author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY SHELATO, Defendant-Appellant.
    Fourth District
    No. 4—91—0663
    Opinion filed April 30, 1992.
    Daniel D. Yuhas and John Anthony Palombi, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Craig H. DeArmond, State’s Attorney, of Danville (Norbert J. Goetten, Robert J. Biderman, and Jeffrey K. Davison, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Defendant Timothy Shelato was charged in the circuit court of Vermilion County with possession of cannabis with intent to deliver (Ill. Rev. Stat. 1989, ch. 561/2, par. 705(d)), unlawful use of a firearm by a felon (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1.1(a)), possession of cocaine (Ill. Rev. Stat. 1989, ch. 561/2, par. 1402(b)), and armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A — 2). At the time he was charged with these offenses, defendant was out on bond for another felony in case No. 90 — CF—198. His bond was subsequently revoked in that case. His wife Sylvia was also charged with possession of cannabis with intent to deliver and possession of cocaine.

On August 9, 1990, seven officers of the Illinois State Police, Dan-ville city police, and Vermilion County Metropolitan Enforcement Group executed a search warrant at the mobile home where defendant and Sylvia resided.

Officer Lance Dillon testified that he went to the door of the residence, knocked, and defendant yelled for him to come in. Dillon and another officer, Agent Byers, entered the living room of the residence. Defendant was talking on the phone located on the west side of the living room, and Sylvia was asleep on the couch on the east side of the room. Dillon told defendant he wanted to buy the car located outside the residence. Defendant hung up the phone, and Dillon then informed defendant that he and Byers were police officers and they had a search warrant. When asked what defendant did when given this information, Dillon testified, “He just stayed seated on the couch.” Dillon then alerted the five other officers outside the residence to enter, and Dillon kept defendant seated on the couch until they entered. The officers entered the residence within one to two minutes after Dillon signalled them. The officers had their weapons drawn until they were certain there were no other adults in the residence. At that point, they secured their weapons. After making arrangements for a relative to care for the Shelato children, defendant and Sylvia were removed from the residence.

The residence was then searched by the officers. The first room to be searched, and the only one which concerns us here, was the living room. Various officers who testified described that room. Dillon indicated there was an addition to the mobile home (referred to as a “tip-out”) which made the living room longer than usual. The door he entered faced the west side of the room where defendant was located. Defendant and Sylvia were handcuffed by an officer, and defendant was searched. No weapons or contraband was found on defendant. Defendant and Sylvia were moved around the living room by the officers. No search of the residence began until defendant and Sylvia were removed.

Agent Doug Eckerty testified that when he entered the residence, defendant was seated on the couch on the west wall. He was not handcuffed. Eckerty also testified that one of the other officers found a brown satchel or duffel bag on the floor of the living room by the couch along the east wall. He did not recall whether it was open or zippered closed. Inside the bag were 68 bags of marijuana, several plastic sandwich bags, a bong, a loaded .38 caliber revolver, and a box of Remington shells. There were five rounds of ammunition in the gun. The bags of marijuana were thrown together inside the duffel bag. He estimated the living room was 15 feet (east to west) wide, and perhaps a little more with the “tip-out.”

Investigator Bruce Stark testified that he and another officer were stationed by the back door while Dillon and Byers went into the residence. When he was told that defendant and Sylvia had been secured, he went inside the residence. When he entered, both defendant and Sylvia were sitting on the couch at the east end of the living room near the area where the duffel bag was located. They were not handcuffed.

Officer Larry Wilson testified that defendant gave a statement indicating there had been some trouble around his home and the gun had been given to him by Sylvia’s mother for protection. Defendant did not know the gun was loaded. Wilson testified he did not know whether the duffel bag was open or closed when it was discovered. He entered the residence with Trooper Hardy and Agent Eckerty. At that time, defendant was standing by the west wall of the living room.

Officer Robert Putnam, the officer who found the duffel bag, then testified. He could not be certain whether the bag was open or closed, but he believed it was closed. The gun was not visible upon opening the bag. It was wrapped in a rag and was located toward the bottom of the duffel bag under the marijuana.

Sylvia testified that the duffel bag was zippered closed at the time the officers came into the residence. In May 1990, her mother had given them the gun for protection because they had received threats from someone. She testified the phone outlet is located by the west door of the mobile home. The phone is kept on a table by the couch on the west wall of the living room. The phone has a long extension cord so that it is easily moved around the room — it can be moved all the way to the east end of the room.

After his bench trial, defendant was convicted of all offenses charged. The court entered judgment on three of the counts. The conviction of possession of cannabis with intent to deliver was merged into the armed violence conviction. Defendant was sentenced to one year’s imprisonment for possession of cocaine, three years’ imprisonment for unlawful use of a firearm by a felon, and nine years’ imprisonment on the armed violence charge, all to be served concurrently. The sentences were ordered to run consecutively to a five-year sentence imposed in case No. 90 — CF—198.

Defendant now appeals from his conviction for armed violence, claiming he was not proved guilty beyond a reasonable doubt because the State failed to prove he was “otherwise armed” within the meaning of the statute. Section 33A — 2 of the Criminal Code of 1961 (Code) provides that a person commits armed violence when, “while armed with a dangerous weapon, he commits any felony defined by Illinois Law.” (Ill. Rev. Stat. 1989, ch. 38, par. 33A — 2.) Under section 33A — 1(a) of the Code, a person is considered armed with a dangerous weapon “when he carries on or about his person or is otherwise armed” with a weapon such as a pistol or revolver. (Ill. Rev. Stat. 1989, ch. 38, par. 33A — 1(a).) Defendant argues he was not “otherwise armed” within the meaning of the armed violence statute, because the gun in question was wrapped in a rag inside a duffel bag located more than 10 feet away from him at the time police entered his residence.

A criminal conviction will not be set aside unless the evidence is so unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276.) As the United States Supreme Court observed in Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781, the standard to be employed in reviewing the sufficiency of the evidence is not whether the reviewing court believes the evidence at trial established defendant’s guilt beyond a reasonable doubt, but “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, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789.

The State seeks to compare the factual situation in this case to that in People v. Bond (1989), 178 Ill. App. 3d 1020, 534 N.E.2d 156, appeal denied (1989), 126 Ill. 2d 561, 541 N.E.2d 1109. In that case, defendant was convicted of armed violence, unlawful possession of a controlled substance with intent to deliver, and unlawful use of firearms by a felon. Officers executed a search warrant at defendant’s apartment. After knocking on the door and announcing their presence, they heard noises inside. They broke down the door and found it was blocked by furniture. Defendant and another man were inside the apartment. A search revealed cocaine and drug paraphernalia. Defendant admitted he had been trying to flush some of the cocaine down the toilet when the officers arrived. A gun was also found underneath the cushions of a sofa. Defendant admitted ownership of the gun, but said he had not intended to use it. He was sitting on the floor when he was ordered by police to sit on the sofa where the gun was later found. He contended the police had virtually placed him in control of the gun by ordering him to sit on the sofa. On appeal, defendant’s conviction for armed violence was affirmed. It was determined that the gun was “immediately accessible.” In answer to defendant’s argument that the police officers themselves had placed him near the weapon, this court noted the defendant had presented no evidence to support this theory at trial. The court then observed:

“Moreover, even if such evidence had been presented, it would not negate the knowledge, control, and accessibility defendant had of the weapon while he was sitting on top of it. The gun was clearly within defendant’s reach and constituted the kind of danger contemplated by the armed violence statute.” Bond, 178 Ill. App. 3d at 1023, 534 N.E.2d at 159.

The mere presence of a weapon, and not its actual use, is sufficient to meet the requirements of the armed violence statute. However, more than the mere physical existence of the weapon is required. (Bond, 178 Ill. App. 3d at 1023, 534 N.E.2d at 158.) There must also be knowledge or control of the weapon and immediate access to it. (People v. Condon (1990), 195 Ill. App. 3d 815, 825, 552 N.E.2d 413, 419-20; People v. King (1987), 155 Ill. App. 3d 363, 369, 507 N.E.2d 1285, 1288.) The presence of a weapon significantly enhances the danger that any felony committed will have deadly consequences if the victim offers resistance. (People v. Alejos (1983), 97 Ill. 2d 502, 508, 455 N.E.2d 48, 50.) It is the availability of the weapon which poses the risk that the statute seeks to address and which is regarded as the aggravating factor that enhances the severity of the predicate felony. (People v. Stamos (1991), 214 Ill. App. 3d 895, 905, 574 N.E.2d 184, 189, appeal denied (1991), 141 Ill. 2d 556, 580 N.E.2d 130.) If a weapon is not immediately accessible to the felon, the danger the statute seeks to curb is not present.

In the Bond case, the gun under the sofa cushions was readily accessible to the defendant. In order to reach the gun, all that was needed was to reach beneath the cushions. In the instant case, the factual situation is quite different. Here, the gun was some distance from where defendant was sitting when the officers came into the residence. Testimony indicated the room was at least 15 feet wide. The bag containing the gun was on the east side of the room, and defendant was sitting on a couch on the west side of the room. Although defendant was on the phone when the officers entered, and although defendant’s wife testified the phone had a long cord that would extend to the east end of the room, the testimony is clear that defendant was not walking around at the time the officers entered. He was sitting on the couch, and he remained seated there until he was physically moved around the room by the officers prior to his removal from the residence. According to the testimony of defendant’s wife the bag was zippered closed; the officer who found the bag containing the gun testified he could not be certain, but he believed the bag was closed. The gun was wrapped in a rag and was located toward the bottom of the bag underneath some 60 bags of marijuana.

The State relies upon the fact that defendant was moved around the room by the officers prior to being removed from the residence. Investigator Stark testified that when he entered the residence, defendant was either seated on, or standing next to, the couch on the east wall, which was near the location of the duffel bag containing the gun. According to the State, this establishes a “close connection” between defendant and the gun. The State further argues it does not matter that several officers were inside the residence, with their guns drawn, and the gun in question was inside a zippered bag wrapped in a rag. The State concludes by conceding that defendant would have been “stupid” to try to get to the gun under such circumstances, but the gun was nonetheless “nearby.”

Had the gun been located beneath the cushions of the couch, as in Bond, or had it been otherwise easily reached by defendant, we would agree with the State’s argument that the weapon was immediately accessible or readily available to be used by defendant. However, the facts of this case simply do not support the State’s theory. Despite being seated on the east couch at one point, in order to reach the gun defendant would still have had to unzip the bag, dig underneath the many bags of marijuana, and unwrap the gun from the rag. The State’s argument that this could have been done under the watchful eyes of several police officers, with their weapons drawn, simply defies common sense. As a matter of law, we hold that defendant was not guilty of armed violence.

Defendant’s armed violence conviction is therefore vacated and the cause remanded for resentencing.

Vacated and remanded with directions.

KNECHT and COOK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD JAMES ROE, Defendant-Appellant.
    Fourth District
    No. 4—91—0463
    Opinion filed April 30, 1992.

      Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

In April 1991, a jury convicted defendant, Edward James Roe, of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(a)(1)) and home invasion (Ill. Rev. Stat. 1989, ch. 38, par. 12— 11(a)(1)). In June 1991, the trial court sentenced him to concurrent sentences of 24 years in prison for aggravated criminal sexual assault and 10 years in prison for home invasion. Defendant appeals, arguing that (1) the State failed to prove him guilty beyond a reasonable doubt, (2) the trial court improperly permitted the State to introduce evidence of defendant’s other crimes, and (3) the prosecutor’s closing argument deprived defendant of a fair trial.

We affirm.

I. Facts

At 6 p.m. on Monday, August 27, 1990, the victim, L.M., a 24-year-old woman, went to the trailer of Bill Evans, her boyfriend. She left the trailer only once that night, walking to a store to get some Cokes. The route she walked took her past the Shady Rest Motel.

Sometime between 11 and 11:30 p.m., Evans left the trailer to go to work. L.M. locked the doors after he left. Because the weather was extremely hot and the trailer had no air conditioning, she left the trailer’s windows open. L.M. lay down to watch T.V. and fell asleep. Around 3 in the morning, she awakened and saw a man standing across the room. The man was wearing one of Evans’ black T-shirts over his head. The man had cut holes in the shirt for his eyes and mouth so that L.M. could not see his face or hair. He wore another black T-shirt that came down to his waist, and had sleeves almost to the elbow. He was naked from the waist down. In his hand he held a pocketknife with its blade extended. L.M. described the knife as “a small lock blade with brass on both ends ***[;] it had three brass dots on it.”

L.M. screamed and the man quickly came over to her. She then grabbed both of his hands and cut her finger on the pocketknife. He told her to take her clothes off, and she complied. She was afraid and asked him not to kill her. After L.M. undressed, the man fondled her breasts and then had sexual intercourse with her, during which he kept the knife at her throat. L.M. described the man as reeking of alcohol.

After the man ejaculated, he got up and walked over to the coffee table on which L.M.’s cigarettes were located and asked if he could have one. L.M. said yes and asked if she could have one, too. The man picked up L.M.’s pack of cigarettes, took one for himself, and gave one to L.M. He was not wearing gloves at the time. L.M. had bought the pack of cigarettes Friday or Saturday at the Shop ’N Save grocery store where she then worked, and she was raped Monday night after midnight. Since she purchased the cigarettes, she had kept the cigarette pack in her purse prior to the evening in question. She testified that only she, Evans, and the rapist touched the cigarette pack.

As L.M. was seated on the couch on which the man had raped her, she observed him get the cigarettes and estimated him to be approximately 5 feet 9 inches tall, 160 pounds, with brown eyes. She did not notice any scars or tattoos but did notice that he had little or no pubic hair. She explained that because the lighting in the trailer was dim, she could not be sure about whether he had no pubic hair or whether it was simply cut short. Similarly, she could not see the rapist’s eyes particularly well, nor could she tell the rapist’s hair color. The rapist left without removing the T-shirt he wore on his head, and at trial L.M. was unable to identify defendant as the man who raped her.

L.M. called the police after the rapist left. When they arrived at the trailer, she pointed out the pack of cigarettes that the rapist had handled. A fingerprint expert later testified that one of the fingerprints on the package belonged to defendant. Of the three latent fingerprints on the pack’s cellophane wrapper suitable for comparison, the expert testified that two belonged to L.M. and one belonged to defendant.

A few days after this incident, when L.M. was back at work at Shop ’N Save, Gary Heckwine walked into the store and said “Well, isn’t it a good fuck.” L.M. thought Heckwine might be the man who raped her because of this comment, the sound of his voice, and his similarity in height and weight to that of the rapist. Because she never saw the face of the man who raped her, Heckwine’s facial features had nothing to do with her belief that he was the rapist. Heck-wine’s fingerprints were not found on the cigarette pack.

Shirley Creighton, who lived in the same neighborhood as Evans, testified that about 4 a.m. on September 16, 1990 (two weeks after L.M.’s rape), she was in bed with her 21/2-year-old daughter when she heard a loud noise. She looked down on the floor and saw a man lying there. She could not see his face because it was covered by the afghan that had been on her bed. She went to the front room where her husband was sleeping, awakened him, and told him someone was lying on the floor of their bedroom. Her husband then went to their bedroom, and she heard the men wrestling and furniture breaking. Because they did not have a phone, she fled the house in order to call the police. She never saw the man’s face. Later that day, she discovered that the screen in her back door was cut.

Larry Creighton testified that around 5 a.m. on September 16, 1990, he was asleep on his living room couch when his wife awakened him and said, “Somebody is in our bedroom.” When Creighton went in the bedroom, he saw defendant, who was not masked, standing in the comer. Creighton had never before seen defendant. Creighton struggled with defendant and then threw him out the door of his residence. As they struggled, defendant yelled, “Where the hell am I?” Creighton detected a strong odor of whiskey about defendant.

Creighton “guessed” the defendant to be approximately 5 feet 9 inches tall and to weigh 150 pounds. Creighton described himself at around 5 feet 71/2 inches tall and weighing 165 pounds. At a police lineup on October 26, 1990, Creighton positively identified defendant as the man Creighton discovered in his residence.

The morning after this incident, Shirley Creighton found her daughter in the bedroom holding a knife that had its blade extended. She contacted the police about the knife, and L.M. ultimately identified it at trial as the one used by the man who raped her. Larry Creighton also testified that his child found a pocketknife on the bedroom floor of his residence after the incident. Creighton said the knife was not in his home before defendant entered.

Deputy Sandra Hinsey of the Sangamon County sheriff’s department, the lead investigator in this case, testified that her investigation was at a standstill until she learned of the incident at the Creighton residence. Hinsey thought that the same individual might be involved in both incidents because (1) the Creighton residence was only a few blocks from the Evans' trailer, (2) the man involved generally fit the description given by L.M., (3) the similar time of the incident, and (4) the presence of the knife at both incidents.

Deputy Robert Vose of the Sangamon County sheriff’s department testified that he served an arrest warrant on defendant on October 16, 1990. Later that day, Vose saw defendant with his pants partially down and testified that defendant’s pubic hair was rather short and appeared to be trimmed.

Defendant presented evidence that in November 1990, he was 5 feet 4V2 inches tall, weighed 133 pounds and had blue eyes. None of the hair samples taken from defendant matched the head hair collected from the clothing that L.M. identified as being worn by the rapist.

Defendant also presented an alibi witness, who testified that she was with defendant in a room at the Shady Rest Motel during the morning on which L.M. was raped. Defendant’s room at the motel had a window that faced the highway along which L.M. had walked on the night of the rape.

On the above evidence, the jury convicted defendant of both aggravated criminal sexual assault and home invasion.

II. Sufficiency Of The Evidence

Defendant first argues that the evidence was not sufficient to prove him guilty beyond a reasonable doubt. In support of this claim, defendant argues the following: (1) L.M.’s description of the rapist’s height, weight, and eye color differs from defendant’s height, weight, and eye color; (2) defendant has tattoos on his fingers and upper arms, and L.M. failed to notice any such tattoos on the rapist; (3) a few weeks after she was raped, L.M. described Heckwine as a person who she thought might be the rapist; (4) semen and hair samples obtained from L.M. could not be identified as coming from defendant; (5) L.M. thought the rapist’s pubic hair had either been shaved or cut short, yet a forensic scientist determined that the sample of defendant’s pubic hair that was obtained two months after L.M.’s rape did not show that defendant’s pubic hair had ever been cut or cropped; and (6) defendant presented an alibi witness who testified that defendant was with her during the time that L.M. was raped.

In response to this argument, the State cites the following: (1) the discrepancy between L.M.’s description of the rapist’s height and weight and the height and weight of defendant resulted from her being seated on the sofa when defendant was standing; (2) L.M.’s observation that the rapist had little or no pubic hair matched the testimony of the deputy sheriff who observed defendant seven weeks after the incident and noticed that defendant’s pubic hair appeared to be trimmed and was rather short; (3) L.M. positively identified the pocketknife that defendant left at the Creighton residence (following his break-in there) as the knife the rapist used to threaten her during the rape, specifically noting the “three little brass buttons” on the knife handle in making her identification; (4) defendant’s fingerprint on the cigarette pack recovered from the scene of L.M.’s rape, along with two fingerprints of L.M., and the fact that only L.M., her boyfriend, and the rapist ever touched that cigarette pack; and (5) hours before she was raped, L.M. had walked past the motel in which defendant was staying on her way to buy some Cokes, and defendant may have seen her and followed her to Evans’ trailer.

Defendant’s challenge on appeal to the sufficiency of the evidence to convict him must fail if any rational trier of fact, when viewing the evidence in the light most favorable to the prosecution, could conclude that the State had proved the essential elements of the crime beyond a reasonable doubt. (See People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, 472-73.) When we consider the evidence in the present case in accordance with this standard, we conclude that it is sufficient to prove the defendant guilty of both aggravated criminal sexual assault and home invasion.

III. Evidence Of Other Crimes

Defendant next argues that the trial court erred in permitting the State to present evidence of defendant’s break-in at the Creighton residence and the discovery therein of the pocketknife used in the rape of L.M.

In the present case, L.M. could not identify the man who raped her because his face was covered at all times. Accordingly, evidence circumstantially identifying defendant as the rapist, such as the link between defendant and the pocketknife used by the rapist, had strong probative value. Therefore, because L.M. positively identified the pocketknife recovered from the Creighton residence as the knife used by the rapist, the State was entitled to demonstrate the link between defendant and the knife, and the trial court’s ruling admitting that evidence was correct. See People v. Phillips (1989), 127 Ill. 2d 499, 520, 538 N.E.2d 500, 508.

We also hold that because defendant’s connection to that knife cannot be innocently explained, the State was entitled to elicit fully defendant’s criminal behavior at the Creighton residence. On these facts, any truncated explanation of the events at that residence-given to the jury in an effort to reduce prejudice to defendant — might weaken the link between defendant and the knife and confuse the jury.

Our conclusion that the State was justified in bringing forth all of the circumstances surrounding defendant’s break-in at the Creighton residence may best be explained by considering the following hypothetical in which the State would be hard pressed to justify presenting evidence of a defendant’s criminality when the State seeks to link the defendant to a particular weapon. If the State wished to demonstrate the link between a defendant and a particular gun, testimony that positively identified the gun in question to be in defendant’s possession on a given date, time, and place would suffice to establish the desired linkage. In this hypothetical, it seems hardly necessary for the State to establish linkage by showing further that the witness who identified the gun in defendant’s possession happened to see it at that time because defendant was pointing it at her during an armed robbery. While the evidence of the defendant’s commission of the armed robbery might be admissible (depending upon other factors involved in the witness’ identification of the gun and other circumstances of the particular case on trial), we see no reason why (in this hypothetical) the fact that the defendant committed an armed robbery at the time the witness saw the gun in defendant’s possession must always be admissible in order to show the link between the defendant and the gun.

In the present case, had Larry Creighton testified that he saw defendant in the Creighton residence on September 16, 1990, and that defendant then possessed the pocketknife L.M. later positively identified at trial, the State would be hard pressed to justify admission of evidence regarding the other events at the Creighton residence if that admission were premised solely on the need to link the knife to defendant. However, because the knife was found at the Creighton residence the morning after the break-in, the only way the State could explain the link between defendant and the knife was to provide the jury with the details about the break-in.

During the testimony of Larry Creighton, when the State first offered evidence about defendant’s break-in at the Creighton residence, the trial court orally instructed the jury (in accordance with Illinois Pattern Jury Instructions, Criminal, No. 3.14 (2d ed. 1981) (hereinafter IPI Criminal 2d)) that the evidence the jury was about to hear concerned defendant’s involvement in another offense and was being received solely on the issue of defendant’s identification. The trial court further instructed the jury that it should consider this evidence only for this limited purpose.

Defendant had previously filed a motion in limine seeking to bar the State from presenting the evidence of his break-in at the Creighton residence. The trial court denied that motion and indicated to defense counsel that it would orally instruct the jury in accordance with IPI Criminal 2d No. 3.14 if counsel would so request. Defense counsel later requested the oral instruction that the court ultimately gave to the jury.

We agree with the trial court’s handling of the evidence in this fashion. The trial court’s giving IPI Criminal 2d No. 3.14 orally to the jury just before it was to hear the evidence in question likely achieved two goals: (1) the instruction assisted the jury to understand why it was being permitted to hear evidence of defendant’s other criminal behavior, and (2) the instruction reduced the likelihood that this evidence of other crimes would prejudice defendant in the jury’s eyes by simply showing his propensity to commit crime.

In so concluding, we considered the following committee note to IPI Criminal No. 3.14 in the soon-to-be-published third edition of IPI, which reads as follows:

“At the time the evidence which is the subject of this instruction is first presented to the jury, the Committee recommends that an oral instruction should be given to explain to the jury the limited purpose of this evidence, unless the defendant objects to that instruction.” (Illinois Pattern Jury Instructions, Criminal, No. 3.14, Committee Note, at 85 (3d ed. 1992) (hereinafter IPI Criminal 3d).)

We agree with the above committee note and commend the trial court in the present case for correctly handling the other-crimes evidence.

Citing People v. Johnson (1986), 114 Ill. 2d 170, 193, 499 N.E.2d 1355, 1365, the State also argues that evidence of defendant’s break-in at the Creighton residence was admissible to show “[t]he consequential steps in the investigation” of L.M.’s rape in order to fully explain the State’s case to the jury. The State argues that “an explanation of why defendant’s fingerprints were matched to the latent fingerprint on the cigarette wrapper, and why the knife was shown to the victim was important to the jury for an understanding of the case.” Because we have already held that evidence of defendant’s break-in at the Creighton residence was fully admissible for the purpose of showing his identification as L.M.’s rapist, we need not address this additional argument. We mention it nonetheless to point out that the State failed at trial to enunciate this particular ground as a basis for the admissibility of this evidence. As a result, the trial court informed the jury that the evidence of defendant’s involvement in an offense other than that charged in the case before it was being received solely on the issue of defendant’s identification. Again, we note approvingly the following statement from the committee note to IPI Criminal 3d No. 3.14: “Care must be taken to state the proper limited purpose for the evidence. See People v. King, 165 Ill. App. 3d 464, 518 N.E.2d 1309, 116 Ill.Dec. 329 (2d Dist.1988).” IPI Criminal 3d No. 3.14, Committee Note, at 85.

IV. The Prosecutor’s Closing Argument

Defendant last argues that the prosecutor’s closing argument constituted plain error when (1) he discussed at length the definition of reasonable doubt, and (2) he misstated the law regarding fingerprint evidence.

Regarding defendant’s first argument, the prosecutor stated the following during his closing argument:

“Well, ladies and gentlemen, the standards that you are here today on is not a standard of beyond all doubt. It’s not a standard of beyond any doubt. It’s not a standard of beyond a shadow of a doubt, not 100 percent proof positive, but it’s a standard of beyond a reasonable doubt. You have to have reasonable doubt, and you will always have doubts in this trial when you find him guilty or not guilty. You will always have doubts about whether you are making the right decision. You will have to accept that *** you will always have some doubts.” (Emphasis added.)

Defendant cites the emphasized language in the above quote and argues that the prosecutor first defined reasonable doubt and then twisted its meaning, thereby committing plain error. In People v. Evans (1990), 199 Ill. App. 3d 330, 339, 556 N.E.2d 904, 909, this court emphasized that “[n]either the court nor counsel should attempt to define the reasonable doubt standard for the jury.” The prosecutor’s remarks here constituted such an improper attempt, and had defendant objected to those remarks, the trial court should have (and no doubt would have) sustained the objection. Defendant’s failure to object deprived the court of the opportunity to take that corrective action.

Defendant must argue the plain error nature of these remarks because he concedes that he failed to object to them at trial. Citing People v. Pickett (1973), 54 Ill. 2d 280, 282-83, 296 N.E.2d 856, 858, defendant argues that this court should not apply the waiver rule to his claims regarding the prosecutor’s argument because its impropriety deprived defendant of a fair and impartial trial.

We are not persuaded by defendant’s argument. We find the remarks here similar to those of the prosecutor in People v. Ellis (1985), 134 Ill. App. 3d 924, 926, 481 N.E.2d 320, 322, as follows:

“ ‘We have the burden of proving the defendant guilty beyond a reasonable doubt. This does not mean beyond the possibility of a doubt or a shadow of a doubt. There is a possibility of some.’ ”

In Ellis, this court wrote that, “[w]hile such comments as these should be avoided, our examination reveals that the comments were not prejudicial.” (Ellis, 134 Ill. App. 3d at 926, 481 N.E.2d at 322.) The same observations apply to the present case.

Because we find the prosecutor’s remarks fall far short of depriving defendant of a fair and impartial trial, we decline his invitation to view those remarks as constituting plain error. See People v. Collins (1985), 106 Ill. 2d 237, 276, 478 N.E.2d 267, 284 (even improper comments do not constitute reversible error unless they result in substantial prejudice).

Defendant also complains of the following argument the prosecutor made regarding the fingerprint evidence:

“[The fingerprint expert] tells you that the man who made these fingerprints on this card, [defendant], was the same man who made the fingerprints on the Marlboro cigarettes, one and the same. He says no two fingerprints are the same. Every one of us has a unique print. He testified that that person, the same person made both prints. It’s conclusive, 100 percent actual proof, that the man, [defendant], was in the residence of William Evans and raped [L.M.].” (Emphasis added.)

During the prosecutor’s rebuttal argument, he again referred to the fingerprint evidence as “100 percent absolute proof.”

Defendant argues that under Illinois law, fingerprint evidence is not “100 percent absolute proof” of the defendant’s guilt and that the prosecutor misstated the law by so arguing. Defendant explains this argument as follows:

“[I]t is improper to maintain that circumstantial evidence, amounting only to a fingerprint at the scene, is ‘100 percent absolute proof’ of guilt. Although the State argued that the fingerprint made it ‘100 percent’ sure the defendant was the assailant, other explanations for the presence of the fingerprint existed. There were suggestions in the record that the defendant might have touched the wrapper at a bar or that the prints were transferred from another surface onto the wrapper after the wrapper entered police custody. Therefore the prosecutor’s comments on the fingerprint evidence were error.”

We reject this argument.

Prosecutors are afforded wide latitude in closing argument (People v. Thompkins (1988), 121 Ill. 2d 401, 445, 521 N.E.2d 38, 57), and courts should hesitate to interfere with or second-guess those arguments when, as here, they constitute nothing more than hortatory language concerning how the jury should regard the evidence before it. The law restricts closing arguments to discussions of the evidence presented and to reasonable inferences to be drawn therefrom. (Thompkins, 121 Ill. 2d at 445, 521 N.E.2d at 57; see also IPI Criminal 2d No. 1.03.) We find nothing improper in the hyperbole the prosecutor used in his closing argument to describe the fingerprint evidence in the present case, and we hold the prosecutor’s argument here was consistent with the Thompkins and IPI standard.

We especially reject the notion that “suggestions in the record” that purportedly explained how defendant’s fingerprint got on the cigarette wrapper somehow render the prosecutor’s argument improper. Totally aside from the absence in this record of any such evidence, had it in fact been presented, it would simply have been a factor for the jury to consider and assign whatever weight it saw fit. The presence of such evidence would not impose any limitation upon the prosecutor’s exhortations in his closing argument, urging the jury to reject such purported explanations for the presence of defendant’s fingerprint on the cigarette wrapper and instead to regard that fingerprint as “100 percent proof” of defendant’s guilt.

V. Conclusion

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

Affirmed.

GREEN, P.J., and McCULLOUGH, J., concur.


author: JUSTICE LUND JUSTICE STEIGMANN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH LIBERMAN, Defendant-Appellant.
    Fourth District
    No. 4—91—0038
    Opinion filed April 30, 1992.

      STEIGMANN, J., specially concurring.
    Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

After a jury trial, defendant Joseph Liberman was convicted in absentia of trafficking of a controlled substance containing cocaine weighing more than 100 grams but less than 400 grams under the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat. 1989, ch. SGVa, par. 1100 et seq.). He thereafter appeared and was sentenced to 22 years’ imprisonment. Defendant appeals, contending (1) he was improperly charged under section 401.1 of the Act (Ill. Rev. Stat. 1987, ch. 561/2, par. 1401.1) because the statute failed to provide a penalty for the amount of cocaine he was found to possess; (2) the trial court erred in asking a question of a key State witness; (3) the testimony of a State’s witness regarding a fight between witness and defendant was so prejudicial as to deprive him of his right to a fair trial; and (4) in sentencing him, the trial court improperly considered a factor inherent in the offense as a factor in aggravation.

I. Facts

The first witness at trial was Cindy Jameson, defendant’s girlfriend at the time of the offense. Defendant and Jameson lived together in Jameson’s home. Jameson testified that on September 12, 1988, she became upset with defendant because he was taking drugs in her home. Defendant and Jameson became engaged in a fight and she told him to leave. Defendant then went to a compartment where he had stored a tackle box, took this tackle box to a bedroom, and shut the door.

Jameson then testified that she heard noises coming out of the bedroom. She became suspicious and opened the door. She saw defendant “doing a line of cocaine.” She also saw a large bag of “powdery stuff” and cash.

Jameson asked what was going on and defendant replied it was “coke” (cocaine) and stated it was “what he made his living at.” Defendant slammed the tackle box shut and locked it. A struggle ensued for possession of the tackle box. Jameson managed to wrestle the tackle box away from defendant and she then took the box to a neighbor’s house for safekeeping.

Later, Jameson phoned defendant and told him to remove his possessions from her house. Defendant arrived at Jameson’s home to remove his possessions and begged Jameson to return the tackle box. When she refused, another fight began and Jameson called the police.

The police arrived and oversaw defendant removing his possessions from the home. Jameson then took the police officers to her neighbor’s home and gave the tackle box to the police.

The police took custody of the tackle box and obtained a search warrant. The tackle box contained $1,600 in cash, a bag containing cocaine mixed with other cutting agents, and miscellaneous items. An expert testified at trial that the cocaine mixed with other cutting agents weighed 164 grams. The expert also testified that this mixture was 64% pure (plus or minus 7%). (This translates into approximately 105 grams of cocaine.)

On October 8, 1988, defendant was taken into custody and given his Miranda warnings. Defendant admitted receiving shipments of cocaine from Rowan, a friend from Florida. Defendant would sell the cocaine and return the resulting money to Rowan. On October 26, 1988, defendant recounted these transactions in greater detail. Defendant specified amounts of cocaine that were shipped to him, as well as the amounts of money he returned to Rowan. Rowan testified at trial and verified the nature of the transactions which took place between himself and defendant. Upon this evidence, the jury found defendant guilty and this appeal followed.

II. Challenge To Charge And Conviction Under Section 401.1 Of The Act

On February 7, 1989, defendant was charged by complaint with controlled substance trafficking in violation of section 401.1 of the Act, in that on or about September 12, 1988, he knowingly and without lawful authority caused to be brought more than 100 grams but less than 400 grams of a substance containing cocaine, a controlled substance, into the State of Illinois with the intent to deliver it. At trial, the jury determined that defendant brought 105 grams of this controlled substance into the State with the requisite intent. By post-trial motion, defendant argued he was improperly charged under section 401.1 of the Act because that section does not provide a penalty for the amount of cocaine he was found to possess, i.e., 105 grams. The trial court denied defendant’s motions, and defendant renews this challenge to the conviction on appeal.

A. The Statutory Framework

The offense of controlled substance trafficking was added to the Act by Public Act 85-743 (Pub. Act 85-743, §2, eff. Sept. 22, 1987 (1987 Ill. Laws 3160, 3164)). Denominated section 401.1, it provided an enhanced penalties provision whereunder the sentencing range authorized by section 401 of the Act (Ill. Rev. Stat. 1987, ch. SGVa, par. 1401) was doubled:

“(b) A person convicted of controlled substance trafficking shall be sentenced to a term of imprisonment not less than twice the minimum term and fined an amount as authorized by Section 401 [(Ill. Rev. Stat. 1987, ch. 563/2, par. 1401)] of this Act, based upon the amount of controlled or counterfeit substance brought or caused to be brought into this State, and not more than twice the maximum term of imprisonment and fined twice the amount as authorized by Section 401 of this Act, based upon the amount of controlled or counterfeit substance brought or caused to be brought into this State.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 561/2, par. 1401.1(b).

When section 401.1 was added to the Act, section 401 — making it unlawful for any person to knowingly manufacture or deliver, or possess with intent to manufacture or deliver, a controlled or counterfeit substance — defined the class of the offense, from the most to the least serious, based on the amount and type of drug involved. (See Ill. Rev. Stat. 1987, ch. 561/2, par. 1401 (text eff. until July 1, 1988).) As to substances containing cocaine, for example, section 401(a)(2) provided that commission of the offense involving “15 grams or more of any substance containing cocaine [(emphasis added)]” was a Class X felony (Ill. Rev. Stat. 1987, ch. 563/2, par. 1401(a)(2)); subsection (b)(2) made commission of the offense involving “more than 1 gram but not more than 15 grams” of such substance a Class 1 felony (Ill. Rev. Stat. 1987, ch. 563/2, par. 1401(b)(2)), and subsection (c) made commission of the offense based on “any other amount” of a Schedule II narcotic drug — which cocaine is (see Ill. Rev. Stat. 1987, ch. 563/2, pars. 1206(b)(4), 1102(aa)(4)) — a Class 2 felony (see Ill. Rev. Stat. 1987, ch. 561/2, par. 1401(c)).

In Public Act 85-1003 (Pub. Act 85-1003, §3, eff. July 1, 1988 (1987 Ill. Laws 4710, 4716, 4719)), on November 6, 1987, the legislature added a provision providing in pertinent part for stiffer sentences for those convicted of violating section 401(a)(1) (heroin), (a)(2) (cocaine), (a)(3) (morphine), or (aX7) (lysergic acid diethylamide (LSD)), than those which could otherwise have been imposed under section 5 — 8—1 of the Unified Code of Corrections (Code) (see, e.g., Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(3) (not less than 6 nor more than 30 years for a Class X felony)) — all based on the amount of the substance involved. This added provision, mistakenly identified in Public Act 85 — 1003 as section 401.1, provided as follows:

“Sec. 401.1 [(amended by the effective date to read section 401.2)]. Any person who violates paragraph (1), (2), (3) or (7) of subsection (a) of Section 401 with respect to the following amounts of controlled or counterfeit substances or controlled substance analogs, notwithstanding any of the provisions of subsections (b), (c), (d), (e), (f) or (g) of Section 401 to the contrary, is guilty of a Class X felony and shall be sentenced to a term of imprisonment as follows:
(1) not less than 9 years and not more than 40 years with respect to 100 grams or more but less than 400 grams;
(2) not less than 12 years and not more than 50 years with respect to 400 grams or more but less than 900 grams;
(3) not less than 15 years and not more than 60 years with respect to 900 grams or more;
(4) any person sentenced with respect to paragraph (1), (2) or (3) above may be fined an amount not more than the full street value of the controlled or counterfeit substance or controlled substance analog. The term ‘street value’ shall have the meaning ascribed in Section 110 — 5 of the Code of Criminal Procedure of 1963.” (Emphasis added; italics omitted.) (1987 Ill. Laws 4710, 4719.)

In addition, Public Act 85 — 1003 amended section 401 in pertinent part as follows, again mistakenly referring to the above-quoted new provision as section 401.1:

“Except as provided in Section 401.1
[(amended by the effective date to read section 401.2)] any person who violates this Section with respect to:
(a) the following amounts of controlled or counterfeit substances *** is guilty of a Class X felony. ***
***
(2) 15 grams or more but less than 100 [grams] of any substance containing cocaine, or an analog thereof.” (Emphasis in original to denote new matter.) 1987 Ill. Laws 4710, 4717.

See also Ill. Rev. Stat. 1987, ch. 561/2, pars. 1401.1 (as added by Pub. Act 85 — 1003), 1401 (effective July 1, 1988).

Thereafter, in Public Act 85 — 1030, on June 30, 1988, the legislature corrected the above-referenced numbering errors made in Public Act 85 — 1003, designating the newly added section as section 401.2, and amending section 401 to refer to the renumbered section 401.2 (Pub. Act 85-1030, §4, eff. July 1, 1988 (1988 Ill. Laws 200, 207, 205)). (See Ill. Rev. Stat., 1988 Supp., ch. 561/2, pars. 1401.2, 1401.) Given the irreconcilable conflict between these two acts, Public Act 85 — 1030 must be regarded as controlling because it was passed last. (Ill. Rev. Stat. 1989, ch. 1, par. 1105.) It is the text of these provisions, sections 401.1, 401, and 401.2 (Ill. Rev. Stat. 1987, ch. 561/2, par. 1401.1; 1988 Supp., ch. 561/2, pars. 1401, 1401.2), with which we are concerned.

We note, however, as have the parties, that by the time defendant was sentenced herein in April 1990, the legislature had repealed section 401.2 and incorporated its provisions into section 401 of the Act (see, e.g., Ill. Rev. Stat. 1989, ch. 561/2, par. 1401(a)(2)(B) (text as amended by Public Acts 86 — 266, §1, effective Jan. 1, 1990 (1989 Ill. Laws 1893); 86 — 442, §1, effective Jan. 1, 1990 (1989 Ill. Laws 2681, 2682)) (not less than nine nor more than 40 years with respect to 100 grams or more but less than 400 grams of a substance containing cocaine)).

B. Analysis

Defendant’s argument is basically as follows: (1) section 401.1 of the Act, under which he was charged and convicted, does not contain its own penalty provisions and instead refers specifically — and only— to the penalties authorized by section 401 of the Act (see Ill. Rev. Stat. 1987, ch. 561/2, par. 1401.1(b); 1988 Supp., ch. 561/2, par. 1401); (2) he was charged with having brought more than 100 grams but less than 400 grams of a substance containing cocaine into the State with the requisite intent; (3) section 401, at the time of the offense, that being September 1988, did not specifically delineate within its terms a penalty for committing the offense in the amount of 100 grams or more; (4) since section 401(a)(2) enumerated penalties “only for ‘15 grams or more but less than 100 grams of any substance containing cocaine’ ” (see Ill. Rev. Stat., 1988 Supp., ch. 56%, par. 1401(a)(2)), sections 401.1 and 401 “only” provide penalties for an offense of cocaine trafficking in the amount of 15 grams or more but less than 100 grams, above which point, by the specific language of the statute, the offense ceases to be trafficking; (5) because, he argues, his conduct as charged “did not fall within [section 401(a)(2)], the first hurdle of [section 401.2] was not satisfied and, as a result, the subsequent sentencing guidelines are not reached to be incorporated into [section 401] for trafficking of over 100 grams of cocaine”; (6) the State’s Attorney could have charged him for trafficking in an amount less than 100 grams of cocaine (see Ill. Rev. Stat. 1987, ch. 561/2, pars. 1401.1; 1988 Supp., ch. 561/2, par. 1401(a)(2)), or for possession of 100 grams or more but less than 400 grams of cocaine (see Ill. Rev. Stat., 1988 Supp., ch. 561/2, par. 1402.1(1)); and (7) because he could not “legally” be convicted under section 401.1 for trafficking in an amount over 100 grams of cocaine, his conviction cannot now be reduced to trafficking a lesser amount of cocaine stemming from the same act, although on retrial, the State could prosecute him for having violated other “valid” criminal laws.

Defendant relies primarily upon People v. Chandler (1989), 129 Ill. 2d 233, 543 N.E.2d 1290. There, after defendant’s conviction for residential burglary and murder, the trial court found defendant eligible for a death sentence, although residential burglary was not listed as a crime which could be used to support the felony-murder doctrine. The trial court reasoned that its exclusion was merely a legislative oversight. Although burglary was enumerated as one of the felonies which could support the death penalty and residential burglary was arguably a more egregious crime, the supreme court strictly construed the statute while acknowledging:

“Although it may seem peculiar that the legislature did not include residential burglary in the list of felonies which make a defendant eligible for death if the victim was killed during one of them, this court cannot uphold a death sentence through our affirmative act of reading the words ‘residential burglary’ into the murder statute.” (Chandler, 129 Ill. 2d at 254, 543 N.E.2d at 1299.)

We find Chandler inapposite. There, the supreme court refused to read the words “residential burglary” into the murder statute, thereby refusing to “create” a new felony for which a death penalty could be imposed under the felony-murder doctrine. By contrast, we need only construe the intent of the legislature by looking to the statutory language.

It is apparent that the legislature added section 401.1 to the Act by Public Act 85 — 743 to criminalize controlled substance trafficking, and it very clearly intended to provide an enhanced sentencing range for those who brought such substances into the State for the requisite purpose and with the requisite intent. Defendant basically questions whether the language added to open the second full paragraph of section 401, “Except as provided in Section 401.2” (Ill. Rev. Stat., 1988 Supp., ch. 561/2, par. 1401), incorporates the provisions of section 401.2 (Ill. Rev. Stat., 1988 Supp., ch. 561/2, par. 1401.2) in their entirety for purposes of prosecution on charges of controlled substance trafficking under section 401.1 of the Act. He argues that it does not and that, because (1) section 401 did not specifically enumerate the amounts of controlled substances and corresponding penalties as set forth in section 401.2, and (2) section 401.1 refers only to section 401 and not to section 401.2, he was never given notice of the penalty provisions of section 401.2 of the Act. We disagree.

This is a question of statutory construction and legislative intent. While criminal statutes must be construed strictly in favor of the accused (Chandler, 129 Ill. 2d at 254, 543 N.E.2d at 1299), they should not be so strictly construed as to defeat the intent of the legislature. (People v. Goldstein (1990), 204 Ill. App. 3d 1041, 1044-45, 562 N.E.2d 1183, 1185.) In construing a statute, the courts consider the language used by the statute, the reasons and necessity for the law, the evils to be remedied, and the object and purposes to be attained. (See, e.g., People v. Steppan (1985), 105 Ill. 2d 310, 316, 473 N.E.2d 1300, 1303.) The statute must be construed in its entirety in such way as to give effect to the legislative intent. People v. Maya (1985), 105 Ill. 2d 281, 285, 473 N.E.2d 1287, 1289.

In amending section 401 and adding section 401.2 in 1988, the legislature intended to impose stricter penalties on those convicted of the manufacture or delivery of controlled substances in larger amounts. If a defendant were convicted of the manufacture or delivery of a controlled substance in a larger amount than those for which the class of felony was stated in section 401, that section referred to section 401.2, which enumerated increased sentencing ranges based on the amount of substance involved. Defendant maintains that because the controlled substance trafficking provision, section 401.1, refers only to the penalties authorized in section 401, we are restricted to the specific penalties and amounts delineated therein, and the legislature has not authorized the courts to look to section 401.2 of the Act.

The legislature intended to provide greater penalties for those convicted of the manufacture or delivery of a controlled substance in larger amounts, hence section 401.2; and the legislature intended to provide enhanced penalties, i.e., a doubled sentencing range, for those convicted of trafficking in a controlled substance, regardless of the amount, hence section 401.1(b). To construe these statutory provisions otherwise would be illogical. Courts, in considering legislative intent, must presume that the legislature did not intend absurdity, inconvenience or injustice, and select an interpretation of the statute which leads to logical results and avoids that which would be absurd. Steppan, 105 Ill. 2d at 316, 473 N.E.2d at 1303.

Were this court to adopt the defendant’s argument in toto, section 401.1 would be construed to provide an enhanced penalty for trafficking in cocaine in amounts less than one gram, more than one gram but less than 15 grams, and more than 15 but less than 100 grams, but no further enhancement of penalty for trafficking in amounts of 100 grams or more.

It is fundamental that statutes are to be construed so that no word, clause or sentence is rendered meaningless or superfluous. (People v. Fierer (1988), 124 Ill. 2d 176, 192, 529 N.E.2d 972, 978; People v. Chevalier (1987), 159 Ill. App. 3d 341, 347, 512 N.E.2d 1001, 1005.) Absent statutory definitions indicating a different result, words in a statute are to be given their ordinary and popularly understood meaning. (See People ex rel. Daley v. Datacom Systems Corp. (1991), 146 Ill. 2d 1, 15, 585 N.E.2d 51, 57.) The language of section 401 of the Code, “Except as provided in section 401.2” (Ill. Rev. Stat., 1988 Supp., ch. 561/2, par. 1401), must also be given effect. The term “except” has been defined as: “Other than.” (Ballentine’s Law Dictionary 425 (3d ed. 1969); see also Black’s Law Dictionary 501 (5th ed. 1979).) In context, the phrase incorporated the penalty provisions of section 401.2.

The language of section 401 defined the offense of manufacture and delivery, and designated the class of felony attaching to commission of the offense based on varying amounts of enumerated substances; as to these, the sentencing ranges stated in section 5 — 8—1 of the Code adhere (see Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 8— 1(a)(3) through (a)(6)). Section 401.2 was based upon the offense of manufacture or delivery as defined in the opening paragraph of section 401, and but delineated the increased sentencing ranges applicable based on committing the offense as to greater quantities of drugs. The enhanced penalties provided in section 401.1(b) apply to the offenses contained in both sections 401 and 401.2.

Defendant’s contention that section 401.1 is a nullity is untenable; it provided both a prohibition and a penalty, and defendant was properly convicted thereunder.

III. Judge’s Question

Defendant contends that the trial judge committed reversible error when he asked a question of a key State’s witness, thus abdicating his neutral role and assuming the role of an advocate. We disagree.

Witness Jameson testified and was cross-examined. At the conclusion of this questioning, the judge asked Jameson: “[The] Joseph Liberman that you referred to, is that the Defendant in this case?” The judge asked no other questions and made no other comments.

It is clear that a judge has the right to question witnesses in order to elicit the truth. (People v. Hopkins (1963), 29 Ill. 2d 260, 265, 194 N.E.2d 213, 216.) A judge may also question a witness to bring enlightenment on material issues, as long as this is done in a fair and impartial manner without showing bias or prejudice against either party. People v. Marino (1953), 414 Ill. 445, 450, 111 N.E.2d 534, 537.

In the cases wherein the judge has been found to have assumed the role of an advocate, the judge’s acts of impropriety far exceeded the single question posed here. Defendant relies primarily on People v. Cofield (1973), 9 Ill. App. 3d 1048, 293 N.E.2d 692, and In re R.S. (1983), 117 Ill. App. 3d 698, 453 N.E.2d 139, aff'd on other grounds sub nom. People v. R.S. (1984), 104 Ill. 2d 1, 470 N.E.2d 297. However, both cases are distinguishable, as they involve a judge calling witnesses and accusing witnesses of lying (Cofield, 9 Ill. App. 3d at 1049-50, 293 N.E.2d at 693), and a judge calling a witness who was on neither party’s witness list and having information from a previous case (R.S., 117 Ill. App. 3d at 704, 453 N.E.2d at 143).

The trial judge merely attempted to clarify that the “Joseph Liberman” Jameson referred to in her testimony was in fact the defendant. Jameson could not identify the defendant in person because the trial was in absentia. The propriety of a judicial examination must be determined by the circumstances of each case. (Cofield, 9 Ill. App. 3d at 1050, 293 N.E.2d at 694.) A trial judge may question a witness to clarify or fill certain gaps in a witness’ testimony. (Hopkins, 29 Ill. 2d at 265, 194 N.E.2d at 216.) The judge’s clarification of this witness’ testimony was not error.

IV. Other Crimes Evidence

Defendant next maintains that Jameson’s description of defendant’s violent acts and her description of defendant’s drug dealing amount to reversible error.

Evidence of other crimes is admissible to prove modus operandi, intent, identity, motive, or absence of mistake. (People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821, 824.) However, this list should not be considered as exclusive or taken to mean that these are the only purposes for which testimony of other crimes may be admitted. (People v. Stewart (1984), 105 Ill. 2d 22, 61-62, 473 N.E.2d 840, 860.) Instead, evidence of other crimes is admissible if it is relevant for any purpose other than to show the propensity to commit crime. (McKibbins, 96 Ill. 2d at 182, 449 N.E.2d at 824.) This court has recognized that other crimes evidence is admissible if offered as part of the narrative of the offense. People v. Waller (1990), 195 Ill. App. 3d 376, 379, 552 N.E.2d 351, 352.

Here, Jameson testified as to the struggle for the tackle box in question and the circumstances which led to this struggle. Jame-son’s testimony cannot be said to have been offered to show defendant had a greater propensity to commit the crime charged. As a part of an ongoing narrative, it was properly admitted under Waller.

V. Sentencing

Defendant next argues the court erred in considering as an aggravating factor in sentencing that his conduct was the type which could have caused serious harm to another person (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(a)(1)), a factor inherent in the offense. It is contended that there was no evidence of any harm or potential for harm beyond that which it is reasonable to conclude that the legislature had already taken into consideration in establishing the penalty for the crime. The record indicates that at the original sentencing hearing the judge did not consider this an aggravating factor. The only statement at the original sentencing hearing which is relevant to this alleged error is as follows:

“THE COURT: ***
Mr. Liberman, do you have anything that you desire to state to the Court at this time other than what you’ve stated before?
THE DEFENDANT: No, Your Honor, I don’t.
THE COURT: I don’t think this is a case for the minimum sentence of 18 years, based upon his prior record. I’ve been going through the factors that are in mitigation. I’m looking at a factor in mitigation 5 — 553.12 [sic], the Defendant did not contemplate that his criminal conduct would cause or threaten serious physical harm to another. Well, there could be argument made that the sale of cocaine could result in serious physical harm to another, but I don’t know that this Defendant can be charged with that knowledge necessarily.”

At the subsequent hearing on the motion to reduce sentence, the judge made the following statement:

“The activities that preceded the conduct upon which this charge was based, the Defendant — the evidence was that the Defendant admitted at one time that he was and had been in the business of selling cocaine in this state. I do recall that there was some testimony concerning some domestic quarrel, I don’t recall whether there was any violence associated with it or not at this time, but the fact that there was no physical violence committed by the Defendant doesn’t detract from the fact that he created a great potential for harm to others by the distribution of this drug, harm to addicts, harm to first users possibly, although there is no evidence as to who the recipients of distribution of the drug were, that is certainly reasonable to infer that for persons that were addicted to the use of cocaine and to persons who may not have had an opportunity to become addicted but could become addicted by reason of the distribution of this drug to them made possible through the conduct of the Defendant.”

However, it is apparent that the judge’s statement at the motion-to-reduce-sentence hearing related in part to defendant’s affidavit, which included a statement that “no physical injuries were suffered by any party as a result of this activity.”

We find no fault whatsoever with the judge’s comments at the sentencing hearing. That sentencing hearing included evidence of many other aggravating factors which justified the sentence. The comments at the motion-to-reduce hearing clearly indicated the offense could ultimately result in physical injury by those who might use the controlled substance. The comments were given as an explanation for explicitly rejecting defendant’s statement of no injury and not as an aggravating factor of a sentence that had already been determined at a prior hearing. See People v. Adams (1988), 168 Ill. App. 3d 588, 590, 522 N.E.2d 819, 821; People v. Mounson (1989), 185 Ill. App. 3d 31, 38-39, 540 N.E.2d 834, 839.

The sentence by the trial judge was well below the 80-year possible maximum term of imprisonment and was not an abuse of discretion. See People v. Ward (1986), 113 Ill. 2d 516, 526-27, 499 N.E.2d 422, 425-26.

For the foregoing reasons, we affirm.

Affirmed.

GREEN, P.J., concurs.

JUSTICE STEIGMANN,

specially concurring:

Although I agree fully with the majority’s decision, I write specially to express my concern about the frequency with which the legislature has amended the Illinois Controlled Substances Act (Act) and the Cannabis Control Act (CCA) (Ill. Rev. Stat. 1989, ch. 561/2, par. 701 et seq.) and to call for some restraint in the future when other amendments are proposed.

In the last 41/2 years, the General Assembly has enacted the following 27 substantive amendments to the Act and the CCA:

Public Act 85 — 140, §1 (1987 Ill. Laws 1007): amended sections 204 and 206 of the Act (amending Ill. Rev. Stat. 1985, ch. 561/2, pars. 1204,1206).

Public Act 85 — 537, §1 (1987 Ill. Laws 2356): added section 406.1 to the Act (see Ill. Rev. Stat. 1987, ch. 561/2, par. 1406.1).

Public Act 85 — 616, §1 (1987 Ill. Laws 2700): amended section 407 of the Act (amending Ill. Rev. Stat. 1985, ch. 561/2, par. 1407).

Public Act 85 — 743, §2 (1987 Ill. Laws 3160, 3164): added section 401.1 to the Act (see Ill. Rev. Stat. 1987, ch. 561/2, par. 1401.1).

Public Act 85 — 948, §1 (1987 Ill. Laws 4133): amended multiple sections of the Act.

Public Act 85 — 1003, §3 (1987 Ill. Laws 4710, 4716): amended multiple sections of and added multiple sections to the Act.

Public Act 85 — 1030 (1988 Ill. Laws 200): attempted to undo erroneous portions of Public Act 85 — 1003.

Public Act 85 — 1260, §1 (1988 Ill. Laws 2553): amended various sections of the Act.

Public Act 85 — 1280, §1 (1988 Ill. Laws 2650): amended section 102 of the Act (see Ill. Rev. Stat., 1988 Supp., ch. 561/2, par. 1102) (text eff. July 1,1988).

Public Act 85 — 1287, §3 (1988 Ill. Laws 2667, 2671): amended section 406 of the Act (amending Ill. Rev. Stat. 1987, ch. 561/2, par. 1406) .

Public Act 85 — 1294, §1 (1988 Ill. Laws 2690): amended section 401.1 of the Act (amending Ill. Rev. Stat. 1987, ch. 561/2, par. 1401.1).

Public Act 85 — 1388, §3 (1988 Ill. Laws 3204, 3208): added section 5.1 to the CCA (see Ill. Rev. Stat., 1988 Supp., ch. 561/2, par. 705.1).

Public Act 86 — 265, §1 (1989 Ill. Laws 1891): amended section 410 of the Act (amending Ill. Rev. Stat. 1987, ch. 562/2, par. 1410).

Public Act 86 — 266 (1989 Ill. Laws 1893): amended various sections and repealed two sections of the Act.

Public Act 86 — 604, §1 (1989 Ill. Laws 3295): amended various sections of the Act.

Public Act 86 — 625, §1 (1989 Ill. Laws 3441): amended section 312 of the Act (amending Ill. Rev. Stat., 1988 Supp., ch. 56x/2, par. 1312).

Public Act 86 — 809, §2 (1989 Ill. Laws 4251): added section 405.1 to the Act (see Ill. Rev. Stat. 1989, ch. 561/2, par. 1405.1).

Public Act 86 — 946, §3 (1989 Ill. Laws 5667, 5673): amended section 407 of the Act (amending Ill. Rev. Stat. 1987, ch. 561/2, par. 1407) .

Public Act 86 — 1382, §15 (1990 Ill. Laws 2877, 2884): amended section 12 of the CCA (amending Ill. Rev. Stat. 1989, ch. 561/2, par. 712).

Public Act 86 — 1391, §1 (1990 Ill. Laws 2957): amended section 401.1 of the Act (see Ill. Rev. Stat. 1989, ch. 561/2, par. 1401.1).

Public Act 86-1459, §13 (1990 Ill. Laws 3437, 3441): added section 407.2 to the Act (see Ill. Rev. Stat., 1990 Supp., ch. 561/2, par. 407.2).

Public Act 87 — 466, §13 (1991 Ill. Laws 2416, 2422): amended section 409 of the Act (amending Ill. Rev. Stat. 1989, ch. 561/2, par. 1409).

Public Act 87 — 524, §3 (1991 Ill. Laws 2611, 2618): amended section 407 of the Act (amending Ill. Rev. Stat. 1989, ch. 561/2, par. 1407).

Public Act 87 — 544, §9 (1991 Ill. Laws 2730, 2734): added section 5.2 to the CCA.

Public Act 87 — 614, §4 (1991 Ill. Laws 3061, 3066): amended section 505 of the Act (amending Ill. Rev. Stat., 1990 Supp., ch. 561/2, par. 1505).

Public Act 87 — 754, §2 (1991 Ill. Laws 3943, 3945): amended sections 102, 208, 308, 312, 401, 402, 405, 407, 407.2, 410, and 411 of the Act (see Ill. Rev. Stat. 1989, ch. 561/2, pars. 1102, 1208, 1308, 1312, 1401, 1402, 1405, 1407, 1410, 1411; Ill. Rev. Stat., 1990 Supp., ch. 56V2, par. 1407.2).

Public Act 87-772, §§2, 3 (1991 Ill. Laws 4129, 4131, 4132): added section 411.2 of the Act and section 10.3 of the CCA.

The legislative frenzy the above list reveals is not without its costs. Those costs include errors committed by the legislature when it deprives itself of the patient deliberation normally accorded legislative proposals (see Public Acts 85 — 1003, 85 — 1030, and 85 — 743, all of which are discussed in the majority’s opinion in this case). Other costs include the confusion and uncertainty these frequent changes engender in the prosecutors and police who have the duty of enforcing the drug laws. Furthermore, because the stakes involved are so great-persons convicted of violating drug laws are frequently sentenced to the penitentiary for lengthy periods of time — defense attorneys work diligently to find some loophole or legislative oversight that will thwart criminal prosecutions of defendants charged with violating the drug laws. When attorneys find some legislative flaw to argue, the courts must weigh such arguments very carefully, consistent with their duty to ensure that persons accused of crime receive the criminal due process rights to which they are entitled.

Given these costs, the benefits derived from all this legislative activity should be carefully assessed. My assessment leaves me unpersuaded that all this activity is justified. For instance, I doubt that anyone could seriously argue that prior to 1987, the legislature had not passed enough laws reflecting this State’s policy of criminalizing and seriously punishing unlawful drug trafficking and possession. I further doubt that this State needed an additional 27 substantive amendments to its drug laws in the last 41/2 years to further that policy or to protect its citizens.

By these remarks, I do not mean to criticize any particular enactment on the list set forth above; nor do I mean to criticize the legislature for carefully reviewing the drug laws from time to time to see whether “some tuckpointing” of these laws might be appropriate. Instead, I am concerned about the volume and frequency of such legislative changes, and I believe that they do not reflect the calm deliberation that ought to be the hallmark of the legislative process.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REGINALD LEWIS, Defendant-Appellant.
    Fourth District
    No. 4—91—0466
    Opinion filed May 14, 1992.
    Rehearing denied June 10, 1992.

      Daniel D. Yuhas and Gloria Ann Morris, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Vince Moreth, State’s Attorney, of Carlinville (Norbert J. Goetten and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

In December 1990, defendant, Reginald Lewis, entered a negotiated guilty plea to residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3(a)), theft of property having a value in excess of $300 (theft over $300) (Ill. Rev. Stat. 1989, ch. 38, par. 16 — 1(a)(1)(A)), and criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 15(a)(2)). In January 1991, defendant was sentenced to an extended term of 18 years in prison for residential burglary, an extended term of 8 years in prison for theft, and 125 days in jail for criminal sexual abuse. The court also ordered defendant to pay restitution and directed that all the sentences be served concurrently. Defendant later filed a motion to withdraw his guilty pleas. In May and June 1991, the trial court conducted hearings on that motion and denied it. Defendant appeals, arguing that (1) the trial court erred by holding that defendant was not eligible for treatment as an alcoholic under section 10 — 101 of the Illinois Alcoholism and Other Drug Dependency Act (Act) (Ill. Rev. Stat. 1989, ch. 1111/2, par. 6360 — 1), (2) the trial court improperly imposed an extended term of imprisonment for theft, and (3) the order of restitution was defective. We affirm and remand with directions.

I. Background

On April 23, 1990, the State charged defendant with committing criminal sexual abuse and aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(c)(2)) on April 20, 1990. On June 12, 1990, the State charged defendant with committing residential burglary and theft over $300 on June 12, 1990. Defendant posted a cash bond and was released on both of these charges, and on November 5, 1990, the State charged defendant with theft over $300 on or about November 3, 1990.

In December 1990, during the second day of defendant’s jury trial on the June residential burglary and theft charges, defendant entered a negotiated guilty plea to one count each of residential burglary, theft over $300, and criminal sexual abuse. All of the remaining charges were dismissed. Additionally, the State reduced the criminal sexual abuse charge from a Class 2 felony to a Class A misdemeanor. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 15(d).) The agreement left open the sentence to be imposed, and the State announced that it would seek concurrent, extended-term sentences on both the residential burglary and theft over $300 charges. The trial court ultimately sentenced defendant as earlier indicated, ordered him to pay restitution of $4,875, and directed him to pay the balance of the restitution, which was not covered by the cash bond he had earlier posted, within two years of his release from prison.

II. Defendant’s Eligibility For Treatment Under The Act

Defendant first contends on appeal that the trial court erred by failing to advise him at the sentencing hearing that, as an alternative to a prison sentence, he could elect to be treated as an alcoholic under the Act. The trial court considered this argument at the hearing on defendant’s motion to withdraw his guilty plea and rejected it, finding that defendant was not eligible under the Act to elect treatment. We agree.

Defendant’s sentencing hearing arose from his pleas of guilty to residential burglary, theft over $300, and criminal sexual abuse. Section 10 — 101 of the Act, which outlines when a defendant is eligible to elect treatment, reads in pertinent part as follows:

“Election of treatment. An addict or alcoholic who is charged with or convicted of a crime may elect treatment under the supervision of a licensed program designated by the Department *** unless (a) the crime is a crime of violence; (b) the crime is a violation of Section 401, 402(a), 405 or 407 of the Illinois Controlled Substances Act, or Sections 4(d), 4(e), 5(d), 5(e), 7 or 9 of the Cannabis Control Act; (c) the person has a record of 2 or more convictions of a crime of violence; (d) other criminal proceedings alleging commission of a felony are pending against the person; *** (g) the person has been convicted of residential burglary and has a record of one or more felony convictions; (h) the crime is a violation of Section 11 — 501 of the Illinois Vehicle Code, as now or hereafter amended, or a similar provision of a local ordinance; or (i) the crime is a reckless homicide or a reckless homicide of an unborn child ***.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 1111/2, par. 6360 — 1.

Before defendant pleaded guilty to these charges, he had not previously been convicted of residential burglary, although he had multiple prior felony convictions. Thus, the issue before this court then becomes whether defendant, upon the particular facts of this case, was eligible under section 10 — 101 of the Act to elect treatment under the Act.

This court had occasion to construe the above section 10 — 101 of the Act in People v. Williams (1990), 195 Ill. App. 3d 433, 437, 552 N.E.2d 389, 392, in which we held that a defendant who pleaded guilty to burglary was barred under section 10 — 101 from electing treatment because he had a previous conviction of residential bur-, glary. Defendant in the present case seeks to distinguish his situation from that in Williams by pointing out that at the time of his sentencing hearing, he had not yet been formally convicted of residential burglary because, he claims, a “conviction” occurs when the court enters its final judgment, which is the pronouncement of sentence. Therefore, defendant argues, he was not convicted of residential burglary for purposes of the Act at the time of his sentencing hearing.

We do not agree with defendant’s interpretation. First, we note that the Criminal Code of 1961 (Criminal Code) and the Unified Code of Corrections (Unified Code) contain identical definitions of the term “conviction,” and that definition does not support defendant’s claim that a conviction technically occurs only when sentence is imposed. Section 2 — 5 of the Criminal Code and section 5 — 1—5 of the Unified Code both read as follows:

“ ‘Conviction’ means a judgment of conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an offense, rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, pars. 2-5, 1005-1-5.)

Thus, the term “conviction” in some circumstances may mean a judgment of conviction entered upon a plea of guilty. In the present case, after the trial court accepted defendant’s guilty pleas, it entered judgment thereon — the standard practice in this State whenever a trial court accepts a guilty plea. Consistent with the above definition, we hold that the trial court’s entry of judgment upon defendant’s guilty plea to residential burglary constituted a “conviction” of that offense for purposes of section 10 — 101 of the Act.

Additionally, we find defendant’s argument contrary to the plain language of section 10 — 101(g) of the Act, which speaks on the one hand of a person who has been convicted of residential burglary, while speaking on the other hand of a person who has a record of one or more felony convictions. (Ill. Rev. Stat. 1989, ch. 1111/2, par. 6360 — 1(g).) If the legislature intended section 10 — 101(g) to have the effect that defendant now argues, it would read as follows: “The person has a record of one or more felony convictions and, in addition thereto, has a record of a conviction of residential burglary.” This wording would indicate that a defendant’s current conviction of residential burglary — then also before the court for sentencing — would render the defendant ineligible to elect treatment under the Act. Of course, no such wording is present in section 10 — 101(g) of the Act, and we hold that section 10 — 101(g) includes both past and current convictions for residential burglary.

Because we agree with the trial court that defendant was not eligible to elect treatment under the Act, we need not address whether the evidence before the court sufficed to require the court to instruct defendant about the Act.

III. Imposition Of Multiple Extended-Term Sentences

Citing People v. Jordan (1984), 103 Ill. 2d 192, 207, 469 N.E.2d 569, 576, and People v. Clemons (1989), 179 Ill. App. 3d 667, 674, 534 N.E.2d 676, 680, defendant argues that because an extended-term sentence may only be imposed for the offense within the most serious class of offenses of which an accused is convicted — here, residential burglary — the trial court improperly imposed an extended term for his conviction of theft over $300. Although defendant accurately states the holdings in Jordan and Clemons, they do not apply to the present case.

The defendants in Jordan and Clemons were given extended-term sentences on lesser offenses which arose out of the same conduct as the greater offenses for which they were also given extended-term sentences. In the present case, defendant’s convictions for residential burglary and theft over $300 are totally unrelated. Although the trial court imposed multiple extended-term sentences at one sentencing hearing, that hearing should be viewed as a joint sentencing hearing involving unrelated offenses. Accordingly, the trial court could properly impose extended-term sentences for each conviction. See People v. Whitson (1984), 127 Ill. App. 3d 999, 1006, 470 N.E.2d 1054,1059.

IV. The Order Of Restitution

The trial court applied the cash bond defendant had posted toward restitution after first deducting various costs and fees. The court further ordered defendant to pay the balance of restitution within two years of his release from prison. Defendant argues that this order of restitution violates the terms of section 5 — 5—6(f) of the Unified Code (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—6(f)), which requires the sentencing court to “fix a period of time not in excess of 5 years within which payment of restitution is to be paid in full.” Defendant argues that because he was given an 18-year prison sentence, the court’s order of restitution exceeds the statutory limit of five years within which restitution must be paid. The State concedes this point, and we agree.

Although we sympathize with the trial court’s goal of providing a means through which defendant could be required to pay restitution to his victims once he has been released from prison, the General Assembly has not seen fit to authorize trial courts to enter restitution orders such as the one entered in the present case.

V. Conclusion

For the reasons stated, we vacate the order of restitution and remand with directions that the trial court consider the issue anew and, if it chooses to enter a restitution order, do so in compliance with the provisions of section 5 — 5—6(f) of the Unified Code. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—6(f).) In all other respects, we affirm the judgment and sentence imposed by the trial court.

Affirmed and remanded with directions.

GREEN, P.J., and McCULLOUGH, J., concur.


author: PRESIDING JUSTICE GOLDENHERSH

text:
    RICKY D. DAVIS, Plaintiff-Appellant, v. DONALD C. LOWERY, Defendant-Appellee.
    Fifth District
    No. 5—91—0016
    Opinion filed May 19, 1992.

      Ray Fehrenbacher, of Fehrenbacher Law Offices, of Olney, for appellant.
    Michael D. McHaney, of Costa, McHaney & Gamber, of Mt. Vernon, for appellee.
   PRESIDING JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Ricky D. Davis, appeals from an order of the circuit court of Jefferson County granting a motion for involuntary dismissal filed by defendant, Donald C. Lowery. In this cause, defendant raises the issue whether the doctrine of res judicata operates to preclude a third-party defendant who, in a previous action, failed to file a counterclaim against the defendant from later filing a separate suit against the defendant. We reverse and remand.

The facts of this case are straightforward. On July 25, 1985, plaintiff was driving a pickup truck owned by his father, Henry Davis, and pulling a horse trailer which plaintiff himself owned. Plaintiff was traveling south on Illinois Route 37 behind defendant. Plaintiff pulled into the left lane to pass defendant. While in the process of legally passing defendant, defendant attempted to make a left turn and struck the horse trailer. On March 6, 1986, Henry Davis filed suit against defendant, Donald C. Lowery, to recover damages to his truck sustained in the accident. In that cause, captioned No. 86 — LM—26, the defendant, Lowery, filed a third-party complaint against plaintiff herein, Ricky D. Davis. A bench trial was held on April 1, 1987. The trial court ruled in favor of the plaintiff, Henry Davis, for full recovery of the stipulated damages to the plaintiff’s pickup truck. The record is void as to the outcome of Lowery’s third-party complaint against plaintiff herein.

Plaintiff filed the present action against defendant on July 20, 1990, to recover damages to his horse trailer sustained in the 1986 accident. Defendant filed a motion for involuntary dismissal pursuant to section 2 — 619 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(4)), alleging that plaintiff was barred from bringing the instant action under the doctrine of res judicata because No. 86 — LM—26 involved identical parties, identical facts, and identical theories of liability. Defendant asserted that plaintiff should have filed a counterclaim in No. 86 — LM—26. The trial court granted defendant’s motion. Plaintiff appeals from that order.

Does the doctrine of res judicata preclude a third-party defendant in a previous action who failed to file a counterclaim against the defendant in the previous litigation from later filing a separate suit against the defendant? Plaintiff argues that the doctrine of res judicata is inapplicable here because he has a separate cause of action from his father, who filed the first suit. Plaintiff’s father sought recovery for damages to his truck caused by defendant’s negligence whereas plaintiff seeks damages to his horse trailer allegedly caused by defendant’s negligence. Plaintiff insists that even though he might have proceeded against defendant by filing a counterclaim in the initial proceeding, he had the right to wait to assert his claim and bring it as an independent action. We agree.

Section 2 — 608 of the Code deals with counterclaims. It states, in pertinent part:

“§2 — 608. Counterclaims, (a) Any claim by one or more defendants against one or more plaintiffs, or against one or more codefendants, whether in the nature of setoff, recoupment, cross claim or otherwise, and whether in tort or contract, for liquidated or unliquidated damages, or for other relief, may be pleaded as a cross claim in any action, and when so pleaded shall be called a counterclaim.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 608(a).)

The word “may” in the statute indicates an election is available to defendant. (Miller v. Bank of Pecatonica (1980), 83 Ill. App. 3d 424, 427, 403 N.E.2d 1262, 1264; Stoner v. Stoner (1953), 351 Ill. App. 304, 115 N.E.2d 103.) Therefore, counterclaims in Illinois are permissive rather than mandatory, and this statute does not require that a defendant immediately assert his rights by counterclaim. Ill. Ann. Stat., ch. 110, par. 2 — 608, Historical and Practice Notes, at 183 (Smith-Hurd 1983).

Defendant contends, however, and the trial court agreed, that plaintiff is barred from asserting his claim because of the doctrine of res judicata. Plaintiff responds that he is not barred because his cause of action is not identical to his father’s. We agree with plaintiff.

“The doctrine of res judicata provides that ‘a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.’ ” (Emphasis in original.) (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 251, 461 N.E.2d 959, 961-62, quoting People v. Kidd (1947), 398 Ill. 405, 408, 75 N.E.2d 851, 853.)

Res judicata requires that in both cases there be three identical elements, namely, the cause of action, the subject matter, and the parties,

or those privy to them. (Miller v. Bank of Pecatonica (1980), 83 Ray Fehrenbacher, of Fehrenbacher Law Offices, of Olney, for appellant.. App. 3d 424, 427, 403 N.E.2d 1262, 1265.) The present suit is not identical to No. 86 — LM—26 for two reasons; first, while both cases are actions in negligence brought to recover damages caused in the same accident, the subject matter of No. 86 — LM—26 was a pickup truck, whereas the subject matter of the present case is a horse trailer; second, the plaintiffs in both cases are different. The cases cited by defendant to support his position all concern a single plaintiff and a single defendant attempting to relitigate the same suit. For example, in Rhodes v. St. Charles Manufacturing Co. (1986), 149 Ill. App. 3d 821, 500 N.E.2d 1107, the plaintiff, an employee of the defendant, brought an action to recover the health benefits for chiropractic services he received. In the first suit, brought under the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.), the plaintiff was awarded some compensation for chiropractic services and denied others after the parties submitted the case to arbitration. In the second suit, a small claims action, the same plaintiff attempted to recover the chiropractic claims denied by the arbitrator. The Rhodes court found that the doctrine of res judicata was applicable and that the decision of the arbitrator in the first case barred the second suit. (Rhodes, 149 Ill. App. 3d at 823-24, 500 N.E.2d at 1109.) Rhodes is clearly distinguishable from the instant case, as are the other cases cited by defendant.

In the instant case we are faced with a plaintiff who was third-partied into the first suit by defendant. The first suit was brought by plaintiff’s father to. recover damages inflicted upon his truck. While it certainly would have made sense for plaintiff herein to have filed a counterclaim against defendant in the first suit, especially in light of our State’s policy favoring judicial economy, we cannot bar him from electing to file suit later. Under the facts of the present case, we find that the doctrine of res judicata does not preclude plaintiff, a third-party defendant in a previous action who failed to file a counterclaim against defendant in the previous litigation, from filing this separate suit to recover damages allegedly caused by defendant.

For the foregoing reasons, the order of the circuit court of Jefferson County is reversed and the cause remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

RARICK and CHAPMAN, JJ., concur.