author: PRESIDING JUSTICE McCORMICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD PORRATA, Defendant-Appellant.
    First District (2nd Division)
    No. 1—91—0196
    Opinion filed March 16,1993.

      Anthony Pinelli, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Rebecca Davidson, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McCORMICK

delivered the opinion of the court:

A jury found defendant guilty of aggravated criminal sexual abuse, aggravated criminal sexual assault, attempted aggravated criminal sexual assault and aggravated battery. Defendant was sentenced to consecutive terms totaling 33 years’ imprisonment. Defendant appeals from his conviction and sentence.

On appeal, defendant contends that (1) the State failed to prove him guilty beyond a reasonable doubt of the criminal charges; (2) the trial court erred by allowing testimony on the out-of-court identification of defendant; (3) the trial court erred in denying his motion to strike the testimony of the serologist; (4) the trial court erred by allowing cross-examination on his post-arrest silence; (5) the trial court erred by allowing testimony that the victim did not identify another person as the assailant; (6) the prosecutor’s comments during rebuttal closing argument prejudiced him; (7) he did not receive effective assistance of counsel; and (8) the trial court erred in sentencing him to four consecutive terms.

On November 28, 1989, at approximately 10:30 p.m., as the victim walked towards the apartment building where she lived, she noticed a man standing on a nearby parkway. The man charged the victim, and while grabbing her hair and covering her mouth, he told her to “shut up.” Attempting to resist the attack, the victim pulled the man’s hand from her mouth and screamed for help. The man punched the victim in the face with his fist and knee. The man threw the victim down and slammed her head against the ground. He dragged the victim into the apartment building. As the victim attempted to break away, he grabbed and punched her in the face. The victim attempted to talk the man into leaving by telling him that she lived with her mother. The victim bled from her mouth and nose.

The man stuck his hand up the victim’s blouse and grabbed her breast. He turned the hallway light off, sat down on the stairs above the landing, unfastened his pants and exposed his genitals to the victim. A transparent cloth covering the window at the base of the stairwell illuminated the hallway by permitting the outside light to shine through. The man grabbed the victim’s hair, pulled her hand to his body and demanded that she perform oral sex on him. The victim told him that she could not because he had injured her mouth. He ordered her to masturbate him. The man masturbated himself and ordered the victim to insert her finger in his anus. He ejaculated. He told her not to scream and he ran from the hallway to the outside.

The victim ran to her neighbor’s apartment and called the police. They arrived immediately. The victim described her assailant as a man in his early thirties with a receding hairline, heavyset, wearing dark clothing and shorter than herself. Within a few minutes, the police returned with a man for the victim to view. The victim told the police that this man was not her attacker.

Shortly thereafter, the police drove the victim one-half block from her house to a house on Erie Street. She saw a man standing on a porch in a bathrobe. She identified the man on the porch as her attacker. The police instructed the victim to get out of the car and get closer so that she could be sure that the identified man was the right one. The victim complied, and after moving closer to the man, told the officers that she was “a thousand percent sure” that he was the one. Defendant, Edward Porrata, is the man the victim identified as her attacker.

At trial, the victim testified that she tried to bite defendant’s finger, but that it did not bleed. She testified that defendant was not wearing underwear at the time of the attack. The victim stated that while inside and outside the building where the attack occurred, there was ample light for her to see defendant’s face.

Officer Matthew Pilolli testified that he was near the scene of the crime when the call came through. He saw a man fitting the alleged perpetrator’s description and stopped him. Officer Pilolli took the man to the victim for identification, but she told him that he had the wrong man. Officer Pilolli had a conversation with the man he had stopped and thereafter went to defendant’s house. Other officers had already arrived. Pilolli testified that he heard the victim say that she was “a thousand percent sure” that defendant was the man who attacked her.

Officer Charles Toussas testified that on the night of the crime, he spoke with the victim and the first suspect. After talking to the first suspect, Officer Toussas went to defendant’s house. He asked for defendant and defendant’s wife directed him to the rear bedroom. There, he found defendant nude and sweating. Officer Toussas advised defendant of the allegations against him and asked him to dress. Defendant complied. The officer further testified that he saw jeans, gym shoes and a pair of undershorts on the floor. The jeans and gym shoes had what appeared to be blood on them. He picked up the items and wrapped them. As they proceeded to the front door, defendant began pushing and shoving the officers, so they handcuffed him. Officer Toussas testified that they took defendant to the front porch. The victim identified defendant as being her attacker in Officer Toussas’ presence.

Denise Troche, a serologist with the Chicago police department, testified that she received and examined a pair of jeans, a pair of undershorts and a pair of gym shoes under inventory No. 701209. She tested the items for the presence of blood. She identified human blood on the shoes and both the outside and the inside of the jeans. She could not determine the blood type. There was no blood or semen on the underwear.

Mrs. Petrillo, defendant’s mother-in-law, testified on defendant’s behalf. She stated that she resides with the Porratas, and on the night of the attack, defendant arrived home at approximately 10 p.m. The police officers later arrived at the Porrata home somewhere between 10:30 p.m. and 11 p.m.

Susan Porrata also testified on her husband’s behalf. She stated that police officers arrived at their home on the night of the crime at approximately 11:20 p.m. They asked for defendant. She went back to the bedroom, woke defendant up and informed him that police officers were at the door. Defendant went to the door, and the officers asked him for some type of identification. Defendant went back into his bedroom. As defendant returned to the living room after getting his driver’s license, the officers entered the house. Mrs. Porrata testified that the officers asked defendant to step outside. When defendant came back into the house, he was handcuffed. Defendant was taken to the police station. Later, a few police officers reentered her home. The officers searched the home and recovered defendant’s clothing, which they took with them. She also testified that defendant was at home on the night and at the time the victim was attacked.

Defendant testified that he was handcuffed on the porch and pushed back into the house. He was not present when the officers recovered his clothing from his home. He got the blood on his clothes the night before the attack in an incident involving one of his dogs. Defendant stated that he arrived home at approximately 10 p.m. on the night that the crime was committed.

Defendant initially contends that the evidence was not sufficient to prove him guilty beyond a reasonable doubt because the victim’s identification testimony did not overcome his alibi testimony. The testimony of one identification witness, if positive and credible, is sufficient for a conviction. (People v. Wehrwein (1989), 190 Ill. App. 3d 35, 39, 545 N.E.2d 1005, citing People v. Diaz (1981), 101 Ill. App. 3d 903, 428 N.E.2d 953.) The most important factor is the victim’s opportunity to view the assailant at the time of the crime. (People v. Moore (1983), 115 Ill. App. 3d 266, 270, 450 N.E.2d 855.) “The sufficiency of the opportunity to observe is for the trier of fact to determine.” (Wehrwein, 190 Ill. App. 3d at 39-40, citing People v. Davis (1982), 104 Ill. App. 3d 1027, 433 N.E.2d 1011.) A reviewing court will not disturb that decision unless the evidence is so improbable as to raise a reasonable doubt as to defendant’s guilt. People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313.

In the case at bar, the victim testified that she saw defendant before he attacked her from behind. She also saw defendant as they struggled to the ground and when he dragged her into the building. There was a light on in the hallway, but defendant turned it off. The victim was still able to see defendant because there was light coming through a thin curtain on the window at the bottom of the stairs. The victim testified that she was able to see defendant at all times. It is apparent from the jury’s decision that it believed the victim’s testimony. The evidence was not so improbable as to raise a reasonable doubt as to defendant’s guilt.

Defendant also maintains that he was not proved guilty beyond a reasonable doubt in that the State failed to prove the elements of aggravated criminal sexual assault and aggravated criminal sexual abuse. Section 12 — 14 of the Criminal Code of 1961 (the Code) provides, in part, that an accused commits aggravated criminal sexual assault if he or she commits criminal sexual assault and during the commission of the offense, “the accused caused bodily harm to the victim.” (Ill. Rev. Stat. 1989, ch. 38, par. 12—14(a)(2).) Section 12—16 of the Code states, in part, that an accused commits aggravated criminal sexual abuse if he or she commits criminal sexual abuse and that during the commission of the offense “the accused caused great bodily harm to the victim.” (Ill. Rev. Stat. 1989, ch. 38, par. 12—16(a)(2).) Bodily harm may be proved by the actual injury, such as bruises, or may be inferred by the trier of fact based upon common knowledge. People v. Lopez (1991), 222 Ill. App. 3d 872, 879, 584 N.E.2d 462.

Defendant argues that there was no evidence that he inflicted great bodily harm on the victim during the sexual acts. The relevant question on review of a criminal conviction when defendant challenges the sufficiency of the proof “is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453.

The beating that defendant inflicted on the victim was an integral part of the continuous course of conduct which included the sexual abuse. He beat her to force her to perform the sexual acts. Defendant hit the victim with his fists and knees while they were on the street and continued to beat her once they were in the hallway of the building. Once he subdued her, defendant made her engage in the sexual acts. Therefore, we find that the physical harm defendant inflicted upon the victim occurred and existed during the commission of the offenses.

Defendant also argues that his conviction for aggravated criminal sexual abuse should be vacated under the one-act-one-crime rule. This argument is without merit because, “ ‘if a defendant commits more than one criminal act in an episode or transaction, he may be prosecuted for more than one offense unless the charges involve precisely the same physical act. If the physical acts are distinct, the defendant can be convicted of both ***.’ ’’ People v. Segara (1988), 126 Ill. 2d 70, 77, 533 N.E.2d 802, quoting Eisenberg, Multiple Punishments for the “Same Offense’’in Illinois, 11 S. Ill. U. L.J. 217, 236-37 (1987).

In the case at bar, each charge that defendant was convicted of resulted from physical acts that were distinct. Criminal sexual assault involves an act of sexual penetration. (Ill. Rev. Stat. 1989, ch. 38, par. 12—13.) The conviction for aggravated criminal sexual assault was based on proof that the defendant forced the victim to insert her finger in his anus while he masturbated himself while causing the victim great bodily harm. Defendant committed attempted aggravated criminal sexual assault when he attempted to force the victim to perform oral sex while causing the victim great bodily harm.

Sexual abuse involves an act of sexual conduct as defined in the statute. (Ill. Rev. Stat. 1989, ch. 38, par. 12—15.) “ ‘Sexual conduct’ means any intentional or knowing, touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or accused, *** for the purpose of sexual gratification or arousal of the victim or the accused.” (Ill. Rev. Stat. 1989, ch. 38, par. 12—12.) The State proved aggravated criminal sexual abuse by presenting evidence that defendant fondled the victim’s breast and forced her to place her hand on his penis and testicles and to fondle him while causing the victim great bodily harm.

The instant case is similar to People v. Rodarte (1989), 190 Ill. App. 3d 992, 547 N.E.2d 1256, where the court relied on Segara and upheld separate convictions for violations of different subsections of section 12—14 of the Code. (Ill. Rev. Stat. 1989, ch. 38, par. 12—14.) In Rodarte, the defendant beat the victim, gagged her, bound her and undressed her. He then pulled his pants down to his knees, placed his mouth over her breasts and forced his fingers into her vagina and anus. The defendant inserted his tongue into her vagina and his penis touched her vagina and anus, but there was no penetration. He was convicted of four counts of aggravated criminal sexual assault and aggravated battery. In this case, as in Rodarte, the evidence is sufficient to support separate convictions for all of the charged offenses.

Defendant’s next contention is that hearsay evidence regarding his identification prejudiced him. The victim testified that after she identified defendant as her attacker, she stated that she was “a thousand percent sure” that defendant was her assailant. Two officers also testified that they heard her make the statement. Ordinarily such statements are inadmissible as hearsay, but section 115 — 12 of the Code of Criminal Procedure of 1963 creates an exception. (Ill. Rev. Stat. 1989, ch. 38, par. 115—12.) The statute states in relevant part:

“A statement is not rendered inadmissible by the hearsay rule if (a) the declarant testifies at the trial or hearing, and (b) the declarant is subject to cross-examination concerning the statement, and (c) the statement is one of identification of a person made after perceiving him.” (Ill. Rev. Stat. 1989, ch. 38, par. 115—12.)

In the case at bar, the victim testified that defendant was the man who attacked her. She was available for cross-examination and, in fact, was cross-examined by defendant’s lawyer. The victim made the statement in question after she saw defendant and identified him as the assailant. (See People v. Kidd (1989), 180 Ill. App. 3d 1065, 536 N.E.2d 816.) Therefore, under the express statutory exception, the victim’s statement is not rendered inadmissible by rules precluding use of hearsay evidence.

Defendant further contends that the trial court improperly denied his motion to strike testimony regarding blood testing. Denise Troche testified that she performed tests on the clothing recovered from defendant’s home and determined that the stains found on some of the items were blood. At the hearing on the admissions of the exhibits, trial counsel motioned to strike Troche’s testimony, arguing that the State failed to prove the chain of custody for the items seized in defendant’s home. The trial court acknowledged that under the facts of this case, there had to be a chain of custody, but denied defense counsel’s motion because it was untimely. Defense counsel did not object to either the question or the answer when the prosecutor asked the serologist to give her opinion on the nature of the reddish-brown stains on the jeans and gym shoes. Counsel raised no objection to the chain of custody until the hearing on the admissibility of physical evidence. The trial court properly denied defense counsel’s motion because “timeliness requires that the objection to evidence be made at the time of its admission.” Hunter v. Chicago & North Western Transportation Co. (1990), 200 Ill. App. 3d 458, 472, 558 N.E.2d 216.

Defendant also contends that he was denied a fair trial because the State cross-examined him on his post-arrest silence. Defendant took the stand on his own behalf. The following line of questioning took place:

“MR. BAILEY [Assistant State’s Attorney]: And they brought you to the police station, right?
A. Yes.
Q. And at the police station you had a conversation with a detective and you told them that the blood from that clothing was from the night before; I fell, I hurt my nose, right?
MR. STILLO [Defense Attorney]: Objection.
THE COURT: Overruled.
MR. BAILEY: Is that what—
THE COURT: Wait a minute. Why the objection?
MR. STILLO: It presumes a conversation. It presumes a conversation, one, that is not in evidence that he even had a conversation.
THE COURT: Overruled.
MR. BAILEY: Did you?
A. No, I didn’t.
Q. Well, when the police officers picked your clothing up, you told them that’s why there was blood on your clothing, right?
MR. STILLO: Objection, Judge.
A. I wasn’t present when they picked my clothing up.
THE COURT: Overruled.”

The following questions were also posed during the cross-examination of defendant:

“MR. BAILEY: Now, the next day you went before a judge, right.
A. Yes.
MR. BAILEY: Did you ever tell that judge about the beating that the police gave you?
MR. STILLO: Objection, judge.
THE COURT: Overruled.
MR. BAILEY: Did you tell the judge about the beating the police gave you?
A. I told my lawyer.”

Defendant contends that his constitutional rights were violated because it is improper for the State to comment on a defendant’s post-arrest silence. (Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240.) The defendant in Doyle maintained for the first time at trial that he was framed. The prosecutor tried to impeach that defendant by asking him why he failed to tell the police that he was framed when he was arrested. The State argued that defendant’s silence at his arrest gave rise to an inference that the frame-up story was fabricated. The Court rejected the State’s position holding that it was fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently given at trial. (Doyle, 426 U.S. at 618, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245.) Doyle was later followed in People v. Rehbein (1978), 74 Ill. 2d 435, 386 N.E.2d 39.

In the instant case, the State’s questioning of defendant on what he told the police officers was improper. The questioning created an unfavorable inference that defendant fabricated the explanation that he gave at trial regarding the blood on his clothing. However, this violation of Doyle was harmless error. We find beyond a reasonable doubt that the comment on defendant’s post-arrest silence did not contribute to defendant's conviction. (People v. Green (1979), 74 Ill. 2d 444, 451-52, 386 N.E.2d 272.) Evidence of defendant’s guilt was overwhelming. The victim positively identified defendant as her attacker shortly after the incident occurred and again at trial. The second set of questions, however, made reference to what defendant told the trial court regarding defendant’s allegations that he was beaten up. The questions made no reference to defendant’s post-arrest silence about the crime. Therefore, we find no merit to his claim that those questions violated his constitutional rights.

Defendant’s next contention is that he was denied a fair trial because the victim testified that she did not identify the first suspect that was brought to her as her attacker. Defendant concedes that no objection was made to this testimony and that it was not included in the motion for new trial. Because defendant failed to properly preserve the issue, he has waived it for purposes of appeal. (See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Defendant asks this court to address the issue as plain error.

Issues that are otherwise waived may be reviewed under the plain error rule “where the record clearly shows that an alleged error affecting substantial rights was committed.” (People v. Young (1989), 128 Ill. 2d 1, 46, 538 N.E.2d 453.) To invoke the plain error rule, “[i]t must be plainly apparent that an error is so prejudicial that real justice has been denied or that the verdict of the jury may have resulted from the error.” (People v. Yates (1983), 98 Ill. 2d 502, 533, 456 N.E.2d 1369.) Thus, for review under the plain error doctrine, the court must consider the degree of prejudice involved. (People v. Mayden (1979), 71 Ill. App. 3d 442, 389 N.E.2d 901.) In criminal cases, the plain error rule is applied when the evidence is closely balanced or the error is of such magnitude that defendant is denied a fair and impartial trial. Young, 128 Ill. 2d at 47.

Defendant argues that the plain error rule is applicable because this is a close case. We disagree. Defendant does not deny that the victim was beaten and raped, but challenges her identification of him as the perpetrator. As previously discussed, the victim had several opportunities to view her attacker and her identification of defendant was clear and consistent. In view of the overwhelming evidence in the instant case, we see no reason to believe that the jury verdict resulted from the victim’s testimony that she did not identify the first person presented to her as her attacker.

Defendant further contends that comments the prosecutor made during rebuttal closing argument prejudiced him. The prosecutor pointed out that at trial, defendant had a haircut and wore a tie, but on the night of the attack, he wore something different. The prosecutor also stated that defendant’s wife and mother-in-law had to tell their stories and were in a sense victims themselves.

In reviewing allegations of prosecutorial misconduct, the closing arguments of the State and defendant must be examined in their entirety and the allegedly offending statements must be placed in proper context. (People v. Cisewski (1987), 118 Ill. 2d 163, 514 N.E.2d 970.) To merit reversal, the prosecutor’s remarks must result in substantial prejudice to the accused. (People v. Morgan (1986), 112 Ill. 2d 111, 132, 492 N.E.2d 1303.) There is nothing in the record to indicate that the prosecutor’s comments on defendant’s attire unfairly prejudiced defendant. It is fair comment for the State to point out the difference in defendant’s appearance at the time of the incident and at the time of trial. (See People v. Shelton (1986), 140 Ill. App. 3d 886, 895, 489 N.E.2d 879.) Therefore, the prosecutor’s comments did not deny defendant a fair trial.

Defendant maintains that the prosecutor’s comments allege that defendant coerced his wife and mother-in-law to lie on his behalf. Defendant cites to People v. Johnson (1986), 114 Ill. 2d 170, 199, 499 N.E.2d 1355, and People v. Brown (1981), 100 Ill. App. 3d 57, 426 N.E.2d 575, for the proposition that a prosecutor cannot call the defense witnesses liars without evidence to support the accusation. While there is no evidence that the prosecutor called defendant’s wife and mother-in-law liars, the prosecutor’s comments created an inference that they were lying. However, defendant was not denied a fair trial because there is no evidence in the record that the prosecutor’s comments prejudiced him.

Defendant contends that he received ineffective assistance of counsel because his trial attorney failed to raise the proper objection at trial and in post-trial motions regarding the victim’s testimony on the out-of-court identification of him and the introduction of expert testimony regarding bloodstains. Defendant also maintains that he was denied effective assistance of counsel because his counsel did not appear for jury selection and because his trial counsel failed to file pretrial motions.

A two-pronged test for determining ineffective assistance of counsel was established in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and followed by Illinois in People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246. To prevail on a claim of ineffective assistance of counsel, defendant must prove that trial counsel’s representation (1) was deficient and (2) prejudiced his defense to the extent that he was denied a fair trial. To show prejudice, defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) If the ineffective assistance of counsel claim can be disposed of on the grounds that defendant did not suffer sufficient prejudice, the court is not required to decide whether counsel’s errors are serious enough to constitute less than reasonably effective assistance. People v. Eddmonds (1991), 143 Ill. 2d 501, 511-12, 578 N.E.2d 952.

Any defense objection to testimony on the statement the victim made during her out-of-court identification of defendant would have been moot. As previously discussed, the testimony was admissible. Therefore, any objection to the testimony would not have changed the outcome of the case.

Defendant’s ineffective assistance of counsel claim based on his trial counsel’s untimely objection to the expert testimony on the bloodstains also fails. Defense counsel objected to the testimony because the State failed to prove a chain of custody for the evidence seized. However, the record does not indicate that the State would not have been able to call in additional witnesses to establish a sufficient chain of custody. It is the defendant’s burden to prove that the outcome would have been different. Defendant has not sustained this burden.

Defendant further contends that he was prejudiced by his trial counsel’s failure to appear for jury selection. The record reflects that his counsel arrived at court late, but jury selection did not commence until he arrived. There is no evidence that his tardiness affected the outcome of defendant’s case. Defendant also argues that he was prejudiced because the trial court spoke with the State in the presence of prospective jurors about a rule to show cause as to whether defense counsel should be held in contempt of court. However, this contention is erroneous in that the record indicates that the prospective jurors had been excused for lunch and were not present at the time the trial court spoke with the State about the rule to show cause.

Police arrested defendant and searched his home without a warrant. Defendant argues that he was denied effective assistance of counsel in that his trial counsel failed to file a motion to quash his arrest, a motion to suppress the evidence seized and a motion to suppress identification testimony.

Defendant argues that the State did not have probable cause to come to his house and arrest him. In his brief, defendant argues that he was arrested in his bedroom, before the victim identified him. Defendant’s trial testimony regarding when he was arrested contradicts what he argues in his brief. Defendant testified that after retrieving his driver’s license for the officers, he stepped out onto the porch. The officers then came over and subsequently handcuffed him. To determine when defendant was arrested, the question is when, considering all the circumstances, a reasonable man innocent of any crime, would have considered himself under arrest. (People v. Miller (1980), 89 Ill. App. 3d 973, 978, 412 N.E.2d 175.) In analyzing the circumstances, as testified to by defendant, a reasonable man would not have considered himself under arrest until police handcuffed him on the porch. Defendant presented no evidence that the officers either forced him to go outside onto the porch or restricted his freedom in any way prior to his arrest.

Defendant’s own testimony indicates that he was arrested after the lineup where the victim identified him as her attacker. The identification of defendant provided probable cause for the officers to arrest him. If defendant’s counsel was informed of the facts as testified to by defendant at trial, defense counsel could have concluded that a motion to suppress defendant’s arrest would be frivolous and, tactically, bad trial strategy.

Defendant argues that the victim’s in-court identification of him was tainted by the lineup which he maintains was impermissibly suggestive. In Manion, the court adopts the totality of the circumstances approach of Stovall v. Denno (1967), 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967, which “permits the admission of the confrontation evidence if, despite the suggestive aspect, the out-of-court identification possesses certain features of reliability.” (Manson v. Brathwaite (1977), 432 U.S. 98, 110, 53 L. Ed. 2d 140, 151, 97 S. Ct. 2243, 2251.) Evidence of an unnecessarily suggestive identification may be admissible at trial if the identification is shown to be reliable. (Manion, 67 Ill. 2d at 571.) In evaluating the reliability of an identification, the factors to be considered are the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated at the confrontation and the length of time between the crime and the confrontation. Manson, 432 U.S. at 114, 53 L. Ed. 2d at 154, 97 S. Ct. at 2253, citing Neil v. Biggers (1972), 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375.

In the instant case, the victim had several opportunities to view defendant. She testified that she saw him before he grabbed her, then again as they struggled to the ground and again when he dragged her into the hallway. “She was no casual observer, but rather the victim of one of the most personally humiliating of all crimes.” (Biggers, 409 U.S. at 200, 34 L. Ed. 2d at 412, 93 S. Ct. at 382-83.) The victim described her assailant as a man in his early thirties with a receding hairline, heavyset, wearing dark clothing and shorter than herself. Defendant was in fact 35 years old, 5 feet 7 inches tall, weighed 170 pounds, and the police recovered dark clothing belonging to defendant. The record indicates that a short period of time passed from the time the crime was committed until the victim identified defendant. Upon a review of the facts, we find that the victim’s out-of-court identification was proper and in no way tainted the victim’s in-court identification of defendant. Even if defense counsel had filed a motion to suppress the victim’s identification of defendant, it would have failed because the identification was reliable and, therefore, admissible.

Defendant maintains that his counsel should have filed a motion to suppress the warrantless seizure of evidence from his home. Even if the search was invalid and the evidence had been suppressed, we hold that there is no reasonable probability that the outcome of defendant’s case would have been different. The evidence against defendant was overwhelming.

Defendant’s final contention is that the trial court abused its discretion in sentencing him to consecutive sentences. Defendant argues that the term is excessive. The imposition of a sentence is a matter of judicial discretion, and absent an abuse of discretion, the sentence imposed will not be disturbed on review. People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882.

In the instant case, the trial court considered the impact statements presented to the court on defendant’s behalf, defendant’s age, the fact that defendant had no criminal history, the nature of the crime itself, deterrence and section 5 — 8—4 of the Unified Code of Corrections. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—4.) The statute states in relevant part:

“The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury *** in which event the court shall enter sentences to run consecutively.” (111. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4.)

In the instant case, defendant was convicted of aggravated criminal sexual assault which is a Class X felony and inflicted serious bodily harm on the victim. Under the statute, a consecutive sentence is warranted. The trial court did not abuse its discretion in sentencing defendant.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

HARTMAN and SCARIANO, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DiVITO

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROY ARMSTRONG, Defendant-Appellant.
    First District (2nd Division)
    No. 1—90—1924
    Opinion filed April 13, 1993.

      Michael J. Pelletier and Patricia Mysza, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Donna C. Leak, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

Following a jury trial, defendant Roy Armstrong was convicted of first degree murder and sentenced to 25 years in the custody of the Department of Corrections. On appeal, defendant contends that (1) he was denied effective assistance of counsel; (2) his conviction should be reduced to second degree murder; and (3) he was denied a fair trial as a result of various instances of prosecutorial misconduct.

During trial, the following evidence was presented. On May 4, 1989, at approximately 10:30 a.m., the body of James Moore was found lying in the gangway of a coach house in defendant’s backyard at 6807 South Harper in Chicago. The Cook County medical examiner determined that the cause of death was a stab wound to the chest, which separated his ribs and pierced his heart and lung. A small stab wound on Moore’s back was also noted, but the medical examiner was unable to determine if that wound was caused by a knife or a sharp piece of glass.

Angelia Dunn, defendant’s cousin who lived in the apartment above defendant at 6807 South Harper, was sleeping on the morning of May 4, 1989, when she was awakened at approximately 10:30 a.m. by defendant’s voice coming from the backyard. She heard defendant say, “You gone [sic] quit messing with me. Quit messing with me, motherfucker. Quit it, leave me alone.” Dunn looked out her bedroom window and saw defendant and Moore facing each other in the backyard. She noticed that Moore was swinging a stick approximately three feet long at defendant, but was unable to see if defendant was holding anything. Moore then fell backwards down the stairs to the coach house, and defendant walked toward the front gate.

Dunn then left her apartment and ran downstairs, where she met defendant just outside his apartment. The door was already open, and he was on his way inside. She noticed that defendant’s clothes were bloody. The two went inside the apartment, where defendant changed clothes. While she was in the apartment, she noticed a bloody knife in the kitchen sink. Later that morning, defendant called her and told her that he was sorry that she had to see what happened, “[b]ut, I ke[pt] telling him to leave me alone. *** Maybe now he’ll just leave me alone.” Dunn informed defendant that she learned from the paramedics that Moore was dead.

At approximately 11:45 that morning, Chicago police detectives James Cassidy and Edward Schmidt arrived at the scene to investigate the death as a possible homicide. In their efforts to find witnesses to the stabbing and to acquire any information that would be helpful in the investigation, they tried to interview as many people as possible. Cassidy attempted to speak with defendant at that time, but was unable to do so because no one was home.

That afternoon, Detectives George Tracy and George Holmes took over the investigation and, at about 9 p.m., went to 6807 South Harper in order to “canvass the building to locate any witnesses.” After they rang the bell, Hershey Gilbert, defendant’s roommate, came down from the second-floor apartment and opened the outside door to the building. They told Gilbert why they were there and said that they would be up to speak with him in a few minutes, after they spoke to other residents in the building. After stopping at two other apartments, Tracy and Holmes arrived at defendant’s door on the second floor, where they heard a conversation on the other side of the door. They knocked on the door, and Gilbert opened it and let them in. The three men stood near the front door in the hallway. When the detectives asked if defendant was home, Gilbert said that he was not and that he had not seen him since early that morning. Tracy then noticed some movement from behind the bathroom door, and he walked over to the bathroom and looked inside, where he saw defendant standing fully clothed in an empty bathtub.

Defendant and Tracy walked to the kitchen, where Gilbert and Holmes were waiting. Tracy informed defendant that he was investigating the stabbing and defendant replied that he had heard about it. Holmes advised defendant of his Miranda rights and then asked for permission to look around the apartment. Defendant “readily agreed” and signed a consent to search form. Tracy and defendant then waited in the living room while Holmes searched the kitchen, where he found a bloody pair of shoes under the sink. When the detectives showed the shoes to defendant, he told them that he had a fight with Moore in the backyard and stabbed him with a stick. Defendant then took the detectives outside to show them what had happened.

In the backyard, defendant explained that Moore followed him from the alley through the back gate, picked up a rock, and threw it at him from approximately 10 feet away. Defendant told them that the rock struck him in the forehead, but no marks, scratches, or swelling was noticeable at that time. Defendant explained that he picked up a stick and stuck Moore in the ribs, breaking the stick to a point. After struggling for a few more seconds, Moore backed up and defendant “somehow” stabbed Moore with the stick. Defendant said that he then went upstairs and changed clothes.

Defendant then told the detectives that his bloody pants were in the kitchen garbage, and the three men went upstairs to retrieve them. The detectives then took defendant to the police station, where he was placed in an interview room. At 10:30 p.m., Holmes and Tracy entered the room, readvised him of his rights, and asked if he would answer a few questions. Defendant responded that he would. Defendant stated that he had known Moore for several years, but that they were merely acquaintances. Early that morning, he went to visit a friend at the New Grace Hotel at 67th and Stony Island. As he entered the building, he ran into Moore, who asked for a cigarette. When defendant said that he had none, Moore responded that he would get one from defendant’s sister. Defendant explained to him, however, that he had no sister.

A few minutes later, as defendant left his friend’s room, he saw Moore standing in the hallway, holding a wooden board in his hands like a baseball bat. Moore then struck defendant in the neck with his hand. As defendant left the hotel, Moore screamed that he would crack the board over defendant’s head. Defendant then went home, had a snack, and put some beer, liquor, and a pipe in a bag and returned to the New Grace Hotel in order to learn why Moore was angry. After dropping off the beer and liquor with a friend at the hotel, defendant began walking toward 69th and Stony Island with the pipe, but then threw it into an abandoned building. At 69th and Stony Island, defendant encountered his friend Butch, and the two men went into a liquor store on the corner. As they were leaving the store, Moore approached defendant and asked if he was looking for him. Defendant responded that he was and then struck Moore in the face, forcing him to the ground. While Moore was on the ground, defendant kicked him in the ribs. Defendant then walked through the alley to his backyard. Moore followed him into the backyard, where they began fighting. Defendant then stabbed Moore with a stick.

Tracy and Holmes then left the interview room and spoke with defendant’s mother, his cousin Angelia Dunn, and his cousin’s boyfriend. The detectives then resumed their questioning of defendant, asking him if he stabbed Moore with a knife. Defendant replied that he stabbed Moore with a brown-handled kitchen knife, with a three-to four-inch blade. Defendant then told them that he had been carrying the knife for protection for two to three weeks. He explained that after the stabbing, he placed the knife in the kitchen sink.

At 3 a.m., an assistant State’s Attorney arrived at the police station, advised defendant of his rights, and began questioning him. At the end of the questioning, defendant agreed to sign a written statement prepared by her. At 4:45 a.m., defendant signed the written statement, which was essentially a repetition of the earlier statements made by him. Defendant also stated that after Moore threw the rock at him, he picked up a stick and hit Moore on the side with it, causing it to break in half. Moore then picked up the stick, and defendant pulled out a knife that he carried for protection. When Moore approached defendant with the stick, a struggle ensued, and defendant stabbed him.

The next morning at 9:30 a.m., Detectives Cassidy and Schmidt again interviewed defendant. Defendant repeated his earlier statements and explained that when they were in front of the liquor store, Moore had placed his hand in his pocket and told him that he was a dead man. Defendant thought Moore had a gun in his pocket. Defendant then went home, went upstairs to his apartment, and looked out his kitchen window and saw Moore standing in the backyard with a stick and a piece of concrete. Defendant, “tired of [Moore] fucking with [him],” took a knife from the kitchen drawer and went to the backyard. As he approached Moore, he asked: “Who is the dead man now?” Moore then threw the concrete at defendant, grazing his head. Brandishing the knife, defendant approached Moore, who was swinging a stick. Moore backed up to the stairwell and dropped the stick. A struggle ensued and defendant stabbed Moore once in the stomach. Moore then collapsed. Defendant then went upstairs and changed his clothes. On his way to his apartment, he ran into his cousin Angelia Dunn, who thought he was hurt. Defendant told her that he was “tired of [Moore] fucking with [him].”

After the interrogation, defendant signed another consent to search form and Cassidy and Schmidt went to his apartment in order to find the knife, the stick, and the concrete. The detectives found two knives in the kitchen sink, a stick next to the stairwell by the coach house, and a piece of concrete about 10 to 15 feet away in the middle of the backyard. They brought the objects back to the station, where they showed them to defendant, who identified the stick and the concrete as those used by Moore, but stated that neither knife was the one he used to stab Moore.

Later that afternoon, at 2:45 p.m., defendant stated that he wanted to make another statement because he was not entirely truthful when he spoke to the assistant State’s Attorney. Another assistant State’s Attorney then took defendant’s statement in the presence of a court reporter. In that statement, he repeated his earlier statement and said that he armed himself with the knife only after he saw Moore in the backyard.

During defendant’s case in chief, Earl Parker testified that he lived with Angelia Dunn, and that on the morning of May 4, 1989, he did not hear anyone come up the stairs until defendant came up after the stabbing. Lionel Dunn, defendant’s uncle, testified that when he left his apartment in the coach house that morning before the stabbing, there were no sticks lying near the stairwell.

“Butch” Albert Johnson testified that when he and defendant left the liquor store at 69th and Stony Island, Moore approached defendant. Defendant knocked Moore to the ground and then pulled out a knife because he thought Moore had something in his pocket. Before that, Johnson had not known that defendant was carrying a knife.

Officer Joseph Adams of the Chicago police department testified that he had two violent encounters with Moore. The first occurred on September 18, 1985, at 3:30 a.m., when he attempted to arrest Moore, but Moore struggled and tried to get his partner’s gun from its holster. About 10 officers were called to the scene, six of whom were necessary to subdue Moore. The second incident occurred on April 10, 1986, at approximately 9 p.m., when Adams saw Moore attempting to break into a store. Moore attempted to flee, but when he was cornered about one block away, he began to fight. Adams called for assistance, and he eventually subdued Moore with the help of seven other officers.

Defendant then testified in his own behalf, repeating the account that he told during the investigation. He stated that he had the knife with him at the liquor store; he did not bring it down from the kitchen just before his final encounter with Moore. He explained that he originally told the police that he stabbed Moore with a stick because he was nervous. He stabbed Moore because he believed he was going to kill him and thought he had no other options.

After the defense rested, the circuit court instructed the jury concerning first degree murder; second degree murder predicated upon an unreasonable belief in the necessity of self-defense, over defendant’s objection; and involuntary manslaughter, over the State’s objection. As previously noted, the jury found defendant guilty of first degree murder, and the court sentenced him to 25 years in prison. This appeal followed.

I

Defendant first contends that his trial counsel was ineffective in failing to assert the strongest grounds available to support a motion to suppress his statements and other evidence. Prior to trial, defense counsel moved to suppress defendant’s statements on the ground that they were “obtained as a result of psychological and mental coercion.” At the hearing on the motion, the State presented much evidence that defendant’s statements were made voluntarily. Defense counsel, however, presented no evidence in support of the motion. Following arguments, the circuit court denied the motion, noting that it had never seen a motion with less merit. On appeal, defendant maintains that his statements and the evidence seized in his apartment were vulnerable to attack on the grounds that they were the fruits of an illegal search and seizure that occurred when the police entered his apartment and arrested him.

In order to establish a claim of ineffective assistance of counsel, defendant must first establish that his counsel was constitutionally deficient; that the “errors [were] so serious that counsel was not functioning as the ‘counsel’ guaranteed *** by the Sixth Amendment.” (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.) Our inquiry is simply “ ‘whether counsel’s assistance was reasonable considering all the circumstances.’ ” (People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246, 1255, cert. denied (1985), 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061, quoting Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.) Defendant must also establish that “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) Because defendant has failed to satisfy his burden under the Strickland test, his contention that he was denied effective assistance of counsel must be rejected.

Defendant asserts that Tracy conducted an illegal search of his home when he walked down the hallway and proceeded to look in the bathroom without consent. Defendant also maintains that he was illegally seized when Tracy found him standing in the bathtub and escorted him to the kitchen. Initially, we note that it is undisputed that the detectives lawfully entered the apartment upon being admitted by defendant’s roommate, Hershey Gilbert. (See Illinois v. Rodriguez (1990), 497 U.S. 177, 111 L. Ed. 2d 148, 110 S. Ct. 2793 (holding that no illegal entry occurs when police rely upon the consent of someone with at least apparent authority).) While the law is well settled that consent to enter does not constitute consent to search (see People v. Annerino (1981), 97 Ill. App. 3d 240, 422 N.E.2d 923 (holding that consent to enter the defendant’s kitchen to investigate a crime did not authorize a search of the defendant’s crawl space); People v. Rodgers (1981), 96 Ill. App. 3d 416, 421 N.E.2d 203 (defendant’s consent to police entry did not authorize an exhaustive search of his home)), evidence need not be suppressed in every case where the defendant asserts that the police exceeded the authority granted them by the consensual entry. Instead, a defendant must prove that the police exceeded their authority and that an illegal search occurred. See Ill. Rev. Stat. 1989, ch. 38, par. 114—12(b); People v. Olson (1990), 198 Ill. App. 3d 675, 680-81, 556 N.E.2d 273, 276.

Upon reviewing the testimony at both the suppression hearing and at trial (see People v. Walton (1991), 221 Ill. App. 3d 782, 786, 583 N.E.2d 28, 32, appeal denied (1992), 143 Ill. 2d 647, 587 N.E.2d 1023 (noting that trial evidence may be considered when determining the propriety of a suppression ruling)), we find nothing that indicates the detectives’ authority was limited in any manner or anything that discloses the distance between the foyer and the bathroom. In the absence of such evidence, we cannot state that Tracy exceeded the scope of his authority.

Furthermore, we do not agree with defendant that an illegal seizure occurred when Tracy found him in the bathroom, escorted him to the kitchen, and then waited with him in the living room while Holmes, pursuant to a consent to search, searched the kitchen. As this court has stated:

“[A] seizure occurs *** when a reasonable person, innocent of any crime and in view of all the circumstances surrounding the incident, would believe that he was under arrest or not free to leave. [Citations.] In the absence of a threatening presence of officers, display of a weapon, a physical touching, or use of language or tone of voice which indicates compliance with the officer’s request might be compelled, a seizure has not taken place.” People v. Collins (1989), 182 Ill. App. 3d 362, 364-65, 538 N.E.2d 781, 783, appeal denied (1989), 127 Ill. 2d 624, 545 N.E.2d 117.

In the instant case, after being discovered in the bathroom, defendant “stepped out” of the tub and walked with Tracy to the kitchen. The detective told defendant that he was investigating the stabbing and defendant stated that he had heard about it. No weapons were drawn, defendant was not handcuffed at any time, and he was not even touched by the police. Although the record does not indicate the precise language used by the detectives or their tone of voice, it does demonstrate that defendant was “calm and collected” and that he “readily agreed” to their requests. Although we recognize that defendant was advised of his Miranda rights, a common indicia of arrest, that fact alone does not establish that a person is entitled to a reasonable belief that he was not free to leave. See People v. Neal (1985), 111 Ill. 2d 180, 193-94, 489 N.E.2d 845, 850, cert. denied (1986), 476 U.S. 1165, 90 L. Ed. 2d 733, 106 S. Ct. 2292; Collins, 182 Ill. App. 3d at 365, 538 N.E.2d at 783 (holding that the defendant was not under arrest even though “he was fingerprinted, photographed, and read his Miranda rights”).

In light of the totality of the circumstances, we conclude that a reasonable man would not have thought he was under arrest. Any attempt to suppress the evidence would therefore have been a fruitless exercise, as defendant had not been illegally seized. Defendant’s trial counsel was thus not constitutionally deficient for failing to assert that the evidence was the fruit of an illegal search and seizure.

Defendant also contends that his counsel was ineffective for proceeding on a theory of self-defense rather than second degree murder. Defendant asserts that his attorney precluded a verdict of second degree murder rather than first degree by arguing to the jury that it should disregard the second degree murder instruction because defendant was justified in his actions. In support of his contention, defendant cites cases where the reviewing court reversed a conviction because the defendant’s trial counsel was ineffective in failing to tender instructions regarding a lesser offense. (United States ex. rel. Barnard v. Lane (7th Cir. 1987), 819 F.2d 798; People v. Bell (1987), 152 Ill. App. 3d 1007, 1015, 505 N.E.2d 365, 371.) The rationale underlying those cases is that without the instruction, the jury was denied the opportunity of finding the defendant guilty of the lesser offense. (See Lane, 819 F.2d at 805.) Defendant’s reliance on those cases is misplaced, however, because in the case at bar, such an instruction was given to the jury. Accordingly, the jury was not denied the option of second degree murder.

Furthermore, we do not agree with defendant that his counsel’s remarks demonstrate that he was pursuing an “all-or-nothing” approach. Instead, the record makes it clear that the remarks were made to explain why defendant’s actions were justified. As such, the remarks were simply a matter of trial strategy and therefore beyond the scope of our review. (See People v. Fernandez (1987), 162 Ill. App. 3d 981, 987, 516 N.E.2d 366, 370, appeal denied (1988), 119 Ill. 2d 563, 522 N.E.2d 1249 (holding that a reviewing court will not question areas of professional judgment when determining if counsel was constitutionally deficient).) We conclude that defendant’s attorney’s performance was reasonable and that therefore defendant was not denied the effective assistance of counsel.

II

Defendant next contends that his conviction should be reduced to second degree murder because the evidence at trial established that he unreasonably believed that deadly force was justified. The State responds that the jury’s verdict was properly based on the evidence and therefore should not be overturned.

A person commits second degree murder when “[a]t the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing ***, but his belief is unreasonable.” (Ill. Rev. Stat. 1989, ch. 38, par. 9—2(a)(2).) Before a defendant can be found guilty of second degree murder, he must prove the mitigating factor by a preponderance of the evidence. (Ill. Rev. Stat. 1989, ch. 38, par. 9—2(c).) “The issue of self-defense is a question of fact to be decided by the jury, and its decision should not be overturned unless the evidence is so unreasonable, improbable, or unsatisfactory as to raise a reasonable doubt as to defendant’s guilt.” People v. Ellis (1982), 107 Ill. App. 3d 603, 610, 437 N.E.2d 409, 415.

Defendant relies on Ellis and People v. Collins (1991), 213 Ill. App. 3d 818, 572 N.E.2d 1005, appeal denied (1991), 141 Ill. 2d 548, 580 N.E.2d 122, for the proposition that a first degree murder conviction is inappropriate when the defendant unreasonably believed that the use of deadly force was justified. In Ellis, the defendant shot the victim during a struggle which ensued after the victim lunged at him. The appellate court reduced his conviction from murder to voluntary manslaughter because the evidence showed that the defendant intended to fire only a warning shot and that he called for help immediately. (Ellis, 107 111. App. 3d at 611-12, 437 N.E.2d at 414, 416-17.) Similarly, in Collins, the defendant shot the victim, his longtime roommate, while they were wrestling. The court reduced the defendant’s first degree murder conviction because the evidence corroborated his testimony that the struggle occurred during an argument, that he initially fired the gun toward the ceiling, and that he called for help right away. Collins, 213 Ill. App. 3d at 825-27, 572 N.E.2d at 1010.

Despite defendant’s contentions to the contrary, we are unable to find sufficient evidence in this record that casts doubt on the jury’s verdict. Unlike the defendants in Ellis and Collins, defendant here made no attempt to obtain medical help for Moore, but instead attempted to hide from the authorities when they came to investigate the incident. Moreover, defendant stated to his cousin that “[mjaybe now he’ll just leave me alone.” Finally, defendant gave varying descriptions of the events leading up to the killing, including twice telling the police that he obtained the knife only after observing Moore standing in the backyard.

After considering all the evidence, the jury determined that defendant did not have the subjective belief that deadly force was necessary. “A reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses.” (People v. Petty (1987), 160 Ill. App. 3d 207, 210-11, 513 N.E.2d 486, 488, appeal denied (1988), 118 Ill. 2d 549, 520 N.E.2d 390.) Because defendant’s argument is contingent upon assessing the credibility of the witnesses, a role uniquely within the province of the trier of fact, we cannot conclude that the jury’s verdict was “unreasonable, improbable, or unsatisfactory.”

Similarly, we do not agree with defendant that the evidence demonstrates that he was “acting under a sudden and intense passion” when he stabbed Moore in the chest. Defendant asserts that he was impassioned as a result of his “mutual combat” with Moore. Mutual combat has been defined as “a fight or struggle which both parties enter willingly or in which two persons, upon a sudden quarrel, and in hot blood, mutually fight upon equal terms and death results from the combat.” (People v. Neal (1983), 112 Ill. App. 3d 964, 967, 446 N.E.2d 270, 274.) Here, the record demonstrates that defendant, armed with a knife, confronted Moore, who, according to defendant, was armed with a stick and a rock. Defendant’s conviction for first degree murder was adequately supported by the evidence.

Ill

Defendant’s last contention is that he was denied a fair trial as a result of various instances of prosecutorial misconduct. Defendant first asserts that the State improperly implied that he had a duty to retreat from the confrontation when it cross-examined him regarding his attempt to escape. (See People v. Estes (1984), 127 Ill. App. 3d 642, 649, 469 N.E.2d 275, 281 (holding that a nonaggressor is not required to retreat from a place where he has a right to be).) While we agree that defendant had no duty to retreat from his own backyard, we believe that the State’s questions were a proper response to defendant’s testimony that he initially attempted to run away from Moore, but did not have sufficient time to unlock the back door to his building. See People v. Piscotti (1985), 136 Ill. App. 3d 420, 440, 483 N.E.2d 363, 377 (holding that the State may ask the defendant “ordinarily improper” questions when they are provoked by his direct testimony on the same matter).

Defendant also contends that several statements in the State’s closing argument were improper and denied him his right to a fair trial. He asserts that the prosecutor misstated the facts during his closing argument when he stated that Moore was stabbed twice, once in the chest and once in the back. Defendant points out that the medical examiner was unable to determine precisely the cause of the wound on Moore’s back, but that it may have been caused by either a knife or by a sharp piece of glass. Although a prosecutor is afforded wide latitude when arguing to the jury, the comments must be based on the evidence or reasonable inferences therefrom. (People v. Malone (1991), 211 Ill. App. 3d 628, 636, 570 N.E.2d 584, 590, appeal denied (1991), 142 Ill. 2d 660, 584 N.E.2d 135.) Because the prosecutor’s statement in the instant case was a reasonable inference from the medical examiner’s testimony, no error occurred.

Defendant also takes issue with the prosecutor’s graphic description of the method of separating the body for an internal examination during an autopsy. The prosecutor stated that the medical examiner must “pull the rib cage apart with an electric saw,” because it cannot be done by hand. Defendant objected because the medical examiner never testified that an electric saw was necessary. The circuit court sustained the objection. The State contends that the statement was a reasonable inference from the testimony, because the medical examiner “had to use some instrument to cut open the victim’s body.”

An improper remark in the State’s closing argument will normally not require a reversal on appeal unless its prejudicial effect was such that, but for the comment, the jury would have reached a contrary verdict. (People v. Townsend (1985), 136 Ill. App. 3d 385, 483 N.E.2d 340, appeal denied (1985), 111 Ill. 2d 563, 485 N.E.2d 1092.) Although the statement here was improper, any prejudice which resulted from the remark was vitiated when the circuit court sustained defendant’s objection. See People v. Maldonado (1989), 193 Ill. App. 3d 1062, 550 N.E.2d 1011, appeal denied (1990), 132 Ill. 2d 551, 555 N.E.2d 382.

Finally, defendant maintains that the prosecutor misstated the evidence when he argued that defendant never said before trial that he was carrying the knife during the entire incident. Although we agree with defendant that the remark was a misstatement of the evidence, any challenge to its propriety was waived for purposes of appeal when defendant failed to make a timely objection to it at trial. (See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Furthermore, defendant fares no better under plain error analysis; the jury would not have reached a contrary verdict if not for the misstatement. Accordingly, we reject defendant’s contention that he is entitled to a new trial due to prosecutorial misconduct.

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

Affirmed.

HARTMAN and SCARIANO, JJ., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee and Cross-Appellant, v. JAMES M. ANDRETICH, Defendant-Appellant and Cross-Appellee.
    Third District
    Nos. 3—91—0706, 3—92—0047 cons.
    Opinion filed May 14,1993.
    Kenneth A. Grey, of McKeown, Fitzgerald, Zollner, Buck, Hutchison & Ruttle, of Joliet (Gary S. Mueller, of counsel), for James Andretich.

      Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant, James M. Andretieh, was charged with the theft of a 1979 Mercedes-Benz by deception (111. Rev. Stat. 1991, ch. 38, par. 16 — 1(a)(2)). He entered a blind plea of guilty and was sentenced to serve two years’ probation, conditioned upon serving six months of work-release. On July 8, 1991, defendant moved to withdraw his guilty plea on the ground that his plea was based on the advice of trial counsel, and defendant had anticipated that his sentence would be restitution without any jail time. Circuit Judge Thomas Ewert denied defendant’s motion, and defendant appealed (docket No. 3 — 91— 0706).

While this appeal was pending, defendant, represented by different counsel, filed a post-conviction petition seeking to have his guilty plea withdrawn due to the lack of a factual basis for the guilty plea and ineffective assistance of trial counsel. Circuit Judge Patricia Schneider heard the petition and granted it, finding that there was no factual basis for defendant’s plea. The court, accordingly, set aside the judgment of conviction. The State appealed from the judgment granting post-conviction relief (docket No. 3 — 92—0047), and the two appeals were consolidated for briefing and consideration in this court.

Before addressing the issues raised by the parties, we deem it appropriate to consider our jurisdiction over the State’s appeal. Prior to 1979, our supreme court noted that the State’s right to bring appeals from judgments granting post-conviction relief was premised on section 7 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1951, ch. 38, par. 832) (the Act). The court further noted that “the remedy afforded by the Post-Conviction Hearing Act is similar in many of its characteristics to that available by motion coram, nobis under section 72 of the Civil Practice Act. (Ill. Rev. Stat. 1951, ch. 110, par. 196.) *** [W]ith respect to review of coram, nobis proceedings, it has been observed that ‘Since the judgment entered upon such proceeding is final and the proceeding is civil in nature, either the State or the defendant is entitled to a review of the judgment of the court entered on such motion or petition.’ People ex rel. Courtney v. Green, 355 Ill. 468, 473[, 189 N.E. 500, 502]; cf. People v. Touhy, 397 Ill. 19, 26[, 72 N.E.2d 827].” People v. Joyce (1953), 1 Ill. 2d 225, 227, 115 N.E.2d 262, 263; see also People v. Hryciuk (1954), 5 Ill. 2d 176, 125 N.E.2d 61; People v. Thomas (1972), 51 Ill. 2d 39, 280 N.E.2d 433.

At the time Joyce was decided, the Act provided for the supreme court’s review of “[a]ny final judgment entered upon *** a [post-conviction] petition.” (Ill. Rev. Stat. 1951, ch. 38, par. 832.) Subsequent to Joyce, Supreme Court Rule 27 — 1 was adopted. That rule, effective from January 1, 1964, to January 1, 1967, likewise provided for direct appeal to the supreme court of final judgments in post-conviction proceedings. In 1968, Rule 27 — 1 was replaced by Supreme Court Rule 651, effective January 1, 1967. Section (a) of the rule provided that “[a]n appeal from a final judgment of the circuit court in any post-conviction proceeding lies to the Appellate Court in the district in which the circuit court is located.” (58 Ill. 2d R. 651(a).) Section (d) of the rule provided further that procedure for such appeals “shall be in accordance with the rules governing criminal appeals, as near as may be.” 58 Ill. 2d R. 651(d).

In People v. Andson (1979), 73 111. App. 3d 700, 702, 392 N.E.2d 358, 360, the court ruled that, notwithstanding the “procedural” rule in Rule 651(d), the principle of Joyce continued to govern the State’s “substantive” right of appeal from judgments granting post-conviction relief. Subsequent to the filing of defendant Andson’s post-conviction petition in 1974, section 122 — 7 of the Post-Conviction Hearing Act (formerly section 832) was amended. It now provides that “[a]ny final judgment entered upon *** [a post-conviction] petition shall be reviewed in a manner pursuant to the rules of the Supreme Court.” Ill. Rev. Stat. 1991, ch. 38, par. 122—7.

Defendant takes the position on appeal that since Supreme Court Rule 604(a) (134 Ill. 2d R. 604(a) (as amended effective Nov. 30, 1972)), which governs State appeals in criminal cases, does not permit the State to appeal from interlocutory rulings which do not effectively result in the dismissal of charges, the State has no right to appeal from the post-conviction judgment in this case. The State counters with the argument that the court’s grant of relief on the post-conviction petition is a final judgment on the civil matter. Ergo, the argument continues, the State’s substantive right to appeal from the trial court’s ruling is unaffected by Rule 604(a), which on its face applies to criminal proceedings. We agree.

In our opinion, the application of criminal procedural rules on appeal from final civil proceedings does not detract from the State’s substantive right to appeal from the grant of relief on a defendant’s post-conviction petition. Accordingly, we hold that this court does have jurisdiction of the State’s appeal in this case.

In defendant’s appeal from Judge Ewert’s ruling denying his motion to withdraw his guilty plea (No. 91 — 0706), defendant argues: (1) that his right to due process of law was denied by the court’s judgment of a conviction for which there was no factual basis to support defendant’s plea of guilty; (2) that the court failed to give defendant adequate admonishment as to the consequences of his guilty plea; and (3) that the court erred in accepting defendant’s guilty plea because he had a worthy defense to the State’s charges. The State responds that defendant waived any contention regarding the sufficiency of the factual basis for his plea; that the trial court’s admonishments were adequate; and that the court did not err in accepting defendant’s plea even if he had a defense worthy of consideration.

Supreme Court Rule 402 (134 Ill. 2d R. 402) requires that the trial court substantially comply with the conditions as set forth in the rule upon which a guilty plea may be accepted, i.e., that defendant be admonished as to the nature of the charge and the consequences of his plea; that the plea is determined to be voluntary and that there is a factual basis for it; and that the provisions for plea discussions and agreements be complied with.

Defendant asserted in his post-judgment motion to withdraw his plea that he had not been admonished that a period of incarceration could be imposed as a condition of a sentence of probation. The court duly considered defendant’s arguments, and on August 12, 1991, the court ruled that it had substantially complied with supreme court rules and that there was a knowing and intelligent waiver of defendant’s rights and a voluntary plea of guilty. Accordingly, the court denied defendant’s motion to withdraw.

Having reviewed the proceedings, we now find no error in the court’s August 12 ruling. Defendant’s arguments on appeal challenging the trial court’s ruling are unrelated to the position he assumed in presenting his motion in the trial court. Those arguments, relating to the factual basis for the plea, the adequacy of admonishments and a worthy defense, were waived for purposes of the motion to withdraw and cannot be revived by asserting them for the first time on review. We therefore affirm Judge Ewert’s denial of defendant’s motion to withdraw his plea.

In its appeal, the State takes issue with Judge Schneider’s judgment granting defendant’s petition for post-conviction relief on grounds that issues not raised in defendant’s motion before Judge Ewert to withdraw his plea and vacate his conviction also waived those issues for purposes of post-conviction relief before Judge Schneider; that a decision on defendant’s appeal of the trial court’s ruling on the motion to withdraw is res judicata of all issues which were or could have been raised; and that lack of a factual basis was either a noncognizable basis for granting post-conviction relief or that the factual basis was adequate for purposes of the plea.

It is defendant’s burden at a hearing under the Post-Conviction Act to establish a substantial deprivation of rights granted by the United States Constitution or the Constitution of Illinois. On appeal, the trial court’s determination will not be disturbed unless it is manifestly erroneous. People v. Silagy (1987), 116 Ill. 2d 357, 365, 507 N.E.2d 830, 832, citing People v. Griffin (1985), 109 Ill. 2d 293, 303, 487 N.E.2d 599; People v. Moore (1975), 60 Ill. 2d 379, 384, 327 N.E.2d 324.

In presenting defendant’s petition for post-conviction relief, defense counsel argued that defendant’s constitutional due process rights were violated by Judge Ewert’s acceptance of a plea for which a factual basis was lacking. We find, according to the affidavits which defendant submitted with his petition for post-conviction relief, that defendant committed no criminal act in connection with the sale of the vehicle in question. John R. Andretich, defendant’s father, stated in his sworn affidavit that he and his wife were co-owners of the Mercedes involved in this case. They asked defendant to sell it for them on consignment. Mark Keith, the complainant, had offered to trade in a 1980 Cadillac toward the purchase price of the Mercedes, which was $10,815.95. John Andretich further averred that he loaned $2,206.81 to Mr. Keith to pay off the balance Keith owed on the Cadillac. According to John Andretich, he had entered into an agreement with Mr. Keith that the transaction for the purchase of the Mercedes would be completed upon Mr. Keith’s full repayment of the $2,206.81 loan. When Mr. Keith subsequently refused to make payment in full pursuant to the agreement, John Andretich stopped payments on the Mercedes. John Andretich’s lender then repossessed the Mercedes from Mr. Keith.

We note that the affidavits presented to the court in support of defendant’s post-conviction petition did not demonstrate any error in Judge Ewert’s acceptance of defendant’s guilty plea based on the State’s original presentation of a factual basis. Nor do they demonstrate error in Judge Ewert’s denial of defendant’s motion to withdraw. Nonetheless, we believe that the defendant adequately demonstrated a due process deprivation so fundamental that waiver and res judicata doctrines cannot prevail.

Moreover, it is apparent from the record and pleadings on appeal that defendant could not have received effective assistance of counsel in entering his plea. Based on the facts presented in the affidavits, defendant committed no theft. In our opinion, the matters presented by counsel on petition for post-conviction relief manifestly demonstrated that trial counsel inadequately represented defendant and may not have been aware of all sentencing alternatives. But for counsel’s deficient performance, defendant would not have pleaded guilty to theft. Accordingly, we find that Judge Schneider’s ruling that defendant demonstrated a substantial denial of his right to due process by the lack of a factual basis to support the plea is not manifestly erroneous and should be affirmed.

For the reasons stated, we affirm the judgments of the circuit court of Will County and remand for further proceedings.

Affirmed; cause remanded.

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


author: JUSTICE RAKOWSKI

text:
    MONTGOMERY ELEVATOR COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Richard A. Sabaski, Appellee).
    Third District (Industrial Commission Division)
    No. 3—92—0398WC
    Opinion filed May 14,1993.

      John A. Hoekstra, of Katz, McAndrews, Balch, Lefstein & Fieweger, of Rock Island, for appellant.
    Francis Van Hooreweghe, of Van Hooreweghe, Fackel & Thuline, of Moline, for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

The employee, Richard A. Sabaski (claimant), filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (Act) (111. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) against Montgomery Elevator Company (employer) alleging that he sustained a work-related injury. Following a hearing, the arbitrator denied benefits and the Industrial Commission (Commission) affirmed. On judicial review, the circuit court set aside the Commission’s decision, finding it to be against the manifest weight of the evidence.

The sole issue on appeal is whether the Commission’s decision that the injury was not causally related to the September 27, 1987, accident was against the manifest weight of the evidence. We affirm.

Except for a layoff, claimant had worked for the employer for 32 years. At the time of the accident, claimant, a material handler, was unloading 260-pound crates of glass using a lift truck. The truck stopped suddenly, one crate started to fall, and claimant tried to “catch” it. He felt a pull in his back immediately.

Claimant reported the accident to his foreman, an incident report was made, and he was sent to a medical clinic. After being off for two days, claimant returned to work. Claimant continued to work, but after noticing numbness in his feet, he went to see Dr. Honda in May 1989. Claimant stated that he put off seeing Dr. Honda for so long because he feared another back operation. (Dr. Honda previously performed back surgery on claimant resulting from a work-related injury in 1978.) Although claimant was never completely pain-free since the 1978 incident, he continued to work regularly.

At the first examination in May 1989, Dr. Honda prescribed medication and a TENS unit and told claimant he would likely need surgery. Claimant indicated that he did not want a second surgery and continued to go to work. In June 1989, after performing and interpreting an MRI, Dr. Honda told claimant that he had a large herniated nucleus pulposus at L3-L4. Dr. Honda again recommended surgery and again claimant “elected not to have it at that time.” In July 1989, Dr. Honda again saw claimant and again recommended surgery, but claimant stated “he is still working every day, does not want to miss work and does not want to have surgery.” Claimant returned to see Dr. Honda in November 1989 and January 1990. In February 1990, claimant said the pain had spread to his groin and he decided to have surgery.

After the surgery, Dr. Honda reported it was “just like the MRI, showed an enlarged disc at L-3, L-4 level; and a pinched nerve, and we removed the disc.” Dr. Honda stated that the numbness and pain were caused by the nerve root impinging on the disk and that it was his opinion that the ruptured disk was caused by the September 27, 1987, accident.

It was also Dr. Honda’s opinion that claimant’s present problems were not related to the 1978 incident. Dr. Honda had also performed the 1978 partial laminectomy but at a different level (L3). According to Dr. Honda, there was no enlarged disk at L3-L4 in 1978. Dr. Honda also stated that while claimant’s present problem is numbness in his left foot and groin attributable to the enlarged disk at L3-L4, his 1978 problem involved his lower right leg which was not likely the result of a herniated disk.

At the employer’s request, claimant was examined by Dr. Subbiah in June 1990. Dr. Subbiah, a neurological specialist, conducted an independent medical examination which included medical history, medical records review, and clinical examination.

According to Dr. Subbiah, claimant had pain in his right lower extremity before the 1978 surgery and after the surgery he had constant symptoms of numbness and annoying pain in the lower extremity but he continued to work. The symptoms after the 1987 incident were the same but more intense. Dr. Subbiah notes that there is no significant improvement in the low back pain or in the right-sided numbness.

It is Dr. Subbiah’s opinion that the claimant’s past history indicates that the claimant had an umbilical hernia, which existed for a considerable length of time. Dr. Subbiah also opined that because the claimant had identical symptoms with a pain pattern in the right lower extremity in 1978 and in 1990, he assumed that the root that was involved was also the same. It was also noted that although the claimant returned to work and was employed for almost 10 years after his first surgery, he was never completely pain-free. The claimant told Dr. Subbiah he put up with the pain.

In summary, Dr. Subbiah states that there was a definite large herniated extradural disk at the L3-L4 level, causing significant spinal stenosis. He said that the numbness could be attributed to the claimant’s alcohol consumption. Dr. Subbiah noted:

“This obviously could not have been missed in the 1978 surgery and the patient could not have continued to live with this for the past ten years. Hence *** this was a new finding, at least in 1990. *** If the herniated disc at the L3-4 level had occurred at the time of the alleged injury (9-21-87), *** it [is] difficult to believe that this patient could have gone on with this for 21 months prior to seeing Dr. Honda.”

Dr. Subbiah agrees that the claimant did have a significant spinal stenosis secondary to a herniated disk at the L3-L4 level which was most likely traumatic, but Dr. Subbiah also stated:

“Whether this was related to the injury in September, 1987, it is difficult to tell, as I find it difficult to believe that the patient could have gone 21 months with such a significant and severe lesion prior to obtaining medical advise [sic]. However, even after the diagnosis was made, the patient went another ten months before being operated on. It is possible that the patient was concerned about surgery and hence postponed any kind of medical attention.”

On appeal, the employer contends that there is substantial evidence in the record to support the Commission’s finding of no causal connection. In particular, the employer points out that claimant was initially off work for only two days and that he had prior back problems with similar symptoms. The employer also places significant emphasis on the length of time claimant waited before consulting with Dr. Honda.

As the only issue before us is the manifest weight of the evidence, the often-repeated standard applies. In Dexheimer v. Industrial Comm’n (1990), 202 Ill. App. 3d 437, 442-43, 559 N.E.2d 1034, the court stated:

“It is the province of the Commission to weigh and resolve conflicts in testimony, including medical testimony, and to choose among conflicting inferences therefrom. [Citations.] It is only when the decision of the Commission is without substantial foundation in the evidence or its finding is manifestly against the weight of the evidence that the findings of the Commission should be set aside.”

(See also O’Dette v. Industrial Comm’n (1980), 79 Ill. 2d 249, 253, 403 N.E.2d 221.) A reviewing court cannot reject or disregard permissible inferences drawn by the Commission because different or conflicting inferences may also be drawn from the same facts nor can it substitute its judgment for that of the Commission unless the Commission’s findings are against the manifest weight of the evidence. (Martin v. Industrial Comm’n (1992), 227 Ill. App. 3d 217, 219, 591 N.E.2d 108.) It has been observed that “[t]he manifest weight of the evidence is that which is ‘the clearly evident, plain and indisputable weight of the evidence.’ [Citations.] In order for a finding to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent.” (Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48, 54, 426 N.E.2d 1276.) Finally, if the undisputed facts permit an inference either way, then the Commission alone is empowered to draw the inference, and its decision as to the weight of the evidence will not be disturbed on review. Morgan Cab Co. v. Industrial Comm’n (1975), 60 111. 2d 92, 97, 324 N.E.2d 425.

With the above standard in mind, and after considering all the evidence, we agree with the circuit court’s decision that the Commission’s decision was against the manifest weight of the evidence. While we are not easily moved to set aside a Commission decision on a factual question, we will not hesitate to do so where the clearly evident, plain, and indisputable weight of the evidence compels an apparent, opposite conclusion. (See Drogos, 100 Ill. App. 3d at 54.) For the following reasons, we judge that the opposite conclusion is clearly apparent in the case sub judice.

There is no dispute that claimant suffered an accident on September 27, 1987. He explained how it happened, he reported it to his supervisor, an incident report was made, and the employer sent him to a medical clinic. Further corroboration is found in that claimant told both Drs. Honda and Subbiah the same version as to how, when, and where his injury occurred. There is no evidence to the contrary.

There is also no dispute that claimant suffered a new injury subsequent to the 1978 incident. Dr. Honda described the injury as a ruptured disk at L3-L4, impinging on a nerve root resulting in numbness and pain. Dr. Subbiah agreed “that there is no question that the patient had a significant spinal stenosis secondary to a herniated disc at the L3-4 level. This most likely was traumatic.” Dr. Subbiah also stated that the “large herniated extradural disc at the L3-4 level *** was a new finding, at least in 1990.” Dr. Subbiah went on to say “[t]his obviously could not have been missed in the 1978 surgery and the patient could not have continued to live with this for the past ten years.”

Nor is there any dispute that a causal connection exists between the September 27, 1987, injury and the ruptured disk at L3-L4. Dr. Honda categorically stated that the September 27 injury caused the disk to rupture, the disk impinged on a nerve root, and numbness and pain resulted. Dr. Subbiah never stated that the September 27 accident did not cause the injury. He said “it is difficult to tell.” While he said it is difficult to believe that claimant could go 21 months with such a significant and severe lesion prior to obtaining medical advice, he also stated:

“However, even after this diagnosis was made, the patient went another ten months before being operated on. It is possible that the patient was concerned about surgery and hence postponed any kind of medical attention.”

This in fact was claimant’s testimony. He stated that he knew what it was like to go through surgery and did not want to go through it again. Given that he had never been pain-free since the 1978 surgery, claimant stated that he did not want to miss work until the pain was too much to handle. In addition to claimant’s testimony, Dr. Honda stated that “claimant was a hard working guy *** and he had a huge disc. He did not want surgery, and he continued to work. This guy [has] the most highest pain tolerance I’ve ever seen.” Dr. Subbiah also testified to this effect. He said that after another doctor told claimant that nothing could be done about the pain, claimant said he decided to put up with it and continue to work in spite of continuing symptoms.

While Dr. Subbiah notes that claimant’s symptoms and pain pattern in his right lower extremity are identical with what Dr. Honda reported in 1978, the reason claimant consulted Dr. Honda and agreed to surgery was because of pain and numbness in his groin and left foot.

This case is not at all similar to Heston v. Industrial Comm’n (1987), 164 Ill. App. 3d 178, 517 N.E.2d 632, upon which the employer heavily relies. In Heston, the claimant did not offer any medical testimony. More importantly, while he claimed he was injured at work on February 28, on March 1, he helped a friend move a 150- to 200-pound desk. Nor is the present situation similar to Martin v. Industrial Comm’n (1982), 91 Ill. 2d 288, 437 N.E.2d 650 (also relied upon by the employer), where two medical experts disagreed as to whether there was a causal connection between claimant’s fall at

work and the herniated disk for which he had surgery two years later. Sub judice there was not so much as a mention of any other intervening event which may have caused claimant’s injury. Nor was there any conflicting medical testimony as to the cause of claimant’s injury.

In view of the above, we are of the opinion that the clearly evident, plain, and indisputable weight of the evidence leads to only one conclusion. Accordingly, we affirm the order of the circuit court.

Affirmed.

McCULLOUGH, PM., and STOUDER, WOODWARD, and RARICK, JJ., concur.