author: JUSTICE COOK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK DUNN, Defendant-Appellant.
    Fourth District
    No. 4—93—0026
    Opinion filed October 14, 1993.

      David E. Leefers, of Jacksonville, for appellant.
    Charles Colburn, State’s Attorney, of Jacksonville (Norbert J. Goetten, Robert J. Biderman, and Richard Norris, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COOK

delivered the opinion of the court:

Following a bench trial, defendant Mark Dunn was convicted of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1989, ch. 56x/2, par. 1401(b)(2)) and sentenced to four years of imprisonment with a recommendation for impact incarceration. Defendant contends his conviction should be reversed because he was entrapped as a matter of law. We affirm.

Nancy Perry testified she met defendant while working as an undercover narcotics agent with Central Illinois Drug Task Force (Task Force). Defendant worked as a bartender at the Work Release Lounge (Lounge) in Jacksonville, Illinois. Becky, a paid confidential source for Task Force, introduced Perry to defendant sometime prior to February 15, 1990, at the Lounge; Becky told defendant that Perry was her sister. At this first meeting, the two asked defendant if he had any cocaine to sell, but they were unsuccessful in making a purchase. Perry went to the Lounge (usually with Becky) approximately 4 to 10 times in order to establish a relationship with defendant and to build his trust, and on each occasion she asked defendant to sell cocaine or other drugs to her. Perry was unsuccessful in purchasing drugs. However, defendant never specifically refused to sell drugs to her, and she “was successful in getting more information.” Perry testified she would stay at the Lounge for an hour or two on each occasion, and she would have a couple drinks but never drank to the point of intoxication. Perry had never observed defendant selling, buying, or using drugs prior to February 15.

On February 15, Perry and Becky went to the Lounge and again asked defendant about purchasing cocaine. Perry testified defendant told them “he would sell three grams for four hundred dollars” but “the owner of the tavern was there at that time and that he was going to wait until he left in order to make some phone calls” to “his supplier.” Defendant made one phone call, and then told Perry and Becky he could sell cocaine to them, but that he would have to go to Alexander, Illinois. Perry told defendant that she would follow him to Alexander. Perry and Becky went to the Eagle Creek Saloon (Saloon) in Alexander; defendant met them there and told Perry he had the cocaine. Perry and defendant then walked to defendant’s truck, where defendant showed Perry a clear plastic bag with eight packages of cocaine in it.

Perry asked defendant if any of the cocaine was “spoken for” and defendant said “there was a gram and a half spoken for” but he would sell the rest to her. Defendant told Perry that he was not getting any financial benefit from this sale. Defendant also told Perry he did not know how much cocaine was in the whole package or in the individual bags. Perry had a scale and offered to weigh the bags; she then weighed the bags and determined they were “gram bags.” Defendant agreed to sell Perry the six heaviest bags, telling her “the quality was very good because it was rocky.” Defendant told Perry he would sell six bags to her for $500. Perry testified that “usually six bags, six grams would go for six hundred, so he was saying he was giving me a break with the hundred dollars, all six for a total of five hundred.” Perry gave defendant $500 for the six bags of cocaine, plus a $20 tip for his time. Defendant told Perry his work schedule and that if she ever wanted any more cocaine she should call him a day in advance so he could contact his “supplier” and get the cocaine for her the next day. Perry went back inside the Saloon to get Becky and the two of them left. Perry subsequently met with an inspector and placed the cocaine in a temporary holding facility. About one week later, Perry contacted defendant to purchase more cocaine, but was unsuccessful.

Arthur Avart, master sergeant with the Illinois State Police, testified that on February 15, 1990, he was the supervisor of the Central Illinois Inspectors Group and that he was involved in surveillance with Perry. His testimony corroborated Perry’s testimony, although he did not see the actual drug transaction. He was at the Lounge when Perry and Becky walked in the bar. Perry and Becky spoke to defendant for a while, then defendant made a phone call. After defendant made one phone call, he left with Perry and Becky; Avart followed them to Alexander. Avart observed defendant talking to Perry at the Saloon. Perry and defendant went outside for 10 to 15 minutes then Perry returned to the bar and left with Becky.

Defendant admitted he sold cocaine to Perry, but his version of the drug sale differed from Perry’s in some respects. He indicated he first met Becky and her boyfriend, Bruno, in August 1989. Becky came to the Lounge at least three or four times a week, but Bruno was not allowed inside because he had been involved in an altercation there. Bruno called defendant about six or seven times at the Lounge, threatened defendant, and asked defendant to get cocaine for him. Defendant refused. Every time Becky came to the Lounge she asked defendant to get cocaine for her, sometimes offering sex as payment. Defendant refused. In November, Becky began coming to the Lounge with Perry. Perry would have a drink every time she was in the Lounge and sometimes would drink to the point of intoxication. Becky and Perry came to the Lounge three or four times a week and would ask defendant to secure cocaine for them; each time either Perry or Becky would initiate the talk about cocaine. Defendant declined, each time responding “ ‘Ain’t got the time for it,’ T don’t do it,’ T don’t want to be around it,’ you know, ‘just leave me alone.’ ”

According to defendant, on February 15, 1990, Becky and Perry were in the Lounge and Becky again brought up the subject. Becky told defendant “they were going on a road trip and if [he] would get some this time, they would never ask [him] again.” Defendant was “tired of dealing with them” and said “ ‘Okay, this will be the only time.’ ” Although defendant did not have a cocaine supplier, he had some idea where he might be able to get some cocaine. Defendant stated he never told them he had to call his “supplier.” Defendant made two calls to a former girlfriend, who agreed to get some cocaine for him. Defendant told Becky and Perry to meet him at the Saloon in Alexander; he testified there was no discussion of price or weight with them until they all met at the Saloon. Defendant picked up the cocaine and the person who sold it to him told him “ ‘it was real good, it was rocky,’ ” and she set the price at $50 per bag. Defendant then met Perry; she weighed the bags and selected six bags for $300. She gave defendant a $20 tip and defendant told her he would give her a couple drinks when she came by the Lounge. Defendant testified he never told Perry to contact him if she wanted to buy more cocaine, and had never thought about selling drugs until Perry gave him the idea.

The trial court considered the defense of entrapment but determined the key to this case was credibility. The trial court found defendant’s testimony to be “almost entirely incredible.” Focusing on Perry’s testimony, the court found the State proved beyond a reasonable doubt that defendant was not entrapped since the evidence showed he was predisposed to commit the offense, and he was not actively encouraged to sell cocaine. The court found defendant committed the offense of unlawful delivery of a controlled substance.

Defendant contends he was entrapped as a matter of law. Section 7 — 12 of the Criminal Code of 1961 states:

“A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.” (Ill. Rev. Stat. 1989, ch. 38, par. 7 — 12.)

Once defendant has presented some evidence in support of this defense, the State must prove defendant was not entrapped. People v. Collins (1990), 199 Ill. App. 3d 163, 167, 556 N.E.2d 835, 837.

Under some definitions, every staged drug buy arranged by law enforcement authorities could amount to entrapment.

“For an entrapment to exist, (1) the idea of committing the offense must originate not with the suspect but rather with the enforcement authorities; (2) the enforcement authorities must actively encourage the suspect to commit the offense; and (3) the purpose of the encouragement must be to obtain evidence for the prosecution of the suspect.” (People v. Fisher (1979), 74 Ill. App. 3d 330, 333-34, 392 N.E.2d 975, 978.)

(See People v. Chanath (1989), 184 Ill. App. 3d 521, 524, 540 N.E.2d 468, 470-71; cf. People v. Darnell (1990), 214 Ill. App. 3d 345, 354, 573 N.E.2d 1252, 1258.) Nevertheless, staged drug buys and sales are recognized as a legitimate law enforcement tactic. A defendant’s predisposition, as well as governmental involvement, must be considered. (People v. Cross (1979), 77 Ill. 2d 396, 404, 396 N.E.2d 812, 816 (where the government supplied the drugs which defendant sold).) There is no entrapment if the authorities merely afford a person the opportunity for committing the offense “in furtherance of a criminal purpose which such person has originated.” (Ill. Rev. Stat. 1991, ch. 38, par. 7—12.) It matters not that the specific transaction is conceived and arranged by the authorities, so long as defendant has some general purpose, some predisposition, to violate the law.

In some of these cases the agent or the informant has applied what might be described as excessive pressure in order to persuade defendant to participate in the sale. For example, in Fisher (74 Ill. App. 3d at 335, 392 N.E.2d at 979), defendant was a dancer in a bar, and testified the undercover agent acted as though he were ill and in desperate need of amphetamines. She testified she was fearful of the agent and had been struck in the face by a bar patron several weeks earlier. (See also People v. Martin (1984), 124 Ill. App. 3d 590, 464 N.E.2d 837 (relentless coercion by informant); People v. Poulos (1990), 196 Ill. App. 3d 653, 554 N.E.2d 448 (where the informant supplied the cocaine).) Excessive pressure on the part of the agent may amount to entrapment even where defendant is predisposed to violate the law. Merely asking 4 to 10 times to make a purchase, in the present case, would not appear to constitute excessive pressure. It could be argued that entrapment should not be a defense where no excessive pressure is employed, where the agent merely asks defendant if he will make a sale. Where no wrongdoing is involved on the part of the agent, and defendant is ready to make a sale, perhaps there should be liability even if defendant had not previously thought about selling drugs. Nevertheless, Illinois law, both statutory and case law, is clear that a drug sale arranged by governmental authorities will constitute entrapment unless defendant had a predisposition to engage in such conduct.

Among the factors considered in determining whether predisposition exists are the defendant’s initial reluctance to commit the crime, his familiarity with drugs, and his ready access to a source. (People v. Schillaci (1988), 171 Ill. App. 3d 510, 517-18, 526 N.E.2d 871, 875-76; Collins, 199 Ill. App. 3d at 167, 556 N.E.2d at 838.) Defendant was initially reluctant to commit this crime. However, it is to be expected that one suspected of selling drugs will be extremely cautious before selling to a stranger, and may refuse to make a number of sales before any sale is made. (See People v. Foreman (1987), 153 Ill. App. 3d 346, 356, 505 N.E.2d 731, 737 (where the appellate court found no error in refusing to give an instruction on entrapment).) According to Perry, defendant’s reluctance never rose to the point of resistance, at which he would have told Perry that he did not sell drugs or that he did not want to be bothered anymore. The argument can be made that defendant was not familiar with drugs: that he did not have a scale, that he did not know the weight of the cocaine, he sold it at a price below the usual price. Defendant may not have had ready access to these drugs: he refused to make a number of sales, and when he finally agreed, the parties had to travel to another town.

According to the testimony of the undercover narcotics agent, Perry, defendant did have some familiarity with drugs. Defendant quoted a price of three grams for $400, then a price of six bags for $500. He described the cocaine he sold as being of good quality “because it was rocky.” He made references to “his supplier,” he refused to sell a gram and a half because it was “spoken for,” and told Perry to contact him if she ever wanted any more. Defendant denies that testimony, although he admits repeating what the person who had given him the drugs had said, that the quality was good because it was rocky. According to defendant Perry set the price and selected the bags she wanted to purchase. Defendant also testified he was afraid of Becky, and her boyfriend Bruno, but defendant sold them no drugs, and it is difficult to understand how that relationship would persuade defendant to sell drugs to Perry.

Defendant contends he sold cocaine to Perry “to just get her off of [his] back” because she and Becky had “persisted” in asking him for cocaine three to four times a week for several months. Yet, defendant testified that when Becky was at the Lounge he talked to her “whenever [he] got time.” Additionally, defendant stated that after he sold the cocaine to Perry, he told her to come by the Lounge and he would give her a couple of drinks. These actions seem inconsistent with defendant’s stated goal of getting Perry and Becky “off of [his] back.” It is the function of the trier of fact to determine the credibility of witnesses and the weight to be given their testimony. People v. Tye (1990), 141 Ill. 2d 1, 13, 565 N.E.2d 931, 937.

Because the determination of defendant’s predisposition to commit crime is dependent on the facts of the case, it is recognized that the issue is one for the trier of fact. (People v. Tipton (1980), 78 Ill. 2d 477, 401 N.E.2d 528.) The relevant question on review is whether, after reviewing 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. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) That standard of review is applicable here, just as it must be applied on review following any criminal conviction where an affirmative defense has been properly considered and rejected by the trier of fact. (People v. Gannon (1991), 213 Ill. App. 3d 560, 565-66, 572 N.E.2d 1133, 1136.) This court will not reverse a conviction unless the evidence was so improbable that it raises a reasonable doubt of guilt. Schillaci, 171 Ill. App. 3d at 520, 526 N.E.2d at 877.

The informant, Becky, was not called as a witness in this case. Although the State’s failure to call an informant to testify generally gives rise to an inference against the State (Poulos, 196 Ill. App. 3d at 661, 554 N.E.2d at 453), that inference is not controlling (Darnell, 214 Ill. App. 3d at 359, 573 N.E.2d at 1261). The buy in this case was not made by the informant but by the agent, Perry, and Perry testified fully as to the events which transpired.

The trial court is in the best position to weigh the credibility of witnesses, and based on the evidence the trial court found most credible here, there was no entrapment as a matter of law. We affirm the judgment of the circuit court of Morgan County.

Affirmed.

McCULLOUGH and KNECHT, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STEIGMANN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KIM I. NUSSBAUM, Defendant-Appellant.
    Fourth District
    No. 4—92—0816
    Opinion filed October 14, 1993.

      Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Brown, State’s Attorney, of Pontiac (Norbert J. Goetten, Robert J. Biderman, and James Overholt, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

After a July 1992 bench trial, the trial court convicted defendant, Kim I. Nussbaum, of child pornography (Ill. Rev. Stat. 1991, ch. 38, par. 11 — 20.1(a)(1)) and later sentenced him to 10 years in prison. Defendant appeals, arguing that the court (1) abused its discretion in imposing a sentence that exceeded the State’s recommendation, and (2) erred in considering information other than evidence introduced at trial or sentencing in determining the sentence.

We affirm.

I. Background

Because defendant appeals only his sentence, we need only summarize the evidence underlying his conviction. In May 1992, defendant, a 27-year-old male, asked C.S., the 11-year-old son of his neighbors, to go fishing and spend the night. C.S. and his parents consented. At defendant’s house, defendant photographed C.S. with his pants pulled down and genitals exposed. Defendant then had C.S. take a similar photo of him. One of defendant’s friends later inadvertently discovered the photos, which were turned over to C.S.’s parents.

II. Defendant’s Sentence Exceeds State’s Recommendation

At defendant’s sentencing hearing, the trial court asked both parties for their recommendations. Noting that he was not eligible for probation because of his prior convictions, defendant argued for a sentence of four years in prison, the minimum sentence the court could impose for this Class 1 felony. (See Ill. Rev. Stat. 1991, ch. 38, pars. 11 — 20.1(c), 1005 — 8—1(a)(4).) The State recommended a sentence of eight years. The court sentenced defendant to 10 years. Defendant argues that the court abused its discretion by exceeding the State’s recommendation by two years. We disagree.

The trial court is in the best position to make a reasoned decision as to the appropriate punishment in each case, and we will not reverse the trial court unless it has abused its discretion when making that decision. (People v. Streit (1991), 142 Ill. 2d 13, 19, 566 N.E.2d 1351, 1353.) That court enjoys wide latitude in determining and weighing factors in mitigation or aggravation, and this court gives great deference and weight to the sentence the trial court thought appropriate in any given case. (People v. White (1992), 237 Ill. App. 3d 967, 969-70, 605 N.E.2d 720, 722.) The Illinois Supreme Court recently stated the following about reviewing a defendant’s sentence:

“When reviewing courts examine the propriety of sentences imposed by trial courts, they should proceed with great caution and care. [Citation.] A reviewing court must not substitute its judgment for that of a sentencing court merely because it would have weighed the factors differently.” Streit, 142 Ill. 2d at 19, 566 N.E.2d at 1353.

When imposing sentence, a trial court should consider the statutory factors in mitigation and aggravation set forth in sections 5 — 5— 3.1 and 5 — 5—3.2 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1991, ch. 38, pars. 1005 — 5—3.1, 1005 — 5—3.2). In evaluating these factors, the court can consider defendant’s remorse, or lack thereof, and the court is not required to give defendant’s rehabilitative potential more weight than the seriousness of the offense. However, the court need not recite and assign a value to each factor it has considered. White, 237 Ill. App. 3d at 970, 605 N.E.2d at 722.

The record clearly reveals that the trial court thoroughly considered the statutory factors in mitigation and aggravation before reaching its sentencing decision. (Streit, 142 Ill. 2d at 20, 566 N.E.2d at 1354.) The court noted defendant’s prior criminal history, including convictions for burglary, forgery (twice), unlawful use of a weapon by a felon, and theft, and his resultant periods of probation and incarceration. Specifically, the court found the following:

“ [Defendant has committed offenses virtually at all times that he has been on the streets. So he has a significant history of criminality. He was in a position of trust. He managed to, under *** the guise of going fishing with [C.S.], managed to get [C.S.] alone in his place and at that time the photographs were taken. It seems to me that this was calculated.
This wasn’t spur of the moment. *** And he was in a position of trust and supervision, in effect, babysitting at least for [C.S.] overnight.
*** [Based upon his prior convictions, defendant] would be eligible for an extended sentence. I don’t intend to impose an extended sentence in the case. But under the statute, his prior criminal record has had a great impact on what can and cannot happen.
*** Were probation possible, I would state for the record that I would not impose probation because probation is not appropriate. *** I think the circumstances under which the photographs were taken were repulsive. *** But in looking at statutory factors in mitigation, [defendant] does have some medical problems, all of which have been successfully dealt with by the Department of Corrections [(DOC)]. *** The court is not unmindful that [defendant] has showed significant mental instability for many years, part of which I suspect relate to his long-term drug/alcohol abuse. ***
There are no other factors in mitigation other than some minor health problems that defendant has. None of those are problems that would make it an undue burden or hardship for him to be incarcerated. *** [B]ased upon [defendant’s] significant prior record, his lack — total lack of remorse in this case, the fact that the evidence in this case is overwhelming, *** the court can consider that along with many other things in determining an appropriate sentence.
***
Now, is incarceration going to resolve [defendant’s] problems? I don’t think so. He can get some help for his various problems, drug/alcohol dependency, his psychological problems. But is incarceration in DOC going to be helpful to the community for the protection of the society[?] *** I am sorry, but [it] is actually a worthwhile goal in some cases that while [defendant] is locked up, he cannot be burglarizing people, committing forgeries, possessing *** weapons on the streets, or committing the offense of child pornography.”

That the trial court’s determination of an appropriate sentence in this case exceeded the recommended sentences of both the prosecutor and defense counsel is interesting but irrelevant. Further, this court’s analysis of whether the trial court abused its discretion in its sentencing will similarly not be affected by the sentences the parties recommended to the trial court. After all, they are just that — recommendations. In People v. Lautenschlager (1990), 205 Ill. App. 3d 530, 532, 563 N.E.2d 1213, 1215, this court rejected the defendant’s argument that the trial court had abused its sentencing discretion by exceeding the prosecutor’s recommended sentence. In Lautenschlager, we noted that an “attitude has developed that somehow the State’s recommendation is the upper limit of any appropriate sentence. This, of course, is not true.” (Lautenschlager, 205 Ill. App. 3d at 532, 563 N.E.2d at 1215.) Today we reaffirm that holding, emphasizing that the discretion to impose a sentence is vested solely in the trial court. (See Streit, 142 Ill. 2d at 19, 566 N.E.2d at 1353.) We hold that counsels’ recommendations are deserving of whatever weight the sentencing court wishes to accord them and nothing more.

Defendant was convicted of a Class 1 felony. Section 5 — 8—1(a)(4) of the Code provides that the prison sentence for a defendant convicted of a Class 1 felony is not less than 4 but no more than 15 years in the penitentiary. (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—1(a)(4).) A sentence which falls within the statutory guidelines will not be disturbed on review unless it is manifestly disproportionate to the nature of the offense. (People v. Costello (1992), 224 Ill. App. 3d 500, 510, 586 N.E.2d 742, 749.) The 10-year sentence which the trial court imposed here falls within the statutory guidelines. Further, the court properly considered all factors in aggravation and mitigation. Therefore, especially in view of defendant’s miserable record of criminality, we hold that defendant’s sentence does not constitute an abuse of discretion.

III. The Trial Court’s Consideration At Sentencing Of Information Other Than That Presented By The Evidence

Defendant next argues that the trial court improperly considered its own anecdotal information and experience in arriving at its sentencing decision. The State responds that the court’s actions do not constitute an abuse of its discretion.

Defendant specifically objects to the trial court’s following analysis:

“The State has suggested eight years. The defense has suggested the minimum. The State’s recommendation in my opinion is overly generous to the defendant in light of what we are now seeing occurring in the Illinois [DOC] as far as early release. I, as a trial judge, have to consider, first of all, day-for-day good time. And that sentence of eight years in DOC means [a] maximum [of] four. Then DOC gets into its education discount if you take any courses in DOC to further your education — that is another discount. But right now, [DOC], because of overcrowding, is releasing people so rapidly that persons as recently as this year that I have sentenced to DOC to a year and a half in DOC were out in three months.
* * *
Knowing DOC’s policies, [defendant] will be rejoining the community probably somewhere in three and a half to four years. And that, to me, all things considered, is an appropriate sentence for his conduct in this case. I don’t think a four-year sentence *** would be of any benefit or serve as any protection to society. And the State’s recommendation of eight [years] *** probably will result in about eight to *** twelve months less time than I think is appropriate.”

A trial court may properly consider the effect of good-behavior credit when imposing sentence. (People v. Harvey (1987), 151 Ill. App. 3d 881, 883, 503 N.E.2d 1131, 1132.) Defendant complains, however, that the court acted improperly in considering factors other than potential good-time credit. We disagree.

In People v. La Pointe (1981), 88 Ill. 2d 482, 492, 431 N.E.2d 344, 348, the supreme court held that the Code “vests a wide discretion in sentencing judges in order to permit reasoned judgments as to the penalty appropriate to the particular circumstances of each case.” To fashion an appropriate sentence, the supreme court held that “ ‘a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.’ ” La Pointe, 88 Ill. 2d at 496, 431 N.E.2d at 350, quoting People v. Adkins (1968), 41 Ill. 2d 297, 300, 242 N.E.2d 258, 260.

Consistent with the La Pointe analysis, the Second District Appellate Court in People v. Torgeson (1985), 132 Ill. App. 3d 384, 389, 477 N.E.2d 244, 247, wrote the following:

“[W]e see no reason why a sentencing judge may not consider, as one factor, the realities of the sentencing law in fashioning a sentence which is reflective of both the seriousness of the offense and the defendant’s rehabilitative potential. A sentencing judge does not act in a vacuum, nor can he be expected to disregard the possibility of good-time credit which is inherent in every sentence of imprisonment. [Citation.] While we recognize that good-time credit and eligibility for good-time credit are not the same thing, we nevertheless believe that a sentencing court may properly determine the minimum amount of actual incarceration which is appropriate in light of the seriousness of the offense and the history and character of the defendant. *** It is well established that a sentencing court may search anywhere, within reasonable bounds, for facts which aid him in crafting a proper sentence.”

We emphatically agree. The trial court has the duty to craft an appropriate sentence for each defendant (see People v. Jackson (1992), 149 Ill. 2d 540, 548-49, 599 N.E.2d 926, 929-30), and in doing so, the court may exercise wide discretion in the source and type of evidence it uses to determine that sentence. (White, 237 Ill. App. 3d at 969, 605 N.E.2d at 722.) In our judgment, considering “the realities of the sentencing law” appropriately falls within the trial court’s wide discretion. We view the trial courts remarks here as merely “considering the realities of the sentencing law.”

IV. Conclusion

For the reasons stated above, we affirm the trial court’s sentence of defendant.

Affirmed.

LUND and GREEN, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    THE DEPARTMENT OF TRANSPORTATION ex rel. THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff and Counterdefendant-Appellee, v. INTERSTATE BRANDS CORPORATION, Defendant and Counterplaintiff-Appellant (The Department of Revenue, Defendant).
    Fourth District
    No. 4—93—0446
    Opinion filed October 22, 1993.

      Timothy E. Duggan, of Springfield, for appellant.
    Roland W. Burris, Attorney General, of Springfield (R. Phillip Reed, Special Assistant Attorney General, of counsel), for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

This court allowed the application for leave to appeal pursuant to Illinois Supreme Court Rule 308 (134 Ill. 2d R. 308) filed by defendant-counterplaintiff Interstate Brands Corporation (hereinafter defendant). The plaintiff-counterdefendant Illinois Department of Transportation (hereinafter plaintiff) brought an eminent domain proceeding in the circuit court of Sangamon County seeking a temporary construction easement for three years over a small portion of defendant’s property, amounting to .054 acres. Because of several recorded notices of lien, the Illinois Department of Revenue was also named a party defendant, but is not a party to this appeal. As alleged in plaintiff’s complaint, the temporary construction easement was needed to facilitate “the constructing, widening and maintaining of FA Route 67, a State highway, under the control and jurisdiction of plaintiff.” Defendant filed a counterclaim seeking to recover damages for property which was not to be taken by plaintiff. It is the dismissal of the counterclaim which prompted this appeal.

Before addressing the merits of the appeal, several preliminary matters need to be addressed. Because Illinois Supreme Court Rule 308(c) (134 Ill. 2d R. 308(c)) requires that the application for leave to appeal be accompanied by a copy of the trial court’s order and other parts of the trial court record necessary to a determination of the application, it would ordinarily be expected that the pleading dismissed be included in the record accompanying the application. It is not in this case. Nevertheless, here the omission is not fatal to the appeal because (1) there are sufficient additional documents included in the record to apprise this court of the circumstances presented to the trial court since the issue arose not only by reason of the dismissal of the counterclaim, but because of a ruling on a motion in limine to exclude evidence of damages to the remainder of defendant’s property; (2) a copy of the counterclaim was included in the appendix to the appellant’s brief (134 Ill. 2d R. 342(a)); and (3) plaintiff has not specifically objected to the omission of the counterclaim from the record on appeal. Practitioners should, however, be forewarned that such an omission may well jeopardize a Rule 308 application and that including a copy of a document in an appendix to a brief is generally not considered an adequate substitute for the filing of a complete record. “The record of proceedings in the trial court properly authenticated imports verity and is the sole conclusive and unimpeachable evidence of proceedings in the lower court.” (Kazubowski v. Kazubowski (1970), 45 Ill. 2d 405, 416, 259 N.E.2d 282, 290.) It was the contemplation of the rules committee in redrafting Illinois Supreme Court Rule 342 in 1979 that most appeals would be heard on the original papers. 134 Ill. 2d R. 342, Committee Comments, at 304.

In addition, several motions have been taken with the case. Plaintiff moves to amend the record on appeal by adding (1) certified copies of additional relevant pleadings which it attached to its answer in opposition to the application for leave to appeal; and (2) a complete transcript of a deposition which it admits was not in the trial court record, but which was quoted in the answer in opposition to the application for leave to appeal. Defendant objects to the inclusion of the deposition in the record. The motion is allowed as to the additional pleadings. The motion is denied as to the deposition. (James v. Yasunaga (1987), 157 Ill. App. 3d 450, 451-52, 510 N.E.2d 531, 533.) Plaintiff also filed a motion to strike the statement of facts in defendant’s appellant’s brief. Plaintiff argues the statement of facts is not accurate, fair, or supported by citations to the record in violation of Illinois Supreme Court Rule 341(e)(6). (134 Ill. 2d R. 341(e)(6).) With the exception of the defendant’s counterclaim for damages, to which plaintiff has made no specific objection, the motion to strike the statement of facts is denied as moot. Thacker v. U N R Industries, Inc. (1992), 151 Ill. 2d 343, 353, 603 N.E.2d 449, 454.

On the merits, the question of law certified by the trial court was:

“When an Eminent Domain proceeding brought by the State of Illinois involves the taking of a temporary easement, may the Defendant seek recovery by counterclaim for damages to the remainder interest based upon changes in access to the property, in a forum other than the Illinois Court of Claims?”

The direct answer to the question is “No!” The motion to dismiss the counterclaim was a combined motion pursuant to sections 2— 615(a) and 2 — 619(a)(9) of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1991, ch. 110, pars. 2 — 615(a), 2 — 619(a)(9).) Defendant’s counterclaim did not seek damages to the remainder resulting from the taking of the easement. As the bill of particulars filed by defendant indicated, the damages complained of were that “[t]he remainder after the taking was permanently damaged by the loss of use of all on-site parking spaces on the west side of the property.” As defendant explained in the motion to reconsider the dismissal of the counterclaim, the damages resulted from the loss of parking spaces necessitated by the need for additional maneuvering room for semitrucks delivering bakery products on defendant’s property as a result IDOT’s relocation of the access driveway onto defendant’s property. It is nowhere alleged that the property subject to the temporary construction easement is the same property on which the new access driveway was built. Therefore, the damages which defendant sought to recover in the counterclaim were not damages resulting from the temporary easement, but damages resulting from the relocation of the driveway.

In Patzner v. Baise (1990), 133 Ill. 2d 540, 547-48, 552 N.E.2d 714, 717-18, the Illinois Supreme Court stated that an action to recover from the State damages to property caused by the modification of a nearby road must be brought in the Court of Claims when the damages do not arise from the taking of the property. Defendant argues that in Patzner, there was no taking at all and in this case there is a temporary easement. However, the damages defendant seeks here do not arise as a direct consequence of the temporary easement, but from the relocation of the access driveway. The temporary construction easement expires by its own terms of three years or upon completion of construction. The relocation of the access driveway is not in any way related to the temporary construction easement. Any damages alleged to have been sustained by defendant in the counterclaim do not concern the temporary easement. We also do not find Patzner distinguishable because the plaintiff in that case filed a mandamus action to require the State to institute eminent domain proceedings, whereas in this case, the State had already initiated an eminent domain proceeding for the easement and defendant tried to “tag on” an action for damages which would otherwise have had to have been brought in the Court of Claims.

Article I, section 15, of the Illinois Constitution of 1970 provides: “Private property shall not be taken or damaged for public use without just compensation as provided by law. Such compensation shall be determined by a jury as provided by law.” (Ill. Const. 1970, art. I, §15.) The legislature has provided for the availability of jury trials in the circuit courts of this State to ascertain the just compensation when private property is taken or damaged for public use. (Ill. Rev. Stat. 1991, ch. 110, pars. 7 — 101, 7 — 102.) However, the legislature has also provided that all claims against the State founded in any laws of this State or sounding in tort are to be brought in the Court of Claims. (Ill. Rev. Stat. 1991, ch. 37, pars. 439.8(a),(d).) Although defendant complains that a jury trial is not available in the Court of Claims, as the supreme court noted in Patzner, that is a matter for the legislature. (Patzner, 133 Ill. 2d at 548, 552 N.E.2d at 718.) If the access to an abutting street is taken or materially impaired, the loss does not involve the actual physical invasion of the property and is compensable in a common law action for damages rather than in an eminent domain proceeding (Granite City Moose Lodge No. 272 v. Kramer (1983), 96 Ill. 2d 265, 271, 449 N.E.2d 852, 855) because impairment of access is a “ ‘damaging’ ” which does not involve a “ ‘taking.’ ” (Patzner, 133 Ill. 2d at 547, 552 N.E.2d at 717, quoting Granite City, 96 Ill. 2d at 271, 449 N.E.2d at 855.) Such an action against the State must be prosecuted in the Court of Claims.

Defendant also alludes to the possible implication of the fifth amendment of the United States Constitution in this issue. (U.S. Const., amend. V.) However, merely referring to the constitution does not raise the statement to the level of a constitutional argument. (Loitz v. Remington Arms Co. (1988), 177 Ill. App. 3d 1034, 1059, 532 N.E.2d 1091, 1106, aff’d in part, rev’d in part on other grounds (1990), 138 Ill. 2d 404, 563 N.E.2d 397.) Since defendant has not made a cogent argument based on the fifth amendment to the United States Constitution, this court will not discuss it.

In this case, defendant is entitled to litigate the question of compensable damages caused by the taking of the easement but defendant is not entitled to litigate the question of whether it is entitled to compensable damages caused by the relocation of the access to the property.

Affirmed and cause remanded to circuit court of Sangamon County.

Affirmed and remanded.

KNECHT and LUND, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER RECKERS, Defendant-Appellant.
    Fourth District
    No. 4—92—0888
    Opinion filed October 28, 1993.

      Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Norbert J. Goetten, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

A jury found defendant, Christopher M. Reckers, guilty of the offense of aggravated battery in violation of section 12 — 4(b)(8) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 4(b)(8)). The circuit court of Adams County sentenced defendant to four years’ imprisonment in the Department of Corrections. Defendant appeals, alleging first he was not proved guilty under an accountability theory where he believed he was providing a ride to a consensual fistfight, and second, his sentence was excessive and grossly disparate to that of codefendants. We affirm.

Defendant, Charles Guymon, Timothy Mark Cannon, and Terrell Bell were charged by information with the February 27, 1992, battery and aggravated battery of Terry White in a public park and street of Lima, Illinois. In individual plea agreements Guymon pleaded guilty to aggravated battery and received 30 months’ probation, Cannon pleaded guilty to battery and received 12 months’ supervision, and Bell pleaded guilty to a previous juvenile petition and charges in this case were dropped.

Witnesses at defendant’s trial testified defendant drove a group of high-school-age friends from Quincy to Lima in search of another group of high school students from Unity High. When the groups met, it was anticipated there would be a fistfight between one or two designated young men from each of the two groups. At least one of the designated fighters from Quincy, Jamie Clark, rode in defendant’s truck. Testimony' indicated the victim, White, was the designated fighter from Unity, although he denied this.

Defendant’s testimony was presented at trial by the State through the use of a transcript of his testimony given at an earlier hearing on a petition to revoke probation. He testified he had gone to the fight not only as a spectator but also to help provide a show of force to either cause the Unity forces to back down or to ensure a fair fight and see that Quincy’s designated fighters were not surprised, surrounded or outnumbered.

WHien the two sides met, Jamie Clark began hitting White while he was still in his vehicle. Guymon, Bell, and Cannon joined the fray and succeeded in pulling WHiite from the car and beating him up. There was no testimony from any source indicating defendant participated in the brawl. One of the spectators left to call the police, and when it was announced they were on their way, the fighters from Quincy piled back into defendant’s truck and sped away. When stopped by State Police and sheriff’s deputies a short while later, most of the riders had left defendant’s truck and he denied knowledge of any fight.

As defendant had no hands-on involvement in the beating of White, the case was tried on a theory of accountability. The jury was instructed defendant could be found guilty of aggravated battery if he “aids, abets, agrees or attempts to aid” others in the planning or commission of an offense. (Ill. Rev. Stat. 1991, ch. 38, par. 5 — 2(c).) Despite defendant’s argument that at most he was only aiding in the facilitation of a fistfight by driving one of the combatants there while he himself just went to watch, the jury returned a verdict of guilty.

Defendant argues on appeal he cannot be found guilty of aggravated battery beyond a reasonable doubt where a consensual fight was anticipated by those involved. Consent as a defense to battery appears to be a novel idea in Illinois and while some of the evidence in the case might be interpreted as showing the victim consented to engage in a fistfight, defendant did not pursue this theory by a tendered jury instruction or argument. This was not defendant’s theory of the case before the trial court, and we decline to consider whether the victim’s purported consent would be a defense to battery. We note, however, any consent the victim may have given here would presumably have been to a fistfight between equal numbers and not to a pummeling by three of defendant’s friends. Additionally, we are inclined to agree with the commentators and a number of our sister States who found consent not to be a defense to a battery based on injurious touching. See 2 W. LaFave & A. Scott, Substantive Criminal Law ch. 7, §7.15(e), at 311 (1986); Jaske v. State (Ind. 1989), 539 N.E.2d 14; People v. Lucky (1988), 45 Cal. 3d 259, 753 P.2d 1052, 247 Cal. Rptr. 1; State v. Richards (1985), 123 Wis. 2d 1, 365 N.W.2d 7; State v. Hatfield (1984), 218 Neb. 470, 356 N.W.2d 872; Commonwealth v. Burke (1983), 390 Mass. 480, 457 N.E.2d 622; Lyons v. State (Fla. 1983), 437 So. 2d 711; State v. Fransua (1973), 85 N.M. 173, 510 P.2d 106.

Defendant argues he should not be found guilty under the accountability statute (Ill. Rev. Stat. 1991, ch. 38, par. 5 — 2(c)) because the evidence failed to prove beyond a reasonable doubt he intended to facilitate the beating of White in a nonconsensual and unfair fight. The statute incorporates the “common design rule,” which provides whenever two or more people engage in a common criminal design, any acts in furtherance thereof committed by one party are considered to be the acts of all parties to the common design and all parties are accountable for those acts. (People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746.) While it is true criminal responsibility may not be imposed by the defendant’s mere presence at the scene (People v. Bolar (1992), 229 Ill. App. 3d 560, 593 N.E.2d 156), here defendant was more than a mere spectator.

Defendant was aware of the criminal design, i.e., to go to Lima so Jamie Clark could fight Terry White. He helped facilitate the offense by voluntarily driving Clark and the other attackers to the park in Lima where the fight was to take place. The design involved illegal acts that were dangerous in nature. Defendant was acting as a lookout for Clark and intended to join the fight if necessary. He did nothing to disapprove or oppose the fight, but rather stood by and watched as the three youths beat White and dragged him from a car. He fled when told the police were coming, taking several of the group with him. When stopped by a police officer, he failed to report the fight and instead denied he was involved. He maintained close affiliation with his companions after the offense.

Active participation has never been a requirement for criminal guilt on the theory of accountability. (People v. Ruiz (1982), 94 Ill. 2d 245, 447 N.E.2d 148.) Proof of the common design need not be supported by words of agreement but can be drawn from the circumstances surrounding the commission of an act by a group, and the circumstances may show there is a common design to do an unlawful act to which all assent. (People v. Tate (1976), 63 Ill. 2d 105, 345 N.E.2d 480; People v. Richardson (1965), 32 Ill. 2d 472, 207 N.E.2d 478.) Evidence that a defendant voluntarily attached himself to a group bent on illegal acts with knowledge of its design supports an inference he shared the common purpose and will sustain his conviction as a principal for a crime committed by another in furtherance of the venture. (People v. Rybka (1959), 16 Ill. 2d 394, 158 N.E.2d 17.) When the defendant voluntarily associates with a group bent on illegal acts that are dangerous in nature, or which will probably or necessarily involve the use of force and violence, he becomes accountable for any wrongdoings of the other members of the group in furtherance of a common purpose even though he did not actively participate in the overt act itself. (Rybka, 16 Ill. 2d at 407, 158 N.E.2d at 22.) If the proof shows he was present at the commission of the crime without disapproving or opposing it, the trier of fact may consider this conduct in connection with other circumstances and thereby reach a conclusion he assented to the commission of the crime, lent to it his countenance and approval, and was thereby aiding and abetting it. (Richardson, 32 Ill. 2d at 477, 207 N.E.2d at 481.) Proof the defendant was present during the perpetration of the offense, fled from the scene, maintained a close affiliation with his companions after the commission of the crime, and failed to report the crime are all factors the jury may consider in determining accountability. People v. Reid (1990), 136 Ill. 2d 27, 62, 554 N.E.2d 174, 190.

We find there was sufficient evidence to find defendant guilty beyond a reasonable doubt and turn now to defendant’s arguments regarding sentencing. Defendant maintains his four-year sentence was excessive because he had a minimal prior criminal record and his co-defendants, who were the actual physical perpetrators of the aggravated battery, received only probation. Consequently, defendant has asked this court to reduce his sentence to two years. While we acknowledge our authority to reduce defendant’s sentence (134 Ill. 2d R. 615(b)(4)), we decline to do so here.

Defendant’s sentence was within statutory limits. He was convicted of aggravated battery, a Class 3 felony (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 4(e)) carrying a possible sentence of between two and five years’ imprisonment (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8— 1(a)(6)). A sentence within statutory limits will not be overturned absent an abuse of discretion. People v. Lucas (1991), 215 Ill. App. 3d 148, 574 N.E.2d 850.

There was no abuse of discretion. In deciding the appropriate sentence, the trial court is to consider such factors as the defendant’s general moral character, credibility, demeanor, social habits, and age. (People v. Streit (1991), 142 Ill. 2d 13, 566 N.E.2d 1351.) A trial court’s ruling is entitled to great deference because it is better able to make a firsthand, reasoned judgment based on these factors. People v. Anders (1992), 228 Ill. App. 3d 456, 592 N.E.2d 652.

A review of the presentence investigation report reveals an abysmal rehabilitative potential on defendant’s part. The opening paragraph of the first supplemental report indicates the report was not complete because defendant refused to be interviewed. Defendant had previously been sentenced to 30 months’ probation for possession of a stolen vehicle, a Class 2 felony (Ill. Rev. Stat. 1991, ch. 951/2, pars. 4 — 103(a)(1), (b)). Defendant was on that probation when he committed the instant offense. He was dismissed from a general equivalency degree program for failure to attend classes. He missed appointments at Recovery Resources and was dropped from that program. Defendant tested positive for cannabis usage in February 1992. Defendant had a substance-abuse problem. His adult record included convictions for underage possession of alcohol and interfering with a police officer. Both charges came while defendant was on juvenile probation for misdemeanor theft. His juvenile record included probation in Nebraska in 1986 for second degree criminal trespass and criminal mischief. Between his conviction for the instant cause and sentencing, defendant moved to Dallas, Texas, where he was promptly arrested and fined $150 for public intoxication.

Defendant’s criminal history alone would support the sentence. At only 19 years of age, defendant had committed offenses in at least three different States. From the record it appears there was rarely, if ever, a time in defendant’s adolescent and adult life when he was not in some kind of trouble with the law. After having been given numerous chances through probation to prove his ability to live peacefully in the community, defendant showed himself to be incapable of doing so.

Considered on its own, defendant’s sentence was appropriate. In comparison with his codefendants, defendant’s sentence was also appropriate. Disparate sentences are not per se improper. (People v. Mc-Clendon (1986), 146 Ill. App. 3d 1004, 497 N.E.2d 849.) Disparity in sentences may be justified by the relative character and history of the codefendants, degree of culpability, rehabilitative potential or criminal record. People v. Foster (1990), 199 Ill. App. 3d 372, 556 N.E.2d 1289.

Comparison with two of the codefendants is not legitimate. Mark Cannon pleaded guilty to simple battery, a misdemeanor. Thus, he was not eligible to receive any prison sentence. Terrell Bell admitted to a juvenile petition and the charges were later dismissed.

Comparison with Charles Guymon reveals he had no adult arrest record and his juvenile record consisted of a $50 fine for fighting, several curfew violations, and unlawful restraint and battery. Guymon’s record was much less serious than defendant’s.

It should also be noted the codefendants pleaded guilty, rather than going to trial as defendant did. It is proper for the trial court to grant leniency toward a defendant who by his plea of guilty has insured prompt and certain application of correctional measures, acknowledged his guilt, and shown willingness to assume responsibility for his misconduct, while giving a higher sentence to one who has stood trial. (People v. Sivels (1975), 60 Ill. 2d 102, 324 N.E.2d 422.) Thus, a defendant who has stood trial cannot properly compare his sentence with those imposed on persons who have pleaded guilty. (Mc-Clendon, 146 Ill. App. 3d at 1013, 497 N.E.2d at 855.) This is especially true where, as was the case with Guymon, a codefendant has pleaded guilty and helped prosecute the defendant. People v. Coustin (1988), 174 Ill. App. 3d 824, 529 N.E.2d 89.

The judgment of the trial court is affirmed.

Affirmed.

McCULLOUGH and COOK, JJ., concur.


text:
    THE PEOPLE ex rel. CAROLE STOCKWILL, Plaintiff-Appellee, v. THOMAS G. KELLER, Defendant-Appellant.
    Fourth District
    No. 4—92—0200
    Opinion filed October 28, 1993.

      Kristen H. Fischer, of Urbana, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Thomas P. Sweeney, Assistant State’s Attorney, of counsel), for appellee.
   JUSTICE COOK

delivered the opinion of the court:

The State of Illinois, on behalf of Carole Stockwill, filed a paternity complaint against Thomas Keller on March 31, 1989. The circuit court of Champaign County granted the State’s motion for summary judgment, and Keller appealed. We affirm.

When Keller denied paternity of Bailey M. StockwiH, born on November 7, 1988, blood tests were ordered. The blood test results indicated the probability of Keller’s paternity was 99.84% with a combined paternity index of 625 to 1. On August 25, 1990, Keller answered interrogatories in which he admitted having a sexual relationship and living with Stockwill but maintained he could not remember the relevant dates. In the answers to interrogatories Keller did not specifically deny having sexual intercourse with Stockwill during the probable period of conception. He did deny paternity of Bailey, stating that he was sterile or impotent. On October 19, the State filed a motion for finding facts and summary judgment in response to Keller’s failure to respond to the State’s requests to admit facts. In his subsequently filed answers to the requests, Keller specifically denied having intercourse with Stockwill during the entire three-month probable period of conception.

Keller then filed a third-party complaint, naming Carole’s ex-husband, David Stockwill, as presumed father. The Stockwills were married during most of the probable period of conception. When David Stockwill underwent blood tests, the results excluded him as Bailey’s biological father. The State later moved to amend its motion for summary judgment, requesting that David Stockwill’s blood test results be considered.

On February 6, 1992, the trial court heard the motion for summary judgment and entered a judgment of parentage against Thomas Keller. An order for support was also entered, requiring child support of $34 per week, made retroactive to January 15, 1990, the date Keller was served with summons. The court determined an arrearage of $3,638 existed and ordered payments of $5 per week thereon. A notice of appeal was filed February 20, 1992. Appellant’s brief, due May 28, 1992, was not filed until May 11,1993.

Summary judgment may be granted on the issue of paternity in Illinois where a review of the “pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1991, ch. 110, par. 2—1005(c); see also Breese v. Dewey (1991), 223 Ill. App. 3d 356, 357, 584 N.E.2d 924, 925.) Facts contained in an affidavit in support of a motion for summary judgment which are not contradicted by counteraffidavits are admitted and must be taken as true for purposes of the motion. (Purtill v. Hess (1986), 111 Ill. 2d 229, 241, 489 N.E.2d 867, 871-72.) It is no longer true that a slight amount of evidence will always be sufficient to raise a genuine issue of material fact, and thereby defeat the issuance of summary judgment. (Benner v. Bell (1992), 236 Ill. App. 3d 761, 768, 602 N.E.2d 896, 901.) Where the evidence before the court at the hearing for summary judgment would constitute all the evidence before the court at trial, and on that evidence the court would be required to direct a verdict, then summary judgment should be entered even though the evidence would otherwise raise a genuine issue of material fact. (Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500.) This court must resolve whether Stockwill’s evidence “so overwhelmingly outweigh[s] the respondent’s evidence in rebuttal of the proposition that he fathered the child that paternity was not a genuine issue.” In re Paternity of Smith (1989), 179 Ill. App. 3d 473, 476, 534 N.E.2d 669, 671.

It has been held that a court may not enter summary judgment against a putative father based exclusively on blood test results. (Daubach v. Ishihara (1981), 103 Ill. App. 3d 750, 755, 431 N.E.2d 1183, 1186.) The reason for this rule was that blood tests are tests of exclusion and “can only establish whether a putative father is not the father of a child.” (Emphasis added.) (Smith, 179 Ill. App. 3d at 478, 534 N.E.2d at 672.) Modem blood tests are more sophisticated than those formerly used, and can identify many more blood characteristics than just types A, B, and O. (People v. Stanley (1993), 246 Ill. App. 3d 393, 399, 615 N.E.2d 1352, 1357.) With these many blood characteristics it is possible not only to positively exclude the tested individual as being the donor, but to establish that the chances of anyone else being the donor are extremely remote. (Stanley, 246 Ill. App. 3d at 400, 615 N.E.2d at 1358.) The blood tests in this case were of that type, with at least 16 blood systems identified. At any rate, in this case the blood test results were not the only evidence considered in the trial court’s decision to grant summary judgment. The court also weighed Stockwill’s sworn affidavit that Keller was the only man with whom she had had intercourse during the probable period of conception and the blood test results excluding David Stockwill as Bailey’s biological father.

If the plaintiff in a paternity action is married during the probable period of conception, her husband is presumed to be the child’s natural father. (Ill. Rev. Stat. 1991, ch. 40, par. 2505(a)(1).) That presumption is a very strong one, which may be rebutted only by clear and convincing evidence. (Ill. Rev. Stat. 1991, ch. 40, pars. 2505(a)(1), (b); Smith, 179 Ill. App. 3d at 477, 534 N.E.2d at 672.) Once the presumed father has been ruled out as actual father by the blood test results, “the question of paternity shall be resolved accordingly.” (Ill. Rev. Stat. 1991, ch. 40, par. 2511(f)(1).) Once Stockwill was eliminated as Bailey’s father, only Keller remained a possibility.

According to the Illinois Parentage Act of 1984 (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 2501 et seq.), as amended, when blood tests indicate the alleged father is not excluded and the combined paternity index is at least 500 to 1, a presumption arises that the alleged father is the biological father. (Ill. Rev. Stat. 1991, ch. 40, par. 2511(f)(4).) This presumption is justified by the capabilities of modern blood tests, as discussed in Stanley. (Stanley, 246 Ill. App. 3d at 399, 615 N.E.2d at 1358.) Keller’s combined paternity index was 625 to 1. The statutory presumption is rebuttable by clear and convincing evidence (Ill. Rev. Stat. 1991, ch. 40, par. 2511(f)(4)), but Keller failed to offer any meaningful rebuttal evidence.

In Breese (223 Ill. App. 3d at 357, 584 N.E.2d at 924), defendant’s only defense was his continuing denial of paternity and his assertion that he could not recall or had insufficient knowledge to answer questions in the pleadings. In response Breese stated:

“This court recognizes the drastic nature of a summary judgment order, especially in a paternity case where the credibility of the witnesses can be crucial. However, this does not relieve the defendant of his obligation to counter the plaintiff’s evidence so that an issue remains for the court to determine. Memory lapses and pleading ‘insufficient knowledge’ will not create an issue of fact for the court to determine.” Breese, 223 Ill. App. 3d at 358, 584 N.E.2d at 925.

Like the defendant in Breese, Keller “at no time offered a scintilla of evidence by opposing affidavits or other pleadings and proof which would present the trial court with a genuine issue of material fact.” (Emphasis in original.) (Breese, 223 Ill. App. 3d at 357, 584 N.E.2d at 924. ) Keller failed to challenge the probable period of conception; failed to rebut Carole’s sworn affidavit that Keller was the only man with whom she had had intercourse during that period; failed to reconcile his own inconsistent statements regarding whether he engaged in sexual relations with Stockwill during that period; and failed to question the blood test experts and testing procedures. As proof of his sterility, Keller revealed he has lived with six other women, but “none became pregnant until one year or so after they moved away from me.” We do not find this argument logically persuasive. “Mere conjecture on the part of the defendant will not be sufficient to create a question of fact absent any corroborating evidence by affidavit or deposition testimony.” (Breese, 223 Ill. App. 3d at 357, 584 N.E.2d at 925. ) The affidavits filed by the State established its right to summary judgment. Keller’s denial that he was the father of the child arguably raised an issue of fact, but even considering that affidavit the evidence of Keller’s paternity was so overwhelming that no contrary verdict could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) The trial court properly granted the State’s motion for summary judgment.

The second ruling Keller appeals concerns the arrearage in support payments. “The court shall order all child support payments, determined in accordance with such guidelines, to commence with the date summons is served.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 40, par. 2514(b).) In Carnes v. Dressen (1991), 215 Ill. App. 3d 166, 171-72, 574 N.E.2d 845, 848, this court, in accordance with the Act, stated that child support must be made retroactive to the date summons was served. Here, the trial court properly made the child support retroactive to January 15,1990.

For the above-stated reasons, we affirm the summary judgment of the circuit court of Champaign County.

Affirmed.

GREEN and LUND, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY B. HARPER, Defendant-Appellant.
    Fourth District
    No. 4—92—0680
    Opinion filed October 22, 1993.

      Daniel D. Yuhas and Lori L. Mosby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In June 1992, a jury found defendant, Anthony B. Harper, guilty of aggravated criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 16(d)), and the trial court sentenced him to 60 days in the county jail and two years of probation. He appeals, arguing that (1) the trial court improperly admitted other crimes evidence, and (2) he was denied due process of law because the jury’s verdict may not have been unanimous.

We affirm.

I. Background

The State charged defendant with aggravated criminal sexual abuse, alleging that between December 25, 1991, and January 1, 1992, he knowingly committed an act of sexual penetration with C.H., who was then between 13 and 17 years old, while defendant was at least 5 years older than C.H. The charge specifically alleged as the act of sexual penetration that defendant inserted his penis in C.H.’s vagina. The jury essentially was presented with three entirely different versions of what happened: (1) C.H.’s trial testimony; (2) defendant’s statements to Officer Jonathan Thomas of the Decatur police department two months after the incident; and (3) defendant’s testimony when he took the stand in his own defense.

A. C.H. ’s Trial Testimony

C.H., a 14-year-old girl, testified that between December 25, 1991, and January 1, 1992, she was visiting her infant daughter at the foster home of Blanche Shelton. At the time in question, C.H. was sleeping on the living room couch. She awoke when defendant began removing her pants. After taking them off, defendant got on top of her and inserted his penis into her vagina. After about a minute he ejaculated and got up, and she then dressed. At no point did either say anything to or struggle with the other.

B. Defendant’s Statements to Officer Thomas

In February 1992, Thomas interviewed defendant regarding this matter. During the interview, defendant initially denied having any type of sexual contact with C.H., although he claimed that she had tried on several occasions to seduce him. Later in this interview, however, he admitted that he was not completely truthful.

He then indicated that Shelton is his sister and that he had been at her house on the day in question playing cards and drinking. At some point, C.H. arrived to visit her baby. Later, defendant fell asleep on the couch, and was awakened by C.H. sucking his penis. However, he did not do or say anything to stop her. After a short while, he told C.H. he was about to ejaculate. She then got up and sat on him. His penis entered her vagina, and she began to move up and down. Defendant again did not attempt to stop her. Only when he began to ejaculate did he try to push C.H. away.

C. Defendant’s Trial Testimony

When defendant testified at trial, he denied ever having any sexual contact with C.H. Defendant also testified that he did not make the statements Thomas attributed to him regarding sexual conduct with C.H. His theory of the case was essentially that Thomas fabricated those statements and C.H. falsely accused him.

II. Analysis

A. Admission of Other Crimes Evidence.

Defendant argues that the trial court erred in admitting his statement to Thomas about having oral sex with C.H. He claims that this evidence constituted impermissible other crimes evidence, requiring a reversal of his conviction and a new trial. We disagree.

The general rule is that testimony about other crimes committed by the defendant is not admissible to show his disposition or propensity to commit crime. (People v. Illgen (1991), 145 Ill. 2d 353, 364, 583 N.E.2d 515, 519.) Such evidence is admissible, however, for any relevant purpose other than to show defendant’s propensity to commit crime. (Illgen, 145 Ill. 2d at 365, 583 N.E.2d at 519; People v. Maxwell (1992), 148 Ill. 2d 116, 130, 592 N.E.2d 960, 967.) When a party offers such evidence, the trial court must first weigh it and may exclude it if its prejudicial effect substantially outweighs its probative value. (Illgen, 145 Ill. 2d at 365, 583 N.E.2d at 519.) Furthermore, the party offering the evidence must show that a crime actually occurred and that defendant committed it or participated in its commission. People v. Lucas (1992), 151 Ill. 2d 461, 486, 603 N.E.2d 460, 471.

The admissibility of evidence at trial is a matter left to the sound discretion of the trial court, and this court will not overturn the trial court’s decision absent a clear abuse of discretion. (Illgen, 145 Ill. 2d at 364, 583 N.E.2d at 519.) This rule includes evidence of defendant’s other crimes. (Maxwell, 148 Ill. 2d at 130, 592 N.E.2d at 967.) An abuse of discretion will be found only where the trial court’s decision is arbitrary, fanciful, or where no reasonable person would take the view adopted by the trial court. (Illgen, 145 Ill. 2d at 364, 583 N.E.2d at 519.) To warrant a reversal, the abuse of discretion must result in manifest prejudice to the defendant. People v. Breton (1992), 237 Ill. App. 3d 355, 363, 603 N.E.2d 1290, 1296.

The evidence of oral sex between defendant and C.H. was admissible under at least two exceptions to the general rule against other crimes evidence. First, this evidence was admissible as part of a continuing narrative of the event giving rise to the offense. In People v. Collette (1991), 217 Ill. App. 3d 465, 472, 577 N.E.2d 550, 555, this court recently held as follows:

“When facts concerning uncharged criminal conduct are all part of a continuing narrative which concerns the circumstances attending the entire transaction, they do not concern separate, distinct, and unconnected crimes. [Citation.] Evidence of other crimes is admissible ‘if such evidence is intertwined with the offense charged.’ (People v. Garrison (1986), 146 Ill. App. 3d 592, 593, 496 N.E.2d 535, 536.)”

(See also People v. Lewis (1993), 243 Ill. App. 3d 618, 625-26, 611 N.E.2d 1334, 1339 (“[e]vidence of other crimes can be admissible if it is intertwined with the instant offense or where it relates to the events which *** led to the charged offense”).) Defendant’s statement to Thomas regarding oral sex as a prelude to vaginal intercourse with C.H. constituted a continuing narrative of events from his perspective. Defendant’s statements relate to the events which led, in his version, to vaginal intercourse.

Also, in sex-related cases, evidence of other sexual acts between a defendant and complainant is admissible to show the relationship and familiarity of the parties. (People v. Cregar (1988), 172 Ill. App. 3d 807, 821-22, 526 N.E.2d 1376, 1386; People v. McCarthy (1991), 213 Ill. App. 3d 873, 881, 572 N.E.2d 1219, 1224.) Because it shows the intimacy of the relationship, it is admissible even though the relationship or degree of familiarity is not at issue. (Cregar, 172 Ill. App. 3d at 822, 526 N.E.2d at 1386.) The relationship between defendant and C.H. was, on its face, not one of great familiarity. Defendant occasionally spent time at the home of his sister (Shelton), and C.H. visited her daughter there. While the jury could infer the two knew each other in passing, defendant’s statement regarding oral sex and sexual intercourse certainly sheds light on their relationship and degree of familiarity. The evidence was admissible for that purpose.

Defendant contends that regardless of any probative value, this evidence was overly prejudicial and therefore should have been excluded. Defendant cites our holding in People v. Holm (1989), 188 Ill. App. 3d 908, 544 N.E.2d 1237, in support of his claim. Evidence of defendant’s other crimes will not be admitted if its probative value is substantially outweighed by its prejudicial effect. (Illgen, 145 Ill. 2d at 365, 583 N.E.2d at 519.) We find Holm distinguishable.

In Holm, the defendant was charged with the aggravated criminal sexual abuse of L.H., his minor daughter. During trial, the State sought to admit some provocative photographs taken by the defendant of the victim’s adult sister. The pictures were taken at a different time than when the defendant’s abuse of L.H. occurred. Also, the adult daughter testified that the pictures were taken for her boyfriend in the Navy, and that she and the defendant had never engaged in any form of sexual contact. (Holm, 188 Ill. App. 3d at 912-13, 544 N.E.2d at 1241.) We held that because of their extreme remoteness to the offense charged, the pictures were not admissible for any purpose offered by the State, and that any probative value was insignificant in light of their obvious prejudicial effect. Holm, 188 Ill. App. 3d at 918, 544 N.E.2d at 1245.

Here, the subject of defendant’s other crimes is the same victim as in the charged offense. Further, the evidence of other crimes was not remote in time or place from the charged conduct; rather, that evidence was part of the same intertwined series of events. Although this evidence may tend to show defendant as a sex offender, it shows him as one with regard to the very course of conduct with which he was charged — the sexual penetration of C.H. In light of the totality of the evidence, we cannot say as a matter of law that the clear probative value of this evidence was substantially outweighed by its potential prejudicial effect.

B. The Jury Verdict

Defendant also complains that the jury verdict may not have been unanimous because of the other crimes evidence. Defendant notes that the charge against him specifically alleged vaginal intercourse. He argues that some of the jurors could have voted to convict based upon the evidence of vaginal intercourse while others could have voted based upon the evidence of oral sex. Thus, defendant raises two interconnected claims: (1) the State must prove the specific form of penetration alleged in the information; and (2) the jury must be unanimous in finding him guilty of that specific conduct. We disagree with both of these contentions.

Following the pattern jury instructions, the trial court instructed the jury on the elements of aggravated criminal sexual abuse and the definition of sexual penetration. (Illinois Pattern Jury Instructions, Criminal, Nos. 11.38, 11.65 (2d ed. Supp. 1989) (hereinafter IPI Criminal 2d (Supp. 1989)).) These instructions however, did not specifically include the allegation of sexual intercourse.

The trial court instructed the jury, in pertinent part, as follows:

“A person commits the offense of aggravated criminal sexual abuse when he commits an act of sexual penetration with a victim who is at least 13 years of age but under 17 years of age when the act was committed and he was at least 5 years older than the victim.”
“The term ‘sexual penetration’ means any contact, however slight, between the sex organ of one person and the sex organ of another person, including but not limited to cunnilingus, fellatio, or anal penetration. Evidence of emission of semen is not required to prove sexual penetration.”

See IPI Criminal 2d Nos. 11.38,11.65 (Supp. 1989).

At trial, defendant objected to these instructions because they did not include the specific allegation of sexual intercourse. He contended then (and now on appeal) that because this conduct constituted an element the State must prove beyond a reasonable doubt, the trial court erred by failing to include it in the instructions to the jury.

The law in Illinois has long been contrary to defendant’s position. In a case involving sexual penetration, the specific type of penetration is not an element of the offense. (People v. Carter (1993), 244 Ill. App. 3d 792, 803-04, 614 N.E.2d 452, 460.) Instead, the State’s burden is only to show that some type of penetration occurred between the defendant and victim. The inclusion of specific conduct constituting sexual penetration in a charging instrument is mere surplusage. (Carter, 244 Ill. App. 3d at 803-04, 614 N.E.2d at 460.) As the Carter court held:

“If the statutory language used describes specific conduct, it is unnecessary for the indictment to specify the exact means by which the conduct was carried out. The State need only prove that a type of sexual penetration occurred beyond a reasonable doubt.” Carter, 244 Ill. App. 3d at 804, 614 N.E.2d at 460.

Here, C.H. testified to having sexual intercourse with defendant. Defendant’s statements to Thomas also described, in some detail, acts of oral sex as well as vaginal intercourse with C.H. Both of these courses of conduct constitute sexual penetration. As such, the jury could properly have convicted him based upon the evidence of either the oral sex or vaginal intercourse.

Defendant also complains that because the jury could have considered both the vaginal intercourse as well as the oral sex, its verdict may not have been unanimous as to which act the State proved beyond a reasonable doubt. Defendant thus asserts that the jury must be unanimous regarding the facts underlying the verdict as well as regarding the ultimate verdict itself.

Again, the law does not support defendant’s position. In rendering its verdict, the jury need not be unanimous in its theory of the case; it must only be unanimous in determining defendant’s ultimate guilt or innocence. (People v. Griffin (1993), 247 Ill. App. 3d 1, 12, 616 N.E.2d 1242, 1250; People v. Diaz (1993), 244 Ill. App. 3d 268, 271, 614 N.E.2d 268, 271.) Thus, the jury did not need to unanimously believe any one theory of facts underlying its decision. Instead, it must only have been unanimous as to its conclusion that defendant was guilty of aggravated criminal sexual abuse. We note that after announcing the verdict, the trial court poUed the jury and concluded that each juror individually supported the verdict. Thus, although they may have taken different paths, each juror reached the conclusion that defendant was guilty of the offense charged.

We also note that the United State Supreme Court recently addressed a similar issue and found that “when a single crime can be committed in various ways, jurors need not agree upon the mode of commission.” (Schad v. Arizona (1991), 501 U.S. 624, 649, 115 L. Ed. 2d 555, 577, 111 S. Ct. 2491, 2506 (Scalia, J., concurring in part and concurring in the judgment).) The defendant in Schad was convicted of first degree murder. The prosecution argued both premeditation and felony murder, and the jury returned a general verdict of guilty without indicating upon which theory it relied.

The Court framed the issue as whether the jury could reach its unanimous verdict based on alternate findings underlying that decision. In discussing the issue, it stated as follows:

“We have never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission ***. In these cases, *** ‘different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.’ ” Schad, 501 U.S. at 631-32, 115 L. Ed. 2d at 565, 111 S. Ct. at 2497 (plurality opinion), quoting McKoy v. North Carolina (1990), 494 U.S. 433, 449, 108 L. Ed. 2d 369, 384-85, 110 S. Ct. 1227, 1236-37 (Blackmun, J., concurring).

Citing the holding of this court in People v. Travis (1988), 170 Ill. App. 3d 873, 891, 525 N.E.2d 1137, 1147-48, the Court further noted that the jury need not agree upon which theory the defendant is guilty, but rather “ ‘it [is] sufficient that each juror [is] convinced beyond a reasonable doubt that the defendant had committed the crime ***.’ ” (Schad, 501 U.S. at 641, 115 L. Ed. 2d at 571, 111 S. Ct. at 2502 (plurality opinion), quoting People v. Sullivan (1903), 173 N.Y. 122, 127, 65 N.E. 989, 989-90.) Thus, the jury need only be unanimous with respect to defendant’s ultimate guilt or innocence, regardless of any agreement on the underlying conduct. We reaffirm that holding and reject defendant’s argument.

III. Conclusion

For the reasons stated above, the judgment of the trial court is affirmed.

Affirmed.

KNECHT and GREEN, JJ., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
    JAMES RICKETTS, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Elmer B. Richardson, d/b/a Richardson Construction Company, Appellant).
    Fourth District (Industrial Commission Division)
    No. 4—92—0987WC
    Argued September 22, 1993. —
    Opinion filed November 4, 1993.
    Gale P. Stipes, of Levy, Levy & Stipes, P.C., of Edwardsville, for appellant.
    Bernard R. Nevoral and Paul W. Pasche (argued), both of Bernard R. Nevoral & Associates, of Chicago, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

The issue in this case involves the calculation of claimant’s average weekly wage rate. Claimant was injured after working a total of four days over a three-week period and was awarded benefits by the arbitrator. On review, the Industrial Commission (Commission) modified the average weekly wage rate set by the arbitrator. The Commission inferred that claimant had worked eight hours each of the four days he was employed by respondent, which it then multiplied by his union scale wage and divided by 15 working days, the three-week period during which he was partially employed, to arrive at an average weekly rate of $158.40. The circuit court reversed. It calculated the wage at $594 by multiplying claimant’s union scale hourly wage by eight hours a day for five days. Respondent appeals, contending the circuit court erred in determining that the Commission’s calculation was against the manifest weight of the evidence. We agree and reverse.

The evidence presented by claimant was less than clear or comprehensive. He testified that he had been an iron worker for 14 years and was employed sporadically by 300 to 400 different companies. January 29, 1985, the date of the accident, was the fourth day, scattered over a three-week period during January 1985, that he had worked for respondent. His hourly wage was $14.85. At the time of the injury, he expected that the job would continue for another four to six weeks.

Claimant’s testimony concerning his prior employment was, to say the least, equivocal and unsubstantiated. Claimant offered that he worked at least 96 hours during 1984, although he believed he had worked more. He was not sure how much money he made during 1984, but claimed he had worked at other odd jobs in addition to those he secured as an iron worker out of the union hall. Claimant could not remember, however, for whom or when or how long he worked on any other job. Claimant was shown a W-2 form and a written communication from his prior attorney to counsel for respondent, neither of which was offered into evidence, suggesting that his actual wages for 1984 were somewhere in the $1,400 to $1,800 range. Claimant denied that this constituted his total earnings but presented no evidence to the contrary.

The arbitrator set an average weekly wage which both parties agreed had no evidentiary basis. On review, the Commission modified the average weekly wage to $158.40 after concluding that claimant proved only that he was employed for four days over a three-week period. After assuming claimant worked eight hours each of those four days, the Commission multiplied claimant’s union-scale wage by 32 hours, equalling total wages of $475.20, which it then divided by 3 weeks, or 15 days.

As we have indicated, the circuit court reversed the Commission’s decision, finding the average weekly wage was $594, an amount arrived at by multiplying the hourly rate by eight hours for five days.

Claimant bears the burden of establishing his average weekly wage under section 10 of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1991, ch. 48, par. 138.10). (Cook v. Industrial Comm’n (1992), 231 Ill. App. 3d 729, 731, 596 N.E.2d 746, 748.) In this case, claimant candidly concedes that the only credible proof of his employment upon which the Commission could reasonably base its determination was the evidence concerning his limited employment at the time he was injured.

In Cook, this court recently rejected the method employed by the trial court in calculating the average weekly wage. In doing so, this court offered a hypothetical example, which is virtually identical to the underlying facts of this case, concluding that a result such as that reached by the trial court here could not be sustained because of the gross windfall to the employee.

Section 10 of the Act provides four methods for calculating average weekly wage. The Act does not, however, define the term “workweek,” or what it might reasonably constitute in any given type of employment. Because of this, it is the employee’s burden to establish what a workweek consists of in the context of the actual employment history of the claimant. This is a question of proof. There is no presumption that a workweek for every employee in the labor force is 40 hours. To accept the method used by the trial court would, in effect, shift the burden to the employer to disprove the applicability of a 40-hour week to any particular claimant’s situation. Such a result is not expressed in the statute and would be contrary to the well-established proposition that the claimant bears the burden of proving each element of his case.

Claimant argues, nevertheless, that the possibility of a windfall to the employee is no longer a relevant concern and that supreme court precedent such as Hasler v. Industrial Comm’n (1983), 97 Ill. 2d 46, 454 N.E.2d 307, is no longer viable, given legislative amendments to section 10 which have occurred since the decision in Hasler and this court’s decisions in cases such as Peoria Roofing & Sheet Metal Co. v. Industrial Comm’n (1989), 181 Ill. App. 3d 616, 537 N.E.2d 381, and Illinois-Iowa Blacktop, Inc. v. Industrial Comm’n (1989), 180 Ill. App. 3d 885, 536 N.E.2d 1008. We disagree.

As we noted in Cook, concern over a potential windfall to the employee remains a viable, although not determinative, consideration in calculating the average weekly wage rate under the current version of the statute. We stress, however, that the desirability or effect of any particular result is, of course, secondary to the primary question of whether the proof supports the calculation in the first instance.

In this case, the Commission apparently calculated the wage under the provision of section 10 of the Act which provides: “Where the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee actually earned wages ***.” (Ill. Rev. Stat. 1991, ch. 48, par. 138.10.) Claimant concedes that there is no reliable evidence concerning his employment history other than that he worked for four days over a three-week period in January 1985. Based on claimant’s failure to provide other credible evidence concerning prior employment, the Commission’s determination of his average weekly wage rate comports with the statutory formula.

Claimant’s argument that the Commission misinterpreted the phrase “number of weeks or parts thereof” in section 10 of the Act is without merit. Claimant’s theory is that “parts thereof” may be read in isolation. If this were true then the determination of the average weekly rate would, in virtually every case, be literally based upon the number of hours a less-than-‘ ‘full-time’ ’ employee worked multiplied upward to fill out a complete 40-hour week — even if the employee never worked a 40-hour week during his entire life. Moreover, if the legislature intended such a result, there would be no need whatsoever for the alternative methods of calculating the wage provided by section 10 of the Act.

Under the evidence presented in this case, the Commission’s determination is consistent with the statute. When the employment is noncontinuous or less than “full-time,” earnings may be divided by an entire workweek even if the employee worked only a portion of the week. (See Illinois-Iowa Blacktop, 180 Ill. App. 3d at 894, 536 N.E.2d at 1015 (McCullough, J., specially concurring).) Given the lack of proof of prior employment, the Commission’s determination is not against the manifest weight of the evidence. The circuit court is reversed.

Circuit court reversed; Commission order reinstated.

RAKOWSKI, WOODWARD, SLATER, and RARICK, JJ., concur.