text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN D. HELTON, Defendant-Appellant.
    Fourth District
    No. 4—89—0376
    Opinion filed March 22, 1990.

      Daniel D. Yuhas and M. Jeffrey Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Lawrence R. Fichter, State’s Attorney, of Decatur (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 McCULLOUGH

delivered the opinion of the court:

After a jury trial defendant was convicted of aggravated criminal sexual assault. (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(b)(1).) Defendant argues (1) he was not proved guilty beyond a reasonable doubt; (2) he was denied a fair trial by comments in opening statement and testimony concerning an exhibit which was not admitted into evidence; (3) he was denied an opportunity to conduct an effective cross-examination of the victim; (4) the trial court committed plain error in admitting evidence of a prior conviction; and (5) the trial court abused its discretion in sentencing. Defendant also argues he is entitled to 186 days’ credit against his sentence.

We affirm and remand for proper sentence credit.

On October 5, 1988, defendant was charged with one count of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(b)(1)) and one count of aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12—16(c)(1)(i)). During opening statement, the assistant State’s Attorney noted the victim’s mother found bloody underwear belonging to the victim soon after defendant moved out of their home.

At trial, Sherri Diane Condardy testified that she lives with her six-year-old daughter, M.J., and her three-year-old son, EJ. Between August 15, 1988, and August 26, 1988, defendant lived with them. She had known defendant for 20 years. He is 37 years old. No one else was staying in her apartment at that time. Defendant watched M.J. and F.J. while Condardy worked. Condardy noticed a change in M.J.’s behavior after defendant moved in. She became angry, was difficult when getting dressed, did not want Condardy to bathe her, did not want Condardy to enter the bathroom while she was in the room, and became shy. Around the time defendant moved out, Condardy looked at M.J.’s vaginal area. M.J. fought Condardy, turning away from her and facing the wall. Condardy took M.J. to a physician, who examined her on September 13, 1989. After the examination, Condardy contacted the police.

Condardy then stated that after defendant moved out, she found four pairs of M.J.’s panties with bloodstains on them. Condardy began to cry, and the trial judge ordered a recess so she could compose herself. Condardy then testified that prior to the time defendant lived with them, M.J. put her panties in her laundry basket. Condardy found the stained panties under a pile of clothes in M.J.’s bedroom.

M.J. stated she was seven years old, and her brother was three. Before school started, defendant lived with them. He baby-sat while her mother worked. While defendant was baby-sitting, M.J. stated “he touched me in my private parts.” M.J. drew a circle around the vaginal area on a girl picture. Although M.J. could not remember how many times defendant had touched her vaginal area, she stated he did so on more than one occasion. M.J. could not remember whether she was dressed when defendant touched her. She stated it hurt when he touched her.

Pam Waterman, an investigator with the Department of Children and Family Services, interviewed M.J. Diane Beggs, a police officer, was present. M.J. stated defendant had touched her vaginal area with his fingers. M.J. could not remember how many times defendant had touched her. M.J. stated defendant’s fingers touched her skin. On cross-examination, Waterman testified M.J. could not remember dates, times of day, or what she and defendant were wearing. Beggs’ testimony about M.J.’s statements was consistent with Waterman’s testimony.

Victor Wilson, M.J.’s pediatrician, testified that on September 2, 1988, he saw M.J. at his office. He attempted to examine her abdomen and genital area. M.J. was very resistant to disrobing, being touched, and lying down. On a subsequent day, he attempted to examine her again, but was unsuccessful. On September 13, 1988, he admitted M.J. to the hospital and placed her under general anesthesia.

Wilson observed the exterior of M.J.’s genitals appeared normal. There was no bruising, tearing, or significant trauma. Upon examining the inside of M.J.’s genitals, he found the vaginal opening was “abnormally large.” A normal vaginal opening for a child of M.J.’s age is one-sixth to one-eighth inch. M.J.’s vaginal opening was one-half to three-fourths of an inch. The rim of the hymen was thickened and irregularly rolled, rather than thin. Wilson also found a tear in the hymen, which had healed, indicating the injury was approximately 10 days old. The inside of the vagina showed small blood vessel lesions. Wilson stated these lesions were typical of Osler-Webber-Rendu syndrome, from which M.J. suffers.

Wilson further stated that the syndrome does not affect intelligence, would not cause the enlargement of the vagina, and would not cause the tear in the hymen. The tear and enlargement of the vaginal opening could easily cause bleeding and would most likely cause pain. In Wilson’s opinion, on more than one occasion, at least one of which was 10 days or more prior to the examination, M.J. had suffered a vaginal penetration. Wilson stated the size of the object causing the injuries was “at least the size of an adult’s finger or larger.” Wilson formed an opinion that the penetration had occurred on more than one occasion.

On cross-examination, Wilson stated Osler-Webber-Rendu syndrome is an inherited disorder. It causes clots in blood vessels in moist tissues of the body, such as the mouth, respiratory tract, lungs, and vagina. The blood vessels can bleed spontaneously or with trauma. The clots within M.J.’s vagina could bleed spontaneously. Penetration of M.J.’s vagina could likely have occurred over a long period of time. However, his findings were consistent with a short time frame. A penetration could possibly have occurred less than 10 days before September 13, 1988.

On redirect examination, Wilson stated M.J. had spontaneous nosebleeds. He was not aware of any spontaneous vaginal bleeding. She would bleed easily if she suffered trauma.

The trial judge sustained defendant’s objection to the admission of the panties. He stated he could not tell if the stains were blood, the minor had not testified she removed them, and no typing of the stain occurred. Therefore, the court found the panties were not relevant. The trial judge instructed the jury to completely disregard the exhibit and any testimony offered about the panties.

Virginia Helton, defendant’s mother, testified in his behalf. She stated defendant lived with Condardy in August 1988. He moved back into her home on Wednesday, August 24,1988.

The jury found defendant guilty of both counts. On August 7, 1989, the trial court sentenced defendant to 15 years’ imprisonment on the aggravated criminal sexual assault conviction. The court vacated the judgment of guilty on the aggravated criminal sexual abuse conviction, finding both offenses arose out of the same act.

Defendant argues he was not proved guilty beyond a reasonable doubt of aggravated criminal sexual assault because M.J. did not testify that penetration occurred, the fact that touching caused pain does not indicate penetration occurred, and the medical evidence of penetration is “insignificant” because it does not corroborate the victim’s testimony.

Section 12—14(b)(1) states that a person commits aggravated criminal sexual assault if he “was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed.” (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(b)(1).) Penetration as applicable to the instant case is defined as any intrusion of any part of the body of one person into the sex organ of another. (Ill. Rev. Stat. 1987, ch. 38, par. 12—12(f).) A conviction for aggravated criminal sexual assault when defendant testifies and denies the charge will be upheld where the complainant’s testimony is clear and convincing or substantially corroborated by other evidence. (People v. Harris (1989), 187 Ill. App. 3d 832, 543 N.E.2d 859; People v. Jones (1988), 174 Ill. App. 3d 737, 528 N.E.2d 1363.) Corroborating evidentiary matters include eyewitness accounts, confessions or admissions, prompt reporting of the incident by the victim, or medical testimony which supports allegations of abuse. (People v. Server (1986), 148 Ill. App. 3d 888, 895, 499 N.E.2d 1019, 1024, cert. denied (1987), 484 U.S. 842, 98 L. Ed. 2d 88, 108 S. Ct. 131; People v. Morgan (1986), 149 Ill. App. 3d 733, 738, 500 N.E.2d 1121, 1125.) When evidence of penetration is presented at trial, the question of whether penetration occurred is one of fact for the jury to determine. (Harris, 187 Ill. App. 3d 832, 543 N.E.2d 859; Morgan, 149 Ill. App. 3d 733, 500 N.E.2d 1121.) A reviewing court will only set aside a guilty verdict when the evidence is so palpably contrary to the finding or so unreasonable, improbable, or unsatisfactory as to leave a reasonable doubt about the accused’s guilt. Morgan, 149 Ill. App. 3d 733, 500 N.E.2d 1121.

M.J. testified defendant touched her “in” her private parts on more than one occasion and it hurt. Wilson testified penetration of M.J.’s vagina with an object at least as large as an adult finger had occurred on at least one occasion. Wilson also stated penetration had probably occurred on more than one occasion. Defendant’s contention that pain does not indicate penetration because of M.J.’s medical condition is not based on the record. Wilson did not state and was not asked whether the blood disorder caused pain. Therefore, M.J.’s indication that it hurt when defendant touched her vagina may be viewed as a statement that penetration had occurred. However, we need not decide whether M.J.’s testimony by itself may sustain the conviction. Here, extensive medical testimony corroborated the allegation of penetration. Defendant was proved guilty beyond a reasonable doubt.

In opening statement, the prosecutor commented that Condardy had found the victim’s bloodstained panties after defendant moved out. Subsequently, Condardy testified she found the panties in an unusual place. However, the exhibit was not admitted as the State’s evidence had not connected it to the offense. All of Condardy’s testimony concerning the panties was stricken. The court advised the jury to disregard the testimony.

Defendant argues that the prosecutor’s reference in opening statement to the bloodstained panties, which were not admitted into evidence, and the subsequent testimony denied him a fair trial. We do not agree. The purpose of opening statement is to inform the trier of fact of what the evidence will show. It is improper for a prosecutor to comment on what evidence will be introduced and then fail to produce the evidence. (People v. Warmack (1980), 83 Ill. 2d 112, 413 N.E.2d 1254.) In order to constitute reversible error, remarks by counsel must be such as to give reasonable grounds for believing the jury was prejudiced by the remarks and its verdict was affected. People v. Talley (1987), 152 Ill. App. 3d 971, 978, 504 N.E.2d 1318, 1322.

Here, defendant does not allege intentional prosecutorial misconduct. Additionally, all of the cases relied upon by the defendant involve cumulative error situations. In none was the impropriety in opening statement independently sufficient for reversal. See People v. Weller (1970), 123 Ill. App. 2d 421, 258 N.E.2d 806; People v. Weinger (1981), 101 Ill. App. 3d 857, 428 N.E.2d 924; People v. Rogers (1976), 42 Ill. App. 3d 499, 356 N.E.2d 413.

The issue presented to this court is whether the remarks prejudiced the jury and affected its verdict. (Talley, 152 Ill. App. 3d at 978, 504 N.E.2d at 1322.) Defendant argues the reference coupled with the effect of the stricken testimony denied him a fair trial. However, defendant does not argue the trial court abused its discretion in denying the motion for a mistrial based upon Condardy’s testimony. Generally, errors corrected by the trial court with instructions to the jury do not require a reversal. This is based upon the premise that juries follow instructions. We note the exception to this rule is found in situations where no jury could disregard the inadmissible evidence. (People v. Sandoval (1990), 135 Ill. 2d 159, 192-93.) In the instant case, Wilson provided uncontradicted expert opinion that penetration had occurred. Additionally, Wilson stated that penetration had most probably occurred on more than one occasion. M.J.’s physical condition supported a finding that penetration had occurred. Therefore, we find the verdict was not affected by the improper opening statement, even when coupled with any residual impact of the stricken testimony.

Defendant next argues M.J.’s inability to remember the details of her prior statement to Waterman and Beggs deprived him of an opportunity for effective cross-examination. Defendant maintains his sixth amendment right to confront witnesses was infringed upon. (U.S. Const., amend. VI.) Defendant did not object at trial that M.J.’s inability to recall the substance of the prior conversation deprived him of an opportunity for cross-examination. He did not raise this issue in his post-trial motion or supplemental post-trial motion.

Defendant has waived review of this issue. In a criminal case, both the trial objection and a written post-trial motion raising the issue are necessary to preserve an error for review. (People v. Enoch (1988), 122 Ill. 2d 176, 185-91, 522 N.E.2d 1124, 1129-32, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274; People v. Crowder (1988), 174 Ill. App. 3d 939, 529 N.E.2d 83.) Waiver applies to constitutional issues as well as nonconstitutional issues. (People v. Thomas (1988), 172 Ill. App. 3d 172, 526 N.E.2d 467.) Plain error or errors affecting substantial rights may be addressed although they were not raised in the trial court. (107 Ill. 2d R. 615(a); People v. Precup (1978), 73 Ill. 2d 7, 382 N.E.2d 227.) However, review of issues pursuant to Rule 615(a) only occurs where the evidence is closely balanced or the error denied the defendant a fair trial. People v. Lucas (1981), 88 Ill. 2d 245, 430 N.E.2d 1091.

On the merits, defendant was not denied his right to cross-examine M.J. The sixth amendment right to confront witnesses is a fundamental one, which affords a defendant the opportunity to test the truth of his accuser’s assertions. (People v. Dixon (1982), 105 Ill. App. 3d 340, 434 N.E.2d 369.) A gap in a witness’ memory concerning the content of a prior statement does not necessarily preclude an opportunity for effective cross-examination. People v. Flores (1989), 128 Ill. 2d 66, 538 N.E.2d 481; see generally United States v. Owens (1988), 484 U.S. 554, 98 L. Ed. 2d 951, 108 S. Ct. 838.

Defendant next argues the trial court committed plain error in denying his motion in limine to preclude use of a prior Arizona conviction for impeachment. In the alternative, defendant contends the trial court abused its discretion in balancing the probative value of prior conviction with its prejudicial effect. In People v. Montgomery (1971), 47 Ill. 2d 510, 516, 268 N.E.2d 695, 698, the Illinois Supreme Court adopted proposed Federal Rule of Evidence 609 (Fed. R. Evid. 609). The rule stated:

“(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime, except on a plea of nolo contendere, is admissible but only if the crime, (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (2) involved dishonesty or false statement regardless of the punishment unless (3), in either case, the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of conviction or of the release of the witness from confinement, whichever is the later date.” Montgomery, 47 Ill. 2d at 516, 268 N.E.2d at 698.

In People v. Yost (1980), 78 Ill. 2d 292, 399 N.E.2d 1283, the court stated the proposed rule as adopted in Montgomery, and not subsequent revisions of it, would be utilized by Illinois courts. Defendant’s prior convictions were based upon pleas of nolo contendere.

However, defendant has waived review of this issue. In Luce v. United States (1984), 469 U.S. 38, 83 L. Ed. 2d 443, 105 S. Ct. 460, the Supreme Court held that in order to preserve appellate review of a denial of a motion in limine, the defendant must testify at trial. Luce elected not to testify after the trial court denied his motion to preclude impeachment by use of a prior felony conviction. The Supreme Court noted that the harm caused by the in limine ruling is “wholly speculative” where a defendant does not testify. See also People v. Redman (1986), 141 Ill. App. 3d 691, 490 N.E.2d 958.

Defendant has also waived review of the propriety of the denial of the motion because the prior conviction was based on a plea of nolo contendere. Although Montgomery adopted the version of the Federal rule which excluded use of convictions based upon a nolo contendere plea, defendant did not object to use of the prior conviction on this ground. Specific objections at trial level waive all other grounds for objection. (People v. Barrios (1986), 114 Ill. 2d 265, 500 N.E.2d 415.) In People v. Alexander (1989), 184 Ill. App. 3d 855, 540 N.E.2d 949, the court ruled the defendant waived review of the propriety of using a conviction based upon a nolo contendere plea for impeachment purposes. Defendant had failed to raise the objection in the trial court. We find Alexander persuasive and follow it. We note that the trial court did balance the prejudicial effect of the testimony with its probative value.

The trial court sentenced defendant to 15 years’ imprisonment. Defendant’s presentence report indicates he was convicted of burglary in 1969 and was placed on two years’ probation. In 1980, he was convicted of two counts of sexual conduct with a minor and sentenced to two 7-year terms of imprisonment. Defendant was also convicted of a misdemeanor offense of contributing to the delinquency of a minor. During the sentencing hearing, defendant denied commission of the instant offense. He also stated the girls in Arizona had initiated the conduct leading to the offenses.

Absent an abuse of discretion, the trial court’s sentencing determination should not be altered upon review. (People v. Ward (1986), 113 Ill. 2d 516, 499 N.E.2d 422, cert. denied (1987), 479 U.S. 1096, 94 L. Ed. 2d 168, 107 S. Ct. 1314.) The trial court is in the best position to assess the proper sentence based upon the particular circumstances of the case. (Ward, 113 Ill. 2d at 525-26, 499 N.E.2d at 425; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882; People v. Jones (1988), 172 Ill. App. 3d 1048, 527 N.E.2d 521.) Before reversing a sentence imposed by the trial court, it must be clearly evident that the sentence was improperly imposed. In making this determination, the reviewing court should not focus on a few words or statements by the trial court. Instead, the determination of the propriety of the sentence should be based upon consideration of the entire record. (Ward, 113 Ill. 2d at 526-27, 499 N.E.2d at 425-26.) Aggravated criminal sexual assault is a Class X felony. (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(c).) As such, a defendant may be sentenced to not less than six years nor more than 30 years. Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(3).

Defendant relies extensively on People v. Harris (1989), 187 Ill. App. 3d 832, 543 N.E.2d 859, and cases cited within it in arguing his sentence is excessive. In Harris, defendant’s 25-year sentence was “cautiously” found to be an abuse of discretion. The Harris court noted the trial court considered all factors in aggravation and mitigation prior to imposing sentence. The court also noted that the sentence was within the statutory range. However, the reviewing court then reweighed those factors. Reweighing of sentencing factors has been repeatedly disapproved of by the Illinois Supreme Court. We decline to do so in the instant case.

As a matter of substance, Harris was a first offender, had an alcohol problem, his alcohol problem contributed to the offense, and he supported his family. None of those mitigating factors are present in the instant case. Defendant also relies upon cases cited by Harris as illustrating the excessiveness of his sentence. Sentencing was not at issue in any of those cases. (See People v. Watson (1989), 178 Ill. App. 3d 796, 533 N.E.2d 1011; People v. Daniels (1987), 164 Ill. App. 3d 1055, 518 N.E.2d 669; People v. Fisher (1988), 169 Ill. App. 3d 785, 523 N.E.2d 368; People v. Bayer (1987), 160 Ill. App. 3d 218, 513 N.E.2d 457; People v. McCoy (1987), 156 Ill. App. 3d 194, 509 N.E.2d 567.) Therefore, no discussion of the factors relevant to a sentencing determination occurred in those cases. The cases, thus, are not authority for the proposition that defendant’s sentence is excessive.

The trial court properly considered defendant’s lack of rehabilitative potential, prior offenses, attitude toward his past convictions, and the need to protect the public from this type of offense. The court’s statement that this was defendant’s third Class X offense was erroneous. However, the error did not affect the sentence. Defendant was sentenced to 15 years’ imprisonment. The maximum sentence was 30 years, and the State requested a 25-year sentence. In light of the entire record, no abuse of discretion occurred in sentencing. See Ward, 113 Ill. 2d at 525-26, 499 N.E.2d at 425-26.

However, we find defendant is entitled to 186 days’ credit against his sentence. He was arrested on October 4, 1988. Bond was set the next day. However, defendant did not post bond. He was sentenced on April 7, 1989. The court did not credit his sentence. The judgment on sentence also does not reflect any credit for time served. A defendant is entitled to credit against his sentence for all time served in custody on the offense for which he is sentenced. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—7; People v. Scheib (1979), 76 Ill. 2d 244, 390 N.E.2d 872.) Thus, defendant is entitled to credit against his sentence.

For the above reasons, we affirm defendant’s conviction and sentence and remand for entry of 186 days’ credit for time served.

Affirmed and remanded with directions.

LUND and SPITZ, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOYLE M. HARRIS, Defendant-Appellant.
    Fourth District
    No. 4—89—0583
    Opinion filed March 22, 1990.

      Daniel D. Yuhas and Jonathan Haile, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and William H. Hall IV, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On May 22, 1989, defendant Doyle Harris, following a jury trial held in the circuit court of Macon County, was found guilty of committing the offenses of armed robbery and home invasion. (Ill. Rev. Stat. 1987, ch. 38, pars. 18—2, 12—11.) He was subsequently sentenced to concurrent 12-year prison sentences. He now appeals, alleging he was not proved guilty beyond a reasonable doubt of the armed robbery offense. We affirm.

The evidence presented at trial establishes that, on December 14, 1988, around 6 p.m., a young man knocked at the door of 76-year-old Lorraine Miller. At that time, she had a visitor, 79-year-old Morris Banner. The young man explained to them that someone had broken the windshield on his car and the police needed to be called. Miller suggested he come in and place the call himself.

As he entered, they observed he held a large knife in his hand, beside his right leg. Then, he shoved Banner over a small table and, as Banner lay on the floor, defendant sat astride him. The man held a knife to Banner’s throat as he rifled Banner’s pockets. The man, threatening to kill Banner, demanded money. Banner directed the man to a small tote bag containing Banner’s money and other personal items, which was on a chair in the next room. The assailant rose, grabbed the bag, and started to leave.

During this time, Miller was outside screaming for help and a neighbor responded. As the neighbor arrived, she saw the perpetrator drop the knife and flee. She followed him, and caught up with him shortly. She grabbed the pocket of his pants, and he momentarily turned around before continuing his flight and escaping. All three positively identified the defendant as the man.

Defendant’s sole allegation of error is that he was not proved guilty beyond a reasonable doubt of armed robbery. He notes that to be convicted of robbery, or armed robbery, it is necessary that the property be taken from the person or presence of another. (Ill. Rev. Stat. 1987, ch. 38, pars. 18—1, 18—2.) He argues the evidence in this case shows the tote bag was taken from the next room and it was, therefore, not in Banner’s presence. In making his argument, defendant relies on this court’s earlier decision of People v. King (1979), 67 Ill. App. 3d 754, 384 N.E.2d 1013.

However, we believe defendant misapprehends the nature of the King case. In King, the defendant entered the home and raped the victim. He covered her with a blanket, telling her not to move, and left. It was not until after she reported the rape that the victim noticed her purse was missing from the kitchen, which was 15 to 30 feet away. The court reversed the armed robbery conviction. However, that decision was not based on whether the purse was taken from the “person or presence of” the victim. Rather, that decision was based on the absence of force used in the taking of the purse. To the extent that King is based on the fact the purse was in the other room, we believe it is bad law and repudiate that reasoning.

As noted, an essential element of armed robbery is the taking of property “from the person or presence” of another. However, this requirement is not limited to removal of the property from the victim’s person, or the immediate presence of the owner, possessor, or custodian. (People v. Smith (1980), 78 Ill. 2d 298, 302, 399 N.E.2d 1289, 1292.) The test is that the property should be in the possession of, or under the control of, the victim in such a way, or to such an extent, that violence, or fear of violence, was the means the robber used to take it. (People v. Braverman (1930), 340 Ill. 525, 531, 173 N.E. 55, 57; People v. Carpenter (1981), 95 Ill. App. 3d 722, 726, 420 N.E.2d 640, 644; People v. Rosa (1982), 111 Ill. App. 3d 384, 390, 444 N.E.2d 233, 238.) Thus, the offenses of robbery and armed robbery are complete when force, or threat of force, causes the victim to part with possession or custody of the property against his will. Smith, 78 Ill. 2d at 303, 399 N.E.2d at 1292.

Accordingly, courts have sustained convictions where the victim was locked in another room from where the property was taken (Braverman, 340 Ill. 525, 173 N.E. 55; Carpenter, 95 Ill. App. 3d 722, 420 N.E.2d 640); where the property was taken from another room, following a sexual assault (People v. Pavic (1982), 104 Ill. App. 3d 436, 432 N.E.2d 1074; People v. Gibson (1985), 137 Ill. App. 3d 330, 484 N.E.2d 858); where a van was taken after the salesman had been tied up (Rosa, 111 Ill. App. 3d 384, 444 N.E.2d 233); and where, in response to a bomb threat, store managers placed money at various drop sites (Smith, 78 Ill. 2d 298, 399 N.E.2d 1289).

In the case at bar, it is obvious defendant sought money from Banner while he threatened Banner with a knife. It is equally apparent that Banner directed defendant to his tote bag, in response to this threat of violence. Since it is only due to this threat that Banner parted with possession of his property, the offense of armed robbery is complete. The fact the property was actually located in another room is immaterial.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


text:
      In re MARRIAGE OF PENELOPE J. BECKETT, Petitioner-Appellee, and THOMAS W. BECKETT, Respondent-Appellant (The Department of Public Aid, Intervenor-Appellee).
    Fourth District
    No. 4—89—0552
    Opinion filed March 22, 1990.

      Darrell L. Hartweg, of Luedtke, Hartweg & Turner, of Bloomington, for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Eve Moran, Assistant Attorney General, of Chicago, of counsel), for appellee Department of Public Aid.
   JUSTICE LUND

delivered the opinion of the court:

Thomas W. Beckett (respondent) brings this appeal from an order of the circuit court of McLean County entered on January 19, 1989, and the supplemental order of judgment of dissolution of marriage entered on July 7, 1989. The issue before the court is whether respondent was barred by the limitations provision set forth in section 8 of the Illinois Parentage Act of 1984 (Act) (Ill. Rev. Stat. 1985, ch. 40, par. 2508) from seeking the determination that he was not the father of the two minor children born during the marriage of the parties.

Respondent and Penelope J. Beckett (petitioner) were married on August 18, 1979, and two children were born to the marriage, a girl born November 11, 1979, and a boy born March 27, 1981. Pursuant to an order of the circuit court on July 20, 1988, blood tests were administered for purposes of determining the paternity issue. These tests indicated that respondent was excluded as the biological father of both the boy and the girl.

Petitioner filed her petition for dissolution of marriage on February 7, 1984. After a hearing on February 15, 1984, a protection order and temporary child support order were entered on February 16, 1984. Respondent was present at the February 15 hearing and agreed to the support order. A hearing on the petition for dissolution of marriage was held on May 29, 1984, and respondent, by his attorney, consented to a default order on the issue of grounds. A written judgment was entered on May 31, 1984, providing a finding that “two children were born to the marriage of the parties.” The order dissolved the marriage, but reserved “for further hearing all issues concerning permanent custody, permanent support, maintenance, division of property and attorneys’ fees between the parties.” It also provided “all temporary orders previously entered in this cause shall remain in full force and effect.”

A petition for rule to show cause relating to the failure to pay child support was filed on March 25, 1985. On March 20, 1985, a notice of hearing on the “Petition for Rule to Show Cause and all other remaining issues” had been filed. The hearing on the petition for rule to show cause was set for April 29, 1985, and a docket order for that date states:

“Both counsel appear for hearing noticed. By agreement of counsel, hearing is continued generally for respondent to file response and for medical testing in re paternity which is contested. Respondent acknowledges receipt of copy of rule.”

No further action is indicated in the court proceedings and the court file until October 3, 1986, when the Illinois Department of Public Aid filed a petition to intervene and set support.

On March 25, 1987, petitioner’s counsel filed a motion to withdraw, giving the reason “that he has been unable to communicate with the petitioner during the past twelve months, and he cannot continue to represent her under such circumstances.” The motion to withdraw was allowed on April 21, 1987. On December 2, 1987, respondent filed a “Petition to Terminate Temporary Child Support Order, to Vacate Portions of Judgment of Dissolution, and for Court Ordered Blood Tests to Determine Paternity.” This petition alleged Penelope J. Beckett had refused to submit herself and the children to blood tests. It asked to vacate that portion of the May 29, 1984, order dissolving the marriage which provided that the respondent was the father of the two children.

The balance of the trial court proceedings can be summarized for purposes of this appeal. The Illinois Department of Public Aid was allowed to intervene. Petitioner appeared and obtained new counsel. The court ordered the blood tests, and the results, as already noted in this opinion, indicated that the respondent was not the father of the two children. After the trial court first decided the statute of limitations did not bar respondent from proceeding on the paternity issue, the court reversed itself and, on January 20, 1989, the trial court filed its opinion which stated, in essence, that In re Marriage of Ingram (1988), 176 Ill. App. 3d 413, 531 N.E.2d 97, was authority for determining that the paternity issue was barred by the statute of limitations. Subsequently, a final judgment was entered, determining all the matters reserved in the original dissolution order, and this appeal followed.

The relevant statutory provisions of the Act are as follows:

“Presumption of Paternity, (a) A man is presumed to be the natural father of a child if:
(1) he and the child’s natural mother are or have been married to each other, even though the marriage is or could be declared invalid, and the child is born or conceived during such marriage.” Ill. Rev. Stat. 1985, ch. 40, par. 2505(a)(1).
“Determination of Father and Child Relationship; Who May Bring Action; Parties, (a) An action to determine the existence of the father and child relationship, whether or not such a relationship is already presumed under Section 5 of this Act, may be brought by the child; the mother; a pregnant woman; any person or public agency who has custody of, or is providing or has provided financial support to, the child; or a man presumed or alleging himself to be the father of the child or expected child. The complaint shall be verified and shall name the person or persons alleged to be the father of the child.
(b) An action to declare the non-existence of the parent and child relationship may be brought by the child, the natural mother or a man presumed to be the father under Section 5 of this Act. The complaint shall be verified. After the presumption has been rebutted, paternity of the child by another man may be determined in the same action, if he has been made a party.” Ill. Rev. Stat. 1985, ch. 40, par. 2507.
“Statute of limitations, (a)(1) An action brought by or on behalf of a child shall be barred if brought later than 2 years after the child reaches the age of majority; however, if the action on behalf of the child is brought by a public agency, it shall be barred 2 years after the agency has ceased to provide assistance to the child.
(2) An action brought on behalf of any person other than the child shall be barred if brought later than 2 years after the birth of the child. Failure to bring an action within 2 years shall not bar any party from asserting a defense in any action to declare the non-existence of the parent and child relationship.
(3) An action to declare the non-existence of the parent and child relationship shall be barred if brought later thari 2 years after the petitioner obtains knowledge of relevant facts. Failure to bring an action within 2 years shall not bar any party from asserting a defense in any action to declare the existence of the parent and child relationship.” Ill. Rev. Stat. 1985, ch. 40, par. 2508.
“Jurisdiction; Venue, (a) The circuit courts shall have jurisdiction of an action brought under this Act. In any civil action not brought under this Act, the provisions of this Act shall apply if parentage is at issue. The Court may join any action under this Act with any other civil action where applicable.” Ill. Rev. Stat. 1985, ch. 40, par. 2509(a).
“Except as provided in Section 8 of this Act, the repeal of the ‘Paternity Act,’ approved July 5, 1957, as amended, shall not affect rights or liabilities which have accrued thereunder and which have been determined, settled or adjudicated prior to the effective date of this Act or which are the subject of proceedings pending thereunder on such effective date. Provided further, this Act shall not be construed to bar an action which would have been barred because the action had not been filed within the then applicable time limitation, or which could not have been maintained under the ‘Paternity Act,’ approved July 5, 1957 and repealed hereunder, as long as the limitations periods set forth in Section 8 of this Act are complied with.” Ill. Rev. Stat. 1985, ch. 40, par. 2525.

The Act was effective on July 1, 1985.

The fact that the present action was under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 101 et seq.) does not negate the statute-of-limitation provisions of section 8 of the Act. See Ill. Rev. Stat. 1985, ch. 40, 2509(a); Ingram, 176 Ill. App. 3d at 417, 531 N.E.2d at 100.

We note with approval that the appellate court in Ingram held that the legislature intended retroactive application of the Act, conditioned on it not being retroactively applied so as to terminate a cause of action unless the party affected had a reasonable period of time after the amendment’s effective date in which to file an action. Ingram, 176 Ill. App. 3d at 419, 531 N.E.2d at 101; Sakellariadis v. Spanos (1987), 163 Ill. App. 3d 1084, 1088, 517 N.E.2d 324, 327-28.

In Ingram, the court held the respondent failed to allege the nonexistence of the parent-child relationship within a reasonable time after the statutory change. Respondent had waited 15 months. In the present case, the first mention of the parentage dispute in the court proceedings was that shown by the docket entry of April 29, 1985, approximately two months before the effective date of the Act. However, the first pleading relating to the issue was filed December 2, 1987, more than two years after the effective date of the Act. This time sequence also indicates that section 8(a)(3) of the Act is not applicable in this cause. The Act requires the action to be brought within two years (section 8) and the complaint shall be verified (section 7(b)). (Ill. Rev. Stat. 1985, ch. 40, pars. 2508, 2507(b).) When parentage is at issue, the provisions of the Act shall apply to any civil case (section 9). (Ill. Rev. Stat. 1985, ch. 40, par. 2509.) Respondent’s filing was beyond the time when the statute of limitations would have run.

The filing of a notice of an intent to file a motion is not a filing of a motion within a required time. (Kollath v. Chicago Title & Trust Co. (1975), 62 Ill. 2d 8, 10, 338 N.E.2d 188, 190.) We see no justification for finding the expression of intention to bring an action to determine parentage sufficient to toll the limitation requirement. The filing was not within the two-year period.

Respondent’s argument that he should be able to proceed with the paternity issue any time during the pendency of a dissolution action is without merit. It is obvious that the Parentage Act provisions apply to any action brought under the Illinois Marriage and Dissolution of Marriage Act (see Ill. Rev. Stat. 1985, ch. 40, par. 2509), and section 8 of the Act, providing for the limitations, clearly establishes a policy of requiring that the party seeking to negate paternity must commence proceedings to do so within the limitation period. The social issues and evidentiary issues involved are obvious and need no discussion by our court. The trial court’s decision of January 10, 1989, was correct.

Affirmed.

GREEN and STEIGMANN, JJ., concur.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL O’BANNON, Defendant-Appellant.
    Fourth District
    No. 4—89—0653
    Opinion filed March 22, 1990.

      Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and LeRoy Walter Lemke, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendant, Michael O’Bannon, was convicted of retail theft (Ill. Rev. Stat. 1987, ch. 38, par. 16A—3(a)) and sentenced to one year in prison. On appeal, defendant argues that his sentence should be vacated and his cause remanded for resentencing because of the trial court’s failure to advise him of his right to elect treatment for alcoholism under the Illinois Alcoholism and Other Drug Dependency Act (Act) (Ill. Rev. Stat. 1987, ch. 111½, par. 6360—2).

We disagree and affirm.

Section 10 — 102 of the Act states,

“If a court has reason to believe that an individual convicted of a crime is an addict or alcoholic and the court finds that he is eligible to make the election provided for under Section 10— 101, the court shall advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by a designated program.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 111½, par. 6360—2.

The language of this Act is mandatory, not discretionary. People v. Richardson (1984), 104 Ill. 2d 8, 16, 470 N.E.2d 1024, 1028.

The threshold issue in this case (and in all similar cases) is the following: Was the information before the court sufficient to give the court “reason to believe” defendant is an alcoholic?

Section 1 — 103 of the Act defines “alcoholic” as

“a person who suffers from an illness characterized by preoccupation with alcohol which is typically associated with physical disability and impaired emotional, occupational or social adjustments as a direct consequence of loss of control over consumption of alcohol and demonstrated by persistent and excessive use of alcohol such as usually leads to intoxication if drinking is begun; by chronicity; by progression; and by tendency toward relapse.” Ill. Rev. Stat. 1987, ch. 111½, par. 6351—3.

At the sentencing hearing on July 28, 1989, defendant testified that after he was arrested on September 29, 1988, he spent 29 days in jail. On September 30, 1988, defendant had counsel appointed to represent him. During the last two weeks of his incarceration, defendant attended Alcoholics Anonymous meetings. Defendant stated that most of his previous convictions were related to drinking and that he was intoxicated when he committed the retail theft for which he was to be sentenced. However, this claim of intoxication was not corroborated at trial by the complaining witness.

Defendant further testified that he had an alcohol problem. He claimed he was at the point where he admitted he was an alcoholic. The presentence report noted that defendant reported consuming a six-pack of beer four or five times weekly. No further evidence was submitted on the issue of whether defendant was an alcoholic, and no disinterested persons testified.

This record does not demonstrate that defendant was an “alcoholic” under section 1 — 103 of the Act. The record does not show that he was preoccupied with alcohol, disabled because of alcohol consumption, or unable to control his drinking habits. Instead, defendant’s consumption of a little over a case of beer a week demonstrates that he was merely a user of alcohol, not an alcoholic.

In People v. Jones (1985), 132 Ill. App. 3d 764, 477 N.E.2d 836, this court evaluated a similar argument by a defendant who claimed the evidence at the sentencing hearing should have given the trial court reason to believe defendant was an addict, as that term was defined under the Alcoholism and Substance Abuse Act (Ill. Rev. Stat., 1984 Supp., ch. 111½, par. 6301 et seq.), the precursor to the present Act. In rejecting defendant’s argument in Jones, we stated,

“Although Jones apparently has experienced problems due to alcohol and drug abuse, this did not give the trial court reason to believe he was an addict as that term is defined in the Act[.]” Jones, 132 Ill. App. 3d at 766, 477 N.E.2d at 838.

A defendant’s uncorroborated and self-serving statement that he is a regular user of drugs or alcohol is insufficient to establish “reason to believe” he is an addict or alcoholic for the purpose of triggering procedures under the Act. People v. Davenport (1988), 176 Ill. App. 3d 142, 146, 530 N.E.2d 1118, 1121.

We conclude that the trial court had no reason to believe defendant was an alcoholic. Accordingly, the trial court did not err in failing to advise defendant of his right to elect treatment under the Act.

Affirmed.

GREEN and McCULLOUGH, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE WILLIAMS, Defendant-Appellant.
    Fourth District
    No. 4—89—0877
    Opinion filed March 22, 1990.

      Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles Colburn, State’s Attorney, of Jacksonville (Kenneth R. Boyle, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The defendant George Williams pleaded guilty to burglary on July 11, 1989, and was sentenced on October 3, 1989, to serve six years’ imprisonment. On November 7, 1989, the trial judge denied the defendant’s motion to withdraw his plea of guilty. The defendant has filed a timely appeal.

The defendant argues a new sentencing hearing is necessary because the trial court erroneously believed that it had no discretion to place the defendant on probation under the Illinois Alcoholism and Other Drug Dependency Act (Act) (Ill. Rev. Stat. 1987, ch. 111½, par. 6360—2).

The issue being limited, only those matters appearing in the record which are pertinent to this disposition will be discussed.

The pertinent statutory section of the Act is:

“An addict or alcoholic who is convicted of a crime may elect treatment under the supervision of a licensed program designated by the Department *** unless *** (g) the person has been convicted of residential burglary and has a record of one or more felony convictions.” Ill. Rev. Stat. 1987, ch. 111½, par. 6360—1.

Section 5 — 5—3 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3) also must be considered. It states:

“(a) Every person convicted of an offense shall be sentenced as provided in this Section.
* * *
(c)(2) A period of probation, a term of periodic imprisonment or conditional discharge shall not be imposed for the following offenses.
* * *
(F) A Class 2 or greater felony if the offender had been convicted of a Class 2 or greater felony within 10 years of the date on which he committed the offense for which he is being sentenced.
* * *
(8) When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Illinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after the effective date of this amendatory Act of 1977; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second.” Ill. Rev. Stat. 1987, ch. 38, pars. 1005—5—3(a), (c)(2)(F), (c)(8).

At the sentencing hearing, the trial court found the provisions of section 5 — 5—3 mandatory in requiring a penitentiary sentence. With respect to sentencing options, the court stated in part:

“The provisions of Chapter lllVa apparently don’t disqualify defendant from the treatment alternatives, but treatment alternatives are discretionary with the Court, and that which is discretionary must yield to that which is mandatory.”

The defendant’s presentence report reveals the following documented history of criminality:

September 8,1981 Defendant found guilty on a plea of burglary and robbery, sentenced to Department of Corrections, three years plus two years’ mandatory supervised release.
December 17,1984 Upon a plea of guilty, the defendant was convicted of residential burglary, sentenced to the Department of Corrections, four years with two years’ mandatory supervised release.

The presentence report shows other criminal offenses not pertinent to this disposition.

The record further shows that the trial court at the time of sentencing stated:

“The defendant needs treatment. The Court would like to see him get treatment. There is no question that he is an addict. * * *
*** The Court has no discretion. ***
*** So, I can’t understand the act, other than it was caused by alcohol or cocaine abuse. That’s why I’m concerned about mandatory sentencing in this case. But I have no discretion.”

In People v. Teschner (1980), 81 Ill. 2d 187, 407 N.E.2d 49, the defendant was found guilty of burglary. Within the prior 10 years, he had twice been convicted of burglary. The supreme court stated,

“Under the Dangerous Drug Abuse Act, probation is not considered a sentence. Under the language of the Act, one is not ‘sentenced’ to probation as under the Unified Code of Corrections but rather ‘placed’ on probation.
We have held on previous occasions that the term ‘probation’ may have different meanings in different statutes. *** In our case the trial court’s exercise of discretion in admitting a defendant to probation and requiring treatment under the Dangerous Drug Abuse Act is a disposition imposed as a rehabilitative treatment rather than a criminal sanction.” Teschner, 81 Ill. 2d at 193, 407 N.E.2d at 52.

The determination of the supreme court in Teschner does not dictate the result in this case. The Dangerous Drug Abuse Act, which contained certain exceptions in determining the eligibility of a defendant to be released pursuant to that program, has been repealed. (Ill. Rev. Stat. 1977, ch. 91½, par. 120.8.) There are specific exceptions in section 10 — 101 of the Act, one of them being that the defendant is not eligible to be released under that program if he “has been convicted of residential burglary and has a record of one or more felony convictions.” (Ill. Rev. Stat. 1987, ch. 111½, par. 6360—1(g).) Here, the defendant has three prior felony convictions including the residential burglary conviction of 1984. That the instant proceeding was not a conviction for residential burglary does not require a different result. It is clear that under the exceptions created in section 10 — 101 of the Act, the defendant is not eligible for release under that, program and the trial court was correct in determining that it had no discretion in sentencing the defendant to either probation or treatment under the Act. Ill. Rev. Stat. 1987, ch. 111½, par. 6360—1.

People v. Tucker (1989), 183 Ill. App. 3d 333, 539 N.E.2d 243, is not helpful in a disposition of this case. In Tucker, the defendant was convicted of residential burglary and the trial court denied the defendant’s petition pursuant to the provisions of the Act because the trial court mistakenly believed that the defendant’s offense was nonprobationable, thereby rendering defendant ineligible for treatment under that statute. The reviewing court, following Teschner, stated the trial court’s denial of the defendant’s petition was based upon its misapprehension of the law and that the defendant could have otherwise qualified for addiction treatment under the Act. In Tucker, there is no showing that the defendant had any prior criminal record, which makes its finding inapposite to this case.

In summary, the defendant did not qualify for treatment under the Act. His immediate conviction is for burglary. He had prior burglary and robbery convictions in 1981 and a residential burglary conviction in 1984. Defendant falls within the exception stated in section 10 — 101(g) of the Act for a person who has been convicted of residential burglary and has a record of one or more felony convictions. Ill. Rev. Stat. 1987, ch. 111½, par. 6360—1(g).

The trial court is affirmed.

Affirmed.

GREEN and STEIGMANN, JJ., concur.


author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOE LOUIS LESURE, Defendant-Appellant.
    Second District
    No. 2—88—0736
    Opinion filed March 21, 1990.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.

      Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Joe Louis Lesure, appeals from his conviction of possession of a controlled substance (Ill. Rev. Stat. 1987, ch. 56½, par. 1402(b)). He argues that he was not proved guilty beyond a reasonable doubt and that improper admission of evidence and improper prosecutorial comment deprived him of a fair trial. He also argues that he should have a new suppression hearing. We affirm.

The defendant’s prosecution began with a hung jury and consequent mistrial. At his second trial the evidence showed the following. At approximately 8:30 p.m. on February 27, 1987, five Aurora police officers executed a search warrant. They searched the residence at 218 North Loucks in Aurora (the house), for drugs and related materials, plus indicia of residence. The house, a three-bedroom ranch with attached garage, was the defendant’s residence.

The officers knocked at the garage door entrance to the house and were admitted by Joseph B. Phillips. Inside the house, they found the defendant and about six other persons playing cards. The defendant’s girlfriend was in the shower. At least one other person later emerged from elsewhere in the house.

The officers frisked each person present and checked them for identification. Thereafter, they allowed or asked all whom they believed not to be residents of the house to leave. Only the defendant and his girlfriend remained during the officers’ search. The officers’ list of persons who had departed included Michael Elliott; it did not include Joe Phillips, Joe Totten, or Robert Totten.

Investigator Wayne Biles conducted the actual search. He began with the house’s “middle” bedroom. In the dresser he found papers and magazines, but no clothing or contraband. He found nothing in the closet. Underneath the dresser he found a clear baggie holding white powder which later tested positive for cocaine. Under the mattress of the fully and smoothly made double bed in the room, Investigator Biles found both a second baggie of white powder which tested positive for cocaine and a .22 caliber pistol.

In the house’s back bedroom, Investigator Biles found men’s clothing. Also, on the bed he found a baggie containing white powder which tested negative for cocaine. In the house’s front bedroom, the room the defendant and his girlfriend shared, Biles found clothing in the dresser and closet. Under the mattress he found a .38 caliber pistol.

Investigator Biles and Detective Michael Gilloffo testified that, on the evening of the search, Biles and the defendant discussed the two guns and the defendant claimed to own both. They further testified that although the defendant also claimed to have a firearms owner’s identification card (FOID), he was not able to produce it. Biles informed the defendant that he could reclaim the guns by producing his FOID at the police station.

In the remainder of the search, the officers found no other contraband. The only “indicia of residence” found were two pieces of mail: one each to the defendant and to his girlfriend.

Evidence Technician Charles Davis. testified that a man who showed an FOID with the defendant’s name and who signed the defendant’s name picked up the two guns seized at the house. Davis did not recall if the guns were packaged together or separately.

Joseph Phillips testified for the defense that he had lived at the house since sometime in 1986, paying the defendant weekly cash rent. He stated he rented the back bedroom and used that room to store some of his possessions. He claimed he had never reported his new address to the Secretary of State and, therefore, his driver’s license bore the address of his former marital home. On cross-examination, Phillips testified that he was not at the house every day.

The defendant’s girlfriend testified that she had lived in the house, sharing the front bedroom with the defendant, for approximately V-k years, except when she was in jail. She admitted to two convictions of theft and to having spent time in the Department of Corrections. According to the girlfriend, on the day in question Joe Phillips was living in the back bedroom; Michael Elliott and Robert Totten were living in the middle bedroom. When the police arrived, the three tenants plus the defendant and she were all at home. According to the girlfriend, Elliott and Totten were both in their early thirties; they kept “what little they [had]” in the middle bedroom, an average-sized room with one double bed.

The defendant testified in his own behalf; the State presented evidence of his prior conviction of possession of a controlled substance. The defendant testified that he was buying the house and had lived there for approximately 17 years. He denied knowledge, possession, or control of the two baggies of cocaine found in the middle bedroom. He also denied either owning the .22 caliber gun which was in the middle bedroom or placing it there. According to the defendant, it was only after he had left the police station that he realized that the police had given him two guns: his .38 plus a .22 which was not his. He sold the .22, as he had no use for it.

The defendant testified that he shared the house’s front bedroom with his girlfriend. He had rented the back bedroom to Joseph Phillips since 1986. Although the middle bedroom was currently rented to a man and woman, on the day of the search, he was renting it to his cousin Michael Elliott and Robert Totten; those two began renting at approximately the same time as Phillips. He believed that Elliott and Totten owned nothing more than what they had on their backs.

According to the defendant, all his tenants paid rent weekly in cash for which he keeps copies of receipts. Also according to the defendant, his tenants receive mail at the house, which was first collected from the house’s mailbox and then left on the kitchen counter for each individual.

According to the defendant’s testimony, when the officers arrived he was playing cards with Billy Kuhn, George Williams, and J.P. Tot-ten. He guessed there were other people in the house, but did not really know since the doors to the two rented bedrooms were closed. According to the defendant, those two rooms had locks on the doors, and he had no way of knowing who was in them. He never went into either room except to clean when a tenant moved out. The court admitted as defense exhibits three letters addressed to the house: one postmarked March 17, 1987, to Joe Philips and Eunice L. McDonald, one postmarked June 16, 1987, to Joe Totten, and one postmarked June 15, 1987, to Robert Lee Totten.

The defendant’s first argument on appeal is that he was not proved guilty beyond a reasonable doubt. According to the defendant, there does not exist sufficient evidence to prove beyond a reasonable doubt that he constructively possessed the cocaine discovered by the police. He emphasizes that the middle bedroom was rented to two other persons on the date in question, that other persons were present in the house, and that Joseph Phillips and the girlfriend clearly were tenants in the house and had access to the middle bedroom.

A conviction of possession of a controlled substance requires proof that the accused knew of the presence of the substance and that the substance was in his immediate and exclusive control. (People v. Rentsch (1988), 167 Ill. App. 3d 368.) The requisite possession may be actual or constructive; constructive possession follows from an intent and capability to maintain control and dominion. 167 Ill. App. 3d at 370-01.

Narcotics found on premises under the defendant’s control give rise to an inference of the defendant’s knowledge and possession; such an inference may be sufficient to sustain a conviction, absent other facts or circumstances which leave a reasonable doubt. (People v. Jones (1982), 105 Ill. App. 3d 1143.) In reviewing the sufficiency of the proof, the appellate court must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found proof beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237.

Here, the police found cocaine in one of the bedrooms in a house which the defendant inhabited and was purchasing. The drugs were located in the room directly beside the defendant’s bedroom, not at all remote from the area over which the defendant had clear, acknowledged control. (Compare People v. Kissinger (1975), 26 Ill. App. 3d 260.) Furthermore, the defense witnesses’ assertion that the middle bedroom was rented to two other persons on the date in question was counterbalanced by the fact that the room held only books and magazines: no clothing or other personal possessions. The defense assertion of tenants in the middle bedroom was not corroborated by rental receipt copies, which the defendant claimed to keep. On the other hand, despite Joe Phillips’ and the girlfriend’s tenancy, plus the presence of other persons in the house, the police found evidence corroborating the evidentiary link between the defendant’s residence and the drugs: the gun discovered together with cocaine. (Compare People v. Wolski (1975), 27 Ill. App. 3d 526.) Although at trial the defendant denied ownership or control of the .22 caliber gun discovered hidden together with cocaine, that denial was counterbalanced both by the police testimony that he acknowledged ownership of the gun on the evening of the search and by the fact that he picked up the gun from the police station and sold it. We find no reason to disturb the jury’s guilty finding.

The defendant’s second argument on appeal is that he was denied a fair trial because of improper use of evidence. He refers first to the impeachment evidence that he had a prior conviction of unlawful possession of a controlled substance. According to the defendant, that evidence was highly prejudicial and lacked probative value regarding the defendant’s credibility, and the court should have forbidden it entirely. Alternatively, considering the similarity of the prior and the charged offenses, the court could, and arguably should, have limited disclosure so that the jury was informed merely that the defendant had a prior felony conviction.

The second portion of the defendant’s improper-evidence argument follows from Investigator Biles’ testimony describing execution of the search warrant. Specifically, Biles testified that upon entering the house, he saw the defendant. In response to the prosecutor’s follow-up question, Biles explained that he recognized the defendant “because I know him from past dealings.” According to the defendant, that comment by Biles could only suggest prior criminality or prior dealings in controlled substances by the defendant.

The third portion of the defendant’s improper-evidence argument also stems from Investigator Biles’ testimony. In the relevant testimony, Investigator Biles explained that his search was based upon a search warrant which commanded him to search, among other things, for drugs. Biles further explained that to get authorization for a warrant, “You have to have probable cause and you have to go to a Judge and he has to sign it.” According to the defendant, with that testimony the prosecutor sought to give a judicial validation to the officers’ conduct and to the suggestion that the defendant was involved in drugs. He argues that the testimony should have been restricted to the fact that the police had a warrant and executed it at the house.

The defendant emphasizes that the evidence in this case was close and urges that the errors were prejudicial. He argues that we should address the errors under the plain-error rule (107 Ill. 2d R. 615(a)). We have reviewed the defendant’s arguments and have considered them in light of the whole case and in light of the defendant’s failure to raise timely objections. We find no errors which so affected substantial rights that we must address them as plain error. The defendant has waived these issues for consideration on appeal. See People v. Hartfield (1985), 137 Ill. App. 3d 679.

The defendant’s third argument on appeal is that he was denied a fair trial by the prosecutor’s closing argument, which commented on the defendant’s failure to call Totten and Elliott, the alleged tenants of the middle bedroom. The prosecutor observed, once in his opening argument and once in his rebuttal argument, that the two alleged tenants were not called as defense witnesses. According to the defendant, those comments were unfair. He emphasizes the absence of any indication that he had comparatively ready access to the two men, and he asserts that the two men, even if accessible, were unable to testify because they would assert their fifth amendment privilege against self-incrimination.

The defendant argues that we should address the error as plain error. We find that the defendant failed to raise this issue and therefore has waived it on appeal. See 107 Ill. 2d R. 615(a).

The defendant’s final argument on appeal is that, even if we affirm otherwise, he should receive disclosure of the confidential informants whose statements are related in the affidavit for the instant search warrant and, thereafter, that he should be granted a new suppression hearing. He argues that in denying his motion for disclosure, the court erred, preventing him from fully developing his suppression motion under Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674. The Franks decision provided for challenges to the veracity or reckless disregard of an affiant’s application for a search warrant.

The defendant acknowledges that there is an open question as to whether an informant must be disclosed, where, as here, a Franks hearing has been ordered upon a substantial preliminary showing of the reckless use of false information. However, he urges that we should find that disclosure was necessary in the instant case.

Under Franks, the defendant may not directly challenge a nonaffiant informer’s veracity; rather, he may only challenge the veracity or reckless disregard of an affiant. (438 U.S. at 171-72, 57 L. Ed. 2d at 682, 98 S. Ct. at 2684-85.) Further, the Illinois Supreme Court has recognized an informant’s privilege against disclosure (107 Ill. 2d R. 412(j)(ii)) and that a court has discretion to decide, following a hearing, that disclosure is not required because the affiant relied in good faith upon credible information supplied by a reliable informant (see McCray v. Illinois (1967), 386 U.S. 300, 305, 18 L. Ed. 2d 62, 67, 87 S. Ct. 1056, 1059).

We find nothing in this case to cause us to extend a rule mandating informant disclosure following some preliminary suppression-hearing showing of improper statements by a search warrant affiant. Similarly, we find no circumstances here requiring disclosure under existing rules. The trial court held a full hearing on the affidavit supporting the instant search warrant. Despite the defendant’s repeated request for disclosure of the informants’ identity, the court determined that no further defense evidence which might flow from informant disclosure was necessary to weigh the Franks challenge. We find no reversible error.

Based on the foregoing, we affirm the judgment of the circuit court of Kane County.

Affirmed.

UNVERZAGT, P.J., and INGLIS, J., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONNIE WAYNE CARROLL, Defendant-Appellant.
    Second District
    No. 2—88—0804
    Opinion filed March 21, 1990.
    G. Joseph Weller and Beth Katz, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Ronnie Wayne Carroll, was charged by indictment with two counts of armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18—2), two counts of armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A—1), and one count of attempted murder (Ill. Rev. Stat. 1987, ch. 38, par. 8—4(a)). Following a conference amongst all the parties held pursuant to Supreme Court Rule 402 (107 Ill. 2d R. 402), defendant pleaded guilty to the two counts each of armed robbery and armed violence. The attempted murder charge was nol-prossed. The court, after considering both aggravating and mitigating factors, sentenced defendant to a term of 55 years in the Illinois Department of Corrections. Defendant’s motion to vacate his plea of guilty and/or reconsider his' sentence was denied. Defendant contends on appeal that the court improperly considered a factor in aggravation when it imposed its sentence.

We note that defendant’s contention on appeal was not contained in his motion to vacate. There has been considerable controversy as of late as to whether such an omission would constitute waiver of the issue under Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)). Our supreme court in People v. Wilk (1988), 124 Ill. 2d 93, determined that where, as here, the defendant appeals only his sentence and not his guilty plea, it is not necessary to file a motion to withdraw his guilty plea pursuant to Rule 604(d). However, this court has been unable to interpret and apply Wilk on a consistent basis. In People v. Favelli (1988), 176 Ill. App. 3d 618, this court determined that a defendant seeking review only of his sentence must still file with the trial court a motion to reconsider his sentence and that any issue not raised in this motion would be waived for purposes of appeal. The Favelli court reasoned that, consistent with the spirit of Rule 604(d), the trial court must be given an opportunity to correct any errors before the cause is appealed. (Favelli, 176 Ill. App. 3d at 622-23.) Therefore, the defendant in Favelli was precluded from arguing on appeal an issue not raised in his motion to reconsider.

More recently, a divided panel of this court decided the case of People v. Kennedy (1989), 188 Ill. App. 3d 1. The majority in Kennedy determined that a defendant is not required to file a motion to reconsider the sentence in order to preserve a sentencing issue for review. The majority explicitly found that the portion of Favelli dealing with this issue was “erroneous.” If we were to apply this reasoning to the case at bar, we would be required to find that defendant did not waive the issue. Logically, if no motion is required, a defendant could not be penalized for failing to include an issue in a motion that was filed.

We conclude that the court in Favelli more accurately interpreted and applied the supreme court’s ruling in Wilk, and, consequently, we find that defendant waived his issue on appeal. Supreme Court Rule 604(d) states in part:

“No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant *** files in the trial court a motion to *** vacate the judgment. *** Upon appeal any issue not raised by the defendant in the motion to *** vacate the judgment shall be deemed waived.” (107 Ill. 2d R. 604(d).)

In a criminal case, the sentence is the final judgment. (People v. Partee (1988), 125 Ill. 2d 24, 32.) “Therefore, a literal reading of Rule 604(d) would require a motion to be filed when objecting to a sentence imposed upon a plea of guilty.” (Kennedy, 188 Ill. App. 3d at 7 (McLaren, J., dissenting).) We agree with Favelli that “[t]o consider on appeal an issue related to sentencing not raised in either a motion to reconsider or a motion to withdraw a guilty plea would further modify Rule 604(d) in such a way as to obliterate its purpose.” (Favelli, 176 Ill. App. 3d at 623.) The Favelli rationale is also compatible with the general rule of appellate review that issues not objected to at trial and raised in a post-trial motion are waived. (See People v. Enoch (1988), 122 Ill. 2d 176, 186.) These rules have developed to allow the trial courts to correct any errors before a case is appealed to a higher court. The benefits and rationale for such practice are obvious. By following Favelli, we continue to reap the benefits of these rules.

We find that defendant waived his issue on appeal. The judgment of the circuit court of Lake County is, therefore, affirmed.

Affirmed.

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


text:
    JOHN J. HENEGHAN, Plaintiff-Appellee, v. STATE SECURITY INSURANCE COMPANY, Defendant-Appellant.
    Second District
    No. 2—89—0551
    Opinion filed March 23, 1990.

      Sam J. Filippo, of Grief, Bus & Blacklidge, P.C., of West Chicago, for appellant.
    Charles F. Haverty III, of Brady, McQueen, Martin, Collins & Jensen, of Elgin, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, State Security Insurance Company, appeals from an order of the circuit court granting summary judgment in favor of plaintiff, John Heneghan. Defendant raises on appeal the issue of whether the trial court erred in finding that defendant was estopped from invoking the two-year limitation within which plaintiff had to file an uninsured-motorist claim. We affirm.

Plaintiff was insured under defendant’s automobile policy. Defendant agreed to pay all sums which plaintiff is “legally entitled to recover as damages from the owner or operator of an uninsured automobile.” The parties were to determine whether plaintiff was legally entitled to recover damages and the amount of those damages. If they failed to agree, those issues would be submitted to arbitration. The policy also provided:

“[N]o suit, action or arbitration proceedings for the recovery of any claim under Family Protection/Uninsured Motorists Coverage shall be sustainable in any court of law or equity unless the Insured shall have fully complied with all of the terms of this policy, nor unless commenced within two (2) years after the occurrence of the loss.”

On December 4, 1983, plaintiff, while driving his car, was struck by another car and was injured. At the time of the accident, it could not be determined which of the occupants of the other car, John Coontz or Karen McLaughlin, was driving. McLaughlin was insured, but Coontz was not. Plaintiff filed suit against both Coontz and McLaughlin, alleging that either McLaughlin or Coontz was driving the car that struck plaintiff.

On January 31, 1985, plaintiffs attorney sent a letter to defendant advising it of the status of the litigation. The letter specifically stated that plaintiff was notifying defendant of a possible uninsured-motorist claim and that, if it was determined that Coontz was the driver, plaintiff would have a claim under defendant’s policy. Subsequently, McLaughlin countersued plaintiff. In a letter dated November 1, 1985, plaintiff’s attorney informed defendant of the counterclaim and included summaries from the depositions of some of the witnesses. Neither McLaughlin nor Coontz remembered the accident or who was driving. An eyewitness stated that he saw a blond woman (insured motorist) driving the car owned by Coontz. Plaintiff and his passenger both stated in their depositions that just prior to impact they saw a blond woman driving the car. An officer who investigated the accident “place[d] the McLaughlin woman in the driver’s seat area with her feet under the pedals.” Coontz was found in the middle of the car, on the console, with most of his body in the passenger side. Plaintiff’s attorney also mentioned in the letter that McLaughlin’s attorney interviewed some paramedics “who concluded without any real evidence that Coontz was driving.” Plaintiff’s attorney believed that the depositions supported the conclusion that McLaughlin was the driver. Plaintiff’s attorney closed the letter by requesting that defendant inform him of who would be hired to defend plaintiff.

In his April 3, 1986, letter, plaintiff’s attorney informed defendant that since Coontz was uninsured, if plaintiff did not succeed in proving that McLaughlin was the driver, plaintiff was “going to go ahead with an uninsured motorist arbitration” under the policy. Plaintiff ultimately failed to prove at trial that McLaughlin was the driver of the car, and after the verdict was rendered, plaintiff notified defendant that he would pursue his uninsured-motorist claim. Defendant responded by citing the limitations section of the policy and refused to submit to arbitration because more than two years had passed since the accident.

Plaintiff filed a complaint for declaratory judgment, requesting that the court declare that defendant provide uninsured-motorist coverage to plaintiff and that arbitration of plaintiff’s claim to that coverage should be had. Defendant stipulated to the facts as alleged in plaintiff’s motion for summary judgment.

In granting plaintiff’s motion for summary judgment, the trial court made the following findings as a matter of law:

“1. The plaintiff properly proceeded against the apparently correct defendant without involving the plaintiff’s carrier, the defendant herein. This was to the carrier’s benefit.
2. The defendant carrier accepted the benefit of the plaintiff’s action.
3. The reliance of the plaintiff on the evidence supporting the presumption that the insured person was the driver was reasonable.
4. The defendant carrier lulled the plaintiff’s counsel into a belief that the issue of uninsured motorist coverage would be addressed after a determination as to whether or not the insured person was the driver.
5. The plaintiff reasonably relied upon the defendant carrier’s actions and failure to act in waiting to file its claim under the family expense [uninsured motorist] coverage.”

Defendant then timely filed this appeal.

Defendant contends that the trial court should not have granted plaintiff’s motion for summary judgment because the limitations period provided in the policy had expired. All but one of defendant’s arguments in support of this contention are attacks on the court’s finding that defendant is estopped from asserting the limitations period as a defense. The plaintiff countered the affirmative defense by arguing before the trial and this court that the affirmative defense was inappropriate. The plaintiff argued the limitation period had not expired because the right to recover damages had not accrued until the jury had determined the uninsured motorist was the driver. We will first address appellant’s arguments and will assume arguendo the trial court was correct in determining the accrual date was the date of the accident.

A waiver or an estoppel with respect to a contractual provision limiting the time within which an action on an insurance policy must be brought exists if the conduct of the insurance company is such as to cause the insured to change his position by lulling him into a false security, thereby causing him to delay or waive assertion of his rights to damage. (Dickirson v. Pacific Mutual Life Insurance Co. (1925), 319 Ill. 311, 318; Ciaccio v. North River Insurance Co. (1974), 17 Ill. App. 3d 940, 942.) To constitute a waiver the words or conduct of the insurer must have been inconsistent with its intention to rely on the requirements of the policy. (Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 304.) Such is clearly the case at bar.

Defendant insurer’s own failure to request arbitration within the two-year limitation period, its acquiescence in the plan to await the outcome of the suit against Coontz and McLaughlin (and the accrual of its obligation under the endorsement), and its active participation in the lawsuit were actions entirely inconsistent with its present intention to rely strictly on the requirements of the policy and clearly constituted a waiver of such requirements.

For these same reasons, the trial court correctly decided that defendant is estopped from asserting the two-year policy limitation as a bar to plaintiff’s uninsured-motorist claim.

Estoppel has been defined as follows:

“Estoppel *** arises whenever one by his conduct, affirmative or negative, intentionally or through culpable negligence, induces another to believe and have confidence in certain material facts, and the latter having the right to do so, relies and acts thereon, and is as a reasonable and inevitable consequence, misled, to his injury.” (Kelly v. Terrill (1971), 132 Ill. App. 2d 238, 240-41.)

Estoppel is based on the principle that one cannot act or conduct himself in a particular manner and then assume a position inconsistent with that conduct to the prejudice of one who has relied upon it. Sponemann v. Country Mutual Insurance Co. (1983), 120 Ill. App. 3d 211, 221.

In the case at bar, the trial court correctly found that defendant’s course of conduct was calculated to lull plaintiff into the reasonable belief that arbitration — if indeed warranted — would be held off until the jury determined whether the insured or the uninsured defendant was at fault. Because of its conduct in encouraging plaintiff’s delay in the filing of his demand for arbitration, defendant is equitably estopped from asserting the two-year limitation provision of the policy. The court, having determined that the accrual date was the date of the accident, was correct in finding that waiver and estoppel precluded raising the limitations provision in the contract.

Alternatively, we believe the better resolution is that the limitation period did not commence at the time of the accident as argued by defendant but, rather, after trial as argued by the plaintiff.

Defendant argues the court should not have found reasonable the plaintiff’s reliance on evidence supporting the presumption the other driver was insured. Defendant bases this argument on the premise that, because plaintiff’s negligence cause of action arose on December 4, 1983, the date of the collision, the limitations period began to run and was not tolled by the filing of the negligence action. Furthermore, plaintiff’s inability to determine which defendant was the driver “did not preclude plaintiff from proceeding with his cause of action.” Defendant believes that since plaintiff did not choose to include defendant in the negligence action against Coontz and McLaughlin, he could not claim that the limitation period was tolled by his action against them. We disagree. Defendant’s “discovery rule” and election of remedies arguments are inappropriate here as the issue is the commencement of the limitations period.

The rules of contract construction apply to insurance policies, which courts interpret as a matter of law. (Nationwide Mutual Insurance Co. v. Hecker (1989), 183 Ill. App. 3d 13, 15.) One of the fundamental rules of contract interpretation is that the court should seek to interpret provisions in accordance with the intent of the parties. (Gardner v. Padro (1987), 164 Ill. App. 3d 449, 453.) Parties may validly agree to set a reasonable time limit within which a claim must be filed. Village of Lake in the Hills v. Illinois Emcasco Insurance Co. (1987), 153 Ill. App. 3d 815, 817.

The provision at issue here is analogous to policy provisions which require an insured to give notice of a claim within a specified period of time. The purpose of such requirements is to enable the insurer to make a timely investigation of the insured’s claim. (Mitchell Buick & Oldsmobile Sales, Inc. v. National Dealer Services, Inc. (1985), 138 Ill. App. 3d 574, 581.) As the court in Mitchell Buick explained:

“Such a provision is not to be considered as a technical requirement merely for the convenience of the insurer, but rather is a valid prerequisite for coverage[.] [Citations.] Generally, the time within which notice is required is determined by a standard of reasonableness based upon the facts and circumstances of a particular case. *** Thus, where there is late notice, the issue is not whether the insured [sic] had been prejudiced but rather whether reasonable notice has been given.” (Mitchell Buick, 138 Ill. App. 3d at 581.)

Whether the tortious driver was insured is relevant to the issue of uninsured-motorist coverage and must be determined by a trial court before arbitration can proceed. (Elliott v. Inter-Insurance Exchange of Chicago Motor Club (1988), 169 Ill. App. 3d 702, 707.) In the present case, it would be absurd to require plaintiff to file a claim for arbitration of an uninsured-motorist claim before the trier of fact determined who the driver of the other car was. Under the defendant’s interpretation of the clause, the uninsured-motorist claim would have been precluded regardless of the trier of fact’s determination, because that determination was not made until more than two years after the date of the accident. The parties could not have intended such a futile result. Our conclusion is supported by the policy, wherein it states that defendant agreed to pay all sums to which plaintiff “shall be legally entitled.” Plaintiff could not determine whether he was legally entitled to recover under the uninsured-motorist coverage until it had been determined who the driver was and, in fact, if he was uninsured. Thus, the limitations period of the policy did not commence until the rendition of the verdict finding that Coontz, the uninsured person, was the driver.

Plaintiff promptly filed the claim within two years after the verdict was rendered. We therefore conclude that plaintiff seasonably complied with the condition in the policy provision.

For the above reasons, the order of the circuit court of Kane County is affirmed.

Affirmed.

UNVERZAGT, P.J., and REINHARD, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRELL A. EDWARDS, Defendant-Appellant.
    Second District
    No. 2—89—0359
    Opinion filed March 21, 1990.

      Phyllis J. Perko, of Harlovic & Perko, of West Dundee, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Mary E. Gentile, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

Following a bench trial, the defendant, Darrel A. Edwards, appeals from convictions on four counts of aggravated criminal sexual abuse for which he received five-year sentences. (Ill. Rev. Stat. 1987, ch. 38, par. 12—16(d).) He argues that the court erroneously allowed evidence of other crimes, that two of the convictions were neither properly charged nor proved, that the court improperly struck psychological evidence, and that the sentences are excessive. We affirm in part and reverse in part.

Under the Criminal Code of 1961 (the Code), a defendant commits aggravated criminal sexual abuse if he commits sexual penetration or sexual conduct with a victim who is at least 13 years old, but under 17 years old, and at least five years younger than himself. (Ill. Rev. Stat. 1987, ch. 38, par. 12—16(d).) The Code defines “sexual conduct,” in pertinent part, as “any intentional or knowing touching or fondling by *** the accused *** of the sex organs *** of the victim *** for the purpose of sexual gratification or arousal of the victim or the accused.” (Ill. Rev. Stat. 1987, ch. 38, par. 12—12(e).) The Code further defines “sexual penetration,” in pertinent part, as “any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person.” Ill. Rev. Stat. 1987, ch. 38, par. 12—12(f).

The female victim testified that her birth date was May 10, 1972. She further testified as to her consensual sexual relations with the defendant in January and February 1988. Over the defendant’s objection, the State presented evidence that the defendant provided the victim with ether, freon and/or marijuana to use in connection with all the couple’s sexual conduct. The defendant’s birth date is February 28,1961.

In connection with the evidence of ether, freon and marijuana, the defendant’s first argument on appeal is that the court committed reversible error in allowing evidence of use of intoxicants and drugs. We disagree.

Evidence of other crimes is admissible if relevant for some purpose such as modus operandi, intent, identification, motive, or absence of a mistake. (People v. Richardson (1988), 123 Ill. 2d 322, 528 N.E.2d 612.) However, because it is overly persuasive, such evidence is not admissible if relevant merely to establish the defendant’s criminal propensity. (Richardson, 123 Ill. 2d at 338-39.) The erroneous admission of other-crimes evidence is not reversible if it was harmless error. 107 Ill. 2d R. 615(a); Richardson, 123 Ill. 2d 322.

We find no relevant purpose for admission of the instant evidence. Although the evidence of intoxicants and drugs was clearly intertwined with the continuing narrative of sexual conduct, it in no sense tended to prove or disprove the elements of the offense: the parties’ ages and sexual behavior. Consequently, its admission was error.

Nevertheless, we find that the court’s erroneous admission was harmless beyond a reasonable doubt. Importantly, this was a bench trial and, thus, there was no risk of overpersuading a jury. Furthermore, the court’s comments reveal no emphasis upon the improper evidence. Given the unrebutted evidence of the parties’ ages and their consensual sexual conduct, the admission of improper evidence did not prejudice the defendant’s case.

The defendant’s second argument on appeal is that he was not properly charged or proved guilty on counts II and IV, which were based upon his “sexual contact” with the victim. In charging the instant counts II and IV, the State alleged that the defendant “knowingly committed an act of sexual conduct with [the victim], who was at least 13 years of age but under 17 years of age, in that [he] placed his mouth on the vaginal area of [the victim, and] was at least five years older than [the victim].” We agree that the charges were insufficient.

As the defendant emphasizes, the instant charges omitted the Code’s provision that the relevant sexual conduct was “for the purpose of sexual gratification or arousal of the victim or the accused.” (Ill. Rev. Stat. 1987, ch. 38, par. 12—12(e).) That provision was not, as the State urges, inessential merely because its source is the statutory definition of “sexual conduct” rather than the statutory definition of the charged offense, aggravated criminal sexual abuse.

The instant offenses of aggravated criminal sexual abuse cannot be fully defined without reference to the definition of “sexual conduct.” In fact, the instant charges were generally couched in the language of the “sexual conduct” definition. However, the charges omitted one element in the definition of “sexual conduct” and, thus, an element in the instant offenses: that the relevant conduct was committed with the purpose of sexual arousal or gratification. In omitting that element, the instant charges failed both to set forth fully the nature and elements of the offense and to be as fully descriptive as the language of the statute. (See People v. Nibbio (1989), 180 Ill. App. 3d 513, 536 N.E.2d 113.) Consequently, we reverse the defendant’s convictions on the inadequately charged counts II and IV.

Considering the possibility of new charges of aggravated criminal sexual abuse against the defendant, we find, contrary to the defendant’s argument, that, although the State brought insufficient charges, it presented sufficient evidence to properly prove the defendant guilty beyond a reasonable doubt. See People v. Taylor (1979), 76 Ill. 2d 289.

The defendant’s third argument on appeal is that the court erroneously struck evidence of his cognitive and psychological development. According to the defendant, evidence that “the accused was at least 5 years older than the victim,” as required by the Code’s definition of the offense (Ill. Rev. Stat. 1987, ch. 38, par. 12—16(d)), can be rebutted by expert evidence that the defendant’s psychological maturity is not five years greater than that of his sexual partner.

The defendant presents no authority for his creative argument. We find no reason to diverge from the unambiguous statutory language. That language refers to a chronological age disparity between the defendant and victim, not a psychological age disparity. See People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 357 N.E.2d 1180.

The defendant’s fourth and final argument is that his sentences are excessive. According to the defendant, his five-year sentences are unjustified by aggravating circumstances and could only have been the product of the court’s disregarding of substantial mitigating factors.

Sentencing is a matter for the trial court’s discretion; absent an obvious abuse of that discretion, a sentence may not be altered on review. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

The defendant’s two Class 2 felonies were each punishable with between three and seven years’ imprisonment. (Ill. Rev. Stat. 1987, ch. 38, pars. 12—16(e), 1005—8—1(a)(5).) The record shows that in imposing the midrange five-year sentences, the court considered the defendant’s previous criminal conduct, the defendant’s parole status at the time of the instant offenses, and the psychological harm to the victim threatened by the defendant’s conduct. The record also shows that the court considered mitigating factors: factors relating to the defendant’s prior criminal conduct, the defendant’s psychological maturity, and defendant’s community support system. The record reveals no abuse of discretion.

Based on the foregoing, we reverse the defendant’s convictions based upon counts II and IY and vacate the sentences imposed thereon. We affirm the remainder of the court’s judgment.

Reversed in part; affirmed in part.

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