tate (1982), 106 Ill. App. 3d 774 (the entry into the victim’s home and the stabbing of the victim constituted separate acts which supported convictions of home invasion and aggravated battery); People v. Dixon (1984), 122 Ill. App. 3d 141 (stepping one foot into the door and shooting the victim constituted separate acts which supported convictions of home invasion, burglary, and murder); People v. Myers (1981), 85 Ill. 2d 281 (there were two separate acts supporting convictions of attempted murder and armed violence based on aggravated battery where the defendant cut the victim’s throat with a knife, took the knife off the victim’s throat in order to menace another person, then put the knife back to the victim’s throat and gave it a “pretty hefty yank”).

Since we have determined that the defendant’s multiple offenses did not arise out of the same act, and the defendant does not argue that he was convicted of any lesser included offenses, the multiple convictions and sentences can stand. See King, 66 Ill. 2d 551.

The defendant next challenges the propriety of his sentence. The State contends that the sentencing issues are waived because the defendant did not file a motion to reduce the sentences. We agree. See People v. Hess (1993), 241 Ill. App. 3d 276, 283.

The defendant asks us to review the cause on the basis of plain error. (134 Ill. 2d R. 615(a).) Based on the record before us, we do not find that any plain error requiring us to reduce the defendant’s sentence has occurred. The trial judge is usually in a better position to determine the punishment to be imposed than the courts of review. (People v. Perruquet (1977), 68 Ill. 2d 149, 154.) A reviewing court will not modify a sentence unless it clearly departs from the spirit and purpose of the constitutional requirement that the sentence be proportionate to the nature of the offense and that the possibilities for rehabilitation be taken into account. (People v. Fort (1992), 229 Ill. App. 3d 336, 340.) A sentence is presumptively proper, and a reviewing court will find an abuse of discretion only where that presumption has been rebutted by an affirmative showing of error. Fort, 229 Ill. App. 3d at 340.

The record in this case reveals that the trial judge considered the evidence in mitigation and aggravation. He also read the presentence report and the report prepared by Kevin & Associates dealing with the defendant’s family background and his use of alcohol and drugs. The trial judge found that there were no statutory mitigating factors. However, he found several statutory factors in aggravation, including that “the defendant’s conduct caused or threatened serious harm” to Gwen. (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—3.2(aXl) (now codified, as amended, at 730 ILCS 5/5 — 5—3.2(aXl) (West 1992)).) The defendant also had an extensive “history of prior delinquency or criminal activity” (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—3.2(a)(3) (now codified, as amended, at 730 ILCS 5/5 — 5—3.2(a)(3) (West 1992))), including two burglaries, theft, and possession of stolen vehicles. In addition, during his first term of incarceration in the Du Page County jail and his initial term of imprisonment in the Joliet Correctional Facility in 1988 and 1989, the defendant damaged property, started fires, and physically assaulted, battered, and threatened correctional officers.

The court also found as an aggravating factor that the defendant committed the felonies against Gwen while on probation for prior felonies. (See Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—3.2(aX12) (now codified, as amended, at 730 ILCS 5/5 — 5—3.2(aX12) (West 1992)).) Finally, the trial judge specifically commented upon the defendant’s lack of remorse, which is a proper subject for consideration at sentencing. People v. Albanese (1984), 102 Ill. 2d 54, 80-81.

The defendant argues that the trial court failed to consider that he did not physically harm Gwen. The fact that a defendant’s conduct “neither caused nor threatened serious physical harm to another” is recognized as a factor in mitigation. (Ill. Rev. Stat. 1991, ch. 38, par. 1005— 5-3.1(aXl) (now 730 ILCS 5/5-5-3.1(aXl) (West 1992)).) However, the aggravated criminal sexual assaults of which the defendant was found guilty, accompanied by threats that he would kill the victim if she resisted, at the very least threatened serious physical harm. See People v. Burba (1985), 134 Ill. App. 3d 228 (the attempted rape and deviate sexual assault of a 64-year-old woman with a fractured hip, accompanied by threats that he would break her arms if she resisted, at the very least threatened serious physical harm).

The defendant also argues that the court’s sentence fails to acknowledge any possibility of rehabilitative potential and provides him with no realistic opportunities to become a productive citizen. The defendant contends that his rehabilitative potential is demonstrated by the fact that he earned his G.E.D. and attended 12 Alcoholics Anonymous meetings and 11 substance abuse classes during his second period of incarceration at the Du Page County jail in 1991. Further, Du Page County sheriff’s deputies Patrick Leahy and David Lyons testified that the defendant’s behavior was much improved from his behavior in 1988.

However, there was testimony that the defendant continued his violent behavior during his second period of incarceration. Sergeant James Hochhauser of the Du Page County sheriff’s department testified that on October 5, 1991, the defendant threatened another inmate after the two had been involved in an altercation. Deputy Timothy Walsh also testified that on October 5, 1991, he gave the defendant a verbal warning for an earlier incident. The defendant became “verbally belligerent.” When Walsh asked to see the defendant’s wrist band in order to make a positive identification, the defendant told him that he would “slap the shit” out of him.

In sentencing the defendant, the trial judge considered the seriousness of the offenses, the defendant’s extensive criminal history, his lack of remorse, and the protection of society. In weighing the defendant’s rehabilitative potential, the trial judge was not required to give greater weight to that consideration than to the seriousness of the offenses or the other aggravating factors. People v. Brajcki (1986), 150 Ill. App. 3d 506, 515.

We also note that section 5 — 8—4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—4(a) (now codified, as amended, at 730 ILCS 5/5—8—4(a) (West 1992))) mandates consecutive sentences for offenses which were committed as part of a single course of conduct where one of the offenses of which the defendant was convicted was criminal sexual assault or aggravated criminal sexual assault. (See People v. Bole (1991), 223 Ill. App. 3d 247, appeal allowed (1991), 144 Ill. 2d 636.) In this case, the defendant held a club to the back of the victim’s head and forced her to perform oral sex on him. He then immediately forced her to engage in vaginal sex. The defendant’s separate acts of aggravated criminal sexual assault were committed as part of a single course of conduct, and pursuant to section 5 — 8—4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—4(a) (now codified, as amended, at 730 ILCS 5/5—8—4(a) (West 1992))), the trial court was required to sentence him to consecutive sentences for those acts. The trial judge, though, sentenced the defendant to concurrent terms of 30 years’ imprisonment for the two aggravated criminal sexual assault convictions. Thus, the sentence imposed by the trial judge erred in favor of the defendant. However, we find no plain error requiring us to reduce the defendant’s sentence.

For the foregoing reasons, we affirm the trial court.

Affirmed.

BOWMAN and GEIGER, JJ., concur.


author: JUSTICE DOYLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD CABAN, Defendant-Appellant.
    Second District
    No. 2—91—0855
    Opinion filed November 19, 1993.
    G. Joseph Weller and Barbara R. Paschen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Dallas C. Ingemunson, State’s Attorney, of Yorkville (William L. Browers, Robert J. Biderman, and James W. Dodge, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

Following a bench trial in the circuit court of Kendall County, defendant, Edward Caban, was convicted of residential burglary (Ill. Rev. Stat. 1991, ch. 38, par. 19 — 3(a) (now 720 ILCS 5/19 — 3(a) (West 1992))) and felony theft (Ill. Rev. Stat. 1991, ch. 38, par. 16—1(a)(1)(A) (now 720 ILCS 5/16 — 1(a)(1)(A) (West 1992))). The sole issue raised on appeal is whether defendant was proved guilty of residential burglary beyond a reasonable doubt.

Sometime before lunch on January 8, 1991, Linda Kopacz left her home to register at a local college. She returned at approximately 2:30 or 3 p.m. and discovered that the side door had been broken down. A search of the house revealed that the following items were missing: a Fisher portable stereo; a jewelry box shaped like a pirate’s chest which contained various items, including an AT&T calling card issued to Thomas Kopacz; a Narco aircraft radio; an AT&T portable telephone with a plug-in cord; a white flat case with gold trim containing numerous pairs of earrings; a VCR; and a 35-millimeter Nikon camera and various camera accessories, including a Sigma lens.

At approximately 1:37 p.m. on that same date, officers Ronald Grimes and Thomas Rosebush of the Kane County sheriff’s department, while traveling northbound on Hill Avenue, executed a traffic stop of a red Ford Tempo. The driver of the vehicle was Robert Seidelman, and defendant was a passenger. Grimes observed a treasure chest-shaped jewelry box and a Nikon camera with a long lens on the floorboard of the car at defendant’s feet. Defendant claimed that the camera was his and that the jewelry box belonged to his girlfriend, Rhonda Parker. Defendant consented to further examination of the items, and Grimes found a phone card bearing the name “Thomas Kopacz” inside the jewelry box. Defendant claimed that this card belonged to his girlfriend’s boss and that she used it when she made business calls from her residence. Grimes also found an RCA VCR, a Fisher portable stereo, and an AT&T cordless phone in the backseat of the car. Defendant claimed that these items also belonged to his girlfriend and him. Additionally, the police identified an aircraft radio that they had seen in the vehicle. These items and their serial numbers were listed by the officers.

On January 9, 1991, Detective Martin A. Lincoln of the Kendall County sheriff’s department and other police personnel executed a search warrant at the residence of defendant’s girlfriend, Rhonda Parker, and recovered a Narco aircraft radio, an AT&T cordless phone, and a case for a Sigma camera lens. Lincoln also measured the distance from the burglarized residence to where the officers had stopped the red Tempo on the previous day, and he determined that distance to be approximately 4.3 miles.

Defendant testified that he had been at his girlfriend’s home on January 8, 1991. Between 11:30 a.m. and noon, he left and walked to his mother’s house, where he was living, arriving at approximately 12:30 p.m. Defendant claimed that at approximately 12:45 p.m., Robert Seidelman arrived at defendant’s mother’s house and enlisted defendant to help sell some items for drugs. These items included a VCR, a camera, and a jewelry box. Defendant testified that they went to a bam a half-mile away from a skating rink, but the individual they hoped to meet was not there. Defendant claimed that they then started to head back and were pulled over by the police. Defendant admitted that he told Grimes that the jewelry box belonged to his girlfriend and that he thought the phone card belonged to her uncle, but he denied ever claiming that the items were his. Defendant testified that he suspected that the items were stolen, and he admitted that he had lied to the police about the items. He also admitted that the items recovered from Rhonda Parker’s house were the same ones that had been in the car with him on January 8. Defendant acknowledged that he had two prior felony convictions of residential burglary from 1982 and 1983.

The trial court found defendant guilty of both theft and residential burglary. The only question raised by defendant on appeal is whether there was sufficient evidence presented to support his conviction of residential burglary. In support of his argument, defendant relies upon the Illinois Supreme Court’s decision in People v. Housby (1981), 84 Ill. 2d 415, for the proposition that exclusive and unexplained possession of recently stolen property is not, of itself, sufficient to support a burglary conviction. The State argues that sufficient evidence was presented to satisfy the criteria set forth in Housby.

The standard for reviewing whether sufficient evidence was presented to support a criminal conviction is whether, after considering all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. (People v. Wittenmyer (1992), 151 Ill. 2d 175, 190; People v. Campbell (1992), 146 Ill. 2d 363, 374.) This standard is applicable in criminal cases regardless of whether the evidence is direct or circumstantial. (Campbell, 146 Ill. 2d at 374.) A reviewing court will not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of witnesses and will not reverse a criminal conviction unless the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of the defendant’s guilt. Campbell, 146 Ill. 2d at 375.

Housby addressed the use of presumptions and inferences in light of the United States Supreme Court’s decisions in County Court v. Allen (1979), 442 U.S. 140, 60 L. Ed. 2d 777, 99 S. Ct. 2213, and Sandstrom v. Montana (1979), 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450. The court concluded that the use of presumptions involving permissive inferences, where the fact finder is given the option of ignoring or relying upon the inference, requires “as a minimum that there be a ‘rational connection’ between the facts proved and the facts presumed.” (Housby, 84 Ill. 2d at 420, citing Tot v. United States (1943), 319 U.S. 463, 467, 87 L. Ed. 1519, 1524, 63 S. Ct. 1241, 1245.) The court noted, however, that “where the permissive inference stands unsupported by corroborating circumstances, the leap from the proved fact to the presumed element must satisfy the higher standard — proof beyond a reasonable doubt — for there is nothing else on which to rest the fact finder’s verdict of guilt.” (Housby, 84 Ill. 2d at 421.) The court went on to overrule previous decisions in Illinois holding that the exclusive and unexplained possession of recently stolen property was sufficient, standing alone and without corroborating evidence of guilt, to support a burglary conviction. (Housby, 84 Ill. 2d at 423.) Instead, the court limited the use of this permissive inference to cases in which it was considered in conjunction with other circumstantial evidence of guilt. (Housby, 84 Ill. 2d at 424.) Applying Housby’s analysis, defendant’s due process rights would not be infringed by the trial court’s reliance on the inference if:

“(i) there was a rational connection between his recent possession of property stolen in the burglary and his participation in the burglary; (ii) his guilt of burglary is more likely than not to flow from his recent, unexplained and exclusive possession of the burglary proceeds; and (iii) there was evidence corroborating [defendant’s] guilt.” (Housby, 84 Ill. 2d at 424.)

The same evidence will apparently satisfy all three prongs of the Housby test. People v. Mallette (1985), 131 Ill. App. 3d 67, 71.

As noted by the court in Housby, facts are sufficient to establish a “rational connection” between recent possession of property and participation in a burglary if the inference that defendant obtained the items by burglary is not unreasonable. (Housby, 84 Ill. 2d 415.) In the present case, defendant was stopped by the police while riding in a car containing the stolen property. It is of particular importance that defendant’s possession was proximate to both the time and location of the burglary. It was not unreasonable for the trial court to have inferred from this evidence that defendant and Seidelman committed the burglary and were leaving the scene when they were serendipitously stopped by the police.

The fact that a defendant is discovered in recent, unexplained possession of the proceeds of a burglary can support the inference that the defendant participated in the burglary itself, as well as the inference that the property was delivered to him sometime after the burglary. While both inferences may be plausible, the likelihood of the former increases with the proximity in time and place to defendant’s discovered possession of the stolen items. Although discovering an individual walking from a recently burglarized building in possession of the proceeds does not necessarily preclude the inference that a passerby had just sold the items to the individual, the likelihood of this scenario seems remote in comparison to the likelihood that the individual is the actual burglar.

Defendant argued that he became involved with Seidelman after the burglary merely to dispose of the property and that, coincidentally, going to their “fence” took them within five miles of the crime scene. Defendant also admittedly provided a false statement to police about the ownership of these items, several of which were ultimately recovered from his girlfriend’s residence. Examining the plausibility of defendant’s explanation of events against the theory urged by the State, in light of the totality of the evidence, we find it reasonable for the trial court to have concluded that it was more likely that defendant was a participant in the burglary as opposed to a mere subsequent possessor of the proceeds.

Finally, there was evidence presented which corroborated defendant’s guilt. While the time and location of defendant’s possession were factors corroborative of his guilt, it is also clear, from defendant’s own statements, that his possession of the burglary proceeds was not honest; he admittedly attempted to deceive the police to hide his wrongful possession of the burglary proceeds. Several of the items were then taken to the residence of defendant’s girlfriend, a circumstance left unexplained by defendant’s testimony.

Additionally, as noted in Housby, sufficient corroboration is presented where the defendant, as in this case, himself presents an explanation of possession which the fact finder reasonably finds to be incredible. (Housby, 84 Ill. 2d at 430-31.) At trial, defendant claimed he merely received the proceeds of the offense, but was not involved in the burglary. The trial court, noting that it “had the opportunity to view *** the testimony of the witnesses and observe their demeanor while testifying, assess the credibility of the witnesses and the weight to be accorded thereto,” found defendant guilty and, in doing so, rejected defendant’s notably incomplete version of events. Once defendant chose to explain his recent possession of the stolen items, the question became one of witness credibility and the Housby standard was satisfied.

Defendant argues that the facts of his case are analogous to those in People v. Johnson (1981), 96 Ill. App. 3d 1123, and People v. Phoenix (1981), 96 Ill. App. 3d 557. We disagree and find those cases to be factually distinguishable. Rather, the facts of this case are strikingly similar to those underlying our decision in People v. Mallette (1985), 131 Ill. App. 3d 67. Mallette involved a defendant who was discovered riding as a passenger in a vehicle which contained the proceeds of several recent burglaries. The burglarized premises, like the premises in this case, clearly had been broken into, and the subject vehicle was stopped shortly after the burglaries. Defendant argues that Mallette is distinguishable from his case because the court there considered that the defendant ultimately fled from the authorities. It is for this reason, however, that we find the present case to be analogous; defendant here attempted to conceal his involvement in the criminal activity at hand by providing a false statement to police about the- ownership of the stolen items. As was the case in Mallette, the facts presented to the fact finder were sufficient to permit, though not to mandate, an inference that defendant had acquired the proceeds in question as a result of his participation in the underlying burglary. There was, therefore, sufficient evidence to support the burglary conviction.

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

Affirmed.

McLaren and QUETSCH, JJ., concur.


author: JUSTICE SLATER

text:
      In re FORFEITURE OF ONE 1985 NISSAN MAXIMA, VIN JN1HU1152FT067092 (The People ex rel. Kevin W. Lyons, State’s Attorney of Peoria County, Petitioner-Appellant, v. Frederick Campbell, Respondent-Appellee).
    Third District
    No. 3—92—0748
    Opinion filed November 16, 1993.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Robert M. Hansen, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

The State filed a petition seeking the forfeiture of a 1985 Nissan Maxima owned by the respondent, Frederick Campbell. The trial court denied the petition. The State appeals.

Initially, we note that Campbell has not submitted an appellee’s brief. Nevertheless, since the record is simple and the issue is clear, we will address the merits of the case. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The record shows that Campbell was charged with unlawful delivery of a controlled substance. The State also filed a civil petition seeking forfeiture of Campbell’s vehicle. The petition alleged that the vehicle had been used or intended to be used to facilitate a violation of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1991, ch. 56V2, par. 1505(a)).

Campbell subsequently filed a motion for summary judgment in the forfeiture proceeding. He alleged that he had been acquitted of the criminal charge, that the cocaine had been transported in an unknown vehicle, and that his vehicle had not been involved in the offense.

Thereafter, the State moved to dismiss the motion for summary judgment. Attached to the motion was an affidavit from Officer Jim Smith. He stated that while acting as an undercover agent on March 19, 1992, he met with his confidential source and was introduced to Campbell. After Smith and Campbell discussed the purchase of cocaine, they arranged to later meet in an Eagle Store parking lot.

Smith next saw Campbell in the Eagle parking lot. Campbell instructed Smith to follow him to an address where the cocaine was located. At this time, Smith noted that Campbell was driving a 1985 Nissan Maxima. Smith and the confidential source then followed Campbell, who was driving the Nissan, to the address. Campbell told Smith to wait while Campbell went to get the cocaine. Campbell and the confidential source later returned to Smith’s vehicle, where the confidential source handed Smith a small plastic bag containing cocaine. Smith then gave Campbell $800 for the cocaine.

Following a hearing, the trial court granted summary judgment in favor of Campbell. On appeal, the State argues that the trial judge erred in granting the motion. Specifically, it argues that even though cocaine was never in Campbell’s vehicle, his vehicle facilitated the delivery of illegal drugs because Campbell drove it to the location of the sale.

We note that a vehicle is subject to forfeiture if it is used or intended to be used in any manner to facilitate the transportation, sale, receipt, or possession of substances made unlawful by the Illinois Controlled Substances Act. (Ill. Rev. Stat. 1991, ch. 56Vz, par. 1505(a).) The term “facilitate” means to make easier or less difficult. (People v. 1946 Buick, VIN 34423520 (1989), 127 Ill. 2d 374, 537 N.E.2d 748.) However, “facilitate” does not mean that any time a person drives a vehicle in connection with the commission of an offense, no matter how remote that connection, the vehicle is subject to forfeiture. People ex rel. Burmila v. One 1988 Chevrolet Automobile (1991), 221 Ill. App. 3d 238, 581 N.E.2d 757.

Summary judgment should be granted when the pleadings and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1991, ch. 110, par. 2—1005(c).) The State concedes that the facts are not disputed. Thus, we will review the judge’s ruling to determine whether it was proper as a matter of law. People v. 1946 Buick, VIN 34423520 (1989), 127 Ill. 2d 374, 537 N.E.2d 748.

In the instant case, we cannot say that as a matter of law the trial judge’s order was erroneous. The only evidence regarding Campbell’s car showed that he drove it to the location of the drug sale. The car was not used to transport the drugs, and the drugs were never inside the car. In our view, the connection between Campbell’s car and the sale was simply too attenuated to say that the car facilitated the sale. Campbell’s car was therefore not subject to forfeiture.

The decision of the circuit court of Peoria County is affirmed.

Affirmed.

McCUSKEY, P.J., and STOUDER, J., concur.


author: PRESIDING JUSTICE McCUSKEY

text:
    MARY McREYNOLDS et al., Petitioners-Objectors and Appellants, v. PATRICIA HARTLEY et al., Respondents-Candidates and Appellees (Robert Miller et al., as Members of the Lockport Township Electoral Board, et al., Respondents).
    Third District
    No. 3—93—0239
    Opinion filed November 12, 1993.

      Robert L. Tucker, of Robert L. Tucker & Associates, and William J. Harte, of William J. Harte, Ltd., both of Chicago (Courtney C. Nottage, of counsel), for appellants.
    Block, Krockey, Cernugel & Cowgill, P.C., of Joliet (Joseph M. Cernugel, of counsel), for appellees.
    Gary S. Mueller, of McKeown Law Firm, of Joliet (Joseph C. Fitzgerald, of counsel), for respondents Robert Miller, John Sluski, and Charles E. Pas-tore.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

Petitioners, Mary McReynolds, Edward McReynolds and Judith Fite, appeal from an order which dismissed their petition for judicial review of the decision of the Lockport Township Electoral Board (Electoral Board). The sole issue raised on appeal is whether the trial court erred in dismissing the petition as untimely. We affirm because we conclude the petition was not timely filed.

On January 12, 1993, a caucus was held in Lockport Township for the purpose of selecting candidates from the Democratic Party to run for the township offices of supervisor, clerk, highway commissioner, assessor, collector and trustee. The candidates selected at the caucus, Patricia Hartley, George Mushro, Judy Batusich, Bernard Havidich, John Jack Waxweiler, William Doyle, Norbert Liker, Percy Conway and Herman Alberico, subsequently filed their nomination papers. Petitioners filed objections to the nomination papers with the Electoral Board. The Electoral Board held a hearing on petitioners’ objections and filed a decision denying the objections on March 4,1993.

Petitioners then filed their petition for judicial review of the March 4, 1993, decision. All of the candidates were named as respondents. Also named as respondents were the members of the Electoral Board and Clara Hartley Woodard in her capacity as Will County clerk. We note that Woodard, who is now deceased, is not a party to this appeal.

The petition was file-stamped on March 16, 1993, at 8:46 a.m. Both the respondent-candidates and the Electoral Board filed motions to dismiss the petition, arguing that it was not timely filed. They contended that the 10-day period to file the petition expired on March 15, 1993.

Petitioners filed a response to the motions to dismiss. Attached to the response were the affidavits of Stephen Garcia and Courtney Nottage, two of petitioners’ attorneys. In his affidavit, Garcia stated that he arrived at the office of the clerk of the circuit court of Will County “at approximately 4.:30 p.m. on March 15, 1993.” (Emphasis added.) He was told by one of the deputy clerks that State law prevented her from taking any document for filing after 4:30 p.m. Garcia then asked to see the chief clerk. The chief clerk was not in, and the deputy clerk refused to accept the petition for filing. Nottage stated in his affidavit that the petition was accepted for filing on March 16,1993.

A hearing was held on the motions to dismiss on March 23, 1993. Nottage argued that, based upon the facts presented in petitioners’ response, the petition should be considered filed on March 15, 1993. The court granted the motions to dismiss. This appeal followed.

According to the applicable statute, petitioners had to file their petition within 10 days after the Electoral Board’s decision. (10 ILCS 5/10 — 10.1 (West 1992).) Here, there is no dispute that the last day for timely filing was March 15, 1993. The parties also agree that the failure to file a timely petition deprives the circuit court of subject matter jurisdiction over the cause. (Kozel v. State Board of Elections (1988), 126 Ill. 2d 58, 69-70, 533 N.E.2d 796.) In addition, it is undisputed that the official office hours of the clerk of the circuit court of Will County end at 4:30 p.m. on each business day.

Following our review of the record, we conclude that Garcia must have arrived at the clerk’s office after 4:30 p.m. During oral argument, the petitioners conceded that if Garcia could have sworn he arrived at the clerk’s office before 4:30 p.m., he would have done so in his affidavit. We note that Garcia’s affidavit did not contain any allegation that he arrived at the clerk’s office before 4:30 p.m. on March 15,1993.

The supreme court has held that “filing ‘in the court’ or ‘with the clerk’ means filing at the customary office and within the customary office hours.” (Emphasis added.) (Daniels v. Cavner (1949), 404 Ill. 372, 378, 88 N.E.2d 823.) It has been noted that the “uniform practice in the trial court has been to require actual receipt by the circuit clerk, as evidenced by the file stamp, before a paper is considered filed.” (Emphasis added.) (Wilkins v. Dellenback (1986), 149 Ill. App. 3d 549, 553, 500 N.E.2d 692.) Therefore, the actual filing date of a complaint or petition is when it is received and stamped by the circuit clerk’s office. (Ayala v. Goad (1988), 176 Ill. App. 3d 1091, 1094, 531 N.E.2d 1040; Wilkins, 149 Ill. App. 3d at 554; see also Polka v. Turner (1989), 182 Ill. App. 3d 705, 538 N.E.2d 640.) A complaint is considered timely filed only when it is filed in compliance with the rules of the circuit court. See Riley v. Jones Brothers Construction Co. (1990), 198 Ill. App. 3d 822, 556 N.E.2d 602.

Petitioners nevertheless contend that the petition was filed when it was delivered to the deputy clerk on March 15, 1993. They rely on Dowie v. Chicago, Waukegan & North Shore Ry. Co. (1905), 214 Ill. 49, 73 N.E. 354. We recognize that it has been held:

“A document is legally filed when it is delivered to the proper officer and receives proper endorsement; the person filing has the duty of delivery of the paper, and the officer has the duty of making the appropriate endorsement on the paper. [Citation.] Delivery alone has been held to constitute filing since the person filing has no control over the officer who receives documents. [Citation.] Subsequent ministerial tasks of the clerk evidence the filing of a document but are not essential to its perfection.” In re Estate of Davison (1981), 102 Ill. App. 3d 644, 645, 430 N.E.2d 222.

See also Dowie, 214 Ill. at 54.

We conclude, however, that the application of this rule of law requires a finding that the deputy clerk in this case should have performed the “ministerial” task of filing the petition. Here, the deputy clerk refused to file the petition because it was presented after 4:30 p.m. Section 6 of the Clerks of Courts Act provides:

“The clerks of the Circuit Courts shall keep their offices at the court house of their respective counties, and shall keep their offices open and attend to the duties thereof during such hours on each day, and on such days as may be ordered by the rule of the court in such county, which rule may be changed from time to time as the court may see fit.” (705 ILCS 105/6 (West 1992).)

Also, a deputy clerk has no independent authority as deputy and may only perform duties under the direction of the clerk of the circuit court. (St. Joseph Manufacturing Co. v. Daggett (1877), 84 Ill. 556, 561.) Here, the hours of the clerk’s office were properly set by rule and the deputy clerk refused to accept the petition for filing after 4:30 p.m. Under these circumstances, we cannot say that the deputy clerk should have accepted the petition for filing or acted improperly in refusing to do so.

We therefore conclude that the petitioners did not timely file their petition on March 15, 1993, by presenting it to a deputy clerk prior to 4:30 p.m. As a result, the petition was not filed until March 16, 1993, when it was file-stamped. Therefore, we find the petition was properly dismissed.

For the reasons indicated, the judgment of the circuit court of Will County is affirmed.

Affirmed.

STOUDER and SLATER, JJ., concur.