author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS W. BOLLING, Defendant-Appellant.
    Second District
    No. 2—88—0422
    Opinion filed April 20, 1989.

      Newton E. Finn, of Waukegan, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan, and Joseph J. Ciac-cio, Sr., of Ciaccio & Ciaccio, of Springfield (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

A jury found defendant, Thomas Bolling, guilty of the offenses of false personation (Ill. Rev. Stat. 1987, ch. 38, par. 17 — 2(a)) and unlawful use of weapons (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1(a)(4)). Defendant was sentenced to a seven-day term in the custody of the county sheriff, fined $300, and placed on a one-year term of probation. On appeal, defendant contends that the State failed to prove him guilty beyond a reasonable doubt of the offenses charged.

Officer Paul Pomazal of the Highland Park police department testified in behalf of the State. Pomazal stated that on July 8, 1987, at 6:46 p.m., he heard the screeching of tires and then the sound of an impact. Pomazal looked to his left and observed what appeared to be a head-on traffic accident in the northbound lanes of Route 41. Pomazal radioed for an ambulance and proceeded to the scene of the accident.

Upon arriving at the scene, Pomazal first approached an Oldsmobile to see if its two passengers were injured. After advising the dispatcher that the two passengers were injured, Pomazal approached defendant’s car. Pomazal testified that defendant was seated in the passenger’s seat of the car and talking on his car phone. Pomazal observed that defendant was bleeding from his head, and defendant told the officer that he believed he had no other injuries. Pomazal then asked defendant for his driver’s license. Defendant reached into his shirt pocket, pulled out a black, single-fold wallet, and opened it. Po-mazal observed a gold star inside the wallet. After defendant returned the wallet to his shirt pocket, Pomazal asked defendant, “Who are you with?” and defendant responded that he was with the military police. Pomazal stated that defendant next pulled out a different wallet and produced his driver’s license. As Pomazal escorted defendant to an ambulance, defendant told the officer not to move his vehicle because it contained top secret military equipment and paraphernalia.

Pomazal testified that when he returned to defendant’s car, the trunk was open due to the accident. Pomazal retrieved a rifle, several rounds of rifle ammunition, a small safe, and some papers which were strewn about the trunk. After placing the items found in defendant’s trunk into his car, Pomazal informed defendant of the items recovered. Defendant then stated that there was a 9 millimeter handgun in the glove compartment. Upon returning to defendant’s car, Pomazal found a 9 millimeter handgun which was loaded with a 14-round clip and one round in the chamber. Pomazal also found a holster and a box of 9 millimeter cartridges in the backseat area.

Later that evening, Pomazal spoke with defendant at the Highland Park safety center. Defendant told Pomazal that the guns which were found in his car were not issued to him by the military. Defendant explained to the officer that the handgun was in its holster in the backseat prior to impact. Upon impact, the gun was thrown into the front seat, and defendant then placed the gun in the glove compartment. Defendant told Pomazal that the gun should not have been loaded when they found it. Defendant also mentioned that although he was not currently with the military police, he sometimes still carried his military police badge with him. Defendant next told the officer that he was a secret agent with the military and that the officers would not be able to confirm his assignment because nobody else knew about it.

Next, Officer Christopher Cipolla testified in behalf of the State. Cipolla testified that after defendant was taken to the hospital, Cipolla removed a 12-round clip and four loose rounds from defendant’s shirt pocket. Cipolla identified the type of bullets found in defendant’s possession as hollow-point bullets. Cipolla stated that neither the hollow-point bullets nor the 9 millimeter rounds were commonly used for target practice.

Next, Steven Kobiek, a senior chief petty officer of the United States Navy, testified in behalf of the State. Kobiek first met defendant in 1984 when they were assigned to the Navy brig, Great Lakes, Illinois. Kobiek testified that on July 8, 1987, defendant held the position of corrections specialist with the Navy. Defendant’s position involved overseeing 12 to 15 staff members and ensuring that the prisoners were performing their daily assignments. To the best of Kobiek’s knowledge, defendant was not a military police officer on July 8, 1987. Kobiek indicated that the badge which defendant displayed to Officer Pomazal was not the type of badge issued to a corrections specialist.

Defendant’s rendition of the events which took place on July 8, 1987, paralleled the testimony of the State’s witnesses, with a few notable exceptions. Defendant testified that he was going target shooting with an FBI agent who was going to help defendant get a position with the agency. Defendant explained that he carried his military police badge with him because the agent asked him to bring any background information. As he was leaving his home, a friend brought him an athletic bag, which he had forgotten, containing the handgun and ammunition. According to defendant, the athletic bag was zipped shut and burst open during the accident. Upon realizing that the contents of the bag were thrown into the front seat area of his car, defendant locked the handgun in the glove compartment while placing some ammunition in his shirt pocket. Defendant testified that he received a skull fracture and needed 22 stitches in his head as a result of the accident.

When defendant was asked to produce his driver’s license, he first opened the wallet containing his military police badge. Defendant testified that upon opening the wallet, Officer Pomazal asked him, “What was that?” to which defendant responded, “Military police badge.” Defendant denied trying to pass himself off as a military police officer or a secret agent. Defendant further denied telling the officers that he sometimes carried his military police badge with him. According to defendant, the handgun found in his glove compartment was not loaded, and defendant stated that he never carried a loaded weapon. Defendant explained that he used hollow-point bullets to clean the barrel of his gun after taking target practice.

Officer Timothy Benton testified in rebuttal for the State. Benton first testified about his previous weapons training with the United States Marine Corps. Benton stated that he was familiar with hollow-point bullets and that hollow-point bullets would not be used to clean out the barrel of a gun.

After deliberating, the jury found defendant guilty of false person-ation and unlawful use of weapons. Defendant filed a motion for a new trial which was denied, and this appeal ensued.

Defendant first contends that the State failed to prove he committed false personation beyond a reasonable doubt. Section 17 — 2(a) of the Criminal Code of 1961 (Code) states that “[a] person commits a false personation *** when [he] exhibits or uses in any manner any decal, badge or insignia of any police organization when not authorized to do so by such police organization.” (Ill. Rev. Stat. 1987, ch. 38, par. 17 — 2(a).) Defendant asserts that due to the severe injuries to his head, his answers to Officer Pomazal’s questions could not be construed as a violation of section 17 — 2(a). We disagree.

On review, a criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) Our function on review is not to retry the defendant; instead, the relevant question is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Collins, 106 Ill. 2d at 261.

At trial, defendant offered no evidence which tended to show that he was delirious or lacked control over his mental faculties after the accident. Defendant, instead, claimed that he told Officer Pomazal that the gold star inside his wallet was a military police badge. Defendant’s testimony was in direct conflict with Pomazal’s testimony. Poma-zal testified that upon being shown defendant’s badge, he asked defendant who he was with, to which defendant responded that he was with the military police. This conflict in the trial testimony was resolved in favor of the State, and when the evidence is in conflict, we will not substitute our judgment for that of the jury. (See People v. Racanelli (1985), 132 Ill. App. 3d 124, 129.) Officer Pomazal’s testimony established that defendant displayed a military police badge when he was not authorized to do so. Therefore, we conclude that a rational trier of fact could have found the essential elements of false personation beyond a reasonable doubt.

In his second appellate contention, defendant asserts that because his handgun was not immediately accessible, he was exempt from criminal liability. Section 24 — 2(b)(4) of the Code exempts from criminal liability the transportation of weapons broken down in a non-functioning state or not immediately accessible. (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 2(b)(4).) Based on the uncontradicted testimony that his handgun was first zipped inside an athletic bag and that police had to pry open his glove compartment to get the handgun, defendant concludes that the handgun was not immediately accessible.

The exemption provided for in section 24 — 2(b)(4) is an affirmative defense, and it is the defendant’s burden to prove by a preponderance of the evidence that he is entitled to the exemption. (People v. Delk (1981), 96 Ill. App. 3d 891, 902; People v. Staples (1980), 88 Ill. App. 3d 400, 403; see also Ill. Rev. Stat. 1987, ch. 38, par. 24—2(h).) We determine that defendant has failed to prove by a preponderance of the evidence that his handgun was not immediately accessible.

The appellate court has determined that a weapon is not immediately accessible when it is located under a car’s hood (People v. Cook (1977), 46 Ill. App. 3d 511), locked in a car’s trunk (People v. Reed (1979), 72 Ill. App. 3d 405), or locked in a storage box of a truck (People v. Staples (1980), 88 Ill. App. 3d 400). Other appellate decisions, however, have held that even though a weapon was located under the front seat of a car, it was not immediately accessible where the defendant was very stout and the car was very small and compact. (See People v. Liss (1950), 406 Ill. 419; People v. Adams (1962), 73 Ill. App. 2d 1.) In our opinion, the case which most closely parallels the factual situation present here is People v. Johnson (1977), 49 Ill. App. 3d 567.

In Johnson, the defendant was a passenger in a car which was stopped by the police for speeding. As one of the officers approached the vehicle, he noticed a pistol in a holster on the rear seat of the car which belonged to the defendant. (Johnson, 49 Ill. App. 3d at 568.) In affirming the defendant’s conviction for unlawful use of weapons, the court noted that it would have been very easy for the defendant to reach into the backseat to pick up the pistol if he so desired. Johnson, 49 Ill. App. 3d at 569.

Like the defendant in Johnson, defendant here could have easily retrieved his handgun from the rear seat of his car. The only deterrent which prevented defendant from retrieving the gun was the athletic bag’s zipper. While it might have been somewhat more difficult for defendant to access the handgun when driving, we do not consider such difficulty so great to entitle defendant to a section 24 — 2(bX4) exemption. More importantly, if defendant had stopped his car, he could have immediately accessed his handgun. To access the gun, defendant did not have to leave the driver’s seat of his car or penetrate a locked compartment.

Furthermore, we fail to discern the significance of the fact that the police pried open his glove compartment to retrieve the gun. Defendant admitted that while he was driving to target practice, the gun was located in an athletic bag on the backseat of his car. Where defendant placed the gun subsequent to the accident is irrelevant. We conclude that defendant failed to prove that he was entitled to a section 24— 2(b)(4) exemption by a preponderance of the evidence, and we affirm defendant’s convictions.

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

Affirmed.

UNVERZAGT, P.J., and DUNN, J., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY M. ISRAEL, Defendant-Appellant.
    Second District
    No. 2—87—0793
    Opinion filed April 21, 1989.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Dallas C. Ingemunson, State’s Attorney, of Yorkville (William L. Browers, John X. Breslin and Vicki Seidl, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Jeffrey M. Israel, appeals from consecutive sentences imposed after entering guilty pleas to aggravated kidnaping and aggravated criminal sexual assault. Defendant raises three issues on appeal: (1) whether the trial court erred in concluding that the emotional distress suffered by the victim constituted a “severe bodily injury” sufficient to warrant consecutive sentences; (2) whether the trial court erred in allowing a psychiatric mental health nurse to give her expert opinion on the risk defendant posed to the community where it was not established that the expert’s method for calculating risk had gained general acceptance in her field; and (3) whether the trial court erred in allowing the prosecutor to read a victim impact statement prepared by the victim’s family. We affirm.

On April 29, 1987, the Kendall County State’s Attorney charged defendant with aggravated kidnaping and aggravated criminal sexual assault stemming from the abduction and sexual assault of an eight-year-old girl the day before. It was alleged that the aggravated kid-naping took place in Kendall County and the aggravated criminal sexual assault took place in La Salle County.

On May 5, 1987, defendant waived his right to a preliminary hearing and pleaded guilty to the charges. Defendant also waived his right to be prosecuted in La Salle County for the aggravated criminal sexual assault. The trial court admonished defendant regarding his rights, the nature of the charges, and the possible penalties he could receive, including the possibility that he could be required to serve his sentences consecutively. Defendant indicated that he understood his rights and that he had no expectation of receiving any particular sentence in exchange for his pleas.

As a factual basis for the pleas, the State averred that the victim was eight years old and lived in Yorkville, Illinois, at the time of the assault. On April 28, 1987, defendant forced the victim into his car as she was riding her bike near her home on her way home from school. Defendant taped her eyes and mouth closed and drove her to an unknown location where he had vaginal intercourse with her. Defendant then drove the victim to a motel parking lot where Kurt Salem, an off-duty police officer working as a security guard, took note of the car and recorded its license plate number. Defendant became alarmed when he saw Salem and drove the victim to a shopping center where he released her. The victim entered a restaurant and received aid. Salem subsequently gave the license plate number to the police, and defendant was arrested after Illinois State police traced the license plate number to his car. Defendant was informed of his Miranda rights and subsequently made a full confession. Defendant took investigators to the scene of the sexual assault, the Illini State Park in La Salle County, and identified various pieces of physical evidence found at that location. Defendant stipulated to the State’s account of what the evidence would show, and the trial court entered judgment on the pleas.

On June 30, 1987, the trial court held a lengthy sentencing hearing. In aggravation, Illinois State police officer Mike Collins gave a detailed account of defendant's confession. According to Collins, defendant stated that he had planned seducing a very young girl two years prior to April 1987. Defendant chose Yorkville because it was a small, quiet town. On April 27, 1987, defendant was in Yorkville and noticed a girl riding her bike in a secluded area. Defendant decided that if the circumstances were the same on the following day, he would carry out his plan. Defendant prepared for the offense by placing stolen license plates on his car and covering various identification marks and stickers with tape. Defendant also secured the passenger side door handle so that the car could not be opened from the inside. On April 28, 1987, defendant returned to the secluded area where he had observed the girl the day before. When defendant saw the victim approaching, he blocked her path and forced her into the car as she attempted to pass him. Defendant transported the victim to La Salle County, stopping only briefly to tape her eyes and hands and place her on the floor. He then proceeded to the Illini State Park, where he took the victim from the car, removed her clothes below the waist, put her on a towel, and had vaginal intercourse with her. Defendant stated that he slapped the victim once when she screamed.

After the sexual assault, defendant placed a napkin in the victim’s crotch when he noticed that she was bleeding from the vagina. Defendant allowed the victim to get dressed but did not allow her to put on her underpants. Defendant removed the tape and stolen plates from his car and left the area. At some point, defendant offered to “hogtie” the victim to a tree and leave her. When defendant saw that his comment alarmed the victim, he told her that he planned to take her home. Defendant continued driving and stopped on several occasions, first to allow the victim to go to the bathroom, and later at a fast-food restaurant where he bought her something to drink. Defendant removed the tape from the victim’s eyes and transported her to Morris, Illinois. Defendant stated that he was searching for the Morris Hospital but could not find it. Defendant subsequently parked in a motel parking lot but became nervous when he saw someone wearing handcuffs on his belt. Defendant then drove to another fast-food restaurant where he released the victim and told her to tell the people in the restaurant what had occurred. Defendant stated that the victim was afraid to walk into the restaurant alone, so he accompanied her about three-quarters of the way. The victim subsequently walked into the restaurant, and defendant returned to his car and drove to his home in Joliet.

Illinois State police sergeant Jack Townsend testified that he executed search warrants for defendant’s apartment and car. Townsend identified the State’s exhibits Nos. 12 through 50 and 55 through 75 as photographs depicting defendant’s car and apartment and their contents, including pornographic material and sexual aid devices. Townsend stated that no weapons were found in either location.

The State next presented the testimony of Dr. Ann Burgess, a professor of psychiatric mental health nursing at the University of Pennsylvania. Dr. Burgess testified that she had a doctorate degree in psychiatric mental health nursing and had participated as both a student and an instructor in course work and seminars relating to sexual offenders and their victims. Dr. Burgess also noted that she was involved with several studies in related areas and had published several books, monographs, and articles based on her research. Dr. Burgess testified that she was hired by the State in this case to give her opinion regarding the impact of the offenses on the victim and the risk defendant posed to the community. Dr. Burgess stated that she had previously rendered expert opinions approximately 24 to 36 times in courts of 12 States. Approximately 90% of those cases involved testimony regarding victim impact. Dr. Burgess stated that she testified two or three times regarding the risk an offender posed to the community.

Dr. Burgess was cross-examined on her qualifications, particularly as to her ability to render an opinion on the risk defendant posed to the community. Dr. Burgess testified that she evaluated the risk an offender posed to the community using five criteria: (1) commitment to deviate behavior; (2) planned crime sequence; (3) preoccupation with sexually deviate behavior; (4) prior family and social response; and (5) escalation of deviate behavior. Dr. Burgess stated that these criteria were derived over the years by her colleagues and herself. Dr. Burgess testified that she rated an offender on a scale of 1 to 10 in each criterion, with 10 being the highest risk. She then totaled the ratings to determine the risk the offender posed to the community. In evaluating defendant, Dr. Burgess stated that she reviewed the police reports, photographs, defendant’s psychiatric and employment records, and the victim’s hospital records. Dr. Burgess stated that she did not interview defendant.

Defendant accepted Dr. Burgess on her qualifications to testify regarding victim impact, but objected to Dr. Burgess testifying as an expert on the risk defendant posed to the community. The court then asked Dr. Burgess to identify studies she had done regarding the risk an offender poses to the community. Dr. Burgess stated that she participated in studies of 36 serial murderers, 41 serial rapists, juveniles who have raped and murdered, and an on-going study of child abductors. Dr. Burgess stated that the results of those studies had been published in the American Journal of Psychiatry, the Journal of Interpersonal Violence, and Behavior Science and the Law. The court then asked Dr. Burgess whether her results had been accepted by experts who were authorities in the treatment and diagnosis of psychiatric disorders. Dr. Burgess responded by reiterating that the results of her studies were published and that the serial homicide study was cited in an article published in an unidentified journal. Although noting that Dr. Burgess’ qualifications were limited, the court concluded that they were sufficient to give an opinion at the sentencing hearing.

Dr. Burgess then explained how she rated defendant on each of the five criteria and what facts she considered relevant under each. Dr. Burgess testified that defendant received an overall rating of 45 out of a possible 50 points, thus classifying him as a “severe risk.” In the course of discussing her ratings of defendant, Dr. Burgess characterized him as a pedophile and sexual sadist. Dr. Burgess concluded that the rehabilitative outlook for defendant was “guarded *** given the state of expertise and treatment of this type of deviation.”

On cross-examination, Dr. Burgess was confronted with defendant's group exhibit No. 1, a report entitled “The Treatment of Child Molesters.” Dr. Burgess indicated that she was familiar with the report, but stated that it did not evaluate “aggressive” pedophiles such as defendant and did not use a complete sample from which to accurately evaluate its success.

Dr. Burgess also gave her opinion regarding victim impact. Dr. Burgess characterized the impact on the victim in this case as “severe” and went on to discuss symptoms which were mentioned in the victim impact statement prepared for the court. Dr. Burgess predicted that the victim would have mental health problems relating to these offenses.

The State also presented the testimony of Dr. Mark Kijek, the obstetrician and gynecologist who treated the victim at Morris Hospital after the assault. Dr. Kijek stated that the victim received a second degree vaginal laceration approximately five centimeters long which could haye been caused by a blunt object such as an adult penis. Dr. Kijek testified that he repaired the laceration, but noted that while it healed normally, it might result in scarring. Dr. Kijek also testified that the victim received a superficial cheek injury.

Finally, the State introduced a written victim impact statement. Defendant objected on the basis that it was not clear who prepared the statement. The court noted that the statute authorizing consideration of such evidence required that the victim impact statement be prepared in writing in conjunction with the State’s Attorney’s office. The prosecutor authenticated the statement, and the court allowed her to read it in open court over defendant’s objection.

In mitigation, defendant’s father testified that he married defendant’s mother and adopted defendant when defendant was a small child. Mr. Israel testified that defendant’s performance throughout school was seriously impeded by a learning disability that was not diagnosed until defendant was a teenager. Mr. Israel further testified that defendant saw several mental health and school counselors during the course of growing up. After leaving high school and holding various jobs, defendant enlisted in the Army for three years. In October 1986, defendant entered a 16-week management training program with a national restaurant chain and was eventually assigned to work in a restaurant in Joliet. Mr. Israel testified that he and his wife would do whatever was necessary, financially or otherwise, to provide defendant with treatment. Defendant’s mother echoed her husband’s commitment to provide defendant with whatever was necessary for his rehabilitation.

Dr. Robert Chapman, a psychiatrist who treated defendant at Brokaw Hospital in 1978, also testified on defendant’s behalf. Dr. Chapman stated that he was experienced in the treatment of pedophiles, but noted that they made up a small percentage of his practice. Dr. Chapman further testified that he had evaluated approximately 300 such cases for courtroom testimony. Dr. Chapman testified that he had two interviews with defendant in connection with this case. During one of the sessions, Dr. Chapman gave defendant a personality profile test. Dr. Chapman characterized defendant as a pedophile. Dr. Chapman stated that defendant’s condition was treatable and discussed various treatment alternatives available to defendant. Among the available treatments, Dr. Chapman opined that defendant would be most responsive to pharmacological, or drug-related, treatment. Dr. Chapman also noted that defendant recognized his condition and was motivated to get help. According to Dr. Chapman, defendant’s relative inexperience as a pedophile increased his likelihood for successful treatment. Dr. Chapman stated that the passage of time would not improve defendant’s pedophilia and might render it more difficult to treat. On cross-examination, Dr. Chapman stated that he considered defendant to be a risk to the community if left untreated. Dr. Chapman based his opinions on information gathered from interviews with defendant, the test results, police reports, defendant’s confession, and other facts and circumstances of the offenses such as the ■ nature of the sexually orientated paraphernalia and literature that were taken from defendant’s apartment.

Upon rendering sentence, the court noted that both Drs. Burgess and Chapman thought that defendant was a risk to the community. The court concluded that defendant should be sentenced to the maximum allowed by the law and noted that, because the victim suffered a severe bodily injury as a result of the assault, defendant could be sentenced to consecutive prison terms. Specifically, the court noted that the victim suffered a vaginal laceration and emotional distress. The court subsequently sentenced defendant to serve consecutive terms of 30 years’ imprisonment for aggravated criminal sexual assault and 15 years’ imprisonment for aggravated kidnaping. The court thereafter admonished defendant regarding his right to appeal and of the necessity to first file a written motion to vacate his plea and the sentence.

On July 28, 1987, defendant filed a “post-hearing” motion seeking a new sentencing hearing or a reduced sentence. That motion alleged, among other things, that his sentences were improper since the victim did not suffer a severe bodily injury sufficient to warrant consecutive terms and because the victim impact statement was prepared by someone other than the victim and should not have been read in open court. At the hearing on the motion, the trial judge acknowledged that although he initially questioned whether the victim’s injuries were sufficient to warrant consecutive terms, his decision was supported by the testimony of the physician who treated the victim at Morris Hospital and also case law standing for the proposition that emotional distress is a “severe bodily injury” sufficient to qualify defendant for consecutive terms. The court subsequently denied defendant’s motion, and defendant brought this timely appeal.

Before addressing the arguments raised by defendant, we note that we have jurisdiction to hear this appeal pursuant to the recent decisions of People v. Wilk (1988), 124 Ill. 2d 93, and People v. Favelli (1988), 176 Ill. App. 3d 618. Those cases stand for the proposition that a defendant need not file a written motion to withdraw a guilty plea pursuant to Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)) as a condition precedent to an appeal from his sentence where the defendant presented a timely motion seeking reconsideration of his sentence. (Wilk, 124 Ill. 2d at 110; Favelli, 176 Ill. App. 3d at 622.) In the instant action, as in Wilk and Favelli, defendant is only appealing his sentence after having filed a motion to reconsider the sentence with the trial court. Defendant was therefore not required to file a motion to withdraw his guilty plea, and this court has jurisdiction to consider his appeal.

Defendant first contends that the trial court erred in sentencing him to consecutive prison terms after concluding that the victim suffered a “severe bodily injury.” Defendant argues that the trial court improperly found that the emotional distress suffered by the victim constituted a “severe bodily injury” under the statute authorizing consecutive sentences. We need not address the propriety of the trial court’s references to emotional distress since we find a sufficient basis in its ruling for imposing consecutive sentences on other grounds.

At issue between the parties is the trial court’s interpretation of section 5 — 8—4(a) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—4(a)). The version of section 5 — 8— 4(a) applicable at defendant’s sentencing hearing provided, in pertinent part:

“The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, in which event the court may enter sentences to run consecutively.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—4(a).)

It is well settled that the trial court is in the best position to tailor a sentence or other disposition to the needs of the case. (People v. Steppan (1985), 105 Ill. 2d 310, 323; People v. Perruquet (1977), 68 Ill. 2d 149, 154.) A trial court’s decision with regard to sentencing is entitled to great deference, and a reviewing court should not substitute its judgment for that of the sentencing court absent an abuse of discretion. Steppan, 105 Ill. 2d at 323; Perruquet, 68 Ill. 2d at 154.

Defendant’s argument that the trial court abused its discretion in applying section 5 — 8—4(a) of the Code to the instant action relies extensively on the court’s references to the emotional distress suffered by the victim. However, a complete review of the record in this case indicates that the court was equally cognizant of the victim’s physical injuries. The victim suffered a five-centimeter vaginal laceration as a result of the assault. The State referred to the vaginal laceration at both the sentencing hearing and the argument on the “post-hearing” motion. More importantly, the court referred to the vaginal laceration in concluding that the victim suffered a “severe bodily injury.”

Specifically, at the sentencing hearing, the court stated:

“I believe under the circumstances that, the vaginal tear is a — and also the emotional distress which Justice Unversagt [sic] cites the emotional distress of the victim, those can be considered by the Court as severe bodily injury ***.” (Emphasis added.)

Subsequently, at the argument on the “post-hearing” motion, the court stated:

“Now, I had some problem, some question in my own mind as to the consecutive sentencing at the time and as to whether or not there was great bodily harm inflicted. After listening to Mr. Ingemunson’s — or after listening to the testimony of the attending physician and Mr. Ingemunson’s argument on that particular situation and also there was, I think it was an opinion by Justice Unverzagt, but at least there was one of the cases which the State cited which indicated that the emotional distress from the sexual assault was great bodily harm and justified a consecutive sentence and I took those into consideration ***.” (Emphasis added.)

The testimony of the attending physician referred to by the court was that of Dr. Kijek, who described the extent of the victim’s physical injuries, and, specifically, the five-centimeter vaginal laceration.

From these comments, it becomes apparent that notwithstanding the court’s references to emotional distress, the court concluded that the vaginal laceration was a “severe bodily injury” sufficient to impose consecutive sentences under section 5 — 8—-4(a) of the Code. That injury, standing alone, is sufficient to warrant consecutive sentences under the Code. (See People v. Knight (1985), 139 Ill. App. 3d 188, 196-97.) In Knight, the defendant challenged his consecutive sentences on the basis that the victim did not suffer a “severe bodily injury.” (139 Ill. App. 3d at 196-97.) The court noted that the victim suffered a vaginal laceration which required stitches and also had scars on her breasts. (139 Ill. App. 3d at 197.) The court stated that these injuries were manifestly “sufficient for the trial court in its discretion to find that severe bodily injury had been inflicted.” 139 Ill. App. 3d at 197.

Accordingly, we conclude that the trial court did not abuse its discretion in sentencing defendant to consecutive terms of imprisonment under section 5 — 8—4(a) of the Code.

Defendant next contends that the trial court erred in allowing Dr. Burgess to testify regarding the risk defendant posed to the community. Defendant asserts that Dr. Burgess’ opinion was improperly admitted because it was based on theories which had not been generally accepted in the scientific community to which she belonged. Specifically, defendant argues that Dr. Burgess’ use of a numerical rating system to determine the risk defendant posed to the community was not established to have gained general acceptance in the field of psychiatric méntal health nursing and was therefore not reliable. We disagree.

Initially, it should be noted that defendant did not raise this issue in his written “post-hearing” motion seeking a new sentencing hearing or a reduced sentence. In Favelli, we noted that just as an issue not raised in a written motion to withdraw a guilty plea would be waived on appeal, an issue not raised in a written motion seeking a new sentencing hearing or a reduced sentence would be waived on the same basis. (People v. Favelli (1988), 176 Ill. App. 3d 618, 623.) Accordingly, because defendant failed to raise this issue in his “post-hearing” motion, we consider it waived on review.

In any event, defendant’s argument on the merits is misplaced. In arguing that the State failed to establish that Dr. Burgess’ theories for calculating the risk defendant posed to the community were generally accepted in her scientific field, defendant seeks to subject her testimony to the requirements of Frye v. United States (D.C. Cir. 1923), 293 F. 1013. Frye set forth the standard for determining whether a scientific principle, technique, or test is sufficiently reliable to be admitted into evidence. (See 293 F. at 1014.) That standard has been adopted in Illinois and requires that the theory first have gained general acceptance in the expert’s scientific field. People v. Jordan (1984), 103 Ill. 2d 192, 208; People v. Baynes (1981), 88 Ill. 2d 225, 241; People v. Ferguson (1988), 172 Ill. App. 3d 1, 9; see Frye, 293 F. at 1014.

In support of his argument that Dr. Burgess’ testimony was improper, defendant relies heavily on our decision in Ferguson. In Ferguson, the State’s expert was an anthropologist who testified that the wear patterns on the soles of shoes are unique to the individual who wears the shoes, and that by measuring the wear patterns on the soles of different pairs of shoes, she could determine within a reasonable degree of scientific certainty whether the same person wore both pairs of shoes. (Ferguson, 172 Ill. App. 3d at 9.) In concluding that the expert’s testimony was improper, we noted that she was the only person in her field who believed that an identification was possible by measuring wear patterns on different pairs of shoes. 172 Ill. App. 3d at 12.

Unlike Ferguson, no scientific theory or test is involved in the instant action, and therefore the Frye general acceptance test is not applicable. (See E. Cleary & M. Graham, Handbook of Illinois Evidence §702.1, at 453 (4th ed. 1984) (“Expert testimony is not limited to scientific or technical areas, but rather includes all areas of specialized knowledge”).) Rather, Dr. Burgess, as a psychiatric mental health nurse, testified regarding various factors she considered in determining the level of risk defendant posed to the community. Defendant does not challenge those factors as improper, but rather takes issue with Dr. Burgess’ use of assigning a numerical score to each factor to come up with a total score for assessing risk. Dr. Burgess’ use of a numerical rating system for each factor is nothing more than an express statement of the weight she gave each factor in its contribution to defendant’s dangerousness. Similarly, in People v. Eckhardt (1987), 156 Ill. App. 3d 1077, 1093, we stated that a psychiatrist is entitled to determine what information he or she regards as relevant in reaching a diagnosis, and the methodology used by the psychiatrist is only one factor■ the trier of fact may take into account in weighing the psychiatrist’s opinion.

Accordingly, we conclude that the trial court did not err in admitting Dr. Burgess’ testimony.

Defendant next contends that the trial court erred in allowing the prosecutor to read the victim impact statement into the record and in permitting the testimony of Dr. Burgess on victim impact. Defendant first argues that use of the victim impact statement was error because it was not prepared “in conjunction with the Office of the State’s Attorney” as required by the statutes authorizing victim impact statements to be used at sentencing. In support of his position that the statutory requirements were not followed, defendant points to certain evidence indicating that the victim impact statement was obtained by the probation officer rather than the State.

Initially, we note that defendant has waived consideration of this argument by failing to raise it in his “post-hearing” motion. (See People v. Favelli (1988), 176 Ill. App. 3d 618, 623.) A review of defendant’s objections to use of the victim impact statement at the sentencing hearing and the allegation of error raised in defendant’s “post-hearing” motion indicates that defendant only challenged the victim impact statement on the basis that it was not written by the victim herself. Defendant did not argue at any point prior to this appeal that introduction of the victim impact statement was improper because it was not prepared “in conjunction with the Office of the State’s Attorney.” Thus, we consider this issue waived on review.

Even if we were to consider this issue on the merits, we would decide it against defendant. Section 6 of the Bill of Rights for Victims and Witnesses of Violent Crime Act (Victims’ Act) (Ill. Rev. Stat. 1985, ch. 38, par. 1406) permits the victim of a violent crime to address the court concerning the impact of the crime. That section further provides, in pertinent part:

“If the victim chooses to exercise this right, the impact statement must have been prepared in writing in conjunction with the Office of the State’s Attorney prior to the initial hearing or sentencing, before it can be presented orally at the sentencing hearing.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 38, par. 1406.)

Similarly, section 5—4—l(a)(6) of the Code affords the victim of a violent crime the opportunity to make a victim impact statement, but provides “that the statement and evidence offered in aggravation or mitigation must first be prepared in writing in conjunction with the State’s Attorney before it may be presented orally at the hearing.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 4—l(aX6).

Defendant interprets the phrase “prepared in writing in conjunction with the Office of the State’s Attorney” as requiring that the State actually prepare or obtain the statement from the victim. Defendant does not support this interpretation with any authority, and we will not impose such a meaning here. Rather, notwithstanding the identity of the entity that actually took the statement from the victim, it is clear that the victim impact statement in the instant action was prepared "in conjunction with the Office of the State’s At-tomey.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 38, par. 1406.) Indeed, it was the State that presented the evidence. Moreover, the assistant State’s Attorney who presented the evidence in fact represented to the court that the statement was presented in conjunction with her office. Accordingly, we find defendant’s argument on this issue to be without merit.

Defendant next argues that the trial court erred in introducing the victim impact statement on the basis that it was prepared by the victim’s parents rather than the victim. We disagree.

“Victim,” as defined under the Victims’ Act and the Code, includes, among others, the parent of any person granted rights under the Victims’ Act who is physically or mentally incapable of exercising such rights. (See Ill. Rev. Stat. 1985, ch. 38, par. 1403(a)(3); Ill. Rev. Stat. 1985, ch. 38, par. 1005—1—22.) Thus, by virtue of this statutory definition, the parents of a victim may prepare the victim impact statement where the victim is incapable of exercising her rights.

In People v. Rainey (1986), 149 Ill. App. 3d 327, 331, cited by defendant, the mother of a 12-year-old sexual assault victim prepared a victim impact statement. The victim had testified at the defendant’s trial. (149 Ill. App. 3d at 331.) In holding that it was error for the trial court to have permitted the mother to prepare the victim impact statement and testify as the parent of a person unable to exercise her own rights, the court stated that there was nothing in the record to indicate that the victim’s condition had deteriorated so drastically in the 29-day interval between the trial and sentencing hearing. 149 Ill. App. 3d at 331.

Subsequently, in People v. Reid (1987), 160 Ill. App. 3d 491, 494, the court held that the parents of a seven-year-old sexual assault victim could prepare the victim impact statement on behalf of their daughter. The Reid court distinguished Rainey, noting that Rainey dealt with a 12-year-old victim whose ability to meaningfully communicate the impact of the crime was not in question. (160 Ill. App. 3d at 494.) The court stated that “[sjimply because the seven-year-old victim was found competent to testify and that she could relate the facts of what happened to her does not mean she is capable of preparing a written statement about the physical and emotional impact of the crime on her life.” (Emphasis added.) (160 Ill. App. 3d at 494.) The standard for whether a victim is mentally capable of drafting a written victim impact statement depends on the victim’s age coupled with her ability to communicate. See People v. Van Ostran (1988), 168 Ill. App. 3d 517, 523.

In the instant action, the victim was eight years old at the time of the assault and defendant’s sentencing. Because defendant entered guilty pleas, the victim was not asked to testify. In any event, there is a basis in the record for us to conclude that she was not capable of preparing her own victim impact statement. In the presentence investigation report, the probation officer stated that he did not ask the victim to prepare a victim impact statement due to her age and emotional state. Moreover, that report further indicated the victim was at that time undergoing psychological counseling. Given these representations about the victim’s mental health and her tender age, it is highly unlikely that she was “capable of preparing a written statement about the physical and emotional impact of the crimefs] on her life.” See Reid, 160 Ill. App. 3d at 494.

Accordingly, we conclude that the trial court did not err in allowing the victim impact statement to be read into the record.

Defendant’s final contention is that the trial court erred in permitting Dr. Burgess to testify regarding the impact the crimes had on the victim. The record clearly indicates that defendant in fact accepted Dr. Burgess as an expert witness to testify regarding victim impact, and no objection was voiced when she rendered her opinion. Accordingly, this issue is waived.

For all of the reasons set forth above, we affirm the judgment of the trial court.

Affirmed.

DUNN and McLAREN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GENE A. PRYOR, Defendant-Appellant.
    Second District
    No. 2—87—1188
    Opinion filed April 21, 1989.

      G. Joseph Weller and Barbara R. Paschen, both of State Appellate Defender's Office, of Elgin, for appellant.

      Gary V. Johnson, State’s Attorney, of Geneva, and Richard E. Zulkey, of Zulkey, Pikarski & Gordon, Chartered, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Gene Pryor, appeals from his conviction on a charge of unlawful possession of cannabis.

Pryor was charged with unlawful possession of cannabis (Ill. Rev. Stat. 1985, ch. 56V2, par. 704(d)). Prior to trial, defendant brought three motions in limine, two of which are pertinent to this appeal. One motion was a request to prevent testimony by a police officer about any statements made by a person who had been described in the police report as “a passing citizen.” The defendant expected that the officer would testify that a passing citizen told him a black man was attempting to sell marijuana at the Jewel store. The court denied the defendant’s motion, stating that the testimony would be appropriate to show the officer’s state of mind in making the arrest.

Defendant’s second motion sought to prevent the defendant’s prior criminal conviction of possession of marijuana from being introduced into evidence for impeachment purposes. The court concluded that this prior conviction affects the credibility and veracity of the witness. Therefore, this motion was also denied. ,

Robert Hladik, an Aurora police officer, testified that on February 1, 1987, at approximately 5 p.m., he was patrolling the Northgate Shopping Center in Aurora. Hladik was in uniform and driving a marked squad car. He was flagged down by a passing citizen who said that a black male attempted to sell him marijuana. A defense objection to this statement was overruled. Hladik went on to testify that the citizen provided him with a detailed description of this man. Hla-dik saw a man who fit this description approximately 75 to 100 feet away walking back and forth in front of the Jewel store. Hladik followed the man in his patrol car and saw him enter a nearby Kinney Shoe Store. The man looked back over his shoulder at Hadik, opened his jacket, took an item out of his jacket and placed the item on the service counter. There were two other people near the service counter. Hladik entered the store. Hladik saw a plastic bag containing green plantlike material on the service counter. He stopped the man and attempted to search him. The man fled. Hadik attempted to catch the man but was unsuccessful.

Hadik testified that while observing the man in front of the Jewel store, he saw his face twice. He also testified that inside the Kinney Shoe Store, they were face to face when Hadik stopped him. Hadik identified Gene Pryor as the man he attempted to stop that day.

Douglas Needham, also an Aurora policeman, testified that he had performed a leaf identification test on the package retrieved by Officer Hladik. As a result of this test, Needham concluded that the package contained 81.5 grams of cannabis.

Pryor testified that on February 1, 1987, he was living with his sister, Molly Moore. On that day he had not been in the Kinney Shoe Store or at the Jewel store. Pryor also testified that he had never seen Officer Hladik other than in court.

Three defense witnesses, Molly Moore, Tory Moore, and Larry Mosby, testified that on February 1, they were all at Molly Moore’s home with Gene Pryor. Molly Moore testified that she prepared dinner while the others watched a football game on television. She served dinner at approximately 5 p.m., and Pryor, her brother, stayed to share the meal. Tory Moore testified that he, Larry Mosby, and Pryor watched the Pro Bowl on television. He also testified that the game may have started at 3 p.m., although he was not really sure.

The jury instructions were given, and the jury retired to deliberate. Sometime later, the court received three written questions from the jury. After argument by the attorneys, and over objection of defense counsel, the court refused to specifically answer the inquiries and replied, “Your verdict must be based upon the evidence presented and on the instructions previously received.” The court also declined to provide the jury with a transcript of the officer’s testimony. The court brought the jury into the courtroom and inquired of the foreman whether there was a reasonable probability that, if they continued their deliberations, they might arrive at a verdict. The foreman answered no. The judge then polled the entire jury, asking the same question. There were six affirmative responses, and six negative responses. The court then sent them back for further deliberation. The jury returned a guilty verdict.

A motion for a new trial was heard and denied on December 3, 1987. Defendant appeals from that decision of the trial court.

The first issue that we address is whether the trial court abused its discretion in admitting into evidence defendant’s prior conviction of possession of marijuana. In Illinois, evidence of a prior conviction may be introduced if the prior conviction is of a crime punishable by imprisonment in excess of one year and less than 10 years have passed since the conviction or the witness’ release from confinement. (People v. Montgomery (1971), 47 Ill. 2d 510, 515; People v. Powell (1985), 139 Ill. App. 3d 701, 707; People v. Medreno (1981), 99 Ill. App. 3d 449, 451.) Once it is established that the prior conviction falls within the class of convictions outlined above, the court must weigh the prejudicial effect of admitting evidence of the prior conviction against its probative value. (Montgomery, 47 Ill. 2d at 517; Powell, 139 Ill. App. 3d at 707; People v. Evans (1981), 92 Ill. App. 3d 874, 878; Medreno, 99 Ill. App. 3d at 451.) The trial court is to exercise its discretion in admitting evidence of a prior conviction for the purpose of impeaching the witness’ credibility. (Montgomery, 47 Ill. 2d at 515; Powell, 139 Ill. App. 3d at 707; People v. Warfel (1979), 67 Ill. App. 3d 620, 624.) The trial court is given wide latitude in exercising this discretion. People v. Graves (1986), 142 Ill. App. 3d 885, 897; Powell, 139 Ill. App. 3d at 708; Evans, 92 Ill. App. 3d at 878; People v. Martinez (1978), 62 Ill. App. 3d 7, 15.

In the case at bar, Pryor’s prior conviction was for the possession of cannabis. (Ill. Rev. Stat. 1985, ch. 56V2, par. 704(d).) This offense is punishable by imprisonment in excess of one year. The prior conviction occurred within one year of the charge in the instant case. Therefore, the prior conviction falls within the class of convictions that may be admitted for the purpose of impeaching the witness’ credibility.

Pryor argues that the prior conviction of possession of cannabis bears no relationship to truth and veracity and, therefore, has no probative value in establishing his lack of credibility. This argument was specifically addressed and rejected in People v. Nelson (1975), 31 Ill. App. 3d 934. In Nelson, the defendant had been previously convicted of possession of heroin. The defendant argued, as does defendant here, that a conviction of drug possession does not reflect on his credibility. The court disagreed, stating:

“The offense of possession of heroin does indicate a disposition to place the advancement of individual self-interest ahead of principle or the interest of society, and such proof may suggest a willingness to do so again on the witness stand.” (Nelson, 31 Ill. App. 3d at 938.)

(See also Graves, 142 Ill. App. 3d at 897 (prior conviction of aggravated battery four years prior extremely probative of credibility); Powell, 139 Ill. App. 3d at 707 (prior conviction for Class I felony, deviate sexual assault, is veracity-related crime and conviction thereof is probative of defendant’s credibility); Evans, 92 Ill. App. 3d at 877 (prior conviction of voluntary manslaughter admissible and is presumed to relate to testimonial deceit); People v. Guthrie (1978), 60 Ill. App. 3d 293, 298 (prior conviction of involuntary manslaughter not completely lacking in probative value for impeachment purposes).) We adhere to the existing rule that prior convictions of a felony punishable by imprisonment in excess of one year are probative on the issue of one’s credibility.

Pryor also argues that since the prior conviction is of the same crime charged now, it is prejudicial and should not be admitted. The fact that the prior conviction and the present charge are similar does not prohibit the prior conviction from being admitted for impeachment purposes. (Medreno, 99 Ill. App. 3d at 454; Evans, 92 Ill. App. 3d at 878; Martinez, 62 Ill. App. 3d at 15.) We find that any prejudice that resulted from the similarity of the crimes involved was cured by the limiting instruction given by the trial court.

The second issue raised is whether it was reversible error for the trial court to admit the substance of a conversation between a police officer and an unidentified bypasser.

A police officer may testify that a conversation with an individual took place and then he acted thereon because such testimony is within the officer’s personal knowledge and is competent to establish investigatory procedure. (People v. White (1985), 134 Ill. App. 3d 262, 282.) However, testimony that recounts the substance of a conversation is not within the officer’s knowledge and is inadmissible hearsay. People v. Spears (1988), 169 Ill. App. 3d 470, 478, citing White, 134 Ill. App. 3d at 282.

In the case at bar, Officer Hladik testified that a passing citizen flagged him down and stated that a black male attempted to sell him marijuana. Officer Hladik also testified that the citizen informed him that the man was 5 feet 7 inches to 5 feet 8 inches in height, late 20s, and wearing a dark, waist-length nylon jacket. This testimony set forth the substance of the conversation and is, therefore, hearsay which should not have been admitted absent a limiting instruction.

However, the admission of hearsay evidence is harmless error where there is no reasonable probability that the defendant would have been acquitted had the hearsay evidence been excluded. (White, 134 Ill. App. 3d at 283, citing People v. Griggs (1982), 104 Ill. App. 3d 527, 531.) Where there is uncontroverted eyewitness testimony sufficient to sustain a conviction, there is no reasonable probability that the verdict would have been different had the hearsay been excluded. (People v. Jones (1983), 114 Ill. App. 3d 576, 589.) Officer Hladik provided uncontroverted eyewitness testimony that he saw the suspect place a bag on the counter. The officer was face to face with the suspect and identified the defendant as the man he saw. The content of the bag was later tested and determined to be cannabis. This evidence is sufficient to sustain the conviction. We find that the court erred in admitting the testimony recounting the substance of the conversation, but this error was harmless.

The final issue to be determined is whether the trial court improperly refused to answer the jury’s questions.

If the jury asks a specific question on a point of law arising from facts over which there is doubt or confusion, the court should respond to the question in an attempt to clarify the confusion. (People v. Reid (1988), 174 Ill. App. 3d 1009, 1014; People v. Flynn (1988), 172 Ill. App. 3d 318, 323; People v. Brouder (1988), 168 Ill. App. 3d 938, 947; People v. Morris (1980), 81 Ill. App. 3d 288, 290.) However, the trial court may, in the exercise of its discretion, refrain from answering inquiries of the jury when the given instructions are readily understandable and sufficient to explain the relevant law (People v. Palmer (1982), 111 Ill. App. 3d 800, 807). A judge should not answer a jury’s question if it calls for him to make conclusions based on his view of the evidence. Flynn, 172 Ill. App. 3d at 323.

In the case at bar, the jury communicated with the court on three occasions. On one occasion, the jury was simply informing the court that after reading the law and applying the evidence, it was having difficulty reaching a unanimous decision. A second inquiry from the jury requested a copy of the transcript of the officer’s testimony. This request is not an issue in this appeal.

The jury also presented a note to the court which read as follows:

“Can we take information or lack of information presented in the courtroom or not presented as evidence in making our decision re; [sic] arrest and surrounding circumstances, did [sic] the officer ever identify the defendent [sic] prior to trial?
Are we to just take the evidence presented during the trial and disregard arrest circumstances.
We are having a difficult time making a decision because some jurors feel that because two other witnesses were there and did not present themselves casts reasonably [sic] doubt on the current identity of the defendent [sic].” (Emphasis added.)

The first paragraph of this inquiry asks the court to comment on the evidence and facts of the case. This is not a request to clarify a point of law. Therefore, the court did not abuse its discretion in refusing to answer the question. The third paragraph is again simply a comment expressing their difficulty in reaching a unanimous decision. This comment is not at issue.

The second paragraph asks what evidence is to be considered. The jury was given the following instructions:

“The evidence which you should consider consists only of the testimony of the witnesses and exhibits which the court has received.
You should consider all the evidence in the light of your own observations and experience in life.”

We find that the above instructions are readily understandable and sufficient to explain the relevant law. Therefore, we find that the trial court did not abuse its discretion in declining to respond to the jury’s note.

For the reasons stated above, we affirm the decision of the circuit court of Kane County.

Affirmed.

UNVERZAGT, P.J., and DUNN, J., concur.


author: JUSTICE WOODWARD JUSTICE LINDBERG,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES FURBY et al., Defendants-Appellants.
    Second District
    Nos. 2—87—1100, 2—87—1101 cons.
    Opinion filed April 21, 1989.

      M. Jacqueline Walther, of Kielian & Walther, and George Patrick Lynch, Ltd., both of Chicago (George P. Lynch, of counsel), for appellants.
    James E. Ryan, State’s Attorney, of Wheaton, and Kevin T. McClain, of Immel, Zelle, Ogren, McClain, Germeraad & Costello, of Springfield (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Following a jury trial, the defendants, James and Thomas Furby, were found guilty of theft in excess of $300 (Ill. Rev. Stat. 1985, ch. 38, par. 16 — 1(a)). Each defendant was sentenced to 24 months’ probation, ordered to perform 50 hours of public service employment, and held jointly and severally liable to pay restitution in the amount of $1,177.56. Both defendants appeal from their convictions.

At trial, the witnesses testified as follows. James Lawson, the complaining witness, testified that on November 7, 1985, he and his partner, Vincent Valentino, owned a restaurant known as Vincenzo’s Pizza & Pasta Restaurant. Michael Phillips was employed as the manager. The defendants were employed as pizza deliverymen and had worked for Lawson since August 1985.

Upon the closing of the restaurant each night, Lawson would take home the day’s receipts, leaving the petty cash in the cash drawer. Although Lawson usually closed the restaurant at night, on November 7, 1985, he left the restaurant between 2 p.m. and 3 p.m. and did not return until the next morning. Phillips was in charge of closing the restaurant and handling the cash. Phillips was to take the cash receipts and lock them in the cash drawer in Lawson’s office, which was in the back of the restaurant. Lawson generally kept about $300 in petty cash in the upper right-hand drawer of his desk. He also kept his business checkbook and payroll disbursement book in the same drawer. The door to the office was normally locked. When Lawson left the restaurant on November 7, 1985, everything was in its place in his office. The back door to the building was in good condition.

At 8 a.m. on November 8, 1985, Lawson entered the restaurant by the front door. While everything in front appeared to be in order, Lawson discovered the door to his office ajar, and that the back door to the building had jimmy marks on it which had not previously been there, and the door had been pried in half. Lawson then observed that the lock on the cash drawer had been pulled off. The drawers on the right-hand side of the desk were empty, but the drawer on the left side of the desk as well as the filing cabinet did not appear to have been touched. The business checkbook was missing, as was the payroll book, which was later found in a dumpster in the alley. Over defense objection, Lawson testified that the register tape showed that $658 should have been in the cash drawer, in addition to the petty cash. Nothing was left in the cash drawer except the cash register receipt.

Lawson further testified that he would make cash disbursements to his employees in his office, and consequently, employees would be present in his office when the cash drawer was open because the office was adjacent to the kitchen. Both defendants had been present on occasions when Lawson would take cash out of the register and place it in the cash drawer in his office. Although at various times both defendants had been given permission to remove money from the cash drawer, neither of them had permission to do so on November 7, 1985.

On cross-examination, Lawson testified that in addition to Phillips and the defendants, there were three other persons employed at the restaurant. Although Lawson signed a complaint charging the defendants with theft on February 3, 1986, he continued to employ both defendants, as well as Michael Phillips. Although James Furby ceased working for Lawson immediately after the warrant for his arrest was issued, he left of his own accord. Michael Phillips (who was interviewed by police but apparently never charged) left a short while after James Furby. Thomas Furby continued to work for Lawson until August 1986. Lawson continued to entrust money to Thomas to make change with on his pizza delivery route. Lawson stated on redirect examination that after the instant charges had been filed, he watched the money he entrusted Thomas with very closely.

On inquiry by the trial judge, Lawson testified that on November 7, 1985, he had just under $200 in the petty cash plus another $200 in coin and currency which, together with the amount on the register receipt, made a total of approximately $1,058 which should have been in the cash drawer.

Officer Michael Riddle of the Downers Grove police department testified on behalf of the State as follows. On November 8, 1985, at approximately 8:39 a.m., he was dispatched to investigate a complaint of a suspected burglary at Vincenzo’s Pizza & Pasta Restaurant in Downers Grove. Upon his arrival at the restaurant, he met the owner, James Lawson. Officer Riddle observed that the rear door had jimmy marks on it and a slide lock nailed to a piece of wood was broken. In Lawson’s office, Riddle observed that the padlock on the upper right desk drawer was broken off and the drawer was open on the right side of the desk, though not on the left. Lawson advised him that all the money was kept on the right side of the desk, and it was all missing. Also missing were the payroll checks and other checks used in the business, along with a roll of coins. Officer Riddle located the payroll book in a dumpster in the alley to the rear of the building. When Officer Riddle inquired as to how much money had been taken, Lawson estimated about $800. He was not sure whether a money drop had been made or if his wife had taken home some of the money.

On cross-examination, Officer Riddle testified that Officer Karmia, an evidence technician, arrived on the scene at his request. Officer Karmia was responsible for lifting any fingerprints or footprints at the scene and for photographing the scene. Officer Riddle did not recall if any photographs of the scene were taken. He was aware that Officer Karmia dusted for fingerprints, but he could not recall if any fingerprints were lifted from anything or not. Officer Riddle could not recall if any footprints were taken from the paper strewn on the floor, although one check was taken to have fingerprints lifted from later. Officer Riddle stated there were footprints outside the back door which he believed were photographed by Officer Karmia.

Sergeant Byrne of the Downers Grove police department testified for the State as follows. While a detective, he was assigned to investigate a burglary that occurred at Vincenzo’s Pizza Parlor. On December 19, 1985, he conducted an interview with defendant James Furby at the Downers Grove police department. Detective Reinhart was also present during the interview. Byrne advised James that he wished to speak to him about the incident at Vincenzo’s restaurant. He further advised James that he was not under arrest and was free to leave at any time. According to Byrne, James indicated that he was willing to speak to the two police officers.

James related to Byrne and Reinhart that on the night of November 7, 1985, he, his brother Thomas, and Michael Phillips had devised a plan to stage a burglary at Vincenzo’s and take the day’s cash receipts from the cash drawer. James obtained a crowbar and put pry marks on the back door to make it look as though someone had pried the back door. Phillips then took the crowbar and pried open the drawer of the desk where the cash was kept. James threw paper and some checks around to make it look as though a burglary had actually occurred. He also threw a book of business checks into the dumpster. After Phillips removed the money from the cash drawer, James, Thomas, and Phillips went to Phillips’ apartment in Woodridge, where they divided up the money. The money was divided up evenly, and James received somewhere between $175 and $180.

James then inquired whether it would be possible to make restitution to the restaurant. After Byrne told him he would look into that possibility, the interview was terminated, and James left the police department. Byrne denied supplying any of the specifics of the burglary to James prior to the interview.

Byrne also interviewed Thomas Furby in connection with his investigation of the burglary at Vincenzo’s at the Downers Grove police station. Detective Kirk Schwebe was also present during the interview. Byrne administered Miranda warnings to Thomas, who indicated that he understood them and that he was willing to speak to the police officers.

Thomas related that on November 7, 1985, he had left Vincenzo’s shortly after 11 p.m. He returned to the restaurant with his brother James sometime around midnight. He was aware that Phillips and James had devised a plan to take money from the restaurant. When James and he arrived at the restaurant, he stood in an alley to the rear of the business while Phillips and James went inside the restaurant. He stood outside the restaurant for 5 to 10 minutes, at which point Phillips and James exited the restaurant, one by the front door, the other by the back door. All three men then went to Phillips’ apartment in Woodridge, where they divided up the money equally. Thomas was not certain of the exact figure, but it was between $150 and $200. Thomas was given the money to keep quiet about the incident. In response to a question by Byrne, Thomas indicated that he would be willing to make restitution of the money he received.

On cross-examination, Byrne testified that no written or taped statements were taken from either of the defendants. Although Byrne was aware that footprint impressions had been taken, no comparison with the defendants’ footwear or those of the other restaurant employees were made.

Sergeant Kirk Schwebe of the Downers Grove police department testified on behalf of the State. On December 27, 1985, while a detective, he was present at an interview with defendant, Thomas Furby. Schwebe confirmed the testimony of Byrne as to the statements made by Thomas during that interview. On cross-examination, Schwebe admitted that he had not prepared a report of the interview but had reviewed Sergeant Byrne’s report prior to testifying. On redirect examination, Schwebe stated that he had an independent recollection of the interview. On re-cross, Schwebe stated that in the intervening months, he had interviewed approximately 100 witnesses. Detective Reinhart was not called to testify.

James Furby testified on his own behalf. Sometime in July or August 1985, he began working at Lawson’s restaurant. He left in June or July 1986 because he lost his driver’s license. While he was employed by Lawson, he delivered pizzas. He was given anything from $20 to $150 depending on how busy they were. Out of that, he paid for each pizza to be delivered, and then he would collect the money from the customers when he delivered the pizzas. The cashier would make sure the correct amount was turned in. Although he was arrested and charged in connection with the incident at the restaurant, his duties at the restaurant did not change.

James learned about the theft or burglary at the restaurant when he arrived at work the next day. Sometime later Detective Byrne came to his house and asked both defendants if they would be willing to answer questions at the police department. James voluntarily appeared at the Downers Grove police station where he was interviewed by Detectives Byrne and Reinhart. Byrne maintained that he had evidence proving James guilty and that he should confess. James told him he did not know what he was talking about. Byrne insisted that he had evidence against James and would throw him in jail, so he should just confess. James stated that he only worked there and knew nothing about the incident. James finally told Byrne to either arrest him, or he was going home. Byrne allowed him to go home.

James testified further that Detective Byrne never requested him to make a written statement. Further, James denied stealing money from Lawson and testified that Detective Byrne’s recitation of James’ statement was not true.

On cross-examination, James testified that he knew that Lawson kept money somewhere in the drawer of his desk. He received cash payments from Lawson either in his office or in the cash register. He believed it was in the top right-hand drawer of the desk. After he was charged in connection with the incident, he was left alone in the office on a couple of occasions. He was never responsible for the closing of the business at night.

James stated that he was not working the night of November 7, 1985. He was at the restaurant between 9:15 p.m. and 10 p.m. to get something to eat and wait for his brother and Mike Phillips to finish up work because they were all going out together that evening.

Thomas Furby testified on his own behalf. In August 1985, he was employed by Lawson at Vincenzo’s pizzeria. He left Lawson’s employ in August 1986.

While he worked at the pizzeria, he was a delivery person. As part of his job, he was entrusted with money by Lawson. His duties ' did not change after he was arrested and charged in connection with this incident.

On December 27, 1985, he was interviewed by Detective Byrne at the Downers Grove police department. Detective Schwebe was also present during the interview. Byrne informed him that James had already confessed, that there were witnesses who had seen them committing the theft, and that he should confess and make it easy on himself. Thomas denied making the statements attributed to him by Detective Byrne. Further, he denied taking any money from his employer.

On cross-examination, Thomas testified that on November 7, 1985, he left the pizza parlor at approximately 10 p.m. His brother James was there and so was Mike Phillips, who was working. He did not recall telling Detectives Byrne or Schwebe that all three were working that night. He denied telling Detective Byrne that he returned to the pizza parlor after midnight; in fact, he had told him he had not returned to the pizza parlor that night. Thomas denied making the remarks the statement attributed to him by Detective Byrne. Detective Byrne asked him if he would sign a written statement. Since he was not guilty, he told Detective Byrne that he would not sign a confession.

According to Thomas, Lawson would pay him from the register, or if he was carrying the proceeds back to his office, he would pay him from there. Thomas did not recall him taking the cash drawer and putting it inside his desk. He did not know whether Lawson kept money in any of the other drawers.

The jury returned a verdict of guilty of theft over $300 as to both defendants, and they were sentenced as stated above. This appeal followed.

Defendants contend that the State failed to establish the corpus delicti beyond a reasonable doubt. Defendants maintain that other than their purported confessions, the State’s evidence failed to link them to the theft, and further, the State failed to prove that a theft actually took place.

In People v. Lambert (1984), 104 Ill. 2d 375, 378-79, our supreme court stated as follows:

“The issue presented is whether the State proved the corpus delicti of the offense charged. In People v. Kirilenko (1953), 1 Ill. 2d 90, 94, this court stated:
‘It is a basic concept in criminal law that proof of a criminal offense involves the proof of two distinct propositions or facts beyond a reasonable doubt. First, that a crime was committed, and second, that it was committed by the person or persons charged. In other words, as stated in People v. Hooper, 364 Ill. 320, “the corpus delicti must be proved and the identity of the defendant as the guilty party must be established.” ’
‘Proof of corpus delicti requires both proof of injury or loss, as well as proof of criminal agency. ***’ [Citation.] However, the corpus delicti cannot be proved by the defendant’s confession alone. [Citations.] There must be either some independent evidence or corroborating evidence outside of the confession which tends to establish that a crime occurred. [Citation.] If there is such evidence, and that evidence tends to prove that the offense occurred, then that evidence, if it corroborates the facts contained in the defendant’s confession, may be considered together with the confession to establish the corpus delicti.”

In People v. Lambert, the defendant there was convicted of indecent liberties with a four-year-old child. The evidence against defendant consisted of defendant’s confession and the testimony of the victim’s mother and a police officer, which established that the defendant and the victim had been in the basement together on the night the alleged incident took place, and two to three weeks after that night, the victim’s rectum appeared pink and swollen. In upholding the reversal of the defendant’s conviction by the appellate court, the supreme court noted that the State had failed to present medical testimony to establish the possible causes of the victim’s condition, and thus failed to establish any relationship between the victim’s condition when the injury was discovered and the cause of the crime, which was alleged to have occurred on an earlier date.

The defendants in this case were charged with the offense of theft in excess of $300. “A person commits theft when he knowingly obtains or exerts unauthorized control over property of the owner and intends to deprive the owner permanently of the use or benefit of the property.” (Ill. Rev. Stat. 1985, ch. 38, par. 16 — 1(a).) Thus, the State was required to prove that the taking was unauthorized and that defendants had done the taking.

Relying on People v. Lambert, defendants argue, first, that the State failed to prove that a crime had been committed. The State’s evidence independent of the defendants’ alleged confessions was as follows: the office at Vincenzo’s had been rummaged through prior to Lawson’s return to the restaurant on the morning of November 8, 1985; that although he normally kept $330 in the cash drawer, there was approximately $200 in petty cash plus another $200 in coin and currency in the cash drawer between 2 p.m. and 3 p.m. on November 7, 1985; the reading on the cash register tape for the prior day’s total receipts was $658; there were jimmy marks on the back door of the restaurant; and the cash drawer was empty.

Defendants argue that Lawson’s testimony as to the amount of the day’s receipts as reflected on the register tape was erroneously admitted over defendant’s objection. The register tape itself was never admitted into evidence. No explanation for the absence of the register tape is apparent from the record. If the original business records themselves are available, testimony consisting of the oral summation of their content is not an acceptable alternative, even if the summary is given by the records’ custodian. (People v. Clark (1982), 108 Ill. App. 3d 1071, 1081.) We agree with defendants that that part of Lawson’s testimony concerning the register receipts was admitted without a proper foundation and should have been stricken.

Defendants further argue that as to the petty cash left in the cash drawer, Lawson testified that cash disbursements were made from that drawer to employees on occasion. Since Lawson left between two and three in the afternoon of November 7, he would have no way of knowing what cash disbursements were made from the cash drawer during the evening. Moreover, the manager, Michael Phillips, who would have had knowledge of how much cash was distributed, was never called to testify, nor was he charged in connection with the case. Officer Riddle also testified that at the time of the initial investigation, Lawson estimated the loss at approximately $800, because he was not sure if a “money drop” had been made or some of the money had been taken home by his wife. Lawson’s wife was never called to testify. Finally, defendants point out that Lawson’s partner, Vincent Valentino, was never called to testify and could have taken the money himself. We note that none of the proceeds was ever recovered or found in the possession of the defendants.

Corpus delicti may be proved by circumstantial evidence or by the defendant’s own testimony given in defense which may be judged by its improbabilities. (People v. Daniels (1983), 113 Ill. App. 3d 523.) Intent and unauthorized control can be proved by circumstantial evidence. (People v. Meyer (1982), 110 Ill. App. 3d 673.) Where an element of the State’s case is proved circumstantially, the proof must be of a conclusive nature, producing a reasonable and moral certainty of the defendant’s guilt and excluding any reasonable hypothesis of innocence. (People v. Williams (1980), 85 Ill. App. 3d 850.) The trier of fact need not accept the defendant’s version of the facts but may consider its probability in light of the surrounding circumstances. People v. Talach (1983), 114 Ill. App. 3d 813.

In People v. Bennett (1987), 152 Ill. App. 3d 762, the defendant appealed from his conviction of theft of less than $300 (Ill. Rev. Stat. 1985, ch. 38, par. 16 — 1(a)(1)). The evidence at trial consisted of Bennett’s written statement that he had taken $50 from the store safe and the testimony of the merchandise manager that she had counted some of the money in the safe and discovered that a bundle of $5 bills which was marked $100, contained only $60. The manager admitted, however, that the missing $40 could accidentally have been put into a cash register or that the person who placed the money in $100 bundles could have miscounted it. She also admitted that shortages had occurred on a number of occasions. She noted that eight or more peo-pie had access to the safe.

In reversing Bennett’s conviction, the reviewing court stated as follows:

“In the instant case, without even considering the many ways in which addition errors could have been made, the number of people who had access to the safe, the large sum of money in the safe, and the difference between the amount allegedly stolen and the amount stated in the defendant’s confession, it is obvious that the State failed to meet its burden of proof. Juarze [the merchandise manager] could not verify from firsthand knowledge that the bundle in question ever actually contained $100. She could not testify from personal knowledge either to the total amount of money that was supposed to be in the safe or to the total amount that was actually in the safe. The State failed to prove beyond a reasonable doubt that anyone stole $40 from the safe.” Bennett, 152 Ill. App. 3d at 763-64.

We are of the opinion that while the facts, independent of the defendants’ confessions, may indicate that some type of criminal activity took place, they do not establish that the theft that defendants are convicted of took place. The testimony as to the amount indicated on the register tape was improperly admitted. Further, the State has failed to eliminate the reasonable possibility that the missing cash was taken or distributed in a legal manner. Lawson could only testify to how much money was in the drawer when he left between 2 and 3 p.m. on November 7, 1985. He could not testify from personal knowledge how much cash would be left at the end of the night, since Phillips and others had access to the cash drawer after Lawson left. Neither Mrs. Lawson, Lawson’s partner, Valentino, nor Michael Phillips, all of whom had access to the money, was called to testify. (Compare Lambert, 104 Ill. 2d 375.) Moreover, the State failed to provide any link between the proceeds of the alleged theft and the defendants other than what was contained in the alleged confession.

The State points out that while a conviction may not be based solely upon the defendants’ confessions without corroborating evidence, the corpus delicti need not be proved beyond a reasonable doubt exclusively by evidence independent of the confession. It is sufficient that there is some independent evidence that tends to prove that the offense occurred or corroborates the confession in its material elements to satisfy the court that the confession was not the product of the defendants’ imaginations. People v. Willingham (1982), 89 Ill. 2d 352; People v. Barkenlau (1982), 105 Ill. App. 3d 785; In re S.D.S. (1982), 103 Ill. App. 3d 1008.

The State submits that such evidence is present in this case. While the jimmy marks may have indicated criminal activity of some kind, without the necessary proof that money was taken, it does not provide the necessary corroboration of defendants’ alleged confessions to the crime of theft. Moreover, according to the “confessions,” the proceeds of the theft were divided three ways, each defendant receiving less than $200. Lawson’s initial estimate of the theft was $800, which would mean that each of the defendants received $266. At trial, Lawson testified that the loss was $1,058, thus each of the defendants’ share would have been approximately $352. Even assuming that the evidence proved that money was taken, the evidence does not corroborate the amounts stated in the confessions. We, therefore, agree with the defendants that the State failed to prove the corpus delicti of the offense of theft over $300.

Deciding this case as we do, we need not address the remaining issues raised by the defendants.

The judgment of the circuit court is reversed.

Reversed.

McLAREN, J., concurs.

JUSTICE LINDBERG,

dissenting:

The law relied upon by the parties is well established. The resolution of this case turns on the facts of the incident and, more specifically, whether the evidence established that a theft of property valued in excess of $300 occurred so as to establish the corpus delicti of the offense (Ill. Rev. Stat. 1985, ch. 38, par. 16 — l(aXl)), generally referred to as theft of property exceeding $300 in value.

The majority opines that Lawson would have no way of knowing what cash disbursements were made from the drawer containing the cash during the evening after he left. That is a matter that the jury may have considered and rejected. While it is necessary to establish the corpus delicti beyond a reasonable doubt, it is not necessary that the evidence considered by the jury aliunde the confession, by itself establish beyond a reasonable doubt the occurrence of the theft. People v. Stepteau (1986), 142 Ill. App. 3d 400, 491 N.E.2d 821.

In essence, the majority imposes upon the State the burden of establishing a chain of custody of the $400 Lawson testified he locked in his desk drawer before leaving for the day. The majority offers no authority for its legal conclusion that the State was required “to eliminate the reasonable possibility that the missing cash was taken or distributed in a legal manner” (181 Ill. App. 3d at 882) to prove that a theft occurred. The majority imposes this additional burden upon the State in spite of evidence in the record that $400 or more was stolen and that defendants confessed stealing and sharing it, which, if the jury chose to believe it, was proof that a theft occurred beyond a reasonable doubt. See People v. Murphy (1978), 65 Ill. App. 3d 935, 382 N.E.2d 1260.

It is possible that upon examination of all the issues and evidence, I would arrive at the same ultimate conclusion as the majority. However, on the question of proof of corpus delicti, I would affirm the judgment of the trial court and proceed to a determination of the balance of defendants’ issues.