author: JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARNELL TIPTON, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—2629
    Opinion filed December 19, 1990.
    — Rehearing denied January 25, 1991.

      Michael J. Pelletier and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Joseph Brent, and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE FREEMAN

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Darnell Tipton, was convicted of aggravated criminal sexual assault and armed robbery. (Ill. Rev. Stat. 1987, ch. 38, pars. 12— 14(a)(1), 18 — 2(a).) Defendant was sentenced to an extended term of 60 years for aggravated criminal sexual assault and 30 years for armed robbery, the sentences to run consecutively. Defendant appeals, contending that: (1) the admission of past crimes evidence denied him a fair trial; (2) the prosecution distorted the burden of proof; (3) the trial court erred in imposing an extended term sentence; and (4) the trial court incorrectly considered evidence in determining an appropriate sentence. We affirm.

Prior to trial, the State motioned the court to permit the admission of other crimes evidence. At the hearing on the motion the State argued that “based on the similarity of the cases involving the offender with the [complainant] and [another woman], *** that these cases [went] to show motive, intent, [and] particularly identification.” After hearing argument, the court found that there were “an enormous amount of similarities.” The court stated that it could see where both of the instances were so close in proximity in time and place, and in method of operation, as to show modus operandi and to prove identification. Accordingly, over defendant’s objection, the court granted the State’s motion to allow the evidence.

At trial complainant testified that, on September 27, 1986, at about 11 p.m., she was walking westbound on Cornelia toward the Ravenswood “el.” A man, whom complainant later identified as defendant, ran up behind her, and with a meat cleaver raised in his hand, said, “Don’t say anything or I’ll cut your head off.” Complainant first saw defendant when he was about three feet away. In response to complainant’s inquiry as to what he wanted, defendant grabbed her arm and said that she was going to help him get away from the police. Defendant stated that he had just killed a man and that if the man had cooperated he would not have killed him.

Holding the meat cleaver to complainant’s neck, defendant walked her southbound, across Cornelia, to an empty lot. Complainant described that defendant was walking behind her and somewhat to the side. She made several attempts to see his face, which was about a foot away from hers.

After the two arrived at the empty lot, defendant had complainant sit on the ground and asked her for her purse. Complainant gave defendant the purse, he looked through it, but was unable to find any money. Defendant told complainant that he did not believe that she did not have any money. Complainant then remembered that she had $5 in her pocket and gave it to him.

Defendant then grabbed complainant by the belt of her pants, put the meat cleaver to her neck, and told her to get up. The two walked southbound, down an alley, where defendant attempted to open a hole in a corrugated metal fence. Defendant and complainant continued to walk until they arrived at another alley. They walked down the alley to an opening between two garages.

Once at the garages, complainant, at defendant’s order, removed all of her clothing and performed fellatio on him. After about one minute, defendant told complainant to stand up and to face the garage. Complainant complied, at which time defendant, while standing behind her, had vaginal intercourse with her. The intercourse lasted about one minute. During that time, complainant noticed that defendant had his hands on her midsection, and therefore, she reasoned, he did not have the meat cleaver in his hand. When defendant ordered her to turn around and perform fellatio again, she grabbed his testicles, pulled them, and ran screaming from the alley down Cornelia.

Complainant encountered Ray Mizushima in front of his home at 1214 West Cornelia. After informing Mizushima that she had been raped, Mizushima took complainant into his home and gave her clothing. Complainant then telephoned the Chicago police.

Once the police arrived, complainant described to them her assailant. She stated that defendant wore either a blue jacket and brown pants or a brown jacket and blue pants. She also stated that defendant had a couple of days’ growth of beard. She then led them to the scene of the incident, where they discovered her clothes and purse. The police, accompanied by complainant, unsuccessfully toured the vicinity where the incident had occurred. They then returned to the scene of the incident, retrieved complainant’s clothing, and transported her to Illinois Masonic Hospital, where she underwent a gynecological examination.

On cross-examination, complainant testified that she glanced at defendant five or six times as he walked her toward the garages. When defendant noticed that she was looking, he told her not to look at him.

On September 29, 1986, complainant identified defendant as her assailant in a police lineup. In addition to the physical identification, complainant, after hearing defendant say “don’t say anything or I will cut your throat,” made a voice identification.

Anne Penman was permitted to testify concerning another offense involving defendant. According to her, on September 27, 1986, between 11:30 and 11:45 p.m., she was in the vestibule of her apartment at 737 West Cornelia. She went to her door and as she was about to let herself in, she heard a voice from behind say, “[G]ive me your purse or I’ll cut your head off.” Penman turned and saw a man, whom she later identified as defendant, standing three or four feet away from her. She tossed him her purse. She further testified that defendant was carrying a meat cleaver with a large blade and a wooden handle. Defendant left but immediately returned and asked her if she had anything in her pockets. Defendant then left and Penman called for assistance.

Penman testified that the vestibule was well lighted. She described her assailant to police as neatly dressed, wearing a light-colored shirt, approximately 5 feet 10 inches tall and weighing approximately 160 pounds. She stated that she could not recall whether defendant was clean shaven. On September 29, 1986, Penman positively identified defendant in a police lineup.

Detective Robert Labbe of the Chicago police department testified that on September 26, 1987, he and his partner responded to a call for help from a woman on Cornelia. When they arrived at the scene, Mizushima told them that he had a rape victim in his home. The officers went inside, spoke to complainant, then broadcasted a flash message over the police radio describing the assailant. The assailant was described as a man wanted for rape; a male black approximately 29 to 31 years old; 5 feet 7 inches in height and slender; short black hair, a dark complexion; and wearing a jacket and dark trousers, armed with a meat cleaver. Labbe testified that he did not write down the description. After giving the flash message, the officers took complainant and went to the scene of the incident.

Detective Edward Roberts of the Chicago police testified that on September 27, 1986, he was working as a beat officer in the area which includes West Cornelia. He heard the flash message. On the following day, Roberts and his partner were investigating a stabbing. They went down an alley at the 600 block of Wellington and discovered defendant hiding under an automobile. Defendant was crouched down in front of the car by the hood. When the officers saw him, he crawled under the car. The officers ordered defendant to stand, performed a pat-down search, and found a meat cleaver in his waistband. Defendant met the physical description of the suspect in the flash message. The officers arrested him and inventoried the meat cleaver.

Defendant’s first contention on appeal is that the trial court erred in permitting the evidence of the separate, unrelated armed robbery of Penman. He points out that the jury was instructed that this evidence was received solely on the issue of his identification, presence or design and should be considered by them only for the limited purpose for which it was received. Defendant argues, however, that since the evidence was not probative of these issues a new trial is warranted.

Evidence of crimes for which a defendant is not on trial is inadmissible if relevant simply to establish his propensity to commit crime. (People v. Lindgren (1980), 79 Ill. 2d 129, 137, 402 N.E.2d 238; People v. Holm (1989), 188 Ill. App. 3d 908, 544 N.E.2d 1237.) It is believed that such evidence overpersuades the jury and creates the risk that the jury might convict the defendant only because it feels he is a bad person deserving punishment. (Lindgren, 79 Ill. 2d at 137.) However, this evidence is admissible if relevant for any purpose, such as modus operandi, intent, identification, motive, presence, design or absence of mistake. People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821, cert, denied (1983), 464 U.S. 844, 78 L. Ed. 2d 136, 104 S. Ct. 145; People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489.

Defendant first argues that the trial court incorrectly believed that the Penman armed robbery was proof of modus operandi. Further, he argues that the jury was not instructed to consider the evidence for this purpose, and even had it been so instructed, the evidence did not qualify under that exception.

The State responds that the evidence was properly admitted to show defendant’s identity and modus operandi. In its brief, the State maintains that the jury was properly instructed that “the evidence of the other offense should be considered only for the limited purpose for which it was admitted; i.e., to show identity and modus operandi.”

Initially we note that the jury was not specifically instructed on modus operandi. The court instructed the jury as follows:

“Evidence has been received that the defendant has been involved in an offense other than that charged in the Indictment. This evidence has been received solely on the issue of defendant's identification, presence, and design. This evidence may be considered by you for the limited purpose for which it was received.” See Illinois Pattern Jury Instructions, Criminal, No. 3.14 (2d ed. 1981).

Modus operandi means the method of working; it refers to a pattern of criminal behavior which is so distinct that separate crimes or wrongful conduct is recognized as being the work of the same person. (People v. Maness (1989), 184 Ill. App. 3d 149, 153, 539 N.E.2d 1368; People v. Kimbrough (1985), 138 Ill. App. 3d 481, 486, 485 N.E.2d 1292.) It is relevant to prove the identity of the perpetrator, or that he committed the charged offense by allowing the jury to reasonably infer that he committed one offense from the evidence of the other, showing the “method of work” of the perpetrator. (Maness, 184 Ill. App. 3d at 153; People v. Houseton (1986), 141 Ill. App. 3d 987, 490 N.E.2d 1354.) To be admissible, there must be some unique features between the offenses that are not common to that type of offense. (People v. Tate (1981), 87 Ill. 2d 134, 142, 429 N.E.2d 470.) While there must be a strong and persuasive showing of this similarity, it is not necessary that the crimes be identical for the other crime to be admitted into evidence. Kimbrough, 138 Ill. App. 3d at 487.

Defendant has cited to several cases (People v. Phillips (1984), 128 Ill. App. 3d 457, 470 N.E.2d 1137; People v. Dickerson (1983), 119 Ill. App. 3d 568, 456 N.E.2d 920; People v. Alford (1982), 111 Ill. App. 3d 741, 444 N.E.2d 576; People v. Connors (1980), 82 Ill. App. 3d 312, 402 N.E.2d 773; People v. Cook (1977), 53 Ill. App. 3d 997, 369 N.E.2d 246), as examples of when the asserted similarities were held to be insignificant to qualify the other crimes evidence for the modus operandi exception. He argues that the claimed similarities here are likewise insignificant. We disagree and find that the cases .cited by defendant lend no support to his argument.

In Connors, for example, the suggested similarity was that two robberies occurred four hours and six blocks apart, at night with a gun near the victim’s car, and one victim was warned, “[d]on’t make me shoot,” while the other victim was warned “[i]f you move I’ll shoot you.” The court held that this threat, or some form thereof, was common to most robberies.

In Alford the claimed similarity was that two shootings occurred within five days of each other, a block apart, in a neighborhood where defendant lived. The court found that the dissimilarity, viz., that one shooting occurred on the street without explanation and the other followed an argument in a tavern, disqualified the crimes for the modus operandi exception.

Here the evidence at trial showed that complainant and Penman were both approached on the same evening, in the same vicinity, by a black male haling a meat cleaver. The assailant threatened both women, stating that he would cut off their heads. We do not believe it to be common to most rapes and robberies that the perpetrator carries a meat cleaver and threatens decapitation. Admittedly, there are some differences between the two incidents; however, these go to the weight to be given the evidence, not its admissibility. (See Holm, 188 Ill. App. 3d 908.) We believe that these facts, while not overwhelming, are sufficiently similar and distinctive to qualify as evidence of modus operandi.

We also note that modus operandi and identity are two distinct exceptions to the exclusionary rule on evidence of other crimes. As we have previously stated, proof of modus operandi may be probative on the issue of identity. However, while proof of modus operandi requires some showing of distinct similarities, proof of identity may not. In the present case, the trial court did not instruct the jury on the modus operandi exception, but instead instructed on the issue of identity. It is conceivable, in light of the court’s stated reasons for permitting the testimony, that the court was using the terms “identity” and “modus operandi” interchangeably. Nevertheless, the evidence was properly admissible to show both, and thus we find that this defect in the instruction was not so substantial that it denied defendant a fair trial.

Defendant next argues that the other crimes evidence was not relevant on the issue of common design. We agree. The common design exception to the exclusionary rule on evidence of other crimes is, like the other exceptions, a separate legal principle. However, many Illinois courts have tended to use the terms “common design or scheme” interchangeably with modus operandi. (See People v. Fuller (1983), 117 Ill. App. 3d 1026, 454 N.E.2d 334; People v. Burgin (1979), 74 Ill. App. 3d 58, 392 N.E.2d 251; People v. Therriault (1976), 42 Ill. App. 3d 876, 356 N.E.2d 999.) In fact, the terms have different meanings. Common design refers to a larger criminal scheme of which the crime charged is only a portion. (People v. Bryan (1987), 159 Ill. App. 3d 46, 51, 511 N.E.2d 1289.) However, common design, like modus operandi, may also be probative of the identity of the offender. Bryan, 159 Ill. App. 3d at 51; People v. Barbour (1982), 106 Ill. App. 3d 993, 999, 436 N.E.2d 667.

We find that the testimony of Penman was not properly admitted as evidence of a common design or scheme. There is no evidence to suggest that either offense was part of a larger criminal scheme. Thus, the issue becomes whether the court’s instruction on this exception unfairly prejudiced defendant. We believe that it did not. While the limiting instruction to the jury included the design exception, there was no likelihood of confusion that would disadvantage defendant. See, e.g., Maness, 184 Ill. App. 3d 149.

Defendant concedes, and we are satisfied, that the other crimes evidence was admissible to prove presence since it was closely related to the crime charged in point of time, place and circumstance. (People v. Sigman (1976), 42 Ill. App. 3d 624, 633, 356 N.E.2d 400, cert, denied (1977), 434 U.S. 839, 54 L. Ed. 2d 102, 98 S. Ct. 133.) He argues, however, that this evidence could have been elicited without revealing to the jury that Penman was also a crime victim. He concludes that testimony which included the details of the Penman robbery served to persuade the jury to disregard any doubts it might have had as to defendant’s identity as the offender because he was apparently a dangerous person.

We recognize that the risk of prejudice is inherent any time evidence of other unrelated crimes is admitted. For that reason, only that amount of evidence which is probative of the issue should be admitted. The trial court must be careful to limit evidence of crimes to that relevant on the issue for which it is admitted. (People v. Bartall (1983), 98 Ill. 2d 294, 315, 456 N.E.2d 59; Maness, 184 Ill. App. 3d 149.) The other crimes testimony should be allowed only to the extent necessary to prove the factual similarity to the charged crime.

However, we do not find the evidence presented on the other crime to have been excessive. The factors which were unique to the two offenses were that defendant carried a meat cleaver and that he threatened the use of the cleaver to induce the victims to cooperate. In order to show these similarities, it was necessary for the State to elicit this testimony. Penman was the only witness to testify concerning that unrelated crime and no greater detail than that necessary to demonstrate the similarities was given. We also note that as a safeguard against any overly prejudicial effect, the jury was given a limiting instruction on the use of the evidence.

Defendant cites this court to People v. Butler (1971), 133 Ill. App. 2d 299, 273 N.E.2d 37, as support for his argument that the testimony here should have been limited to Penman’s identification of defendant. In Butler, a Mustang had been used by the defendant in the charged offense. The defendant denied ever driving a Mustang. The State produced a witness who stated that five days prior to the charged offense she had observed the defendant driving a Mustang. In addition to that testimony, the State elicited testimony that the defendant had robbed the witness while threatening to harm her with an ice pick.

The Butler court held that the testimony should have been limited to identifying the defendant as the person driving the type of car in question and to the extent that it mentioned the prior crime it was inadmissible. The court stated that the additional testimony that the witness had been robbed by defendant at the point of an ice pick some five days prior to the crime charged, and in a different part of the city, could have been offered only to inflame the jury against the defendant and that that evidence did not qualify under any of the exceptions to the general rule.

In Butler, the evidence was admitted for the sole purpose of proving identity of the defendant. Here, the evidence was probative on both the issue of identity, as well as defendant’s presence in the vicinity of the crime. Additionally, there was no effort in Butler, as here, to prove identity through modus operandi; there was no suggestion that the crimes there shared unique similarities.

Here, in order to show the similarities in the offenses, and thus prove identity, it was necessary for the State to elicit from Penman the verbal threat. It was the verbal threat, along with the meat cleaver, which served to earmark both incidents as the handiwork of defendant.

Defendant also concedes that identification was at issue in the case. He argues that there were a number of facts which the jury could consider as weighing negatively on the strength of the identification evidence. Absent the other crimes evidence, there is no certainty that the identification issue would have been resolved against defendant. Thus, he asserts, a new trial should be ordered.

Defendant’s argument would seem to support, rather than defeat, the State’s claimed need for the other crimes evidence. Accepting, arguendo, that defendant’s identification. was uncertain, the other crimes evidence would serve to bolster other identification evidence presented by the State. However, we believe that the identification would have been resolved against defendant even had the other crimes evidence been excluded.

Complainant’s identification of defendant in the lineup was immediate and positive. Her in-court identification was unequivocal. Additionally, there was no testimony to contradict that identification testimony. Further, the weapon described.by complainant, retrieved from defendant and inventoried by the police served to bolster that identification. We are not persuaded that the jury would have found otherwise on the issue of defendant’s identity; the other crimes evidence properly served to bolster the strength of complainant’s identification evidence. See Houseton, 141 Ill. App. 3d at 993.

Defendant’s second contention is that he was denied a fair trial because of improper remarks made by the State in closing argument. In his rebuttal closing argument, the prosecuting attorney stated the following:

“Now in order for you to find him not guilty, you really have to believe that this is the world’s most unfortunate man. You have to believe in cruel fate, because in order to find him not guilty of any of those charges, you have to believe that this man has an identical twin.
* * *
Someone who has a face just like his, someone who is five foot seven and looks just like him, someone who just happened to be near where his identical twin was raping and sticking up women within twenty-four hours of that, and that he just happened to have the same weapon on him twenty-four hours later that his identical twin had eight blocks away, which are miles away from where he lives. But that’s not what this case shows. It doesn’t show him to be the unfortunate m[a]n. The unfortunate people are Anne and [complainant]. He just got caught. That’s what’s unfortunate for him. If you were to find him not guilty, then you have to say to yourself, ‘In order to find him not guilty, I have to do this. I have to in twenty-four hours leave that jury room, and I have to go out, and I have to find someone hiding- under a car within eight blocks of where a serious crime has occurred and find this on this person.’ If you can leave that jury room and if you can start looking up someone that looks like — just like him — .
4* 4* 4*
That looks just like him within blocks of a rape with this kind of distinct weapon, then he’s not guilty.”

The State argues that defendant, by his failure to include this argument in his post-trial motion, has not preserved it for review. (People v. Enoch (1988), 122 Ill. 2d 176, 186-87, 522 N.E.2d 1124, cert, denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274; People v. Phillips (1989), 186 Ill. App. 3d 668, 542 N.E.2d 814.) Defendant admits that he did not include this contention in his post-trial motion; however, he urges that Enoch left the plain error doctrine (107 Ill. 2d R. 615(a)) intact, and that any argument which distorts the State’s burden of proof rises to that level.

The evidence here was not so closely balanced as to require the invocation of the plain error doctrine. (People v. Lucas (1981), 88 Ill. 2d 245, 251, 430 N.E.2d 1091; People v. Harris (1989), 187 Ill. App. 3d 832, 543 N.E.2d 859.) However, courts have, on occasion, relaxed the waiver rule on the basis of fundamental fairness. (People v. Brown (1972), 52 Ill. 2d 227, 287 N.E.2d 663; People v. Belvedere (1979), 72 Ill. App. 3d 998, 390 N.E.2d 1239.) It is on this basis that we consider defendant’s argument.

Prior to addressing defendant’s arguments, we set out the applicable rules. It is settled that a prosecutor is given great latitude in making closing arguments, and the trial court’s determination of the propriety of the argument will stand absent a clear abuse of discretion. (People v. Cisewski (1987), 118 Ill. 2d 163, 175, 514 N.E.2d 970; Harris, 187 Ill. App. 3d at 841-42.) The prosecuting attorney may not make arguments or assumptions which have no basis upon the evidence. (People v. Heidorn (1983), 114 Ill. App. 3d 933, 938, 449 N.E.2d 568; People v. Escobar (1979), 77 Ill. App. 3d 169, 395 N.E.2d 1028.) This is especially true in rebuttal argument, as then defense counsel is without any opportunity to respond. (Heidorn, 114 Ill. App. 3d at 938.) Generally, improper comments or remarks made by a prosecutor do not constitute reversible error unless they are a material factor in the conviction (People v. Cobb (1989), 186 Ill. App. 3d 898, 914, 542 N.E.2d 1171), or result in substantial prejudice to the accused (People v. Morgan (1986), 112 Ill. 2d 111, 132, 492 N.E.2d 1303, cert, denied (1987), 479 U.S. 1101, 94 L. Ed. 2d 180, 107 S. Ct. 1329; People v. Baptist (1979), 76 Ill. 2d 19, 29, 389 N.E.2d 1200).

Defendant first argues that the State misstated which facts the jury must find in order to acquit him. He maintains that the closing statement distorted the burden of proof by incorrectly suggesting what the jury must find in order to acquit him.

In People v. Crossno (1981), 93 Ill. App. 3d 808, 417 N.E.2d 827, a case upon which defendant relies, the prosecuting attorney, in his rebuttal argument, stated that if the jury believed defendant, it should acquit him of all charges, but if the prosecution witnesses were believed, then the defendant should be convicted of all charges. The reviewing court noted that the correct standard for the jury’s consideration had been obscured by the prosecutor’s comments. The court stated that “ ‘[t]he test is, of course, not which side is more believable, but whether, taking all of the evidence in the case into consideration, guilt as to every essential element of the charge has been proven beyond a reasonable doubt.’ ” Crossno, 93 Ill. App. 3d at 822, quoting United States v. Stanfield (9th Cir. 1975), 521 E2d 1122, 1125.

Preliminarily we do not believe that the statements here were comparable to those in Crossno. Further, we find that statements such as the ones made in Crossno do not necessarily require reversal. For example, in People v. Alexander (1984), 127 Ill. App. 3d 1007, 1015, 470 N.E.2d 1071, cert, denied (1985), 471 U.S. 1019, 85 L. Ed. 2d 308, 105 S. Ct. 2027, the prosecuting attorney stated, “in order to believe the defendant’s testimony it would be necessary to ‘disbelieve each of the state’s witnesses.’ ” On review, the court held that while the prosecutor’s argument was not wholly accurate, it did not believe that the jury was misled by it. Moreover, the court stated, the defendant’s testimony did, in fact, contradict that of the significant State witness.

While our research has revealed no cases which are squarely on point, we find People v. Holmes (1976), 41 Ill. App. 3d 956, 965, 354 N.E.2d 611, rev’d (1978), 69 Ill. 2d 507, 372 N.E.2d 656, to be most similar. There, the prosecuting attorney, in closing argument, stated “if he [defendant] didn’t do it [commit the offense], who did?” The defendant argued that these remarks destroyed the presumption of innocence and shifted the burden of proof to the defendant.

On review, the court noted that defendant, in making the assertion, had taken the remarks out of context. The court stated that the remarks served the purpose of emphasizing that the identity of the offender had been proved beyond a reasonable doubt. Viewed in the proper context of the prosecutor’s argument, such remarks did not transcend the bounds of legitimate comment.

On appeal to the supreme court, the defendant again raised the issue of the propriety of the prosecution’s closing comments. The court, noting its disapproval of the claimed prejudicial remarks, declined consideration.

Where there are allegations of prosecutorial misconduct, arguments of both the prosecutor and defense counsel must be reviewed in their entirety, and complained-of comments must be placed in their proper context. (People v. McBounds (1989), 182 Ill. App. 3d 1002, 1015, 536 N.E.2d 1225; People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174, cert, denied (1983), 461 U.S. 944, 77 L. Ed. 2d 1302, 103 S. Ct. 2121.) Accordingly, we have examined the arguments of the parties.

The prosecutor’s comments here did not mislead the jury as to the burden of proof. In so finding, we consider that in the prosecutor’s closing argument, she stated to the jury that the judge would instruct them on each of the elements of the charged offenses which the jury would have to find in order to find defendant guilty. Additionally, in defendant’s closing argument, counsel argued that it was the State’s responsibility to prove defendant’s guilt beyond a reasonable doubt. Finally, in its instructions to the jury, the trial judge stated that the burden of proof was on the State. The trial court also instructed on the elements of each charged offense. Moreover, we believe that the State’s comments, as in Holmes, were no more than persuasive argument that the State had proved defendant’s identity beyond a reasonable doubt. We therefore conclude that these comments, when considered in context with the rest of the arguments and the court’s instructions to the jury, did not alter the State’s burden of proof.

Defendant next argues that the jury was misled to believe that the statistical improbability or impossibility of the offender being someone other than defendant translated into elimination of any reasonable doubt of guilt. He cites to People v. Harbold (1984), 124 Ill. App. 3d 363, 464 N.E.2d 734, and People v. Collins (1968), 68 Cal. 2d 319, 438 P.2d 33, 66 Cal. Rptr. 497, as support. Not only are we unpersuaded by defendant’s argument, we find Harbold to be distinguishable.

In Harbold, the prosecution presented the testimony of an expert who stated that “the chances of selecting any two people at random from the population and having them accidentally have identical blood types in each one of these factors is less than one in 500, that is, what we call the probability of an accidental match is less than one in 500.” (Harbold, 124 Ill. App. 3d at 381.) The court believed that this testimony to statistical probabilities encouraged the jury to disregard evidential risks traditionally weighed in determining guilt or innocence, and focused unfairly upon a numerical conclusion. The court held that the testimony was irrelevant and beyond the proper scope of expert opinion, and further, in light of the closeness of the circumstantial evidence, it gave a false impression of precision in the measurement of guilt.

First, in Harbold, the objectional statements were presented, by an expert, as evidence in the case, not, like here, as persuasive argument by counsel. Second, in Harbold, the State’s closing argument encouraged the jury to focus unfairly upon a numerical conclusion. (124 Ill. App. 3d at 383.) There was no real reliance on the law of statistical probabilities in this case.

Further, a review of the closing arguments reveals that defense counsel maintained that complainant had identified the wrong person. She argued that the inconsistencies in complainant’s and Penman’s identifications were proof that it was not the same person who was involved in the two offenses. Additionally, the defense questioned the reliability of complainant’s identification, pointing out that at the time of the identification, complainant was very upset, nervous, and that she had not had sufficient opportunity to view her assailant. Defense counsel concluded that defendant did not assault complainant; “a black man did, but it was not defendant.”

We believe that the State’s closing remarks were invited by defense counsel. Further, since identity was at issue in this case, we find the remarks to have been proper comment on the evidence presented. Moreover, even were we to conclude that the comments were inappropriate, in light of the overwhelming evidence of defendant’s guilt, we do not believe that he was substantially prejudiced by them.

Defendant’s third contention is that the trial court improperly sentenced him to an extended-term sentence. He first argues that prior to this offense, he had not been convicted of any offense classified as a Class X or greater. Contrarily, the State argues that since defendant had been previously convicted of an offense, the substantive elements of which constituted a Class X offense, the extended-term sentence was proper.

Defendant correctly argues that he would qualify for an extended-term sentence if he had previously been convicted of a Class X or greater offense. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b)(1).) Aggravated criminal sexual assault is a Class X offense. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(c).) In 1973, defendant was convicted of rape, which was then classified as a Class 1 felony. (Ill. Rev. Stat. 1973, ch. 38, par. 11 — 1(c).) In 1978, rape was reclassified as a Class X offense. (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 1(c).) Effective July 1, 1984, the rape statute was repealed and the legislature enacted the Criminal Sexual Assault Law of 1984.

Defendant maintains that the elements of rape are the same as those for the offense of criminal sexual assault; therefore, criminal sexual assault was intended to replace the rape statute. He argues, since criminal sexual assault is a Class 1 felony (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13(b)), his 1973 rape conviction would have constituted only a Class 1 felony at the time of this conviction for aggravated criminal sexual assault. Thus, he concludes, he has not been convicted of an offense of the same or greater class than the aggravated criminal sexual assault.

People v. Butler (1979), 78 Ill. App. 3d 809, 396 N.E.2d 1374, a case upon which defendant relies, seems to us not to support defendant’s argument. In Butler, the defendant argued that when he had been previously convicted of armed robbery, the offense was a Class 1 felony. Therefore, despite the fact that that offense had been reclassified as a Class X offense, the prior offense could not serve as the predicate offense for purposes of imposing an extended-term sentence. The reviewing court, in rejecting the defendant’s argument, stated that even though the offense had been reclassified, the elements which constituted the offense had not changed.

Arguments similar to the one which defendant here advances have been considered and rejected in at least four other Illinois cases. (See People v. Smith (1990), 199 Ill. App. 3d 839, 557 N.E.2d 596; People v. Terry (1988), 177 Ill. App. 3d 185, 532 N.E.2d 568; People v. Cannady (1987), 159 Ill. App. 3d 1086, 513 N.E.2d 118; People v. Sims (1987), 166 Ill. App. 3d 289, 519 N.E.2d 921, cert, denied (1988), 488 U.S. 844, 102 L. Ed. 2d 92, 109 S. Ct. 118.) In Sims the court noted that the amendatory act of 1983, which repealed the offense of rape and created the offenses of criminal sexual assault and aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 12 through 12 — 18), contained a savings clause. The clause provides that the abolition of any offense by this act does not affect any penalty or punishment accrued under any law in effect immediately prior to the effective date of this amendatory act. Further, the clause provides that the amendments shall apply only to those persons who commit offenses prohibited under the act after the amendatory act’s effective date. Therefore, the court held, a 1965 rape conviction, which had been subject to the 1978 reclassification, would qualify as one of the predicate Class X felonies required under the habitual criminal statute.

In Terry the defendant argued that elements of the offense for his 1971 rape conviction constituted, under the new classification, the elements of criminal sexual assault. Therefore, he argued, his rape conviction should not be considered a Class X felony for purposes of the habitual criminal statute. The Terry court, relying on the reasoning in Sims, rejected defendant’s argument. The court stated that at the time the amendatory act went into effect, rape was a Class X felony. Therefore, the court concluded, the defendant’s 1971 conviction was appropriately considered as one of the required Class X felonies.

The Terry court further reasoned that it believed this analysis furthered the legislative intent to remove career rapists from society. Finally, the court noted that a review of the defendant’s 1971 rape conviction established that he had used a knife while committing the rape. The use or threatened use of a deadly weapon during the commission of a sexual assault constitutes aggravated criminal sexual assault. Therefore, the court concluded, the defendant’s conduct in the 1971 rape satisfied the elements of aggravated criminal sexual assault, which is currently a Class X felony. See also Cannady, 159 Ill. App. 3d 1086, 513 N.E.2d 118 (1969 rape, enhanced by robbery, constituted an offense equivalent to those felonies presently categorized as Class X felonies).

Defendant argues that proof of aggravated criminal sexual assault requires proof of facts in addition to those which are necessary to convict him of the 1973 rape. We note, as the State pointed out in its brief, that defendant accomplished the 1973 rapes with the threatened used of a knife. We are persuaded by the reasoning in the cases cited above, and we adopt their reasoning as applicable here. Therefore, we hold that the trial court properly considered defendant’s 1973 rape conviction as a predicate offense for the imposition of the extended-term sentence.

Defendant next argues that the extended-term sentence was improper because his conduct was not “accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b)(2).) The extended-term statute, which is set forth in the disjunctive, permits the imposition of an extended term if any one of the enumerated factors is present. (People v. Clay (1984), 124 Ill. App. 3d 140, 153, 463 N.E.2d 929; People v. Perez (1981), 101 Ill. App. 3d 64, 427 N.E.2d 820.) Since we have determined that defendant was properly sentenced to the extended term based on the classification factor, we need not address his argument concerning the brutal nature of the offense.

Defendant’s fourth and final contention is that the trial court relied on unreliable information in sentencing him. At the sentencing hearing Wayne Michels, a former sociologist for the Department of Corrections, testified concerning disciplinary reports maintained on defendant during his incarceration for prior offenses. Defendant argues, since the trial court had no basis for finding that the reports constituted reliable evidence that defendant engaged in the activities reported therein, a new sentencing hearing is required. We disagree.

During the sentencing phase of trial, the trial judge is not limited to evidence that would be admissible only during trial. The court may exercise wide discretion in the types of evidence used to determine an appropriate punishment. (People v. Ruiz (1982), 94 Ill. 2d 245, 268, 447 N.E.2d 148, cert, denied (1983), 462 U.S. 1112, 77 L. Ed. 2d 1341, 103 S. Ct. 2465.) However, the evidence must satisfy standards of relevancy and reliability. (People v. Morgan (1986), 112 Ill. 2d 111, 143, 492 N.E.2d 1303, cert, denied (1987), 479 U.S. 1101, 94 L. Ed. 2d 180, 107 S. Ct. 1329; People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9.) While there is no requirement that the trial court restrict its consideration to criminal conduct which resulted in prosecution and conviction, the court must exercise care to ensure that the information it considers is accurate. (People v. La Pointe (1981), 88 Ill. 2d 482, 499, 431 N.E.2d 344.) Finally, institutional records which report the defendant’s conduct in jail are an appropriate matter for consideration when determining his rehabilitative potential. People v. Maldonado (1980), 80 Ill. App. 3d 1046, 1050, 400 N.E.2d 656.

Initially we note that defendant never asserted at the hearing that the institutional records were unreliable, nor did he object to Michels’ testimony regarding the same. The only objection raised to Michels’ testimony concerned the number of reported sexual assaults by defendant during his incarceration. In fact, defense counsel engaged in cross-examination of Michels concerning facts contained in the records.

That notwithstanding, we believe that the trial court had good reason to believe that- the information was trustworthy and reliable. We note, as did the court in People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344, that the challenged information here was presented in open court, in the form of sworn testimony and subject to cross-examination. (See also People v. Goebel (1987), 161 Ill. App. 3d 113, 514 N.E.2d 60.) Further, the information was relevant to determine an appropriate sentence since it bore directly on the issue of whether or not defendant was likely to commit similar offenses in the future. We find no impropriety.

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

Affirmed.

CERDA, P.J., and WHITE, J., concur.

      Justice Freeman authored this opinion prior to his election to the Illinois Supreme Court.


source: Caselaw Access Project

author: PRESIDING JUSTICE McMORROW

license: Public Domain

text:
    RAYMOND MARTIN, Plaintiff-Appellant, v. A & M INSULATION COMPANY et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—89—0843
    Opinion filed December 20, 1990.

      Burke & Burke, Ltd., of Chicago (John M. Burke and Molly C. Mason, of counsel), for appellant.
    Tressler, Soderstrom, Maloney & Priess, of Chicago (Howard K. Priess II, Shaun McFarland Baldwin, Andrew Kopon, Jr., and Kathleen M. Gibbons, of counsel), for appellee Flintkote Company.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Daniel J. Cheely, John A. Krivicich, and Kimberly Kentra Gralen, of counsel), for appellees Celotex Corporation, Pittsburgh Corning Corporation, Fibreboard Corporation, Keene Corporation, and Owens-Corning Fiberglas Corporation.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff appeals from the trial court’s entry of summary judgment in favor of several asbestos manufacturers and distributors (hereinafter collectively referred to as defendants) with respect to plaintiff’s claim for personal injuries arising out of plaintiff’s development of asbestosis. The trial court entered summary judgment for defendants on the ground that plaintiff’s suit was barred by the applicable two-year statute of limitations. (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 202.) Because the record reveals a genuine issue of material fact with respect to whether plaintiff knew or reasonably should have known, more than two years prior to the filing of his suit, that he suffered a lung disorder caused by his exposure to asbestos, we reverse and remand.

The parties’ pleadings, written interrogatories, and deposition testimony reveal the following pertinent facts. Plaintiff worked as an insulator between 1947 and 1984 and was exposed to various asbestos-containing products during this time. With regard to plaintiff’s medical history, the record indicates that plaintiff was seen by a physician in June 1970, who noted certain irregularities in plaintiff’s lungs but marked the “significance” of these symptoms as “undetermined.” Approximately 21/z years later, in January 1973, this physician again saw plaintiff and noted that plaintiff had symptoms indicating either tuberculosis or histoplasmosis. A second physician saw plaintiff in August 1976 and noted that plaintiff had a normal chest X ray.

Plaintiff submitted to an employment examination in March 1978. With respect to this examination, plaintiff was sent a letter in which he was advised that he had chronic nonspecific pulmonary fibrotic change causing significantly decreased pulmonary function. Plaintiff was seen by his family physician in March 1978 following the employment examination. According to the family physician’s records, plaintiff told the doctor that he had a cold, which may have affected the outcome of the pulmonary function tests. Plaintiff also told the physician that he was still coughing, and the physician noted that plaintiff showed “some fine rales in the lung base on inspiration.” Plaintiff was told that if his symptoms became worse, he was to return for further examination.

Later, in October 1978, a chest X ray taken during hospitalization for an unrelated ailment indicated that plaintiff’s lungs were normal. When plaintiff saw his family physician following hospitalization, the physician noted on his medical records that plaintiff had a viral upper respiratory tract infection and was coughing, and that his lungs were essentially clear. The physician also noted that plaintiff had pulmonary fibrosis. At his deposition, plaintiff recalled that he had seen his family physician in October 1978, and that the physician had discussed with him the results of the March 1978 employment examination. Plaintiff remembered that his family physician had informed plaintiff that he had “bad lungs” and should change jobs so that plaintiffs “lungs don’t get worse.” Plaintiff gave the following deposition testimony during examination by defense counsel.

“Q. What did [the family physician] tell you about why you should quit?

A. So it doesn’t get worse.

Q. So what is ‘it’?

A. Whatever it is. My lungs don’t get worse. I don’t know which way he meant it. ***

Q. [The family physician] told you at that time you had a lung problem from your work?

A. Right. He didn’t say from the work. He just says, ‘You have a lung problem.’ He must have meant from work, because he says ‘You have worked with asbestos. It must be from work,’ is what he told me.

Q. So at that time in October of 1978, *** you were aware that you had a lung problem, and you were aware that a doctor thought that you had it from work, is that right?

A. That’s right, up until that time I never figured anything about my lungs. I mean, with asbestos, I didn’t know that it was that bad. And I never had trouble. With my lungs that bad, I mean. So whether the age took care of making me notice it or what, I couldn’t tell you.

Q. Did [the family physician] describe your lung problem with any kind of word?

A. Word, no, he just said, ‘You have bad lungs,’ that’s all.”

The records of the plaintiff’s family physician indicated that plaintiff was again reported as having bronchitis in December 1978 and January 1979, and that plaintiff had throat irritation, nasal drainage, and a cough. Similar symptoms were apparent during physical examinations by the family physician in December 1979, when plaintiff was diagnosed as having bronchitis. However, when plaintiff had another chest X ray taken in December 1979, the results were interpreted as normal.

Thereafter, plaintiff saw his family physician in January 1980. Plaintiff testified at his deposition that, during this examination by the family physician in January 1980, the doctor again advised plaintiff that he should change jobs. When asked during the deposition if plaintiff “understood that when he told you to change work, that meant that your lung problems were due to your work, is that right?” plaintiff responded, “Right, that’s as I understood it.”

In January 1982, plaintiff submitted to another employment examination, including a chest X ray. This examination showed demonstrable interstitial fibrosis in plaintiff’s lungs. However, plaintiff’s X ray and pulmonary functions tests were considered normal. Thereafter, a chest X ray taken in September 1983 revealed “exaggeration in both hilar areas.”

Plaintiff was advised that he had asbestosis on December 12, 1984, when he underwent an evaluation at Cook County Hospital’s department of occupational medicine. Plaintiff filed suit against defendants less than a year later, on May 8, 1985.

Following briefing and argument, the trial court entered summary judgment in favor of defendants. Plaintiff’s timely appeal followed.

The sole question presented on appeal is whether the record establishes, as a matter of law, that plaintiff knew or should have known, from the comments made to plaintiff by his family physician in October 1978 and January 1980, that he had a lung condition caused by his work exposure to asbestos.

The Illinois Supreme Court has held the discovery rule applicable to the two-year statute of limitations regarding tort claims for asbestos-related injuries. (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 421 N.E.2d 864.) Under the discovery rule, the two-year statute of limitations begins to run when a plaintiff “knows or reasonably should know of an injury and also knows or reasonably should know that the injury was caused by the wrongful acts of another.” (85 Ill. 2d at 169.) The rule does not mandate that a plaintiff know with precision the legal injury that has been suffered, but anticipates that plaintiff be possessed of sufficient information to cause plaintiff to inquire further in order to determine whether a legal wrong has occurred. (Nolan, 85 Ill. 2d at 171; see also Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 416, 430 N.E.2d 976.) Summary judgment is properly entered where the documents of record show as a matter of law that plaintiff had notice more than two years prior to filing suit, in accordance with the discovery rule, that his injury was caused by defendant’s wrongful act. Nolan, 85 Ill. 2d at 171-72; Ill. Rev. Stat. 1985, ch. 110, par. 2-1005.

Defendants contend that the conversation between plaintiff and his family physician, as recorded by plaintiff in his deposition testimony, demonstrates, as a matter of law, that plaintiff knew or reasonably should have known of his wrongfully caused injury in October 1978 or January 1980. Defendants emphasize that plaintiff’s deposition testimony indicates that plaintiff was told by his family physician on these two occasions that plaintiff had “bad lungs” and that this condition “must be from” his working with asbestos. On this basis, defendants argue that they were entitled to summary judgment.

The decisions in Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 421 N.E.2d 864, and in Healy v. Owens-Corning Fiberglas (1989), 187 Ill. App. 3d 182, 543 N.E.2d 110, support the conclusion that the question presented in the case at bar cannot be resolved as a matter of law on defendants’ motion for summary judgment. In Nolan and Healy, the plaintiffs filed suit against various manufacturers and distributors of asbestos-containing products for injuries relating to the plaintiffs’ development of asbestosis. The plaintiffs were aware for more than two years prior to filing suit that they had pulmonary conditions. However, there was conflicting evidence with respect to when the plaintiffs knew or reasonably should have known that these lung disorders were caused by their work exposure to asbestos.

For example, the plaintiff in Nolan had been told by his physician, more than two years prior to the date on which plaintiff’s suit was filed, that the doctor had a “strong suspicion” plaintiff’s lung problems were related to his work with asbestos-containing products. In addition, certain evidence in Nolan indicated that plaintiff had explicitly acknowledged that he had “known for years” that his lung condition was caused by asbestos exposure. (Nolan v. Johns-Manville Asbestos & Magnesia Materials Co. (1979), 74 Ill. App. 3d 778, 782-84.) In Healy, the record indicated that, more than two years prior to filing suit, the plaintiff’s chest X rays showed he had an abnormality in his lungs, two of his co-workers died of asbestos-related illnesses, and the plaintiff realized his lung abnormalities were possibly caused by his asbestos exposure.

However, other evidence in the records in Nolan and Healy indicated that the plaintiffs were in good health for several years thereafter, that their pulmonary conditions were described as illnesses other than asbestosis, and that plaintiffs were not diagnosed as suffering from asbestosis until less than two years before their suits were filed. Consequently, the Nolan and Nealy courts found that the evidence did not establish, as a matter of law, that the plaintiffs had notice, within the two-year statute of limitations prior to the plaintiffs’ filing of their claims against the defendants, that the plaintiffs’ pulmonary conditions had been caused by their work exposure to asbestos.

When considering the entire course of plaintiff’s medical history in the case at bar, we cannot say, as a matter of law, that plaintiff knew or should have known, in October 1978 or January 1980, that work exposure to asbestos was causing his lung disorder. The record reflects that plaintiff was aware that he had a pulmonary condition for several years, and that he recalled being told that he had “fibrosis.” During the 1970’s and 1980’s, plaintiff’s medical symptoms were diagnosed as tuberculosis, chronic nonspecific fibrosis, bronchitis, and upper respiratory tract infections. In addition, many of plaintiff’s chest X rays during this period were considered normal. Other than the comments from plaintiff’s family physician, no mention was made to plaintiff that there was any correlation between his particular medical problems and his exposure to asbestos.

Although plaintiff acknowledged that his family physician advised him that his lung condition “must be from” his working with asbestos, plaintiff stated during deposition that he did not know “which way [the family physician] meant” these remarks. It is noteworthy that irrespective of the family physician’s comments, the physician did not diagnose plaintiff’s condition as “asbestosis,” that he did not suggest to plaintiff that he undergo further tests or treatment for such a condition, and prescribed nothing to treat plaintiff’s asbestosis. In light of plaintiff’s medical history and the diagnoses that he suffered from tuberculosis, chronic nonspecific pulmonary fibrosis, bronchitis, or upper respiratory tract infections, reasonable minds could differ as to the significance plaintiff attached, or should have attached, to the family physician’s comments in October 1978 or January 1980.

In our view, the circumstances of the case at bar are similar to those in Nolan and Nealy. The time at which the discovery rule is triggered is, “[i]n many, if not most, cases *** a disputed question to be resolved by the finder of fact.” (Witherell v. Weimer (1981), 85 Ill. 2d 146, 156, 421 N.E.2d 869, appeal after remand (1987), 118 Ill. 2d 321, 515 N.E.2d 68.) As in Nolan and Nealy, it is for the finder of fact to determine what plaintiff knew or should have known in October 1978 or January 1980 because of his family physician’s remarks. Accordingly, the trial court erroneously entered summary judgment in favor of defendants in the case at bar.

In light of this disposition, we need not and do not address the plaintiff’s argument that his medical records should not be considered in support of defendants’ summary judgment motion. These medical records, even when considered, do not justify the entry of summary judgment in favor of defendants in the instant cause.

For the reasons stated, the judgment of the circuit court of Cook County is reversed, and the cause remanded for further proceedings.

Reversed and remanded.

JOHNSON and LINN, JJ., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PATRICK GALVIN, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—0846
    Opinion filed December 20, 1990.

      Robert G. Grossman, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Jane E. Loeb, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Patrick Galvin, was charged by indictment with three counts of criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12— 13), and two counts of criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 15). Following a jury trial, defendant was found guilty of criminal sexual assault and sentenced to five years in the Illinois Department of Corrections.

On appeal, defendant contends that the evidence presented at trial was so implausible, inconsistent, and contrary to human experience as to raise a reasonable doubt as to his guilt. Defendant also alleges that he was denied a fair trial because the prosecution witness, Judith Ivins, invaded the province of the jury by vouching for the complainant’s credibility and ability to distinguish, fantasy from reality.

We affirm.

Background

The complainant is afflicted with Downs Syndrome. She had the obvious physical characteristics unique to people with Downs Syndrome including slanted eyes, a small stature, and a speech impediment. She was 28 years of age chronologically and 10 years old mentally at the time of defendant’s trial. Complainant was initially examined, in chambers, by Judge Zafiratos in order that he might determine whether she could appreciate the difference between telling the truth and telling a lie. She was found competent to testify. She then testified before the jury.

Complainant testified that she worked in the Helping Hand Thrift Shop in Brookfield, Illinois, on Saturday, February 14, 1987. She was responsible for tidying the men’s clothing section of the thrift shop, which was located in the rear section of the second floor. At 1:30 p.m., complainant was performing her usual duties in the men’s clothing section. According to the witness, defendant approached her and said, “Hi, my name is Pat.” She responded by greeting defendant and telling him her name. Defendant then touched her right shoulder and patted her buttocks. Next, defendant kissed her upon her cheek and her lips. The witness testified that she “tr[ied] to back away.” She attempted to hide in the dressing room, but defendant followed her, fondled her breasts, and kissed her again. Defendant then left.

Complainant’s mother testified that while she was driving her daughter home from the thrift shop on. February 14, 1987, complainant said that she met a new friend named Pat. She then told complainant not to speak to or kiss strangers.

On Saturday, February 28, 1987, defendant returned to the thrift shop. Complainant was working in the workroom with the door closed. The door had a sign on it which read “no admittance.” At-1:45 p.m., defendant entered the room where she was working and closed the door, after she told him not to enter. Defendant kissed her on the lips and fondled her breasts. Defendant unbuttoned her brassiere and tried to pull it up. The witness told the court that defendant kept pulling her brassiere up while she continued to pull her brassiere down. Defendant then pulled down his sweatpants and his underwear, exposing his penis. Complainant testified that defendant told her to perform an act of fellatio. She leaned over and put his penis in her mouth. Defendant then removed his penis from her mouth and told her he would show her what to do. According to the witness, defendant put his thumb in her mouth and moved it in and out of her mouth in a circular motion. Defendant then removed his thumb from her mouth. He placed his left hand on his penis and his right hand behind her head and forced her to perform fellatio on him for approximately two minutes. Complainant stated that during this time, she tried to back away.

Before leaving, defendant threatened complainant by warning her not to tell anyone or else he would bring her to his house and make love to her. Defendant thereafter left the workroom. He exited the thrift shop through a fire door whereby people could leave the store without being seen on the first floor.

Immediately after the assault, complainant was nervous, and she began crying. After five minutes, she went downstairs and told her mother that she had been raped. When the police arrived, complainant gave them a description of her assailant. She told the police that the suspect had brown hair parted down the middle of his head, and that he wore glasses, blue sweatpants, an army jacket, and gym shoes with no socks. Ms. Susan Butler, another worker in the thrift shop, passed defendant in the hallway, but she did not observe what defendant was wearing below the waist.

On the evening of February 28, 1987, complainant went to Hinsdale Hospital, where she was examined by Dr. Walker and Nurse Terry Sanders. The health care providers found no physical evidence of the assault. However, the parties stipulated that Nurse Sanders, if called as a witness, would testify that she interviewed complainant on February 28, at 6:12 p.m., and that complainant said that “Pat, the worker” held her by the neck and forced her to put his penis in her mouth.

On March 21, 1987, complainant was working on the second floor of the thrift shop where she saw defendant, wearing the same clothes that he wore on the day he assaulted her. Complainant’s mother telephoned the police. Lieutenant Arthur Kuncl arrested defendant and read him his Miranda rights. Lieutenant Kuncl later testified that defendant lived less than a block away from the thrift shop and that there was a clear line of vision from his house to the store. Complainant, her mother, and Ms. Butler all separately identified defendant in a lineup at the police station later that afternoon.

On June 29, 1988, complainant was interviewed by Dr. Judith Ivins. Dr. Ivins is a psychologist who has studied mental retardation. Dr. Ivins interviewed complainant in order to determine whether she was able to understand and consent to the act with defendant. Dr. Ivins testified that complainant gave a detailed description of her encounter with defendant. In addition, she testified that complainant had an understanding of the rudiments of vaginal intercourse and its role in procreation, but that she had no understanding of oral sex, or male sexual gratification associated with fellatio, and no comprehension of how sexual activity fits in the context of a relationship. Dr. Ivins also stated that complainant conveyed that the incident with defendant was wrong, or was something with which she did not want to be involved. Dr. Ivins further testified that complainant was well able to remember details although she could not “sequence” them or understand their social implications.

Finally, Dr. Ivins told the court complainant said that she wanted to be “President,” and that she had 510 boyfriends. Dr. Ivins characterized these comments as pre-teenage romantic notions. Dr. Ivins reiterated that complainant gave a detailed description of her encounter with defendant, and she maintained that complainant could distinguish these mild fantasies from her encounter with defendant.

Defendant testified in his own behalf. He claimed that he did not own an army jacket and that he has always worn glasses. He agreed that the photograph of him in the police lineup showed his hair parted down the center of his head. Defendant denied that he was in the thrift shop on February 14 or 28; but, he admitted that he had been in the thrift shop several times and that he was in the shop on the date of his arrest shopping for curtains during half-time of a college basketball game. After hearing all of the evidence, the jury found defendant guilty of criminal sexual assault.

Opinion

Defendant contends on appeal that the evidence elicited at trial was so implausible, inconsistent, and contrary to human experience as to raise a reasonable doubt of his guilt. He claims that it is contrary to human experience to believe that an individual would commit a criminal offense just one block away from his residence, introduce himself to the victim and use his real name, and return to the scene of the crime two weeks later wearing the same clothing. Defendant further contends that there was no physical evidence of his crime. The People maintain that the evidence showed defendant was guilty of criminal sexual assault beyond a reasonable doubt.

“It is the function of the jury as the trier of fact to assess the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence.” People v. Young (1989), 128 Ill. 2d 1, 51.

It is the duty of a reviewing court to determine “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 in original.) Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

A reviewing court must reverse a criminal conviction if the evidence is improbable, unconvincing, or contrary to human experience. (People v. Coulson (1958), 13 Ill. 2d 290, 296-97.) However, it is not the function of the reviewing court to retry a defendant when reviewing a challenge to the sufficiency of the evidence of his guilt. People v. Collins (1985), 106 Ill. 2d 237, 261.

Upon reviewing the evidence in the light most favorable to the prosecution, we conclude that a reasonable jury could have found the elements of criminal sexual assault and found defendant guilty of that offense beyond a reasonable doubt. The evidence in this case is not improbable, unconvincing, or contrary to human experience.

The Criminal Code of 1961 states in pertinent part:

“(a) The accused commits criminal sexual assault if he or she:
(1) commits an act of sexual penetration by the use of force or threat of force; or
(2) commits an act of sexual penetration and the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent ***.” Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13.

The evidence construed in the light most favorable to the prosecution reveals that defendant committed an act of penetration by putting his penis in complainant’s mouth after forcing her to bend over and while holding her by the neck. Sexual penetration includes “any contact, however slight between the sex organ of one person and the *** mouth *** of another person.” (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 12(f).) The threat of force includes situations where a defendant threatens violence, or where a defendant overcomes a victim by use of superior strength. (Ill. Rev. Stat. 1985, ch. 38, par. 12— 12(d)(2).) The record also shows the accused may have known that complainant was unable to understand the nature of the act of fellatio, or that she was unable to give knowing consent to such an act because she had the obvious physical characteristics unique to persons with Downs Syndrome.

Although there was no physical evidence of this crime, a reasonable jury could have convicted defendant because the Criminal Code of 1961 indicates that physical evidence is not required to convict a defendant of criminal sexual assault. Penetration is an element of criminal sexual assault. However, “[ejvidence of emission of semen is not required to prove sexual penetration.” Ill. Rev. Stat. 1985, ch. 38, par. 12 — 12(f).

We also find that the evidence in the record is not improbable, unconvincing, or contrary to human experience. It is not unbelievable that defendant would commit a crime within one block of his home. Defendant could see the parking lot of the thrift shop from his home. He had the opportunity to identify complainant and monitor her activities. Furthermore, it is not implausible that defendant would tell the complainant his name, or return to the scene of the crime wearing the same clothing. Complainant’s handicap was apparent. Defendant could have easily recognized her handicap and most likely believed that she would not remember his name or his clothing. “[Sjimply because the evidence depicts [a] rather daring and foolish criminal^ does not by itself render the State’s evidence unbelievable.” (People v. Bullock (1977), 51 Ill. App. 3d 149, 154.) We do not believe that the evidence was improbable, incredible, or contrary to human experience. Therefore, we will not set aside the jury’s verdict.

Defendant next contends that he was denied a fair trial because Dr. Judith Ivins invaded the province of the jury by vouching for complainant’s credibility and ability to distinguish fantasy from reality. The People maintain that defendant failed to make a timely objection to the testimony. The State also argues that if we should reach the merits of this issue, Dr. Ivins’ testimony was correctly allowed because she testified regarding complainant’s ability to distinguish between the act with defendant and her fantasies.

“[T]he accused has the right to insist that only competent evidence shall be introduced against him [at trial] ***.” (People v. Trefonas (1956), 9 Ill. 2d 92, 98.) However, the admission of evidence must be objected to at the time of the admission. Defendant waives his right by failing to object during the trial. (Trefonas, 9 Ill. 2d at 98.) Failure to make a proper and timely objection constitutes a waiver of the right to object on appeal. Defendant in the case at bar failed to object to the testimony at issue during the trial. Accordingly, we find that defendant waived his right to raise this issue upon appeal; .therefore, we cannot address the merits of defendant’s objection.

For the foregoing reasons, we affirm the trial court’s decision. As part of our judgment, we grant the State’s request that defendant be assessed $75 as costs and fees for this appeal, pursuant to People v. Agnew (1985), 105 Ill. 2d 275, and People v. Nicholls (1978), 71 Ill. 2d 166.

Affirmed.

LINN and JIGANTI, JJ., concur.


author: PRESIDING JUSTICE McMORROW JUSTICE JIGANTI,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIC LITTLE, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—1050
    Opinion filed December 20, 1990.

      JIGANTI, J., dissenting.
    Randolph N. Stone, Public Defender, of Chicago (Ira Churgin, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and James S. Veldman, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Following a bench trial, defendant was convicted of theft and sentenced to a two-year term of imprisonment. On appeal defendant contends that he was denied his constitutional right to counsel of his own choosing when the trial court denied his motion, made on the .day of trial, for a continuance to substitute appointed counsel with a private attorney retained by his family.

Defendant was arrested for theft on September 25, 1988, and was in custody from that date until his bench trial on March 1, 1989. During this period, the case was continued eight times, four of which were “by agreement,” three pursuant to motions by the State and one by the trial court. Defendant, through his attorney, an assistant public defender, demanded trial on October 14, 1988, and again on January 12, 1989. Trial was set for March 1, 1989. On that date, defendant moved for a continuance because the private counsel retained by his family was misinformed of the trial date and was not present in court. The following colloquy then occurred:

“DEFENDANT: Your Honor, I was wondering, could I postpone this because I have to pay a lawyer. I got a paid lawyer now.
THE COURT: The only problem is the state is down here and they have all their witnesses, so we are going to have to go to trial. You demanded trial on January 12th.
MR. FISHER [Assistant State’s Attorney]: Four times, Judge.
THE COURT: Motion state.
[DEFENDANT]: Like I was saying, so I’m entitled to three continuances, am I?
THE COURT: No, not after you demand. Once you demand, the state shows up with the witnesses, the state has got to go. Okay?
We’ll pass it and let you talk to your lawyer.
(Case passed.)
* * *
MR. MURPHY [Public Defender]: Judge, this is Eric Little before the bench.
Your Honor, for the record, his family contacted me and they said they have hired Mr. Pride as his attorney. I just learned about it this morning, that they are in contact with Mr. Stillo, I think, who is associated with Mr. Pride, and we would be respectfully asking this court to continue this matter so they can come in and file their appearance in the case.
Judge, I have tried, I have had the family contacting the attorney and asking him to call me and verify it. Also I have asked them to have an attorney come in.
THE COURT: You demanded trial on January 12, 1989, and it was continued to January [2]6th, [sic] at which time you continued to demand trial. That was put over for today. Today the state’s witnesses showed up, so as I see it here, there’s no attorney that showed up here to advise me he’s going to represent the defendant; therefore we are going to trial today.
[ASSISTANT PUBLIC DEFENDER]: Judge, the family gave him the wrong date, that’s why the attorney isn’t here.
THE COURT: Counsel, you have been demanding for three months. We have a term going, and when witnesses show up you can’t ask for a continuance.
[ASSISTANT PUBLIC DEFENDER]: Well, Judge, he also has a right to counsel of his choice.
THE COURT: I understand that, counsel, but you’re prepared to go ahead here, you have been demanding trial for three months, or a period of two months, so therefore, when the witnesses show up we have to go ahead, counsel.
[ASSISTANT PUBLIC DEFENDER]: Judge, I know I’m prepared, I’m ready to go to trial, but he does not want to be represented by me at this trial.
THE COURT: Counsel, you’re his attorney.”

Trial immediately commenced after which defendant was found guilty and sentenced. Defendant’s post-trial motion was denied, and this appeal followed.

Opinion

Defendant’s only contention on appeal is that he was denied his constitutional right to counsel of his choice when the trial court summarily denied his motion for a continuance to enable private counsel retained by his family to appear and represent him. The State maintains the denial was a proper exercise of the trial court’s discretion.

It is well settled that the constitutional right to counsel includes the right to be represented by retained counsel of one’s own choosing. (People v. West (1990), 137 Ill. 2d 558; People v. Payne (1970), 46 Ill. 2d 585, 264 N.E.2d 167; People v. Green (1969), 42 Ill. 2d 555, 248 N.E.2d 116.) A determination of whether to grant a defendant’s request for a continuance to allow time for retained counsel to appear requires a balancing of the fundamental right of the defendant to counsel of his choice (People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229; People v. Washington (1990), 195 Ill. App. 3d 520, 352 N.E.2d 1067), against the interests of the State, the courts and the witnesses in the efficient disposition of cases without unreasonable delay (Friedman, 79 Ill. 2d 341, 403 N.E.2d 229; Washington, 195 Ill. App. 3d 520, 352 N.E.2d 1067; People v. Sullivan (1977), 52 Ill. App. 3d 666, 367 N.E.2d 1042).

The balancing of these competing interests requires a review of the diligence shown by the defendant (Friedman, 79 Ill. 2d 341, 403 N.E.2d 229; Washington, 195 Ill. App. 3d 520, 352 N.E.2d 1067), and an inquiry into the reason for requesting the continuance to determine if the request is based upon verifiable and truthful statements by defendant in support of the motion or is being made merely as a delaying tactic (Green, 42 Ill. 2d 555, 248 N.E.2d 116). The right to counsel of one’s own choosing cannot be pergptted to be used as a weapon to indefinitely thwart the administration of justice or otherwise impede the effective prosecution of crime (Friedman, 79 Ill. 2d 341, 403 N.E.2d 229; Green, 42 Ill. 2d 555, 248 N.E.2d 116; Washington, 195 Ill. App. 3d 520, 352 N.E.2d 1067; Payne, 46 Ill. 2d 585, 264 N.E.2d 167; People v. Ritchie (1966), 66 Ill. App. 2d 417, 213 N.E.2d 306). The granting or denial of a continuance motion is within the sound discretion of the trial court, and its ruling is not to be disturbed unless that decision amounts to an abuse of discretion (Friedman, 79 Ill. 2d 341, 403 N.E.2d 229; Washington, 195 Ill. App. 3d 520, 352 N.E.2d 1067). A determination as to whether the denial of a motion for a continuance violated a substantive right of the accused turns upon the particular facts of each case (Friedman, 79 Ill. 2d 341, 403 N.E.2d 229; Washington, 195 Ill. App. 3d 520, 352 N.E.2d 1067).

Defendant argues that the trial court abused its discretion and violated his constitutional rights by denying his request for a continuance because the court made no inquiry to verify his and the public defender's representations that the family had retained an attorney, whose identity was provided to the court, paid the attorney and mistakenly misinformed the attorney of the trial date. Defendant also asserts that the court’s denial of his continuance motion was not based on the necessary finding that the request was calculated merely to cause delay or to impede the efficient administration of justice. Rather, defendant argues, the court denied the continuance on its incorrect interpretation of the law that a continuance cannot be granted once a defendant has demanded trial and the witnesses are present in court.

The State responds that the denial of the request for a continuance was proper because the request was not made until the morning of trial when all necessary parties and witnesses were present. The State argues that the motion was untimely and unreasonable because the case had been pending for five months during which it had been continued numerous times, and that throughout that time, defendant had “constantly” demanded trial. The State further asserts that reversal is not warranted because defendant received competent representation by the public defender and therefore was not prejudiced.

We find the case at bar to be strikingly similar to People v. Washington (1990), 195 Ill. App. 3d 520, 352 N.E.2d 1067. In a well-reasoned opinion, the appellate court in Washington reversed the defendant’s conviction, ruling that the defendant had been denied his constitutional right to counsel of his own choosing. After reviewing the relevant principles of law and the record in the case, the Washington court stated that it found no indication of any prior attempts by the defendant to delay the proceedings, noting that none of the five continuances in the case was occasioned by the defendant. The reviewing court also stated that there was nothing to indicate that the defendant’s continuance request was interposed as a delaying tactic, especially in light of the relatively short continuance requested (one week), and the evidence that the court received a call from the secretary of the attorney whom defendant stated his family had retained, explaining his absence. The Washington court placed particular emphasis on the fact that the trial court made no inquiry into the defendant’s representation that a private attorney had been retained. The court stated that if the trial court suspected defendant’s request was made merely as a delaying tactic, it could easily have confirmed or dispelled that suspicion by inquiring further into the alleged hiring of private counsel, whose name had been given by defendant’s family to the public defender. The court noted that if the trial judge had conducted such an inquiry prior to trial, he would have learned, as he did at the hearing on post-trial motions, that the family had hired an attorney, but that the attorney was unable to appear on the date set for trial.

The Washington court found the facts before it similar in many key respects to the facts in People v. Green (1969), 42 Ill. 2d 555, 248 N.E.2d 116, People v. Willis (1972), 6 Ill. App. 3d 980, 286 N.E.2d 72, and People v. Ritchie (1966), 66 Ill. App. 2d 417, 213 N.E.2d 306. In Green, the Illinois Supreme Court reversed a denial of a trial-day motion for a continuance where the defendant advised the court that his church had paid for private counsel but that the attorney was out of State completing another case. The supreme court found that defendant’s constitutional right to counsel of his choice was violated by the trial court’s failure to conduct an inquiry into the truth of the defendant’s assertions and by its order to proceed to trial that day. In Willis, the appellate court reversed the denial of a motion for a continuance made on the day of trial where the record revealed that the defendant had been incarcerated since his arrest, had informed the trial court of his efforts to obtain private counsel and expressed dissatisfaction with the services of appointed counsel. In Ritchie, the denial of a trial-day motion for a continuance was held erroneous on the basis that defendant had continuously been in custody for four months, that he informed the court that his.family was seeking to obtain private counsel, that he did not desire the services of the public defender, and that the public defender moved to vacate his appointment as counsel at defendant’s request. As a result of defendant’s statements that he desired private counsel and did not want the public defender’s representation, he proceeded to trial essentially unrepresented.

The ’ dissenting opinion in the instant case relies upon People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229. However, the facts in Friedman are not similar to the facts in the case at bar. In Friedman, the defendant was accused of conspiracy and theft by deception for activities involving the inducement of unsophisticated investors into worthless enterprises. The defendant was not in custody. His post-arraignment motion to be allowed to travel outside the State for business purposes was granted. Initially, he had been represented by private counsel who subsequently withdrew. The defendant’s private counsel was replaced with appointed counsel, the public defender. At the time that counsel was appointed" for him, Friedman was advised that he could substitute retained counsel only on the condition that he be ready for trial, scheduled three months later. Approximately two months prior to trial, the defendant wrote to the court expressing dissatisfaction with appointed counsel, claiming that numerous calls he made to the public defender went unanswered. The public defender asserted there was no record of such calls in the office log, and that he had written to the defendant in Arizona to ensure that he had the correct telephone number. The court informed Friedman by letter that if preparation of his defense required that he return to Illinois, he should do so. The court further indicated that it would consider the State’s motion to restrict defendant’s travel. The court then set a final trial date. On that date, defendant appeared in court with a letter from an attorney who stated that defendant had contacted him only three days prior to the final trial date. The attorney’s letter further stated that he could not appear that day because he was engaged in a trial elsewhere on the specified date. The attorney indicated that he would assume representation only if given additional time to prepare. Given all these facts, the Friedman court held that the defendant had not been diligent in seeking to obtain counsel and that because of this lack of diligence it was reasonable for the trial court to assume that his request for a continuance was made solely for the purpose of delay.

The Washington court found Friedman readily distinguishable from the case before it. We similarly find Friedman inapposite to the case at bar. As in Washington, the record before us reveals that defendant was in custody during the more than five-month period between his arrest and the date of trial. He was therefore compelled to rely primarily on his family to obtain private counsel. Also, although this case was continued numerous times, it is uncontroverted that none of the previous continuances was requested by defendant. The fact that defendant was incarcerated and charged with a nonviolent crime militates against the notion that his single request for a continuance was made for purposes of delay. In addition, defendant advised the court that the attorney retained to represent him had already been paid for his services.

The public defender provided the court with the name of the attorney that defendant’s family claimed to have retained. The court was advised that the attorney’s absence was not due to any lack of diligence by defendant, but rather because the attorney was provided an incorrect trial date. There is nothing in the record to indicate that defendant was requesting a lengthy continuance. The trial court conducted no inquiry into the truth or falsity of the assertions by defendant or the public defender; nor did the court inquire how long a continuance would be necessary to secure retained counsel’s appearance for trial. Irrespective of the public defender’s statement that a defendant has a right to counsel of his choice and that defendant did not wish to be represented by him, the court summarily denied the motion on the ground that a defendant is not entitled to a continuance after he makes a demand for trial. The record discloses that in response to defendant’s inquiry to whether, since the State had requested and obtained several continuances, he too was entitled to a continuance, the trial court stated,

“No, not after you demand. Once you demand, the state shows up with its witnesses, the state has got to go.”

The State has not provided and we have found no authority to support this postulation. Indeed, the court in People v. Sullivan (1977), 52 Ill. App. 3d 666, 669, noted that “the importance of enabling the defendant to exercise his right to be represented by counsel of his own choosing is generally deemed to outweigh the inconvenience to the prosecution, witnesses, court and jury *** unless it is shown that defendant’s actions were taken for the purpose of delay.”

We find nothing in the record to support even an inference that defendant was dilatory during the five-month pendency of this case or that his single request for the continuance of his case, tried in one afternoon, was calculated merely to delay the proceedings or “indefinitely thwart the administration of justice.” The interests of the State and the judiciary in the efficient and expeditious disposition of cases were clearly outweighed by defendant’s right to counsel of his own choosing in this case. We reject the State’s contention that defendant was not prejudiced because he received competent representation by the public defender.

We hold that the trial court abused its discretion in denying defendant’s motion for a continuance. We reverse defendant’s conviction and remand this case for further proceedings consistent with the views expressed herein.

Reversed and remanded.

LINN, J., concurs.

JUSTICE JIGANTI,

dissenting:

The discretion vested in the trial court to grant or deny a continuance has been reduced to a mere incantation. The majority appears to set forth a per se rule that the trial court must grant a continuance if the defendant presents the court with the name of an attorney, states that he has been retained, and explains the attorney’s absence as the result of a mistake on the part of the defendant. This is so even where the defendant has demanded trial and the witnesses are in court ready to testify.

Section 114 — 4(d) of the Code of Criminal Procedure of 1963 provides that continuances may be granted where the interests of justice require; section 114 — 4(e) provides that continuances are addressed to the discretion of the trial court and are to be considered in the light of the diligence shown on the part of the movant; and section 114 — 4(h) states that the section shall be construed to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the State to a speedy, fair and impartial trial. (Ill. Rev. Stat. 1989, ch. 38, pars. 114 — 4(d), (e), (h).) After considering these sections, the supreme court in People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229, stated that the focus is on whether the court abused its discretion and that the court’s determination in that regard turns on the facts of the particular case.

The Friedman case seemingly presented a stronger argument for a continuance than the present case. On the morning of trial, the defendant asked for a continuance because he had lost faith in his trial attorney. The trial court denied the request. The appellate court reversed and the supreme court reversed the appellate court, thereby upholding the trial court. The court concluded that the defendant in a criminal case has a constitutional right to be represented by the counsel of his choosing. However, that right could not be employed as a weapon to indefinitely thwart the administration of justice or otherwise embarrass the effective prosecution of crime. The court stated that the trial court had a right to conclude that the request was made solely for the purpose of delay.

As noted initially by the Friedman court, these cases are determined by their particular facts. The ultimate issue is whether the trial court abused the discretion reposed in it in deciding that the interest of justice did not require a continuance. In the cause before us, I do not believe an abuse of discretion occurred. The defendant had an attorney for some months prior to the trial date and in fact demanded trial with that attorney during that period of time. The trial court was faced with the fact that the matter had been scheduled for trial for quite some time, the witnesses were present, and the defendant had on prior occasions demanded trial. On the date set for trial, without any previous warning, the defendant sought a continuance. Considering that criminal cases are to be tried with due diligence consistent with the rights of both the defendant and the State to a speedy, fair and impartial trial and considering the lack of diligence of the defendant, I believe that the trial court had a right to conclude that the interest of justice did not require a continuance.

I would affirm the judgment of the trial court.