author: PRESIDING JUSTICE BUCKLEY

text:
    ISABEL PACHECO, Petitioner-Appellee, v. ALBERTO SILVA, Respondent-Appellant.
    First District (1st Division)
    No. 1—89—1281
    Opinion filed February 13, 1990.

      Eugene Lieberman, of Wilmette, for appellant.
    Rosenbloom & Rosenbloom, of Chicago (Alvin E. Rosenbloom, of counsel), for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Respondent appeals from entry of an attorney fee award accompanying an order to modify child support in a paternity suit. Respondent contends that there was no statutory authority supporting the grant of attorney fees and that the trial court erred in finding petitioner’s income inadequate to pay her own attorney fees.

The trial court granted petitioner’s request for increased child support on December 28, 1987, retroactive to January 1, 1987. Shortly thereafter, petitioner filed a request for attorney fees, and a hearing was held on February 27, 1989. The trial court then requested that each party file a memorandum in support of his position and scheduled a date for a ruling. On April 19, 1989, the trial court entered an order which stated that it had jurisdiction to enter an award of attorney fees, that respondent pay $2,000 as his share of petitioner’s attorney fees and that respondent pay $287.40 as one-half of petitioner’s court costs.

There is no disagreement to respondent’s first argument that attorney fees cannot be awarded absent contractual or statutory authority. Respondent then argues that section 9 of the Paternity Act does not allow an award of attorney fees in a post-judgment proceeding. (Ill. Rev. Stat. 1983, ch. 40, par. 1359.) However, as noted by petitioner, the Paternity Act including this section was repealed in 1985, well before post-judgment proceedings were initiated in this cause.

The argument addressed by petitioner is whether section 17 of the Illinois Parentage Act of 1984, which replaced the Paternity Act, forbids an award of attorney fees when a post-judgment motion is brought. (Ill. Rev. Stat. 1987, ch. 40, par. 2517.) The original language of the section allowed recovery of attorney fees and costs but did not specifically include post-trial motions as such a proceeding where attorney-fee awards could be granted by the trial court. We note, however, that this section has since been amended and now specifically allows awards of attorney fees and costs in a post-trial proceeding. This amendment was effective January 1, 1989, which was just prior to the attorney-fee award entered in this cause. Ill. Rev. Stat., 1988 Supp., ch. 40, par. 2517.

Respondent urges us to limit the trial court’s authority to enter such awards to those cases in which the entire post-trial proceeding occurred after January 1, 1989, but respondent relies on an appellate decision which considered section 9 of the now-repealed Paternity Act. Although the matter addressed by the court in Fink v. Roller (1983), 113 III. App. 3d 1084, 448 N.E.2d 204, was similar to that before us here, we are not bound by its decision. Section 17 of the Parentage Act now allows an award of fees in a post-trial proceeding, and we reject respondent’s restrictive approach. Thus, we decline to rule that the trial court lacked authority to grant attorney fees in a post-judgment proceeding in light of its current clear statutory authority to do so.

Respondent also contends that petitioner had the ability to pay her own attorney fees and the trial court erred in requiring respondent to pay a portion of them. We disagree. In order to justify a fee award, a party must show financial inability to pay and the ability of the other party to do so. (Carvallo v. Carvallo (1978), 62 Ill. App. 3d 394, 378 N.E.2d 1288.) In the case at bar, respondent stipulated to his own ability to pay whatever reasonable fee was awarded, and the evidence showed that respondent earned nearly $300,000 gross income per year and that petitioner earned $23,000 per year. It is not necessary that one party be destitute in order to support a fee award. (Gilmore v. Gilmore (1979), 74 Ill. App. 3d 831, 393 N.E.2d 33.) It is sufficient that disbursement of the petitioner’s funds would exhaust her own estate or undermine her economic stability. (Donnelley v. Donnelley (1980), 80 Ill. App. 3d 597, 400 N.E.2d 56.) An attorney fee award will not be disturbed unless the trial court has clearly abused its discretion (Donnelley, 80 Ill. App. 3d 597, 400 N.E.2d 56), and respondent has failed to show an abuse of the trial court’s discretion in this case.

Accordingly, the judgment of the circuit court is affirmed.

Judgment affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCARIANO

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANKIE LANN, Defendant-Appellant.
    First District (2nd Division)
    No. 1—85—1184
    Opinion filed February 13, 1990.

      Michael J. Pelletier and Thomas J. Long, both of State Appellate Defender’s Office, of Chicago, for appellant.

      Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Lauren A. Freeman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

After a jury trial, defendant was convicted of armed robbery, aggravated kidnapping, kidnapping, and aggravated battery. He argues his convictions should be reversed because he was denied a fair trial based on improper comments made by the prosecutor during closing argument and because the State failed to provide him with material exculpatory evidence in response to his specific discovery request. He further contends that he is entitled to a remand under Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, for a hearing on whether the State used its peremptory challenges to improperly exclude blacks from the jury. We agree that defendant is entitled to a Batson hearing, but we otherwise affirm the convictions.

The complaining witness in this case, Anthony Grandberry, was a 16-year-old high school student at the time of the events in question. He testified at trial that he was waiting for a bus at 93rd and Perry streets in Chicago on the morning of May 25, 1983, at approximately 7:30 or 8 a.m., and that while he was waiting, a brown Mercury automobile stopped next to him. The driver rolled down his window, stated that he was a police officer, displayed a badge, and told Grand-berry to get up against the car; Grandberry identified the driver in court as defendant. Defendant then handcuffed Grandberry, sat him in the right front seat of the car, and drove for 5 to 10 minutes to a nearby Jewel Food Store parking lot.

After accusing Grandberry of having stolen some money from him, defendant placed a skull cap on Grandberry’s head, taped his eyes and mouth shut, had him lie facedown on the floor in the back of the car, and drove away. After 5 or 10 minutes, Grandberry was told to get out of the car. He felt someone grab each of his shoulders and heard more than one person’s footsteps as he was walked into a building.

Once inside the building, Grandberry was beaten with a hammer, and three gold chains, some money, a set of house keys, and a wallet were taken from him. After lying on the floor for a time, he managed to partially remove the tape from his eyes and the hat from his head, which enabled him to look about the room and see defendant. When defendant realized Grandberry could see him, he kicked Grandberry in the eye. Shortly thereafter, Grandberry heard a car door slam and began shouting for help. Defendant placed a large gun with a brown handle to Grandberry’s head, and after telling him to shut up, defendant struck Grandberry on the back of his head with the gun, causing him to black out.

When he regained consciousness, Grandberry saw that defendant had fallen asleep on the couch. He grabbed the gun and left the building through the back exit, but Grandberry dropped the gun while he was walking down the alley in the rear of the building. He went into a nearby tavern and asked someone inside to call the police.

Chicago police officer Ronald Alston also testified for the prosecution. Alston, who had responded to the call for police assistance, stated that after Grandberry led him to the back of the building where he had been taken, Alston saw defendant standing in the rear doorway. He also noticed a brown, four-door car parked in the alley. Grandberry identified defendant, who was then arrested.

Alston further testified that he had inventoried all physical evidence found in searching the defendant and the premises: a gold badge was found on defendant’s person; a bloodstained blue skull cap, a bloodstained hammer, some used gray tape, and a black wallet were found on the premises; and a small starter’s pistol was found in the alley, but this gun was not identified as the gun dropped by Grand-berry, and no other gun was found. Due to a mistake by the police, all physical evidence except the gun was destroyed before trial; however, some of these objects were photographed, and the photographs were admitted into evidence. Alston also testified that to his knowledge, no fingerprints were lifted from the brown car parked in the alley.

Doctor Kunxunni Yellody was the third prosecution witness. He testified regarding the nature and extent of Grandberry’s injuries, and stated that they resulted from a beating with some sort of hard object.

Defendant testified that he left the apartment of Alfreida Coleman, his girlfriend, at approximately 8 a.m. on the morning of May 25. He took a cab to a house at 8949 S. Throop, where he lived with his mother, Melissa Lenoir, and his grandmother, arriving there at approximately 8:30 a.m. Defendant left the house at 9, intending to take the train downtown. However, he walked instead to a nearby print shop and spoke with John Epps, an acquaintance who worked there. They smoked a marijuana cigarette together behind the shop, after which Epps went back to work. Defendant then noticed a brown, four-door Mercury parked in the alley just south of the print shop. He knew the car belonged to his barber Rasheed, and it was parked behind Rasheed’s barbershop. Defendant decided to get a quick haircut and walked to the rear door of the barbershop, which was open. While he was unsure of the exact time he left the print shop, he testified that it was no later than 9:45 a.m.

Defendant further testified that he found a wallet lying in the doorway of the barbershop. As he walked toward the front of the shop, he opened the wallet and discovered it contained a gold badge. No one was in the shop, and the front door was locked. He then walked out the back door, saw eight police officers in the alley, and was arrested.

Three alibi witnesses also testified on defendant’s behalf: Alfreida Coleman, defendant’s girlfriend, stated that he left her apartment at approximately 8:10 a.m. on the morning of May 25; defendant’s mother’s testimony was that defendant was in the house with her from 8:30 to 9 a.m.; and John Epps testified that defendant was with him at the print shop from approximately 9:05 until 9:30 a.m.

The jury returned guilty verdicts on the armed robbery, aggravated kidnapping, kidnapping and aggravated battery counts on April 3, 1985. On April 24, 1985, the trial judge heard and denied defendant’s post-trial motion for a new trial and sentenced him to 13 years’ imprisonment. A notice of appeal was filed on April 25,1985.

On May 23, 1985, defendant filed an amended motion for a new trial, which stated that the prosecution had failed to provide defendant with a laboratory report that indicated a fingerprint found on the car used to commit the offense did not belong to defendant. That same day, this court granted defendant’s motion to dismiss the appeal for purposes of providing the trial court with jurisdiction to hear the amended motion; the dismissal was without prejudice to defendant’s right to appeal from the original conviction. The trial court heard oral argument and denied the amended motion for a new trial on May 23.

I

Defendant first argues that he was denied a fair trial based on improper remarks made by the prosecutor during closing argument. In his post-trial motion, defendant made the following allegations:

“15. The State’s Attorneys made prejudicial, inflammatory and erroneous statements in closing and rebuttal arguments designed to arouse the prejudices and passions of the jury prejudicing the Defendant’s right to a fair trial.

16. The Assistant State’s Attorneys made prejudicial, inflammatory and erroneous statements in closing and rebuttal arguments directed at defense counsel and defense ‘tactics’ and defense counsel’s ‘trial strategy,’ prejudicing the Defendant’s right to a fair trial.”

We hold that these general allegations are insufficient to preserve the issue for review. “A general allegation of improper closing argument in a motion for new trial does not sufficiently bring the issue to the trial court’s attention and the omission of the specific remark alleged as erroneous precludes its consideration on appeal.” People v. Doe (1988), 175 Ill. App. 3d 371, 377, 529 N.E.2d 980, 984, appeal denied (1989), 124 Ill. 2d 557; see also People v. Sargent (1989), 184 Ill. App. 3d 1016, 540 N.E.2d 981; People v. Powell (1989), 180 Ill. App. 3d 315, 532 N.E.2d 1008, appeal denied (1989), 127 Ill. 2d 634.

However, defendant correctly notes that the waiver rule does not preclude us from taking notice of plain error within the meaning of Illinois Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)). (People v. Phillips (1989), 127 Ill. 2d 499, 538 N.E.2d 500; Doe, 175 Ill. App. 3d 371, 529 N.E.2d 980.) But before reaching the question of whether the allegedly improper remarks rise to the level of plain error, we must decide as a threshold matter whether reversible error has occurred. (People v. Wade (1989), 131 Ill. 2d 370, 375-76, 546 N.E.2d 553, 555; People v. Young (1989), 128 Ill. 2d 1, 54, 538 N.E.2d 461, 475.) Consequently, our analysis begins with an inquiry into whether reversal would have been required had defendant’s objections been adequately preserved in his post-trial motion.

Our supreme court has repeatedly set forth the heavy burden of persuasion falling on a defendant seeking to reverse a conviction on the ground of improper prosecutorial remarks made during closing argument:

“ ‘Attorneys are allowed considerable leeway in making closing and rebuttal arguments. “The character and scope of argument to the jury is left very largely to the trial court, and every reasonable presumption must be indulged in that the trial judge *** properly exercised the discretion vested in him.” ’ ” (People v. Sims (1988), 121 Ill. 2d 259, 269, 520 N.E.2d 308, 312, quoting People v. Morgan (1986), 112 Ill. 2d 111, 131, 492 N.E.2d 1303, 1310, cert. denied (1987), 479 U.S. 1101, 94 L. Ed. 2d 180, 107 S. Ct. 1329, and People v. Smothers (1973), 55 Ill. 2d 172, 176, 302 N.E.2d 324, 327.)

A trial court’s decision to deny a motion for a new trial due to improper prosecutorial remarks made during closing argument will be reversed only if the remarks resulted in substantial prejudice to the defendant and if they “constituted a material factor in defendant’s conviction, without which the jury might have reached a different result.” People v. Thompkins, 121 Ill. 2d at 445, 521 N.E.2d at 57, cert. denied (1988), 488 U.S. 871, 102 L. Ed. 2d 156, 109 S. Ct. 187.

Applying these standards to the specific remarks at issue here, we do not find the trial court’s failure to grant a new trial to be reversible error. First, defendant claims that the prosecutor misstated the law regarding the role of the jury and the burden of proof. These assertions are based on the following comments:

“MR. NOWICKI [Assistant State’s Attorney]: What we have had in this courtroom for the last two days is a liar or a group of liars. Nothing more and nothing less. Your job as jurors will be to sit down collectively and determine who are the liars.
MR. NOWICKI: Your intuition, your experience as peers is enough. People have lied to you in your life and people have told you the truth. That’s your job. That’s your job in this case to determine who is lying and who is telling the truth. Anthony Grandberry is not mistaken. If anything, if you don’t believe him, he is aliar***.
MR. KURZ [defense attorney]: Objection.”

Defendant argues that these remarks misstate the law by distorting the burden of proof, and imply that defendant can be convicted on less than evidence establishing guilt beyond a reasonable doubt. See People v. Crossno (1981), 93 Ill. App. 3d 808, 417 N.E.2d 827.

We disagree with defendant’s characterization of these arguments as misstatements of law. The prosecutor here is doing no more than properly advising the jury that they have the responsibility of determining the credibility of the witnesses. People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1355, cert. denied (1987), 480 U.S. 951, 94 L. Ed. 2d 802,107 S. Ct. 1618.

Defendant complains further that the prosecutor improperly attacked the character and methods of defense counsel, and that he made a number of factually unsupported and inflammatory remarks. The exchanges on which defendant bases his claim are set forth below:

“MR. NOWICKI: Mr. Kurz tried, and Mr. Kurz has been doing this for a long time and he had an 18-year old boy [the victim] up there. This is fresh meat.
MR. KURZ: I object to characterization.
THE COURT: Overruled. He can characterize or use descriptive words in his argument.
MR. NOWICKI: Mr. Kurz is experienced at putting words in people’s mouth.
MR. KURZ: Objection.
THE COURT: Do not make reference to other attorneys that are discouraging [sic]. Continue your argument.
MR. NOWICKI: It’s different than the one the boy described, but since it’s not the right gun I’m [referring to police officer Alston] going to leave it there. I don’t want to put it in my police report because later some defense attorney is going to make a big deal out of it and hurt the case and make the boy look like a liar.
MR. KURZ: Objection.
THE COURT: Overruled. I believe he can properly respond to your argument concerning the gun and its relevancy to this case.
MR. KURZ: Your Honor, my objection as [sic] to what some defense attorney is going to do some time later down the line.
THE COURT: As long as he doesn’t cast personal expur-sions [sic] on you you may argue or answer what you have argued or presented in this case.
MR. NOWICKI: Now, you see the sleight of hand.
MR. KURZ: Objection, Your Honor.
MR. NOWICKI: Now we begin-.
THE COURT: What’s your objection?
MR. KURZ: To the sleight of hand characterization by Assistant State’s Attorney to the jury.
THE COURT: Well, it’s not apparent that the attorney personally is being criticized. I will let him continue his argument and I’m reserving my ruling on it.
MR. NOWICKI: My partner on various occasions during his argument referred to the Defendant as the man, this man this, that man that. I think he was being quite charitable, because I would submit to you that anybody that would take a 16-year-old 5-foot-4 boy off the street under the guise of a police officer, tape that boy up, put that boy through the ultimate of terror, beat a defenseless child and that boy may have been 16 but physically he was a child. And cause him to endure the injuries that you heard the doctor testify is far, far from any definition of a man. You heard in court here the whole story as it turned out. But this very well could have been a different story. You don’t know and I don’t know how this story may have ended if he hadn’t woke up.
MR. KURZ: Objection.
THE COURT: Overruled. I think it’s proper argument.
MR. NOWICKI: The armed robbery was completed. If all he wanted to do was sleep, if all he wanted to do was take the money he had but he wanted more. He wanted more from that boy. I don’t know what it was and I thank God you don’t sit here finding out what it was.
MR.KUÉZ: Objection.
THE COURT: Counsel may argue reasonable inferences from the evidence and it may be that we are going a little far afield. Continue with your argument.
MR. NOWICKI: Anthony Grandberry has been a victim, definitely a victim. Don’t make him a victim for a second time. He had to take that stand and he had to relive what he went through. Make it the last time he has to relive that. Let him sleep well at night knowing that he’s no longer on the street.
MR. KURZ: Objection.
THE COURT: I’m not sure that’s improper.
MR. NOWICKI: Ladies and gentlemen, I ask you return your verdicts of guilty. Thank you.”

The State argues that some of these remarks were invited by statements made by defense counsel, and that any possible prejudice was cured by instructions given by the trial judge or because some of defendant’s objections were sustained. While we find some merit in these contentions, it is not necessary to review them in detail, for given the nature of the evidence of guilt in this case, it cannot be said that any of the remarks individually or that all of them taken collectively caused defendant substantial prejudice within the meaning of Thompkins. The victim had more than ample time to observe his kidnapper, whom he identified as defendant at trial and at the scene of the crime. Grandberry sat in the front seat of a car, in very close proximity to defendant, who was driving, for 5 to 10 minutes before his eyes were taped shut; he again observed defendant when he was able to partially remove the tape and a hat which was used to obstruct his vision; and he had a final opportunity to observe defendant just before his escape. In light of his considerable evidence of guilt, the allegedly improper remarks could not have affected the guilty verdict returned by the jury.

Since we find that the trial judge’s denial of defendant’s post-trial motion for a new trial based on prejudicial prosecutorial remarks would not have required reversal had the issue been properly preserved for review, defendant’s reliance on the plain error rule is unavailing. The remarks complained of here are not sufficient grounds for disturbing the conviction.

II

Defendant next argues that his conviction should be reversed because the State failed to provide him with material exculpatory evidence in violation of Supreme Court Rule 412 (107 Ill. 2d R. 412.) We find this contention is equally untenable and therefore does not present grounds for reversing the conviction.

In his motion for pretrial discovery, defendant requested that the State provide him with "any reports of statements of experts *** including results of *** scientific tests, experiments, or comparisons.” He also requested any material or information in the State’s possession that would tend to negate his guilt or lessen his punishment. Four weeks after defendant was convicted and sentenced, defense counsel was advised that the State had inadvertently failed to disclose the existence of a fingerprint examination report prepared before the trial began which indicated that a fingerprint found on the car used in the offense did not belong to defendant.

Defendant filed an amended motion for a new trial, which was denied on the ground that the evidence was not material because it was not of such conclusive character that it would probably have changed the verdict. The judge noted that the defendant had not established that the print was taken from a location accessible only to the person who committed the crime. Defendant argues that the trial judge applied an incorrect standard in determining the materiality of the discovery report.

We hold that the trial judge used the proper analysis and reached a correct conclusion. Violations of the pretrial discovery requirements of Rule 412 are governed by the same standard of Federal due process claims decided under Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, and its progeny. (People v. Curry (1988), 167 Ill. App. 3d 146, 520 N.E.2d 984; People v. Bouska (1983), 118 Ill. App. 3d 595, 455 N.E.2d 257.) Under Brady, the prosecution is required to disclose evidence favorable to the accused that is material either to guilt or to punishment. Regardless of whether a discovery request is characterized as specific or general, or whether a discovery request is made at all, the State is required to apprise defendant of any exculpatory evidence if there is “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley (1985), 473 U.S. 667, 682, 87 L. Ed. 2d 481, 494, 105 S. Ct. 3375, 3383; see also Curry, 167 Ill. App. 3d 146, 520 N.E.2d 984.

Applying this standard, it cannot be said that failure to disclose the fingerprint report is sufficient to undermine the confidence in the outcome. As noted earlier, the State has presented overwhelming evidence of guilt, and, as the trial judge correctly found, the report has little probative value. Failure to disclose the report is therefore not grounds for overturning the conviction.

Ill

One of the assertions raised in defendant’s post-trial motion was that “[t]he Court erred in not granting the numerous motions for mistrials the defense made after each and every systamatic [sic] exclusion of blacks from the jury by the Assistant State’s Attorneys.” This motion was denied on April 24, 1985. One year later, during the pen-dency of this appeal, the U.S. Supreme Court decided Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, which held that a State’s purposeful or deliberate denial to black citizens, on account of race, of participation as jurors in the administration of justice violates the equal protection clause of the fourteenth amendment. Defendant asserts that he is entitled to a remand for a Batson hearing on whether the State improperly excluded blacks from the jury. See People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453; People v. Hooper (1987), 118 Ill. 2d 244, 506 N.E.2d 1305.

We agree that a remand is appropriate. The Batson holding is retroactively applicable to all cases pending on direct review at the time Batson was announced. (People v. McDonald (1988), 125 Ill. 2d 182, 530 N.E.2d 1351.) While the State argues that this issue is waived because defendant failed to make a record as to the race of each venire person challenged during jury selection, no case law is cited supporting this proposition. To the contrary, the Illinois Supreme Court has recently held that deficiencies in the voir dire record do not result in wavier of a Batson claim. McDonald, 125 Ill. 2d 182, 530 N.E.2d 1351.

For the foregoing reasons, we affirm the conviction and remand to the trial court for a Batson hearing.

Affirmed and remanded.

DiVITO, P.J., and BILANDIC, J., concur.


author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANCIS SCOTT, Defendant-Appellant.
    First District (2nd Division)
    No. 1—86—3283
    Opinion filed February 13, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Millicent Willis and Z. Peter Tokatlian, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Marie Quinlivan Czech, and Diann L. Doppelt, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

A jury found defendant Francis Scott guilty of escape, and he was sentenced to an extended term of 12 years in custody of the Illinois Department of Corrections. Defendant appeals and raises as issues whether (1) the circuit court improperly precluded him from raising the affirmative defense of necessity; (2) the introduction of and reference to evidence of other crimes denied him a fair trial; (3) certain prosecutorial comments made during closing argument were improper; (4) he was denied effective assistance of counsel; and, alternatively, (5) his sentence was improper.

In June of 1980, defendant was charged by information with escape from Cook County jail while being held on a fugitive warrant from Florida. (Ill. Rev. Stat. 1977, ch. 38, par. 31 — 6(a).) A mistrial was declared in the first trial after the jury was unable to reach a verdict. The second trial, at issue in this appeal, was commenced in September of 1980.

Prior to trial, the assistant public defender advised the circuit court that defendant no longer wished to retain his services. The court noted defendant’s desire to proceed pro se; nevertheless, it asked the public defender to “stand by” as advisory counsel if needed by defendant.

At trial, Clarence English, a warden at Cook County jail, testified defendant was an inmate at the facility on June 4, 1978. That evening, English was told by another inmate that defendant “went over the wall” and escaped earlier that afternoon, confirmed by a subsequent search and head count of the prisoners. On the opposite side of the jail wall, English observed defendant’s cap resting on the ground. He then reported defendant missing.

According to English, a jail history card indicated defendant was being held in the jail on a fugitive warrant from Florida. He also averred “Francis Scott” and “Terry Hannen” [sic] were one and the same individual.

Dennis Kemble, an FBI agent, testified that on June 5, 1978, he learned defendant, also known to him as “Terry Hannah,” was seen on a Chicago street after the report of his escape from prison and was staying at an address on North Central Avenue. Upon arriving there, Kemble was told defendant was attending a movie with his daughter. Kemble and his partner later observed defendant at the Central Avenue address, identified themselves, and advised him he was under arrest. Defendant attempted to evade the agents, resisted their efforts to handcuff him, and unsuccessfully tried to grab Kem-ble’s holstered revolver in the ensuing struggle before being subdued.

Norman Russell, deputy chief investigator with the Cook County Department of Corrections (Department), averred he was assigned on June 6, 1978, to pick up defendant from Chicago police custody. After advising defendant of his Miranda rights, Russell questioned him about the escape. Defendant agreed to make a statement and told Russell that a number of correctional officers at the jail were involved; a large sum of money was passed; a prearranged signal was given to a tower guard that “all was clear” so he could be “boosted” over the wall by two other inmates; and a car was to be waiting for him on the outside when he escaped. Defendant claimed an inmate named Sam Lawrence had approached him with a plan to kill a witness in another case, and selected defendant as the best person for the task because of his prior record for escape. Defendant told Russell he had no intention of killing anyone, however, because that “was not his bag.” On cross-examination, Russell acknowledged that defendant refused to sign a typed transcript of this statement.

Elmer Fox, Chicago police extradition officer, testified that when defendant was arrested in January of 1978,' he was wanted in three States under various aliases. Because multiple warrants were involved, if defendant posted bond on one, Fox would have rearrested defendant for the second State, and so forth. According to Fox, defendant was lawfully being held in jail on the day of the escape pursuant to a Florida fugitive warrant signed April 16, 1978.

John Glenville, an assistant State’s Attorney in charge of extradition matters, stated that on June 4, 1978, the date of the escape, an extradition proceeding was pending to return defendant to Florida. During the pendency of this proceeding, defendant was being housed in Cook County jail.

Defense strategy at trial was to challenge the State’s evidence that defendant was in lawful custody at the time of the escape. Rebecca Harris, a records officer with the Department, admitted that a jail history card for “Terry Hannah” contained a notation indicating that the Florida “hold” was removed, pursuant to instructions from Elmer Fox. The removal of the Florida hold left charges from Ohio and Illinois pending against defendant; he posted bond on those charges and left the jail on March 17, 1978. On cross-examination, however, Harris testified that a second jail history card under the name of “Francis Scott” reflected a fugitive warrant dated April 17, 1978, lodged against defendant.

As noted, the jury found defendant guilty of escape, and he subsequently was sentenced to an extended term of 12 years’ imprisonment. Defendant appeals.

I

Defendant initially contends it was error for the circuit court to preclude his introduction of evidence concerning the affirmative defense of necessity. The State had filed a pretrial motion in limine to preclude defendant from introducing any evidence of the conditions existing at Cook County jail prior to his escape. The motion acknowledged testimony offered by defendant in his first trial relating to an affirmative defense of duress or necessity; the State nevertheless asserted that since defendant presented no evidence at that time of a bona fide effort to surrender or return to custody after the claimed duress or necessity had lost its coercive force, he was not entitled to claim those defenses on retrial. The circuit court subsequently granted the State’s motion in limine.

Defendant then presented a supplemental answer to the State’s discovery which attempted to raise an affirmative defense of self-defense. In an offer of proof, defendant claimed that just seconds before his escape from Cook County jail, he was confronted by several prisoners who were attacking him with knives. He maintained that there were two witnesses to the incident, one an eyewitness. The public defender subsequently asked, by way of clarification, whether defendant would be allowed to introduce evidence that he was under a threat of death at the time he escaped; the court ruled that such a defense was “inconsistent with the charges involved” and “without relevancy” to the matter, and denied defendant the right to present such evidence. On appeal, defendant asserts that by granting the State’s motion in limine, the circuit court abused its discretion and violated his constitutional right to present a defense.

Necessity is a statutorily recognized affirmative defense. (Ill. Rev. Stat. 1977, ch. 38, par. 7 — 13.) A claim of necessity may be an appropriate defense to a charge of escape. (See People v. Unger (1977), 66 Ill. 2d 333, 362 N.E.2d 319 (Unger).) In order to properly raise a defense of necessity, defendant must present “some evidence” to support his claim (Unger, 66 Ill. 2d 333, 362 N.E.2d 319; People v. Tackett (1988), 169 Ill. App. 3d 397, 402, 523 N.E.2d 647). Once presented, the State has the burden to prove the nonexistence of necessity beyond a reasonable doubt. People v. Tackett, 169 Ill. App. 3d at 402.

Relevant preconditions in establishing a claim of necessity to a charge of escape include the following (Unger, 66 Ill. 2d at 341-42, quoting People v. Lovercamp (1974), 43 Cal. App. 3d 823, 831-32, 118 Cal. Rptr. 110, 115):

“ ‘(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;
(2) There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory;
(3) There is no time or opportunity to resort to the courts;
(4) There is no evidence of force or violence used towards prison personnel or other “innocent” persons in the escape; and
(5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat.’ ”

According to the Unger court, these factors only went to the weight and credibility of the evidence presented in support of an affirmative defense of necessity; the absence of one or more of these conditions would not automatically preclude a claim of necessity. Unger, 66 Ill. 2d at 342-43; People v. Pelate (1977), 49 Ill. App. 3d 11, 17, 363 N.E.2d 860.

In the instant case, the State’s motion in limine was based upon the absence of the fifth factor enumerated above; specifically, the State asserted that defendant offered no evidence of his immediate attempt to return or surrender to authorities as soon as the claimed necessity had lost its coercive force. In United States v. Bailey (1980), 444 U.S. 394, 410-11, 62 L. Ed. 2d 575, 591, 100 S. Ct. 624, 635 (Bailey), relied upon by the State, the court held that, in the context of a prison escape, an escapee would not be entitled to claim a defense of necessity “unless and until he demonstrates that, given the imminence of the threat,” violation of the escape statute was “his only reasonable alternative.” Further, in order to assert necessity as a defense to the crime charged, the escapee was required to “first offer evidence justifying his continued absence from custody as well as his initial departure.” (444 U.S. at 412, 62 L. Ed. 2d at 592, 100 S. Ct. at 635.) Bailey held that testimony of a “bona fide effort to surrender or return to custody as soon as the claimed *** necessity had lost its coercive force” was an “indispensable element of such an offer.” (Emphasis added.) 444 U.S. at 412-13, 62 L. Ed. 2d at 592, 100 S. Ct. at 635-36.

In the case at bar, the circuit court relied on Bailey in granting the State’s motion in limine, which defendant suggests was improper. He argues Bailey only involved the propriety of a jury instruction after the close of all the evidence, and at most provided an additional factor for assessing the weight and credibility of the asserted necessity defense. Defendant’s reading of Bailey is flawed; the court clearly held that evidence of a bona fide effort to return or surrender once the claimed necessity lost its coercive force was an indispensable element of the defense, and expressly stated it was not just another factor in assessing the weight and credibility of the asserted defense. 444 U.S. at 412, 62 L. Ed. 2d at 592, 100 S. Ct. at 635-36.

Defendant’s reliance upon Unger therefore is misplaced. Bailey modifies Unger by requiring some evidence of a bona fide effort to surrender or return to custody once the coercive pressures have abated; contrary to Unger, the absence of this particular precondition conclusively precludes a claim of necessity. No decisions in Illinois, including the cases cited by defendant, have considered the effect of Bailey on the Unger decision: People v. Pelate (1977), 49 Ill. App. 3d 11, 363 N.E.2d 860, was decided before Bailey and relied exclusively upon Unger; People v. Bivens (1987), 156 Ill. App. 3d 222, 509 N.E.2d 640, and People v. Tackett (1988), 169 Ill. App. 3d 397, 523 N.E.2d 647, decided after Bailey, both rejected asserted claims of necessity due to each defendant’s failure to present sufficient evidence to support such a defense, and did not address Bailey or the issue of a bona fide effort to return.

Moreover, Bailey is not limited to a determination, at the close of all the evidence, of the propriety of a jury instruction for necessity. James Cogdell, one of four defendants in Bailey, was tried two months after the other three escapees were convicted. In the earlier trial, the defense was allowed to present testimony of allegedly inhumane jail conditions, but was denied a jury instruction on necessity; in contrast, Cogdell was precluded at the outset of his defense case from presenting any evidence of jail conditions absent initial testimony regarding his efforts to turn himself in after his escape from the allegedly coercive situation. Cogdell’s conviction for escape, along with those of the other three defendants, nevertheless was upheld.

In light of defendant’s failure to present any evidence of a bona fide effort to surrender or return to custody once the claimed necessity was removed, the court did not abuse its discretion in granting the State’s motion in limine. See People v. Williams (1978), 60 Ill. App. 3d 529, 532, 377 N.E.2d 367.

Defendant’s added contention, that the court’s ruling denied him ab initio the opportunity to present “some evidence” of his claim of necessity, also must be rejected. Courts have allowed defendants to make offers of proof to demonstrate the existence of “some evidence” in support of a necessity claim (see People v. White (1979), 78 Ill. App. 3d 979, 397 N.E.2d 1246; People v. Pelate, 49 Ill. App. 3d 11, 363 N.E.2d 860); here, defendant failed to do so. Defendant did make an offer of proof as to the existence of a threat of death or substantial bodily injury; he failed to present, however, any offer of proof of his bona fide effort to return, an element of necessity found “indispensable” in Bailey.

Contrary to his assertion, the circuit court expressly indicated that, pursuant to Bailey, it would allow defendant to present evidence of his bona fide effort to return, stating:

“[Y]ou are pretty restricted and limited unless you have some form to show that you have taken some kind of affirmative action to surrender yourself or to take necessary actions to make yourself available to the proper authorities and you indicated the only reason why you conducted yourself as you had is that because of these conditions that existed but that you are surrendering to the authorities. Then you have a different situation. That is something else that you can consider. And I certainly would not preclude you from doing that if in fact, you can do that.” (Emphasis added.)

It cannot be said that the circuit court improperly precluded defendant from asserting a defense of necessity.

II

Defendant next insists he was denied a fair trial by the State’s introduction of physical evidence identifying him as a fugitive and its repeated allusions to his involvement in other crimes. Initially, defendant’s entire argument here may be deemed waived, as he failed to file a written post-trial motion in this case. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Further, of the many errors identified by defendant, he failed to object contemporaneously to all but two.

Assuming, arguendo, the issues were properly preserved, defendant cites 13 references to his involvement in other crimes or fugitive warrants within the testimony of the State’s witnesses, and asserts that the sole purpose of such evidence was to prejudice the jury into believing he was an incorrigible criminal. Evidence of other crimes for which the accused is not on trial is inadmissible to show his character or propensity to commit crime; however, such evidence is admissible if relevant for any other purpose. (People v. Kimbrough (1985), 138 Ill. App. 3d 481, 485 N.E.2d 1292; People v. Anderson (1982), 108 Ill. App. 3d 563, 569, 439 N.E.2d 65.) The admission of such evidence is within the sound discretion of the circuit court, and its determination will not be disturbed on review absent a clear abuse of that discretion. People v. Anderson, 108 Ill. App. 3d at 570.

In the instant case, the State was required to prove that defendant was charged with the commission of a felony in a fugitive warrant from Florida, which rendered his custody lawful on the date of the escape; further, it was compelled by the defense strategy to explain to the jury the procedures involved in ascertaining defendant’s status as a fugitive. Unlike People v. Pittman (1984), 126 Ill. App. 3d 586, 467 N.E.2d 918, cited by defendant, the evidence of other crimes and fugitive warrants here was necessary to establish that defendant actually committed the crime charged, which constitutes an appropriate use thereof. See People v. Kimbrough, 138 Ill. App. 8d 481, 485 N.E.2d 1292.

Even if introduction of the evidence of other crimes was error, reversal is not required where, as here, the evidence of defendant’s guilt is demonstrated beyond a reasonable doubt. (People v. Pittman, 126 Ill. App. 3d at 590.) The trial evidence revealed a valid fugitive warrant under which defendant lawfully was in custody, unre-butted testimony that defendant escaped and later resisted recapture, an unrepudiated confession, and an unimpeached description of the escape plan as told to a prison official by defendant. Any error through the admission of other crimes evidence was harmless. See People v. Pittman, 126 Ill. App. 3d 586, 467 N.E.2d 918.

Defendant’s claim that the State’s references to his several aliases unfairly prejudiced the jury likewise is unfounded. The various fugitive warrants at issue identified defendant by at least one of three aliases, making it necessary to specify whether the name on each document in fact referred to defendant. Further, the two inmate identification cards resolved the question of whether defendant was lawfully released from custody: the “Terry Hannah” card indicated defendant posted bond and could be released; the “Francis Scott” card indicated an outstanding warrant precluding his release. Since defendant’s use of an alias was material to the case against him, that evidence was admissible. See People v. Bryan (1987), 159 Ill. App. 3d 46, 53, 511 N.E.2d 1289.

Defendant next protests he was prejudiced by FBI agent Dennis Kemble’s “insinuation” of prior dealings with defendant resulting from his work as a law enforcement officer. Kemble testified he knew “Francis Scott” as “Terry Hannah”; defendant had been incarcerated at Cook County jail; and “having had previous contact with Mr. Scott, I went over to a location where I believe that he would have gone to.” People v. Richardson (1977), 48 Ill. App. 3d 307, 362 N.E.2d 1104, relied on by defendant as support for this point, is inapposite. The challenged portions of Kemble’s testimony fall well short of the comments found prejudicial in Richardson: his familiarity with defendant by an alias and because of a “previous contact” does not necessarily constitute evidence of other crimes, and any such conclusion would be mere speculation (see People v. Allen (1981), 96 Ill. App. 3d 871, 879, 422 N.E.2d 100); Kemble never mentioned the nature of the other crimes themselves; and defendant’s incarceration at Cook County jail was an essential element of the offense for which he was being tried. No unfair prejudice resulted from Kemble’s testimony.

Defendant complains that the most prejudicial error was the introduction of physical evidence detailing his other offenses. Specifically, defendant urges that People’s exhibit number 1, a “prison history card” with a notation in red indicating “escape from federal custody,” and People’s exhibit number 5, the supporting documentation for the return of defendant from Illinois to Florida to face certain other charges which were listed therein, were improperly admitted over his objection.

Irrelevant material contained in an otherwise competent document must be deleted before the document is presented for jury consideration, unless to do so would severely impair its evidentiary value. (People v. Donaldson (1956), 8 Ill. 2d 510, 517-18, 134 N.E.2d 776.) Before People’s exhibit number 5 was sent to the jury, the document was amended and various pages were removed; the court expressly stated, with reference to the remaining portions, that there was “no possible way those charges can be deleted” without changing the entire document, and were necessary to inform the jury of the outstanding Florida charges on which the fugitive warrant was based. In light of this observation by the court and absence of the document in question in the record on appeal, we cannot say that admission of this evidence was error.

As to People’s exhibit number 1, the court simply stated that it examined the notation on the card and that it “did not in any way present a problem for submission to the jury.” The exhibit has not been made part of the record on appeal. The exhibit (the “Terry Hannah” prison history card) clearly was critical to the State’s case and of great probative value. Admission of this physical evidence was not error.

As the foregoing discussion indicates, most, if not all, of the evidence in this case with reference to other crimes was relevant to the crime for which he was being tried, and therefore offered for a proper purpose. Unlike People v. Olson (1981), 96 Ill. App. 3d 193, 420 N.E.2d 1161, cited by defendant, this case does not involve too much evidence of an issue “only peripheral” to the offense being tried; lawful custody of a person charged with or convicted of a felony is an essential element of “escape.” (See Ill. Rev. Stat. 1977, ch. 38, par. 31 — 6(a).) In addition, the evidence of defendant’s guilt was overwhelming, and any error would be harmless.

Ill

Defendant next asserts as error that improper questioning at trial and comments in closing argument by the prosecution denied him a fair trial. Initially, we note this issue also may be deemed waived for defendant’s failure to file a written post-trial motion. (People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124.) Assuming, arguendo, the question is properly before this court, defendant complains the prosecution improperly elicited testimony from State witnesses concerning his participation in other criminal activity in order to “taint” his case “in the eyes of the jurors.” This argument was disposed of in the preceding section.

Defendant continues that several comments in the prosecutor’s closing argument were prejudicial. He urges the statement that defendant was “no boy scout” improperly implied to the jury that he was a dangerous man who should be convicted. The record reflects that the defense immediately objected to this remark, prompting the court to admonish the jury that defendant’s character was not an issue and argument should not be considered if not based on evidence adduced at trial. As such, any error was cured. See People v. Perez (1983), 113 Ill. App. 3d 143, 149, 446 N.E.2d 1229.

Defendant also challenges the State’s repeated comments concerning charges of escape against him from other jurisdictions, as well as a remark in rebuttal that the prosecutor “personally believe[d] there was absolutely nothing wrong with” Elmer Fox’s actions as extradition officer. These comments, the latter of which inappropriately interjected the prosecutor’s personal belief, exceeded any legitimate purpose and were improper, as was his remark that he was “incensed” by the theory of the defense. To merit reversal, however, a prosecutor’s improper comments must be of “substantial magnitude” when viewed in the context of the entire record and argument. (People v. Cukojevic (1981), 103 Ill. App. 3d 711, 723, 431 N.E.2d 1154.) Reversal is not warranted unless the improper remarks resulted in substantial prejudice to the defendant; if the improper comments did not constitute a material factor in the conviction of defendant, the verdict will not be disturbed. People v. Cukojevic, 103 Ill. App. 3d at 723.

In light of the overwhelming evidence of defendant’s guilt in this case, the foregoing improper remarks cannot be said to have constituted a material factor in his conviction; their absence from the State’s rebuttal argument certainly would not have resulted in a different verdict. (See People v. Faysom (1985), 131 Ill. App. 3d 517, 525, 475 N.E.2d 945.) Any error was harmless, particularly in light of the court’s subsequent instruction to the jury that argument was not evidence and any argument not based on the evidence should be disregarded. People v. Faysom, 131 Ill. App. 3d at 525.

Of greater concern is the following comment made during the State’s rebuttal:

“[T]his trial is supposed to be [about] the fact whether or not Francis Scott escaped and whether or not we can prove that. You have not heard everything. You know you haven’t heard everything. I cannot comment on everything. I want you to use your reason.”

Defendant urges these remarks improperly insinuated to the jury that other incriminating evidence was being kept from them.

In People v. Emerson (1983), 97 Ill. 2d 487, 455 N.E.2d 41, cited by defendant, the prosecutor made a similar statement. Our supreme court observed the remark was improper and that it was error to suggest evidence of guilt existed which, for some reason, could not be brought before the jury, recognizing that such an insinuation, which left the jury free to speculate as to the nature of the misconduct, might be more prejudicial than erroneously admitted proof. (97 Ill. 2d at 497.) Based on that improper remark and several others made in closing argument, the Emerson court reversed that defendant’s conviction; the errors were deemed prejudicial since guilt or innocence in that case depended entirely upon the credibility of an accuser and the accused. 97 Ill. 2d at 502.

Unlike Emerson, the evidence of defendant’s guilt in the case at bar was overwhelming. Despite the egregious nature of the prosecutor’s insinuative remark, it cannot be said to have been so prejudicial as to require reversal. People v. Cukojevic, 103 Ill. App. 3d at 723.

IV

Defendant next maintains he was denied effective representation and assistance of counsel in violation of his constitutional rights. He asserts defense counsel failed to provide a meaningful adversarial testing of the State’s case and preserve issues for review.

Defendant chose to represent himself pro se and “fired” the public defender immediately prior to trial. The circuit court nevertheless asked the public defender to remain as “stand by” counsel and did not terminate this arrangement or appoint the public defender to act as counsel for defendant, nor was such a substitution ever requested by defendant.

The right of self-representation in criminal proceedings is constitutionally guaranteed. (Faretta v. California (1975), 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525.) One who knowingly and voluntarily chooses to represent himself cannot complain on appeal that his self-representation constituted a denial of effective assistance of counsel or a fair trial (People v. Graves (1984), 134 Ill. App. 3d 473, 477, 480 N.E.2d 1142; People v. O’Neal (1978), 62 Ill. App. 3d 146, 150, 379 N.E.2d 12), even where he conducts his defense to his own detriment (People v. O’Neal, 62 Ill. App. 3d at 150). If his self-representation is less effective than if he would have retained counsel, it is imputable to his decision to proceed without an attorney. (People v. Tuczynski (1978), 62 Ill. App. 3d 644, 651, 378 N.E.2d 1200.) Otherwise, “a defendant could elect to defend himself and then secure a reversal because of his own incompetency.” People v. Richardson (1959), 17 Ill. 2d 253, 260, 161 N.E.2d 268.

Defendant here urges that the public defender’s “major role” at trial rose to the level of “lead counsel,” and defendant merely “second-chaired” the case. The public defender gave the opening statement and closing argument, participated in the exhibit and jury instructions conferences, cross-examined two State’s witnesses, and conducted the direct examination of a defense witness.

The circuit court was very careful throughout the trial, however, to indicate defendant was acting pro se, and only was assisted by the public defender. For example, when defendant asked the public defender to question a defense witness, the court granted the request; however, it first reminded the jury of defendant’s self-representation, advising it “to assume that any questions that [the public defender] makes are the questions that [defendant] would present.” The court also noted the public defender made the closing argument “on behalf of” defendant. Clearly, throughout the trial, the court treated defendant as a pro se litigant, and at no time dealt with the public defender as anything but advisory counsel.

More significantly, defendant never objected to his pro se role at trial, first raising it here as a result of his conviction. Further, there is no complaint that the public defender, when acting at the request of defendant, proceeded contrary to his instructions. Since defendant chose to represent himself, he must bear the consequences of his decision, including his failure to preserve various issues for appeal, and his claim of ineffective assistance of counsel must be rejected.

V

Defendant lastly contends, and the State concedes, that his sentence to an extended term of 12 years was improper and should be reduced. An extended sentence can be imposed if certain statutory factors are established (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5— 3.2(b)); none of the requisite factors were presented during the sentencing phase of the instant case. Imposition of an extended term here was improper, and the sentence must be vacated.

Accordingly, defendant’s conviction for escape will be affirmed; his sentence will be vacated and the cause remanded for resentencing.

Affirmed in part; vacated in part and remanded for resentencing.

DiVITO, P.J., and BILANDIC, J., concur.

      This appeal was dismissed for want of prosecution in 1987; it was reinstated in 1988 on appellant’s motion.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVE DANIELS, Defendant-Appellant.
    First District (2nd Division)
    No. 1—87—1466
    Opinion filed February 13, 1990.
    Paul P. Biebel, Jr., Public Defender, of Chicago (R.H.R. Silvertrust, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, William D. Carroll, and Mary Katherine Moore, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

On March 27, 1987, defendant Steve Daniels was convicted of the offense of burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 1) and was sentenced to four years in the custody of the Illinois Department of Corrections. Defendant appeals from his sentence, alleging that the circuit court erred in denying him probation.

During trial, the State introduced certified copies of defendant’s 1983 convictions in the State of Mississippi for burglary, larceny and escape. The Mississippi court had sentenced defendant to serve four years in the penitentiary for burglary and larceny, and two years for escape, the sentences to run concurrently. Accordingly, the circuit judge in the instant case, taking into account defendant’s prior out-of-State conviction for burglary, refused to give him probation in reliance on section 5 — 5—3(c)(2)(F) of the Unified Code of Corrections (Code of Corrections) (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5— 3(c)(2)(F)), which provides in pertinent part:

“(2) A period of probation *** shall not be imposed for the following offenses. The court shall sentence the offender to not less than the minimum term of imprisonment set forth in this Code for the following offenses ***:
(F) A Class 2 or greater felony if the offender had been convicted of a Class 2 or greater felony within 10 years of the date on which he committed the offense for which he is being sentenced.”

In refusing to grant probation, the judge noted that section 5 — 5— 3(c)(2)(F) of the Code of Corrections is not limited to felony convictions in Illinois and, indeed, makes no reference to where the previous felony must have been committed. He further noted that another subsection of the same statute explicitly provides that in order to enhance a defendant’s offense to a Class X felony, a previous conviction must have originated “in Illinois” (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3(c)(8)), and that, therefore, the pointed absence of any reference to Illinois in subsection (c)(2)(F) indicates a legislative intent to permit out-of-State as well as Illinois convictions to be a basis for denying probation.

We note that burglary is a Class 2 felony under Illinois law (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 2(b)), and for a conviction of a Class 2 felony, a sentence of imprisonment may not be less than three years nor greater than seven years (Ill. Rev. Stat. 1985, ch. 38, par. 1005— 8 — 1(a)(5)).

I

Defendant faults the trial court’s sentencing decision on two grounds. First, he argues that because other enhancement provisions in the Code of Corrections and the Criminal Code of 1961 (Criminal Code) (Ill. Rev. Stat. 1985, ch. 38, par. 1 — 1 et seq.) limit themselves to Illinois convictions, they indicate a legislative intent to allow extended-term sentences based only on prior convictions in this State. According to defendant, this intent applies to section 5 — 5—3(c)(2)(F) despite the absence of any reference to Illinois in that portion of the Code of Corrections. For example, defendant refers to section 5 — 5— 3(c)(7) of the Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3(c)(7)), which prescribes a term of natural life imprisonment for a defendant adjudged to be an habitual criminal under section 33B of the Criminal Code. Section 33B — 1(a) of the Criminal Code defines “habitual criminal” as follows:

“§33B — 1. (a) Every person who has been twice convicted in any state or federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class X felony or murder, and is thereafter convicted of a Class X felony or murder, committed after the 2 prior convictions, shall be adjudged an habitual criminal.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 38, par. 33B — 1(a).)

As another example, defendant refers to section 5 — 5—3(c)(8) of the Code of Corrections, which provides in pertinent part:

“(8) When a defendant *** is convicted of a Class 1 or a Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Illinois, *** such defendant shall be sentenced as a Class X offender.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3(c)(8).

But defendant’s reliance on statutory provisions such as those cited above which refer specifically to prior offenses in Illinois militates against his own position, because it has been held that the very absence of any reference to Illinois offenses in section 5 — 5—3(c)(2)(F) indicates a legislative intent to deny probation to defendants who have been previously convicted of a felony in other jurisdictions. As the State points out, in People v. Harman (1984), 125 Ill. App. 3d 338, 465 N.E.2d 1009, the second district held that pursuant to section 5 — 5—3(c)(2)(F) the circuit court may not give probation to a defendant who in the past 10 years has been convicted in another jurisdiction of the equivalent of a Class 2 felony under Illinois law. The defendant in that case had a prior conviction for burglary in Pennsylvania.

Setting forth the rules governing statutory interpretation, the Harman court held:

“While penal statutes must be strictly construed [citation], and any ambiguity should be resolved in the defendant’s favor, prime consideration in construing a legislative enactment is to ascertain and give effect to the legislative intent. [Citation.] Where the statutory language is clear and unambiguous, the statute must be given effect without resort to other aids for construction. [Citation.] Where, however, the language is susceptible of different interpretations, to ascertain a legislative intent, it may be necessary to look beyond express words and to consider the purpose to be served by the statute. [Citations.] Also, where the legislature has provided reasonable definitions of any terms within its enactment, such definitions for the purposes of its acts will be sustained. [Citations.] Furthermore, separate acts with separate purposes need not define similar terms in the same way. Therefore, the meaning of words within the statute is dependent upon the connection in which the word is used, the object or purpose of the statute and the consequences which probably will result from the proposed construction.” People v. Harman, 125 Ill. App. 3d at 344-45, 465 N.E.2d at 1014-15.

In applying these principles to section 5 — 5—3(c)(2)(F), the court in Harman held that because the definition of an “habitual criminal” is found in the Criminal Code (Ill. Rev. Stat. 1985, ch. 38, par. 33B — 1(a)), it has little bearing on the meaning of section 5 — 5— 3(c)(2)(F) of the Code of Corrections, which is a separate enactment with separate legislative purposes. Turning for comparison to other provisions within the Code of Corrections which specifically require prior Illinois convictions for extending sentences (e.g., Ill. Rev. Stat. 1985, ch. 38, pars. 1005 — 5—3(c)(6), 1005 — 5—3.2(b)(1)), the court found that the absence of such a limitation in the probation section shows that the legislature intended a different result. (See also Aurora Pizza Hut, Inc. v. Hayter (1979), 79 Ill. App. 3d 1102, 1105-06, 398 N.E.2d 1150, 1153 (“where the legislature uses certain words in one instance, and different words in another, different results were intended”).) When defendant argues that the legislature’s restriction to prior Illinois convictions in other sections of the Code of Corrections implies the same restriction in section 5 — 5—3(c)(2)(F), he does violence to the well-established principle of statutory construction, ex-pressio unius est exclusio alterius (the expression of one thing implies the exclusion of another) (see Condell Hospital v. Illinois Health Facilities Planning Board (1988), 124 Ill. 2d 341, 366-67, 530 N.E.2d 217, 229; Chicago, Milwaukee & St. Paul R.R. Co. v. Dumser (1884), 109 Ill. 402, 410), which underlies the holding in Harman. We regard it as significant that defendant fails to reply to the State’s citation and extensive discussion of Harman in its brief; nor does defendant cite or discuss in his brief any other Illinois decision construing section 5 — 5—3(c)(2)(F). We agree with the Harman court that section 5 — 5—3(c)(2)(F) of the Code of Corrections requires the denial of probation to a defendant who has been convicted outside the State of the equivalent of a Class 2 felony or greater under Illinois law.

II

Second, defendant argues that at the very least the State should have shown that his Mississippi burglary conviction carried a penalty equivalent to a Class 2 felony. Yet, defendant makes no showing that burglary in Mississippi carries a penalty any less than the three- to seven-year range for Class 2 felonies prescribed in the Illinois Code. (See Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(5).) We take judicial notice (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 1003) that Mississippi has nine different types of burglary offenses which carry maximum penalties ranging from 5 to 40 years’ imprisonment in the penitentiary. (Miss. Code Ann. §§97 — 17—19 to 97 — 17—29, 97 — 17— 33 to 97 — 17—37 (1972).) Although the record does not indicate under which statutory section defendant was convicted, he was sentenced for the crime of “burglary” to four years’ imprisonment, a term well within the range for Class 2 felonies in Illinois. Defendant does not allege that his four-year sentence for burglary in the instant case was otherwise an abuse of the circuit court’s broad sentencing discretion. (See People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) For all of the foregoing reasons, we affirm the judgment of the circuit court.

Affirmed.

DiVITO, P.J., and BILANDIC, J., concur.


author: PRESIDING JUSTICE DiVITO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EMMITT MURRAY, Defendant-Appellant.
    First District (2nd Division)
    No. 1—87—2082
    Opinion filed February 13, 1990.

      Michael J. Pelletier and Roger L. Horwitz, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Paula Car-stensen, and Lori J. Williams, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE DiVITO

delivered the opinion of the court:

Following a bench trial, defendant Emmitt Murray was convicted of aggravated battery and attempted armed robbery and sentenced to concurrent terms of four years’ imprisonment for aggravated battery and 10 years’ imprisonment for attempted armed robbery. Defendant appeals, raising as issues (1) whether he was proved guilty of aggravated battery beyond a reasonable doubt; (2) whether he was proved guilty of attempted armed robbery beyond a reasonable doubt; and (3) whether he was denied a fair trial on the ground that the trial court improperly assumed a prosecutorial role in questioning a witness at trial. We affirm.

Len Zeimys, the victim in this case, testified that at 2 p.m. on June 6, 1986, he was driving with Greg Tweedy near 34th and Halsted Streets in Chicago. Zeimys was carrying $1,500 in cash which he intended to deposit in his bank account. He dropped Tweedy off at 34th and Halsted Streets and then remembered that he needed to buy a pair of shoes for his son in a nearby shoe store. He drove around the block and parked on 34th Street, about 50 feet east of Halsted. As he walked toward the shoe store, he removed the $1,500 from his pocket, put two $20 bills into his right pocket, and put the rest of the money into his left pocket. He then turned the corner onto Halsted and looked through the shoe store window.

At that point, defendant approached Zeimys from behind, grabbed him around the neck, and pushed him toward the street. Zeimys pulled defendant’s arm away, spun around, and saw that defendant was carrying a knife. Zeimys tried to grab the knife and was cut on his hand and face. Defendant tried to run away, but Zeimys held him from behind in a bear hug and screamed for help. Defendant was then subdued by Zeimys, Tweedy, and a third person, and soon thereafter arrested by the police.

During defense counsel’s cross-examination of Zeimys, the trial court interjected in the following manner:

“[DEFENSE COUNSEL]: Okay, as you were turning around that’s the point at which you felt pressure on your neck. Is that what you’re saying?
A. In the matter of a split. When I turned my head I seen something wasn’t right. I grabbed his arm and I started pulling the person’s arm and that’s when I started feeling pressure on my neck just like — something like this.
[DEFENSE COUNSEL]: Okay. And from there on the struggle that you described ensued. Is that right?
A. It began then, yes.
THE COURT: Was anything said during that struggle?
A. As I was being pushed toward the car, there was a car that came up and I felt like I was being pushed towards the car with this physical motion, okay and there was something said about money. He told me something. I couldn’t — it was definitely money. What came before or after — I definitely heard money. Like I say, it was just that fast.
[DEFENSE COUNSEL]: So the only word that you heard from the person’s mouth was money. Is that right?
A. There was some words said but money was definitely part of it.”

No other questions were asked by the trial court regarding what defendant had said to Zeimys.

Greg Tweedy testified that one or two minutes after Zeimys had dropped him off, he heard two people shouting, turned around, saw Zeimys and defendant fighting, and ran to help Zeimys. Tweedy did not know how the fight began.

Officer Mike Rogers testified that he arrived at the scene at 2:29 p.m. on June 6, 1986, responding to a call of a street fight, and saw defendant struggling with three white men. One of the white men wrested a pocket knife from defendant’s hand and gave it to Rogers. Rogers then joined the struggle, handcuffed defendant, and placed defendant under arrest.

The State rested, and defendant then testified on his own behalf. He stated that on June 6, 1986, between 2 and 2:30 p.m., he was in the vicinity of 35th and Halsted Streets. He crossed the street and a man in a truck, whom the defendant identified as Zeimys, yelled: “Nigger get your ass out of the street.” Defendant kept walking and heard footsteps when he reached the corner of 34th and Halsted Streets. He turned his head and saw Zeimys, who grabbed him around the neck and choked him. Defendant then pulled out a pocket knife, reached over his right shoulder with his right hand, and cut Zeimys twice. Tweedy then ran up, grabbed defendant’s arm, and hit him in the face. Defendant yelled for help and was on the ground when the police arrived. He was treated later at St. Anthony’s Hospital for multiple trauma to the abdomen, eyes, and head.

I

Defendant maintains first that he was not proved guilty of aggravated battery beyond a reasonable doubt. He argues that Zeimys’ version of the events was so improbable that it was contrary to human experience and should not have been accepted by the trial court. We disagree.

In assessing the sufficiency of the evidence supporting a conviction, the reviewing court must decide whether, after examining the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crimes at issue beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, 472-73.) Reversal of a conviction is required only where the defendant can show that the evidence is so unsatisfactory or improbable as to create a reasonable doubt of defendant’s guilt. (People v. Brisbon (1985), 106 Ill. 2d 342, 478 N.E.2d 402; People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) A conviction may rest upon the testimony of a single witness, if positive and credible, even though his testimony is contradicted by the accused. (People v. Echoles (1976), 36 Ill. App. 3d 845, 344 N.E.2d 620.) The reviewing court will not second-guess the trier of fact’s evaluation of the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733.

In this case, sufficient evidence to sustain defendant’s conviction for aggravated battery is present in Zeimys’ testimony alone. The trial court plainly credited Zeimys’ version of the events and rejected defendant’s testimony. The trial court noted specifically that the stab wounds suffered by Zeimys were consistent only with Zeimys’ description of each persons’ position during the struggle. The trial court also did not believe defendant’s testimony that he found the knife used in the attack shortly before the incident and was not familiar with using a knife.

People v. Smiley (1975), 32 Ill. App. 3d 948, 337 N.E.2d 290, relied on by defendant, is inapposite. In that case, the complaining witness testified that he heard noises in back of his house, investigated, found the defendant looking through his garbage cans, asked the defendant what he was doing, and was then attacked by the defendant. The defendant testified that the complaining witness instigated the fight, but was nevertheless convicted of battery. The appellate court reversed on the ground that the complaining witness’ testimony was contrary to human experience. Plainly, the appellate court found the evidence so improbable as to create a reasonable doubt as to the defendant’s guilt. Here, however, we find Zeimys’ version of the events entirely believable and consistent with human experience.

II

Defendant maintains next that he was not proved guilty of attempted armed robbery beyond a reasonable doubt. He argues that there was no evidence that he knew Zeimys was carrying a large sum of money and Zeimys’ testimony that he heard him mention the word “money” during the struggle was not sufficient to establish the requisite intent. We disagree.

The intent to commit a crime can be inferred from the conduct of the accused and all the surrounding circumstances. (People v. Terrell (1984), 99 Ill. 2d 247, 459 N.E.2d 1337.) Where defendant is charged with attempted armed robbery, the prosecution can obtain a conviction despite the fact that no evidence of a specific demand for money is made, if surrounding circumstances are sufficient to establish the requisite intent. People v. Mulcahey (1978), 72 Ill. 2d 282, 381 N.E.2d 254.

In this case, the trial court reasonably inferred from the timing of the attack shortly after Zeimys had removed a roll of money from his pocket, and from defendant’s apparent demand for money, that defendant intended to rob Zeimys. Accordingly, we conclude that sufficient evidence was adduced at trial to sustain defendant’s conviction for attempted armed robbery.

Ill

Finally, defendant maintains that he was denied a fair trial because the trial court improperly assumed the role of the prosecutor when it asked Zeimys whether anything was said during the struggle and improperly relied on Zeimys’ response in finding sufficient proof of attempted armed robbery. Again, we disagree.

It is an abuse of discretion for the trial court to assume the role of an advocate. (People v. Galan (1986), 151 Ill. App. 3d 481, 483, 502 N.E.2d 853.) The trial court may nevertheless question a witness “to elicit the truth or to bring enlightenment on material issues which seem obscure.” (People v. Palmer (1963), 27 Ill. 2d 311, 314, 189 N.E.2d 265; People v. Wesley (1959), 18 Ill. 2d 138, 163 N.E.2d 500.) But the court must question the witness “in a fair and impartial manner, without showing prejudice or bias against either party.” (People v. Gilbert (1957), 12 Ill. 2d 410, 415, 147 N.E.2d 44, 47.) Whether the trial court’s questioning is proper is determined by the circumstances of each case and rests largely in the discretion of the trial court. (People v. Trefonas (1956), 9 Ill. 2d 92, 100, 136 N.E.2d 817; People v. Marino (1953), 414 Ill. 445, 450, 111 N.E.2d 534.) This is especially true where the defendant is tried without a jury and the danger of prejudice to the defendant is lessened. People v. Palmer, 27 Ill. 2d at 315, 189 N.E.2d at 268.

In this case, defendant argues that the trial court improperly assumed the role of the prosecutor, not because the question put to the witness showed bias or prejudice, but because the question elicited a response that established a material element of the State’s case, which the State otherwise failed to prove. We do not believe, however, that the trial court improperly assumes the role of the prosecutor merely because its unbiased and impartial questions elicit evidence material to the State’s case. To the contrary, “[i]t is the judge’s duty to see that justice is done, and where justice is liable to fail because a certain fact has not been developed or a certain line of inquiry has not been pursued it is his duty to interpose and either by suggestions to counsel or an examination conducted by himself avoid the miscarriage of justice[.]” (People v. Franeeschini (1960), 20 Ill. 2d 126, 132, 169 N.E.2d 244; People v. Bolton (1927), 324 Ill. 322, 329, 155 N.E. 310; People v. Lurie (1917), 276 Ill. 630, 641, 115 N.E. 130.) Thus, the trial judge “may act to ensure that evidence essential to the proper disposition of a case is not inadvertently omitted.” (People v. Galan, 151 Ill. App. 3d at 483; People v. Walter (1980), 90 Ill. App. 3d 687, 688-89, 413 N.E.2d 542.) The only limitation to this rule is that the judge must not forget his function and “assume that of the advocate.” People v. Franceschini, 20 Ill. 2d at 132.

In Lurie, for example, the court reversed the defendant’s conviction only because the judge “frame[d] his questions as to intimate [an] opinion as to the credibility of [the] witnesses].” (See People v. Lurie, 276 Ill. at 641-42.) In Franceschini, the trial court properly advised the State, at the close all the evidence, that proof of breaking and entering was lacking, and properly allowed a State’s witness to then testify to that material element of the charged offense. (See People v. Franceschini, 20 Ill. 2d at 131-32.) Similarly, in Bolton, Galan, and Walter, the trial judges properly acted to ensure that evidence material to the prosecution was brought forth.

In this case, as in the cases cited above, we find no abuse of discretion in the single, completely neutral question asked of Zeimys, which neither reflected on Zeimys’ credibility, nor exhibited any bias on the part of the trial court. The trial court here did not repeatedly interrogate or lead the witness as in Lurie, or elicit inadmissible hearsay evidence as in People v. McGrath (1967), 80 Ill. App. 3d 229, 224 N.E.2d 660, relied on by defendant. Without assuming the role of the prosecutor, the trial court here, as in Franceschini, Bolton, Galan, and Walter, merely assured that evidence essential to the proper disposition of this case was not omitted.

The cases relied on by defendant are all inapposite. People v. Santucci (1962), 24 Ill. 2d 93, 180 N.E.2d 491, involved interrogations reflecting on the credibility of witnesses before a jury. Here, by contrast, defendant was not only tried before the bench, but the single question put to Zeimys was entirely neutral and reflected no bias whatsoever on the part of the trial court. People v. Cofield (1973), 9 Ill. App. 3d 1048, 293 N.E.2d 692, involved a bench trial, but is distinguishable from the present case on the ground that the trial court there called and examined each of the State’s witnesses, clearly assuming the role of the prosecutor. As noted above, McGrath is distinguishable on the ground that the interrogation there elicited inadmissible hearsay evidence upon which the trial court relied in finding the defendant guilty.

We do not intimate that the trial court should in any way take over management of material and sensitive components of a criminal trial. We note that one commentator, a trial judge himself, has suggested that judicial questioning is a relatively inefficient means of getting at the truth since the trial judge is far less familiar with the issues and the facts of a case than are the attorneys, and is thus as likely to impair the adversary process through his or her participation as to advance it. (Frankel, The Search for Truth: An Umpireal View, 123 U. Pa. L. Rev. 1031, 1041-45 (1975).) We simply conclude that the trial court in this case did not abuse its discretion by asking Zeimys whether anything was said during the struggle.

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

Affirmed.

HARTMAN and SCARIANO, JJ., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD F. WILKINSON, Defendant-Appellant.
    First District (3rd Division)
    No. 1—86—3534
    Opinion filed February 14, 1990.

      Karen G. Fisher, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Kenneth T. McCurry, Lynda A. Peters, and Elizabeth Sklarsky, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant-appellant, Edward F. Wilkinson (Wilkinson), appeals his battery conviction and sentence. After a bench trial, the court sentenced him to a one-year conditional discharge, a $500 fine, and prohibited him from having any contact with the complaining witness.

On appeal, Wilkinson argues that (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt; (2) there was a prejudicial variance between the charge and proof at trial; (3) the trial court erred in denying motions for a new trial and in arrest of judgment; and (4) the trial court erred in failing to sentence him to a term of court supervision. We affirm.

At the time of the alleged incident, Wilkinson was a 58-year-old married father of one, suffering from multiple sclerosis. Wilkinson walked with the assistance of two canes. He operated a small bus service, consisting of one station wagon. Wilkinson transported employees of the Service to Mankind organization, also known as Ser-toma, which offered programs for handicapped persons. Wilkinson, a charter member of Sertoma and a member of the board of directors of several of its chapters, has a bachelor of science degree in business administration.

The complaining witness, Elizabeth Kruczek, was 24 years old at the time of trial and an employee of Sertoma. Kruczek began her ridership with the Wilkinson Bus Service on July 2, 1984. At that time, the Department of Rehabilitative Services paid Kruczek’s transportation costs. In February 1985, Kruczek’s subsidy with the Department expired and Wilkinson agreed to transport her while she obtained the means to pay for the service. Wilkinson occasionally offered to transport Kruczek’s mother and brother free of charge.

In August 1985, Wilkinson advised Kruczek that he would begin charging her for the transportation service and presented her with a bill in September 1985 for $50. Kruczek paid this bill and was charged $57.50 for the services provided in October. Kruczek did not pay the October bill and was additionally charged for services for three days in November when Wilkinson arrived to transport her and she was not there. Sertoma subsequently paid the charges.

The day after Wilkinson presented her with the October bill, November 1, 1985, Kruczek reported the alleged May 9, 1985, battery to a Sertoma employee. Kruczek rode with Wilkinson for six months from May through October 1985 before reporting the incident. Ten months after the alleged battery, Kruczek, accompanied by two Ser-toma staff members, reported the incident to the Alsip police and filed a complaint against Wilkinson.

The State initially charged Wilkinson with criminal sexual abuse and alleged that Kruczek was unable to understand the nature of the act or give knowing consent. Upon leave of court, the complaint was stricken and the State filed the battery complaint.

On May 9, 1985, the date of the alleged battery, Wilkinson drove Kruczek to an Illinois Secretary of State facility so that she could obtain an identification card. According to Kruczek, when she returned to the car, Wilkinson drove into a parking lot, parked the car and asked her why she did not want to have sexual relations with him. Kruczek testified that she did not answer, Wilkinson unbuttoned her blouse and touched her breast. Kruczek told Wilkinson to stop and removed his hand from her blouse. Wilkinson then unbuttoned and unzipped her pants and put his hand inside her pants. Kruczek removed his hand from her pants and again asked him to stop. Wilkinson denied unbuttoning and unzipping her clothes, and placing his hand inside her blouse and pants.

Both Wilkinson and Kruczek testified that after leaving the parking lot, Wilkinson drove to a restaurant and they ate breakfast. Thereafter, Wilkinson told Kruczek that he had other business to attend to and to take the bus home. Kruczek testified that she did not immediately tell anyone about the incident because she was afraid. Wilkinson acknowledged that he was aware of Kruczek’s handicap.

Eleanor Opon testified that her daughter, who was blind and had minimal brain damage, rode with Wilkinson Bus Service for approximately 10 years, never complained about Wilkinson’s conduct in the vehicle and was satisfied with his service. In addition, Reverend John Willis testified that Wilkinson’s reputation within the church congregation was “absolutely impeccable.”

The court found Wilkinson guilty of battery. Specifically, the court found that the incident had occurred as related by Kruczek and that the touching of those areas of the female anatomy was insulting. The court found that Wilkinson was a person “not to be believed,” given his evasive and self-serving testimony. The court denied the motions for a new trial and in arrest of judgment. This appeal followed.

Wilkinson first argues that the only evidence to support the battery charge, Kruczek’s testimony, failed to establish the elements of the crime of battery, was totally unsatisfactory and provided reasonable doubt of his guilt. We disagree.

It is the province of the trial court to determine the credibility of the witnesses and the weight to be given their testimony. (People v. Roper (1983), 116 Ill. App. 3d 821, 824, 452 N.E.2d 748, 749-50.) The trial judge is in a superior position to judge the credibility of the witnesses. (People v. Silver (1986), 151 Ill. App. 3d 156, 162, 502 N.E.2d 1141, 1146.) Where the truth lies is a matter peculiarly for the trier of fact, and it is not for a reviewing court to substitute its opinion therefor. People v. Margiolas (1983), 117 Ill. App. 3d 363, 366, 453 N.E.2d 842, 845.

The trial court’s finding of guilt should only be disturbed if the proof at trial was so unsatisfactory that it justified a reasonable doubt as to defendant’s guilt. (People v. Margiolas (1983), 117 Ill. App. 3d 363, 366, 453 N.E.2d 842, 845.) The trial court’s findings will not be disturbed on review unless they are palpably erroneous. (People v. Roper (1983), 116 Ill. App. 3d 821, 824, 452 N.E.2d 748, 750.) Moreover, a conviction may not be reversed unless after viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Pintos (1989), 133 Ill. 2d 286, 292.

A person commits a battery when he either intentionally or knowingly, and without legal justification, makes physical contact of an insulting or provoking nature with an individual. (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 3(a).) Kruczek testified that Wilkinson unbuttoned her blouse, placed his hand on her breast, and that after she removed his hand and asked him to stop, he unbuttoned and placed his hand in her pants. Her testimony is not so unsatisfactory as to establish a reasonable doubt of Wilkinson’s guilt.

Wilkinson further argues that the nature of these acts is not insulting because there was no struggle and Kruczek did not testify that she was upset, traumatized or disturbed by the acts. Moreover, Wilkinson asserts that it may be inferred that Kruczek was not insulted since she joined him for breakfast. We find that Wilkinson’s unfastening of Kruczek’s clothes and placing his hand under her garments after she asked him to stop and removed his hand constitutes insulting conduct and a violation of the battery statute. People v. Hayes (1976), 37 Ill. App. 3d 772, 347 N.E.2d 327.

Without citation to authority, Wilkinson argues that the court improperly permitted the State to refer to the criminal sexual abuse charge when the assistant State’s Attorney inquired of the defendant as to Kruczek’s mental capabilities. We find that Kruczek’s mental capability is relevant to, inter alia, an examination of her response to his unsolicited sexual acts so as to determine whether his acts were insulting. In addition, Wilkinson’s familiarity with her diminished capability is relevant to proving that he committed a battery. Accordingly, inquiry into Kruczek’s mental abilities did not constitute prejudicial error.

Wilkinson further argues that the trial court erred in its denial of the motions for a new trial and in arrest of judgment. The motion in arrest of judgment states that the complaint fails to properly charge an offense because the factual allegations were insufficient to charge a battery. The complaint states in pertinent part that the defendant “intentionally without legal justification made physical contact of an insulting nature with an individual, to wit: Elizabeth Kruc-zek, by placing his hand inside her blouse and attempting to fondle her breast and placing his hand inside the front of her pants and attempting to touch her vagina.”

As previously stated herein, the mere touching of these areas after the complaining witness has voiced and/or demonstrated resistance and a lack of consent constitutes a battery. The charging instrument is designed to inform the accused of the nature of the offense with which he is charged so that he may prepare a defense and to make certain that the named offense may constitute a bar to subsequent prosecution arising out of the same conduct. (People v. Shelby (1984), 123 Ill. App. 3d 153, 158, 462 N.E.2d 761, 765.) Here the facts alleged provided a sufficient basis for and notice of the battery charge.

The motion for a new trial asserts that the evidence of the alleged battery was insufficient and uncorroborated. The testimony of the complaining witness can be sufficient to establish guilt beyond a reasonable doubt even when the testimony of that witness conflicts with that of the defendant. People v. Bonner (1979), 68 Ill. App. 3d 424, 427, 386 N.E.2d 366, 369.

Wilkinson asserts that all arguments raised in the motion for a new trial are incorporated by reference in the brief. An appellant may not make a point merely by stating it without presenting arguments in support of it; this court may deem waived any issue that has not been adequately presented to the court for review. (Northern Trust Co. v. St. Francis Hospital (1988), 168 Ill. App. 3d 270, 283, 522 N.E.2d 699, 707.) Accordingly, we hold that plaintiff has waived all issues not argued in the brief. Moreover, we find that the trial court provided a fair and orderly review such that the denial of the motion for a new trial was not an abuse of discretion.

Lastly, appellant argues that the trial court erred in failing to grant an order for supervision and that the court was biased and unfair in sentencing him to one year of conditional discharge and imposing a $500 fine. The presentence investigation report indicated that Kruczek was developmentally disabled. Her special education teacher estimated that her intelligence quotient was between 60 and 65. In a presentence investigation interview, Kruczek stated that prior to the incident, Wilkinson had made other advances toward her. She was the first passenger in the car in the morning and the last passenger in the evening. For approximately one year, Wilkinson placed his hand on the car seat as she sat down, causing her to sit on his hand. On numerous occasions, he asked her to engage in sexual relations and when she declined, he harassed her.

The imposition of a sentence is a matter of judicial discretion, and absent an abuse of the discretion, the trial court’s sentence may not be altered on review. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.) In sentencing Wilkinson, the trial judge stated that he would not consider granting a sentence of supervision because of “the nature of the charge, the circumstances of the charge and the facts of the case,” and that “to consider supervision *** would be to decry the intent of the supervision statute.” We do not find an abuse of discretion with respect to the sentence imposed.

Accordingly, we affirm the conviction and the sentence.

Affirmed.

WHITE and FREEMAN, JJ., concur.