author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN GASSMAN, Defendant-Appellant.
    Second District
    No. 2—91—1136
    Opinion filed October 22, 1993.

      Kenneth W. Torluemenke, Public Defender, of Wheaton (Stephen W. Baker and Ronald Fraley, Assistant Public Defenders, of counsel), for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Lisa A. Hoffman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

      Richard D. Frazier, of Metnick, Barewin, Wise & Cherry, of Springfield, for amicus curiae.

   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Steven Gassman, was charged with one count each of the unlawful possession of cannabis (Ill. Rev. Stat. 1989, ch. 56V2, par. 704(c) (now 720 ILCS 550/4(c) (West 1992))); failure to dim headlights (Ill. Rev. Stat 1989, ch. 95V2, par. 12 — 210(a) (now 625 ILCS 5/12 — 210(a) (West 1992))); unlawful transportation of open liquor (Ill. Rev. Stat. 1989, ch. 95^2, par. 11 — 502(a) (now 625 ILCS 5/11 — 502(a) (West 1992))); driving while under the influence of drugs to a degree that rendered him incapable of safely driving (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 501(a)(3) (now codified, as amended, at 625 ILCS 5/ll-501(a)(3) (West 1992))) (subsection 11-501(a)(3)); driving while under the combined influence of alcohol and drugs to a degree which rendered him incapable of safely driving (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 501(a)(4) (now codified, as amended, at 625 ILCS 5/11 — 501(a)(4) (West 1992))) (subsection 11— 501(a)(4)); and driving with any amount of a drug in his blood or urine resulting from the unlawful use or consumption of cannabis or a controlled substance (Ill. Rev. Stat., 1990 Supp., ch. 95V2, par. 11 — 501(a)(5) (now codified, as amended, at 625 ILCS 5/11 — 501(a)(5) (West 1992))) (subsection 11 — 501(a)(5)).

After a bench trial, the defendant was acquitted of violating subsections 11 — 501(a)(3) and 11 — 501(a)(4) but convicted of violating subsection 11 — 501(a)(5). The defendant was convicted of the remaining charges. The defendant received one year of court supervision and was ordered to pay a $300 fine for violating subsection 11 — 501(a)(5).

The defendant appeals only his conviction under subsection 11— 501(a)(5). He argues that (1) this subsection and the corresponding charging document are constitutionally deficient because they fail to specify a requisite mental state as an element of the offense; (2) subsection 11 — 501(a)(5) violates due process because it is not a proper exercise of the police power; (3) subsection 11 — 501(a)(5) violates the Federal and State constitutional guarantees of equal protection; and (4) subsection 11 — 501(a)(5) is unconstitutionally vague.

We set out the relevant evidence from the trial. After the trial court denied the defendant’s motion to dismiss the charge of violating subsection 11 — 501(a)(5), the case went to trial. The State’s first witness was John Tannahill, a police officer for the Village of Westmont. Officer Tannahill testified that, at about 11:10 p.m. on October 1, 1990, he was driving south on Cass Avenue when he observed a Cadillac about 500 to 600 feet away. The Cadillac had all four bright headlights on and was traveling at or slightly under the posted speed limit of 35 miles per hour. Tannahill noticed nothing unusual or suspicious about the way the car was driven other than the condition of the headlights. The officer flashed his bright lights, requesting the other driver to dim his lights. The two cars passed each other. Tannahill ordered the driver of the Cadillac to stop.

The Cadillac stopped. By the time Officer Tannahill approached the car, the driver, whom the officer identified in court as the defendant, had exited the car. The defendant was standing against the vehicle, but he was not holding onto anything for support, and he did not appear to be nervous. As Tannahill spoke to the defendant, the officer noticed that the defendant’s breath smelled of alcohol. The defendant admitted that he had consumed three or four beers that evening.

After a search of the defendant’s car turned up two cans of beer and a bag of a substance later identified as cannabis, Tannahill arrested defendant for possession of cannabis. Tannahill could not detect any odor of marijuana or any residue of marijuana cigarettes in the defendant’s car. Tannahill noticed nothing unusual about the way the defendant walked to the squad car; the defendant did not stagger or sway. A pat-down search of the defendant at the scene revealed that the defendant had been carrying a small pipe in his pocket. Tannahill’s experience led him to conclude that this was the type of pipe used to smoke cannabis and that there was some burned cannabis in the bowl of the pipe.

After Tannahill and the defendant arrived at the police station, Tannahill put the defendant through several field sobriety tests. The defendant performed poorly, although he was well short of “falling-down drunk.” Tannahill placed the defendant under arrest for DUI. The defendant’s breathalyzer test gave a reading of only .04, which the officer believed was not enough to put the defendant into the “condition he had.”

After he arrested the defendant for DUI, Tannahill read the defendant his Miranda rights. The defendant signed a Miranda waiver form and answered some questions. Tannahill asked the defendant what the defendant had been doing in the past three hours. The defendant replied that he had drunk three or four beers and had had “a couple of hits” of cannabis. Tannahill’s accident report stated that the defendant had admitted to having done “several tokes” of cannabis earlier that evening. At Tannahill’s instruction, the defendant underwent a blood and urine test at Hinsdale Hospital that evening.

The State’s next witness was Dr. Jeffrey Benson, an Illinois State Police forensic scientist who performed the blood and urine test. Benson performed quantitative analyses on a blood sample, testing for the presence of phencyclidine (PCP) and cannabinoids, or substances which are indicative of the consumption of cannabis. The tests revealed a concentration of less than 10 micrograms per liter of PCP in the defendant’s blood and less than 50 micrograms per liter of cannabinoids in the defendant’s blood (a microgram is one-millionth of a gram). From these results, Dr. Benson concluded with a reasonable degree of scientific certainty that the defendant had consumed cannabis and PCP. However, he could not say when the defendant had used these substances. Dr. Benson testified that, in the case of habitual users, PCP and cannabinoids can be detected up to 30 days after drug use. The period is shorter for casual users.

Dr. Benson acknowledged that the measurements he made were imprecise in another respect. The instruments he used were not sensitive enough to give a precise reading of cannabinoid concentrations outside a range of 50 to 500 micrograms per liter or of PCP levels outside 10 to 50 micrograms per liter. Thus, Dr. Benson’s estimates for the defendant’s sample were extrapolations. Dr. Benson could say that the level of PCP in the defendant’s blood sample was closer to one microgram per liter than to nine micrograms per liter. Dr. Benson estimated that the concentration of cannabinoids was 8 micrograms per liter, but he admitted that this figure was based on a calculation that could not provide scientific certainty.

Furthermore, Dr. Benson could not state firmly whether the concentrations of cannabinoids or PCP found in the defendant’s blood were sufficient to cause any driving impairment. Although there is a general correlation between the level of cannabis use and impairment, Dr. Benson stressed that the relationship was not simple. He could not say with certainty either that the small amount of cannabinoids in the defendant’s blood would impair driving or that such an amount would not impair driving. Of the substances known as cannabinoids, only THC is psychoactive. Also, the consensus among scientists is that there is no hard and fast relationship between the amount of PCP consumed and the seriousness of the drug’s effects.

Dr. Benson acknowledged that a person could unknowingly ingest or inhale cannabinoids, such as by inhaling smoke from cannabis. Also, a person could consume PCP without realizing that he was doing so, a common way being through the smoking of a marijuana cigarette onto which PCP has been sprayed.

The defendant testified last. He stated that, on the night that Officer Tannahill stopped him, he had consumed two or three beers at about 8 p.m. while he was watching television with friends. At this gathering, he had also taken “one or two drags” from a joint. The defendant did not know that the cigarette had PCP on it, and he never knowingly used PCP.

The defendant conceded that he had told Officer Tannahill that he had drunk three or four beers between 8 and 11:30 p.m. on the evening that he was stopped. He smoked the marijuana “to get high” and because he did not feel like refusing the offer from his friends. He held the smoke in his lungs for a while before he blew it out. The marijuana he smoked was from friends and not from the bag that was discovered in his car.

The trial court acquitted defendant of violating subsection 11— 501(a)(3) and of violating subsection 11 — 501(a)(4). The court convicted the defendant of the remaining charges, including violating subsection 11 — 501(a)(5); for this offense, defendant received one year of court supervision and was fined $300. After the court denied his motion to reconsider, defendant filed a late notice of appeal with leave from this court.

Defendant makes a variety of constitutional challenges to subsection 11 — 501(a)(5). For clarity, we set out the language of this subsection along with the others involved here:

“§11 — 501. Driving while under the influence of alcohol, other drug, or combination thereof, (a) A person shall not drive or be in actual physical control of any vehicle within this State while:
* * *
2. under the influence of alcohol;
3. under the influence of any other drug or combination of drugs to a degree which renders such person incapable of safely driving;
4. under the combined influence of alcohol and any other drug or drugs to a degree which renders such person incapable of safely driving; or
5. there is any amount of a drug, substance or compound in such person’s blood or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act, or a controlled substance listed in the Illinois Controlled Substance Act.
(b) The fact that any person charged with violating this Section is or has been legally entitled to use alcohol, or other drugs, or any combination of both, shall not constitute a defense against any charge of violating this Section.” Ill. Rev. Stat., 1990 Supp., ch. 95V2, par. 11 — 501 (now codified, as amended, at 625 ILCS 5/11 — 501 (West 1992)).

Subsection 11 — 501(a)(5) was added by the passage of Public Act 86 — 1019, effective July 1, 1990. The remainder of the quoted material predates subsection 11 — 501(a)(5).

The defendant’s first argument centers on whether the State needed to prove that the defendant intentionally violated subsection 11 — 501(a)(5) or whether the legislature created an absolute liability offense, i.e., one where a conviction does not require proof of intent or another particular mental state. The defendant argues that, because the violation of subsection 11 — 501(a)(5) is a felony which may be punishable by incarceration, the failure of subsection 11— 501(a)(5) to specify a mental state does not mean that a particular mental state is not an element of the offense. The defendant argues that we must construe section 11 — 501(a)(5) to include a requirement of intention or knowingness; thus, the defendant reasons, his conviction may not stand because (1) the State never alleged that the defendant intentionally drove while knowing that he had any amount of cannabis or another controlled substance in his system; and (2) the trial court did not find that defendant intentionally or knowingly engaged in the prohibited conduct.

The State makes two responses. First, the State argues that, because defendant admittedly smoked marijuana only a few hours before Officer Tannahill stopped him, it would make no difference whether subsection 11 — 501(a)(5) required a particular mental state. Thus, the State argues, the defendant lacks standing to challenge the statute on this basis because he is not within the class of those who would be aggrieved by the legislature’s failure to include a requisite mental state.

Second, the State argues that subsection 11 — 501(a)(5) creates an absolute liability offense. The State maintains that subsection 11 — 501(a)(5), like its companion provisions in section 11 — 501 of the Illinois Vehicle Code, is a regulatory measure designed to protect the public from potentially unsafe drivers. The State analogizes this case to this court’s decision in People v. Teschner (1979), 76 Ill. App. 3d 124, in which we held that driving while intoxicated (then section 11 — 501(a) of the Illinois Vehicle Code) (Ill. Rev. Stat. 1977, ch. 951-/2, par. 11 — 501(a)) is an absolute liability offense.

We hold first that the defendant has standing to raise the issue of whether we must read a particular mental state into the elements of a violation of subsection 11 — 501(a)(5). The State maintains that because the defendant admitted to having consumed cannabis some time before he was stopped, he has conceded that he had whatever culpable mental state subsection 11 — 501(a)(5) may require.

The State relies principally on City of Chicago v. Lawrence (1969), 42 Ill. 2d 461, cert. denied (1969), 396 U.S. 39, 24 L. Ed. 2d 208, 90 S. Ct. 263, in which the supreme court held that the defendants, who were convicted of interfering with a police officer, lacked standing to argue that the applicable statute was invalid because it lacked a scienter requirement. The court explained that as there was no question that the defendants acted intentionally, they were not prejudiced by any lack of a scienter requirement. Lawrence, 42 Ill. 2d at 464-65.

Here, however, the defendant correctly notes that the trial court, which concluded that subsection 11 — 501(a)(5) imposes strict liability, never made any finding as to the defendant’s mental state at the time of the offense. Although the record might well support a finding that the defendant drove with knowledge that he had illegal substances still in his system, we decline to make this finding on our own. Conceivably, the defendant believed (if unreasonably) that the small amount of cannabis in his system had been dissipated in the interval between his consumption of the drug and his operation of the car.

Somewhat analogous to this case is People v. Palmer (1986), 141 Ill. App. 3d 234, in which the defendant appealed his conviction of aggravated arson. The defendant argued that the aggravated arson statute under which he was convicted was unconstitutional because it did not require a culpable mental state even though it created a Class X felony. The appellate court held that the defendant had standing to challenge the statute (which the court then invalidated), noting that the trial court had interpreted the statute as imposing strict liability and thus had made no finding as to whether the defendant acted with criminal intent. Palmer, 141 Ill. App. 3d at 238-39.

Having concluded that the defendant has standing to challenge subsection 11 — 501(a)(5), we inquire next whether that provision creates a strict liability offense. We agree with the State that subsection 11 — 501(a)(5) imposes strict liability and that, as a result, the charge was not defective.

The defendant places his primary reliance on the following provision of the Criminal Code of 1961:

“§4 — 9. Absolute Liability. A person may be guilty of an offense without having, as to each element thereof, one of the mental states described in Sections 4 — 4 through 4 — 7 if the offense is a misdemeanor which is not punishable by incarceration or by a fine exceeding $500, or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 38, par. 4 — 9 (now 720 ILCS 5/4 — 9 (West 1992)).

The defendant observes that a violation of subsection 11— 501(a)(5) is at minimum a Class A misdemeanor and may, under certain circumstances, be a Class 4 felony (see Ill. Rev. Stat. 1991, ch. 95V2, pars. 11 — 501(c), (d) (now 625 ILCS 5/11 — 501(c), (d) (West 1992))); therefore, such a violation may result in the imposition of a penalty more severe than a $500 fine (see Ill. Rev. Stat. 1991, ch. 38, pars. 1005-1-14, 1005-8-1(a)(7) (now 730 ILCS 5/5-1-14, 5/ 5 — 8—1(a)(7) (West 1992))). The defendant concludes that subsection 11 — 501(a)(5) may impose absolute liability only if there is a clear legislative intent to do so. Relying on both the language of subsection 11 — 501(a)(5) and its legislative history, the defendant maintains that there is insufficient proof of such a legislative intent.

We agree with the State that subsection 11 — 501(a)(5), like the other four provisions of subsection 11 — 501(a), is a traffic regulation for which the legislature intended absolute liability. To explain our conclusion, we begin with basic principles of statutory construction. Our fundamental task in construing the statute is to ascertain and effectuate the intent of the legislature. (People v. Bole (1993), 155 Ill. 2d 188, 195.) Our inquiry begins with the statutory language itself, which is usually the best indication of the legislature’s intent. (Bole, 155 Ill. 2d at 195; Collins v. Board of Trustees of the Firemen’s Annuity & Benefit Fund (1993), 155 Ill. 2d 103, 111.) In reading the statute as a whole (see Collins, 155 Ill. 2d at 111), we consider the reason for the law, the evils it was intended to remedy, and the objects it was designed to attain. Bole, 155 Ill. 2d at 195; Collins, 155 Ill. 2d at 111.

Both at the trial level and in this court, the defendant has introduced evidence of the challenged law’s history, including statements by its sponsors as to the purpose of subsection 11 — 501(a)(5). We need not decide to what degree we ought look past the language of the statute and consider its legislative history; we have reviewed the legislative history the defendant has supplied, and we find that it is together consistent with the interpretation of subsection 11— 501(a)(5) that we have derived from the statute itself without direct reference to legislative history.

The defendant observes that subsection 11 — 501(a)(5) does not explicitly state that it creates an absolute liability offense. We do not believe that this consideration is dispositive. As the State points out, the subsection imposes liability without specifying a particular mental state, and this purposeful omission itself militates in favor of a finding that the legislature did not intend that a culpable mental state be an element of a violation of subsection 11 — 501(a)(5).

Of course, this consideration is not by itself conclusive, as the absence of a specified mental state does not mean that one ought not be read in, particularly where the possible punishment is substantial. (Ill. Rev. Stat. 1991, ch. 38, par. 4 — 9 (now 720 ILCS 5/4— 9 (West 1992))); Morissette v. United States (1952), 342 U.S. 246, 263, 96 L. Ed. 288, 300, 72 S. Ct. 240, 250; People v. Gean (1991), 143 Ill. 2d 281.) Crucial to our consideration is that subsection 11— 501(a)(5) is one of a set of traffic regulations that are all intended to protect the public against motorists who drive under the influence of substances that may impair safe driving. Because subsection 11 — 501(a)(5) addresses the same subject matter as the other provisions of subsection 11 — 501(a), we read all these provisions in pari materia. (See Stone v. Department of Employment Security Board of Review (1992), 151 Ill. 2d 257, 262.) We conclude that the legislature intended subsection 11 — 501(a)(5) to operate in the same manner as subsections 11 — 501(a)(1) through 11 — 501(a)(4): as a strict liability provision.

In People v. Teschner (1979), 76 Ill. App. 3d 124, the defendant appealed his conviction of violating subsection 11 — 501(a) of the Illinois Vehicle Code, which at that time provided that “[n]o person who is under the influence of intoxicating liquor may drive or be in actual physical control of any vehicle within this State.” (Ill. Rev. Stat. 1977, ch. 951/2, par. 11 — 501(a).) The defendant contended that because subsection 11 — 501(a) was punishable by imprisonment, he could riot be convicted of the offense unless the State alleged and proved that he had acted with a particular requisite mental state.

In rejecting this contention and thereby holding that subsection 11 — 501(a) created an absolute liability offense, this court emphasized that the statute came under the “general rule” that “for motor vehicle offenses a defendant’s intent, knowledge, or motive is immaterial to the question of guilt. The only intention necessary for liability *** is the doing of the act prohibited.” (Teschner, 76 Ill. App. 3d at 125.) This court stressed that laws such as subsection 11 — 501(a) are intended to ensure the proper regulation of traffic and traffic accidents and that this broad regulatory goal requires absolute liability. The court observed that, unlike criminal statutes where criminal intent is a necessary element, the Vehicle Code is “regulatory, as opposed to penal.” Teschner, 76 Ill. App. 3d at 126.

This reasoning is applicable to subsection 11 — 501(a)(5) of the present Vehicle Code. As the legislative history that the defendant supplies makes evident (and as we would conclude even absent such legislative history), the legislature’s intent in passing subsection 11 — 501(a)(5) was to protect the public against the danger of those who drive while under the influence of cannabis or other illegal drugs.

Although subsections 11 — 501(a)(3) and 11 — 501(a)(4) already make it unlawful to drive while under the influence of illegal drugs, the legislature may well have concluded that a more sweeping prohibition against driving with drugs in one’s system was necessary because of the difficulty of ascertaining whether drug use has in fact impaired the driver’s ability. Indeed, the legislative history that the defendant cites makes it evident that such was the reasoning of the legislation’s sponsors. The senator who sponsored the legislation stated that it was designed “to curb the incidence of drug [sic] driving, as we have drunk driving.” (86th Ill. Gen. Assem., Senate Proceedings, May 25, 1989, at 21 (statements of Senator Barkhausen).) The flat prohibition against driving with any amount of a controlled substance in one’s system was considered necessary because “there is no standard that one can come up with by which, unlike alcohol in the bloodstream, one can determine whether one is — is driving under the influence.” 86th Ill. Gen. Assem., Senate Proceedings, May 25,1989, at 23 (statements of Senator Barkhausen).

The defendant argues that construing section 11 — 501(a)(5) as a strict liability offense would unjustly create criminal liability for those who ingested controlled substances inadvertently or unknowingly. We disagree. A straightforward reading of section 11— 501(a)(5) demonstrates that it imposes liability only on those motorists who have controlled substances in their systems as the result of the unlawful use of those substances. Also, the defendant admitted that he intentionally ingested cannabis. Thus, even were this particular argument valid, the defendant would lack standing to raise it.

Next, we reject the defendant’s assertion that section 11— 501(a)(5) is unconstitutionally vague. A statute is void for vagueness only if it fails to give people of ordinary intelligence a reasonable opportunity to know what conduct is lawful and what conduct is prohibited. (People v. Bales (1985), 108 Ill. 2d 182, 188.) Subsection 11 — 501(a)(5) plainly prohibits individuals from driving with any amount of a controlled substance unlawfully in their systems. Thus, like the language of subsection 11 — 501(a)(1), which prohibits motorists from driving with a blood-alcohol content of .10 or more, “the terms [of subsection 11 — 501(a)(5)] defining the offense in conduct [sic] could not be more precise.” People v. Kappas (1983), 120 Ill. App. 3d 123, 131, approving People v. Galante (1983), 143 Cal. App. 3d 709, 192 Cal. Rptr. 184.

Additionally, subsection 11 — 501(a)(5) punishes only those who have already knowingly ingested illegal substances. Thus, the defendant scarcely may argue that the statute at issue blurs the line between prohibited and lawful conduct; a conviction of violating subsection 11 — 501(a)(5) presupposes that the defendant has violated laws that this defendant does not even argue are invalid.

We move next to the defendant’s assertion that subsection 11 — 501(a)(5) violates equal protection (see U.S. Const., amend. XIV; Ill. Const. 1970, art. I). The defendant argues that the law arbitrarily distinguishes between two similarly situated groups of motorists: (1) those who drive after having unlawfully ingested any amount of a controlled substance; and (2) those who drive after having inadvertently or innocently ingested any amount of a controlled substance. The defendant notes that only drivers in the former class may be convicted even though drivers in the latter class are as likely to be impaired as a result of having controlled substances in their systems. Thus, the defendant reasons, the law unreasonably distinguishes between these “similarly situated” sets of drivers.

As subsection 11 — 501(a)(5) burdens no fundamental right and implicates no suspect classification, it does not violate equal protection as long as it bears a rational relation to a legitimate State interest. (People v. Shephard (1992), 152 Ill. 2d 489, 499-500.) Moreover, as no fundamental right is at stake, the legislature may distinguish between similarly situated groups if there is a rational basis to do so. People v. Esposito (1988), 121 Ill. 2d 491, 501.

Initially, we reject the defendant’s assertion that the two groups to which he refers are “similarly situated.” In fact, a motorist in the first group has violated the laws prohibiting certain drugs, while a driver in the second group has not intentionally consumed illicit substances. Moreover, we may take notice that one who deliberately uses controlled substances ordinarily does so with the intention of altering his state of consciousness in ways that are likely to interfere with safe driving. The same cannot be said of those who inadvertently absorb illicit substances, especially as a person who does not intend to do so is not likely to absorb a drug in as great an amount as one who deliberately uses the drug to produce a “high.”

Assuming arguendo that these two types of motorists are similarly situated, subsection 11 — 501(a)(5)’s classification is valid anyway. The legislature may have rationally concluded that only drivers who have deliberately absorbed illegal drugs into their systems deserve subsection 11 — 501(a)(5)’s penalties because they present a more pervasive and severe problem to society than the occasional driver who has inadvertently consumed a controlled substance. Furthermore, the legislature may have concluded that those who do not intentionally violate the drug laws are less deserving of punishment than those who do; thus, the legislature reasonably could have decided not to punish the former group absent specific evidence that the inadvertent consumption impaired their ability to drive safely.

Finally, we reject the defendant’s argument that subsection 11 — 501(a)(5) violates due process. As is true of equal protection, the requirements of substantive due process are satisfied as long as the statute bears a reasonable relation to the public interest that the law has been enacted to serve. Boynton v. Kusper (1986), 112 Ill. 2d 356, 367.

The defendant concedes that the State has a legitimate interest in protecting the public from drivers whose driving ability may be impaired by the consumption of controlled substances. However, the defendant notes that subsections 11 — 501(a)(3) and 11 — 501(a)(4) already prohibit people from driving while they are impaired by illegal drugs. Thus, he reasons, the extra prohibition of subsection 11— 501(a)(5) serves no added purpose and does not contribute to the legitimate goal of keeping impaired drivers off the roads.

The legislative history the defendant has provided us supplies the refutation to the argument that he now makes. As we have noted, proponents of the bill that became subsection 11 — 501(a)(5) were concerned that there is no simple or clear standard to apply to determine whether an individual is driving under the influence of one or more of the many illegal drugs to which subsection 11— 501(a)(5) applies. The legislature may have concluded with reason that the sweeping language of subsection 11 — 501(a)(5) increased the power of law enforcement officials to deter “drugged driving” beyond what deterrent power had been provided by subsections 11— 501(aX3) and ll-501(aX4).

As the defendant has failed to persuade us that subsection 11— 501(aX5) is unconstitutional, we affirm his conviction of violating that provision. As the defendant does not raise any other issues on appeal, the entire judgment of the circuit court of Du Page County is affirmed.

Affirmed.

UNVERZAGT and QUETSCH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DOYLE

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL FONTANA, Defendant-Appellant.
    Second District
    No. 2—91—1402
    Opinion filed October 29, 1993.

      G. Joseph Weller and Ingrid L. Moller, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Thomas E Baker, of Lawky, Kukla & Curran, of Huntley (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

A jury found defendant, Daniel Fontana, guilty of the unlawful use of a credit card (Ill. Rev. Stat. 1991, ch. 17, par. 5921 (now 720 ILCS 250/8 (West 1992))). The trial court sentenced defendant to 30 months’ probation, 30 days’ in the county jail, restitution of $11,208.44, and costs. Defendant timely appealed, and he raises four issues for review: (1) whether the trial court erred in admitting evidence of other transactions by defendant and, if not, whether the lack of a limiting instruction for this evidence amounted to reversible error; (2) whether the trial court erred in sustaining the State’s objections to defense counsel’s questions regarding defendant’s mental capacity; (3) whether the restitution included sums extraneous to the offenses, and whether the trial court erred in failing to determine the manner in which defendant was to pay the restitution; and (4) whether the victim’s assistance fine of $20 imposed by the circuit court clerk must be vacated.

Defendant was charged with the "unlawful use of a credit card based on two transactions: on December 15, 1990, defendant was alleged to have used the Visa credit card of Angeline Fontana for the purpose of obtaining the services of Dunn Rite Car and Truck Rental in the amount of $286.94; and on December 20, 1990, defendant was alleged to have used the Visa credit card of Anthony Fontana for the purpose of obtaining $100 cash from the Heritage Bank of Woodridge.

At trial, defendant’s grandmother, Angeline Fontana, testified that she lived in North Riverside. On December 14, 1990, her husband Anthony died. Angeline had been at the hospital several days before Anthony’s death. She kept her Visa and Mastercard credit cards in a buffet in her dining room, because she seldom used those credit cards. Anthony kept his credit card in his wallet. Defendant’s father had a key to Angeline and Anthony’s home. Angeline did not give defendant permission to use or take the credit cards, and she was unaware that they were missing until she was contacted by the Harris Trust & Savings Bank (Harris Bank), the issuer. She never requested a new credit card or a change of address. On cross-examination, defense counsel asked Angeline if defendant had learning disabilities and what were defendant’s mental capabilities. The State objected to both questions, and the court sustained the objections.

James Harding, an employee of Dunn Rite Car & Truck Rental (Dunn Rite), testified that on December 15, 1990, defendant rented a car from Dunn Rite. Harding asked for a credit card and a driver’s license to rent the vehicle. Defendant produced his driver’s license and gave his name. Defendant used a Visa card with the name “Angeline Fontana” on it to pay $286.94 for the rental. He signed the credit slip “Dan and F something.”

Ann Marie Wilson, an employee of Heritage Bank, was in charge of bookkeeping and records in December 1990. She identified records of cash disbursements from a credit card. One was made on December 12, 1990, for $100, and Anthony’s Visa card was used. The other transaction was on December 7. The jury was shown videotapes made by the bank’s surveillance camera on December 7 and 20,1990.

Detective Mitchell Vandenbos, of the Downers Grove police department, interviewed defendant on January 30, 1991, about defendant’s use of his grandparents’ credit cards. Vandenbos went through a copy of a Visa billing statement item by item, asking defendant to acknowledge which purchases he made. Vandenbos testified that defendant admitted to the Dunn Rite transaction. Defendant told Vandenbos that he rented a car because his was being repaired. When Vandenbos asked defendant if he had permission to use the credit cards, defendant admitted that he did not. Defendant also admitted that he took both credit cards from his grandparents’ home. On cross-examination, defense counsel asked Vandenbos to describe defendant’s mental capabilities, and the court sustained the State’s objection to the question.

On January 3, 1991, defendant was interviewed at the Woodridge police department by Commander Edward Kelter and Detective William Sperling, in the presence of two Harris Bank employees. Defendant told the officers that he took the credit cards on December 3, 1990. Defendant admitted that he made the purchases listed on the billing statements provided by Harris Bank and that he did not have authority to use the credit cards. Defendant told the officers that he requested a new credit card from the issuer and he had it mailed to a post office box in Oak Brook around December 20. Defendant admitted that he made the $1,000 transaction on December 7, 1990, without permission, and that he made the $100 transaction on December 20, 1990, to see if that card “would work.” Defendant gave the officers two of the credit cards immediately, a Mastercard with Angeline’s name on it and a Visa with Anthony’s name on it. Defendant returned later with another credit card. Defendant made a written statement in the form of a letter of apology to Harris Bank, which stated:

“I just wanted to say I was sorry for ussing [sic] my grandmother’s credit cards and charging so much money on her acct. [sic] and making Harris bank go through all this stuff. When I see a credit card I just go crazzy [sic] with it not thinking what I’m doing. Also somehow I’ll try to pay this back to Harris bank.”

According to Commander Kelter, the officers offered defendant the “opportunity to make a written statement or a letter of apology or any other format in writing that he wanted to in his own words to explain what occurred.” Kelter testified that he could not recall who initiated the request, nor could he recall whose idea it was to make the statement a letter of apology to Harris Bank. Kelter denied that it was his idea to make it an apology or that he directed defendant what to write. Again, on cross-examination, defense counsel attempted to question Kelter about defendant’s mental capabilities, and the court sustained the State’s objections.

After Kelter’s testimony, during a side-bar discussion, the prosecutor mentioned some business records in the form of billing statements that the State intended to introduce. Defendant objected to the introduction of the billing statements because they contained other matters which were not the subject of the charges at issue. The prosecutor responded that the billing statements were relevant because Vandenbos and Kelter testified that they went through the documents with defendant and he indicated that he did not have authority to make several of the charges. Defense counsel then admitted that there was no issue of authorization or permission to use the cards, but the issue was whether defendant had the intent to defraud. Defense counsel was concerned that the billing statements were duplicative. The court then explained:

“You started off talking about intent to defraud and then you are talking about duplicative evidence. It is discretionary with the Court to allow something additional to what has been already offered, and I don’t see a problem there.
The other, more serious problem is the question of proof of other crime, and the question of intent is the issue to be decided in the case, intent to defraud. And there had been testimony that there was no authority given by Mrs. Fontana, the grandmother, to the defendant to use the credit card.
And where the defendant denied any intent to defraud, I think evidence of other use of the card and other purchases with the use of that card without having been given permission by the cardholder to do so is probative on the issue on the intent to defraud.”

The court allowed the State to introduce the billing statements into evidence.

Detective Sperling’s testimony was essentially the same as Kelter’s testimony. When the prosecutor asked Sperling if the police questioned defendant about a transaction for an engagement ring, defendant objected on the basis of an insufficient foundation. Sperling was allowed to testify that defendant stated that he used the credit card to purchase a wedding ring set from a jeweler in Schaumburg. Defendant gave the ring set to his fiancee. On January 7, 1991, defendant returned to the police station and gave Sperling the wedding band, but the fiancee refused to return the engagement ring. Sperling identified a photograph he took of the wedding band that defendant brought to the police station.

Sperling further testified that Kelter gave defendant a pad of paper and a pen and requested that defendant make a statement. On cross-examination, Sperling stated that it was Kelter who chose to direct the letter to Harris Bank and that Kelter stated that it was a letter of apology. As with the questioning of the other witnesses, the court sustained the State’s objection to defense counsel’s question about defendant’s mental capabilities.

Larry Herrmann, a senior bank card agent for Harris Bank, testified that on December 13, 1990, the Fontanas’ Visa card was reported stolen. Harris Bank closed the account that day and issued a new card with a new account number. According to Herrmann, normally it takes three days for Harris Bank to send a new card after a card is reported stolen. The new Visa card was sent to an address in Oak Brook on December 17.

Herrmann further testified that he was present at the interview of defendant at the Woodridge police department on January 3, 1991. Herrmann brought records of the sales that were transmitted on the stolen card and the new card. Defendant stated that he did not have permission to use the Visa card on December 7 and 20 at the Heritage Bank, or on December 15 at Dunn Rite. Herrmann identified the billing statements which listed those purchases and the purchase of the engagement ring. All of the billing statements were sent to Post Office Box 1423, Oak Brook, Illinois, except for the billing statement which listed the Dunn Rite transaction. Harris Bank retained that billing statement because the transaction occurred after the account was closed and before the new card was issued. Herrmann stated that when there has been an unauthorized use of a credit card issued by Harris Bank, Harris Bank pays for all the charges. Harris Bank paid for the unauthorized charges to the Fontanas’ account.

At the close of the State’s case, the prosecutor sought to introduce into evidence the documents, the photograph of the ring, and the credit cards. Defendant did not object to the photograph, but objected to the billing statements which listed other transactions. The court permitted the State to allow the jury to see the billing statements after the State “whited out” all the transactions except those to which the witnesses testified. Defendant did not object to the billing statement which listed the $1,000 transaction of December 7 and the $1,204 transaction with the jeweler. Defendant presented no evidence. During the instructions conference, the State offered an instruction which admonished the jurors that evidence admitted for a limited purpose may not be admitted for any other purpose. However, defendant did not request a limiting instruction for other crimes evidence, nor did the State or the court offer one.

In the post-trial motion, defendant raised the issues of the other crimes evidence and the limitation on the cross-examination about defendant’s mental capabilities. In denying the post-trial motion, the court found that the error in failing to give the limiting instruction was harmless because the evidence of defendant’s guilt was overwhelming.

On appeal, defendant first contends that the court erred in admitting the evidence of the $1,000 transaction and the jewelry store transaction and that, in any event, it was error to admit the evidence without giving the jury a limiting instruction restricting its use. The State argues that defendant waived this issue by failing to object to the introduction of the evidence at trial on this basis. To preserve an issue for appeal, a defendant must both object at trial and include the issue in a written post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) Although defendant objected to the evidence on the basis that it lacked a foundation and that it was cumulative, he did not object to the admission of the evidence on the ground that it was impermissible other crimes evidence. A defendant must specify the grounds for the objection that he wishes to raise on appeal. (People v. Lucas (1992), 151 Ill. 2d 461, 481.) Thus, defendant has waived this issue. However, even if defendant had preserved the issue, it is without merit.

Evidence of other offenses committed by the defendant is inadmissible if offered solely to show the defendant’s propensity to commit crime. (People v. Speight (1992), 153 Ill. 2d 365, 372.) Evidence of other offenses is admissible if it is relevant for any other purpose, such as to prove modus operandi, intent, identity, motive, or absence of mistake. (People v. Illgen (1991), 145 Ill. 2d 353, 364-65.) Even where the evidence of other offenses is relevant, the evidence should not be admitted if its prejudicial effect substantially outweighs its probative value. (Illgen, 145 Ill. 2d at 365.) As the trial court found, the evidence of the other transactions was relevant to prove defendant’s intent to defraud. Thus, the trial court properly admitted the evidence. Further, our review of the record leads us to reject defendant’s contention that the detail of the evidence in question exceeded the scope of that authorized under the other crimes exception. It is noted that the trial court excised a number of transactions relating to the use of the credit card.

Defendant argues that it was error for the court to admit the evidence without a limiting instruction. Defendant, however, failed to request a jury instruction on the limited use of the other crimes evidence. The State asserts that this failure waives the issue for review. The trial court is not obligated to give a limiting instruction sua sponte, and the defendant’s failure to tender such an instruction waives any objection concerning its absence. People v. Musitief (1990), 201 Ill. App. 3d 872, 877.

Defendant requests that we consider this issue under the plain error doctrine. (See 134 Ill. 2d R. 615(a).) A court will consider a matter as plain error if the alleged error was of such magnitude that it deprived the defendant of a fair trial, or if the evidence was closely balanced. (People v. Mitchell (1993), 155 Ill. 2d 344, 354.) As for the first part of this test, generally, grave error occurs when the court fails to instruct the jury on the elements of the crime charged, the presumption of innocence and the burden of proof. (People v. Pasch (1992), 152 Ill. 2d 133, 171; People v. Berry (1991), 244 Ill. App. 3d 14, 28.) Defendant’s reliance on People v. Thurman (1984), 104 Ill. 2d 326, 330-31, and People v. Berry (1984), 99 Ill. 2d 499, 504-06, is misplaced because the error in both cases concerned the omission of an instruction on an element of the offense, which, under the factual circumstances, amounted to grave error. As the instruction here does not concern any of these fundamental matters, we will not consider any error to be of such magnitude as to constitute grave error. See Musitief, 201 Ill. App. 3d at 877-78.

As for the second part of the test, we agree with the trial court that the evidence of defendant’s guilt was overwhelming. Defendant admitted to three police officers and two bank employees that he did not have authority to use the credit cards; Anthony Fontana’s credit card was used after his death; and a new credit card was sent to a post office box, both of which defendant admitted that he used. We conclude that the trial court did not abuse its discretion in admitting the evidence of the two extraneous transactions, and we decline to address any error in the failure to give a limiting instruction trader the plain error doctrine.

Defendant next contends that the trial court erred in sustaining objections to defense counsel’s questions on cross-examination relating to defendant’s mental capacity. He cites specifically questions asked during counsel’s cross-examination of Angeline Fontana and Officers Kelter, Vandenbos, and Sperling. Defendant alludes to the principle that lay witnesses are, trader certain circumstances, permitted to express an opinion on a person’s mental condition based upon having observed the person. He argues that such opinions would have been relevant to the issues of whether defendant was capable of forming the requisite intent to defraud, and what weight should have been accorded his statements to authorities.

The trial court has discretion to limit the scope of cross-examination. We may not disturb a trial court’s ruling in that regard unless there had been an abuse of discretion resulting in clear prejudice to the defendant. People v. Patterson (1992), 154 Ill. 2d 414, 463.

The court may exercise its discretion to confine the extent of cross-examination to the proper subject matter. (People v. Davis (1990), 193 Ill. App. 3d 1001, 1004.) “The proper scope of cross-examination extends to matters raised on direct examination, including all matters which explain, qualify, or destroy the testimony on direct examination.” (People v. McCarthy (1991), 213 Ill. App. 3d 873, 883.) The court may bar cross-examination where there is no proof as to the competency or the relevancy of the evidence, or where the offer in that regard is unsatisfactory. (People v. Rice (1992), 234 Ill. App. 3d 12, 20.) The trial court sustained the State’s objections to defense counsel’s attempt to question defendant’s grandmother, Angeline Fontana, concerning whether defendant suffered from any learning disabilities and whether she would describe defendant as “slow.” We note that defendant presented no evidence in the trial and there is no indication that the defense of insanity was ever an issue. Consequently, aside from the questions being beyond the scope of Mrs. Fontana’s direct testimony, there was no basis for the trial court to permit the question as relevant to any defense of insanity. Moreover, because this witness’ testimony preceded any testimony relating to defendant’s statements to authorities, there was no reason for the court to have perceived the question as bearing upon the weight to be accorded his admissions. Defense counsel made no offer to alert the court to the possible relevance of the proposed inquiry to the circumstances of defendant’s interrogation. The objection was properly sustained.

Defendant argues that he was improperly prevented from asking Officer Vandenbos about his knowledge of defendant’s “mental aptitude” and whether defendant appeared to be a person with a “learning disability.” We note, however, that defendant was permitted to ask Vandenbos, “Were there any difficulties or did you notice any difficulty in the defendant understanding what you were asking him?” We consider the form of this question to have been more appropriate under the circumstances of this cross-examination. In any event, the question and the witness’ negative response to it render the trial court’s rejection of the “mental aptitude” and “learning disability” questions inconsequential.

Defendant further cites as error the trial court’s sustaining an objection to defense counsel’s question of Officer Kelter, “What if anything did you notice about [defendant’s] mental faculties?” The trial court’s explanation of the ruling appears to reflect its concern with the form of the question. Although defense counsel had been permitted in his examination of the preceding witness (Vandenbos) to explore the subject of defendant’s general ability to understand questions, counsel made no effort to rephrase his “mental faculties” question of Kelter. In our view the trial court committed no error in this regard.

In his cross-examination of Officer Sperling, defense counsel asked, "Mr. Fontana has a learning disability?” The trial court sustained the State’s objection, commenting that the witness had no expertise in that field. We agree with that ruling. Moreover, defense counsel’s question may also be interpreted as implying that counsel was in possession of other evidence to establish the existence of a learning disability. As noted, the defense presented no witnesses and no proof of a learning disability was ever received. No motion to suppress defendant’s statements was filed by the defense. It is improper for counsel to assume the existence of a fact in his question which is neither based on evidence nor likely to be presented as evidence. (People v. Payton (1967), 82 Ill. App. 2d 51, 57; People v. Shipp (1977), 52 Ill. App. 3d 470, 474-75.) We conclude that the court did not abuse its discretion in limiting the cross-examination.

The remaining two issues concern defendant’s sentence. At the sentencing hearing, the State requested that the court order defendant to make full restitution of the entire amount that Harris Bank paid because of defendant’s unauthorized transactions, which amount, according to the prosecution, was $11,208.44. Defendant argued that he did not earn enough money to make full restitution. In imposing the sentence, the court indicated that it was not concerned with defendant’s ability to pay, and it ordered defendant to pay restitution of approximately $11,000 over a period of five years. Defense counsel then remarked:

“Judge, I don’t know what the exact amount is. I don’t know if they all fall within the jurisdiction of this Court with respect to transactions that may have occurred in other counties and/or that they were strictly here in Du Page County; so even though I disagree with your Honor, with all due respect, to the ordering of restitution without a hearing or some sort of showing that the defendant is going to be paid this amount of money for the next five years, I think clearly that if there’s any amount that occurred outside of Du Page County, that certainly *** shouldn’t be the basis of an order in this case.”

The court suggested that defendant “come in on a hearing of some kind on that,” but defendant instead appealed. A form from the circuit court clerk’s office listed the amount of fines and costs imposed on defendant. The deputy clerk assessed a fine of $20 for “Victim Assistance.”

Defendant contends that the court erred in ordering restitution for sums which were extraneous to the charges at issue and in failing to determine the manner in which defendant was to pay the restitution. The State responds that defendant waived this issue by failing to move to reconsider his sentence.

The failure to file a motion to reconsider the sentence waives the sentencing issue for review, even if the defendant is challenging only a fine or restitution. (People v. Albert (1993), 243 Ill. App. 3d 23, 28; see also People v. Pfister (1993), 240 Ill. App. 3d 931, 936.) However, the waiver rule is binding only on the parties, and this court may review an issue in the interests of justice. People v. Wilson (1993), 155 Ill. 2d 374, 379.

As part of the sentence, the trial court may order a defendant to make restitution for losses proximately caused by his conduct. (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—6(a) (now codified, as amended, at 730 ILCS 5/5 — 5—6(a) (West 1992)).) Defendant asserts that the trial court does not have authority to order restitution for damages resulting from criminal conduct which is not charged in the indictment. Defendant relies on People v. Mahle (1974), 57 Ill. 2d 279, in which the supreme court held that restitution may not extend to “matters unrelated to the charges before the court,” and that the trial court there lacked authority to order restitution of sums extraneous to the charges at issue. Mahle, 57 Ill. 2d at 284.

The State responds that Mahle is inapposite because the legislature amended the statute in 1983, after Mahle was decided. The version of the statute at issue in Mahle provided that, as a condition of probation, the court could require the defendant to “make restitution or reparation in an amount not to exceed actual loss or damage to property and pecuniary loss.” (Ill. Rev. Stat. 1973, ch. 38, par. 1005— 6 — 3(b)(10).) Section 5 — 5—6(b) of the Unified Code of Corrections (Code) now provides in relevant part:

“In fixing the amount of restitution to be paid in cash, *** the court shall assess the actual out-of-pocket expenses, losses, damages, and injuries suffered by the victim named in the charge and any other victims who may also have suffered out-of-pocket expenses, losses, damages, or injuries proximately caused by the same criminal conduct of the defendant, and insurance carriers who have indemnified the named victim or other victims for the out-of-pocket expenses, losses, damages and injuries, provided that in no event shall restitution be ordered to be paid on account of pain and suffering.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—6(b) (now codified, as amended, at 730 ILCS 5/5 — 5—6(b) (West 1992)).)

The 1983 amendment was designed to expand the coverage of the restitution statute. (People v. Gray (1992), 234 Ill. App. 3d 441, 443.) As the court in People v. Strebin (1991), 209 Ill. App. 3d 1078, stated:

“We view Public Act 83 — 1061 (Pub. Act 83 — 1061, eff. July 1, 1984 (1983 Ill. Laws 7226)) as a comprehensive change in the law governing restitution, reflective of an intention by the Illinois General Assembly, in every criminal case where possible, to achieve two goals: (1) to make victims whole for any injury received at the hands of the criminal to be sentenced; and (2) to make criminals pay all of the costs which arise as a result of injuries the victims suffered.” (Emphasis in original.) Strebin, 209 Ill. App. 3d at 1084.

See also People v. Lowe (1992), 153 Ill. 2d 195, 202, citing Strebin, 209 Ill. App. 3d at 1084.

A defendant may be ordered to make restitution if the losses sustained “were proximately caused by the same criminal conduct of the defendant as that of which he was convicted.” (People v. Nicholl (1991), 210 Ill. App. 3d 1001, 1013.) The court may order restitution for losses incurred by the same victim as the result of the same criminal conduct of the defendant, even if those losses were not set forth in the charging instrument. (People v. Early (1987), 158 Ill. App. 3d 232, 239.) However, restitution is improper for matters unrelated to the charges at issue. Nicholl, 210 Ill. App. 3d at 1013.

All of the transactions in which defendant used the Fontanas’ credit cards were related to the charge at issue and were the same criminal conduct as that of which defendant was convicted. The essence of the offense with which defendant was charged was that defendant used a credit card without consent, and the value of the money, goods or services obtained exceeded $300 in a six-month period. (Ill. Rev. Stat. 1991, ch. 17, par. 5921 (now 720 ILCS 250/8 (West 1992)).) Section 8 of the Illinois Credit Card and Debit Card Act states, in part:

“A person who, with intent to defraud either the issuer, or a person providing money, goods, property, services or anything else of value *** uses *** a credit card or debit card obtained or retained in violation of this Act or without the cardholder’s consent *** is guilty of a Class A misdemeanor if the value of all money, goods, property, services and other things of value obtained *** does not exceed $300 in any 6-month period; and is guilty of a Class 4 felony if such value exceeds $300 in any 6-month period.” (Ill. Rev. Stat. 1991, ch. 17, par. 5921 (now 720 ILCS 250/8 (West 1992)).)

The language “uses” a credit card in conjunction with the language “exceeds $300 in any 6-month period” indicates that one offense may consist of more than one transaction. We conclude that the crime of unauthorized use of a credit card may include more than one transaction as part of the offense. For this particular offense, all of the transactions, which occurred within a one-month period and involved credit cards issued by one bank to the same individuals, were related to the same offense.

Defendant’s reliance on People v. Thompson (1990), 200 Ill. App. 3d 23, is misplaced. In Thompson, the defendant was charged with and convicted of failing to file tax returns for three years. The trial court ordered the defendant to pay restitution for three additional years in which he did not file a return. The reviewing court concluded that the defendant could be ordered to make restitution only for the amount owed as a result of the charges at issue. (Thompson, 200 Ill. App. 3d at 26.) Thompson is distinguishable because each failure to file a tax return is a separate offense. (See Ill. Rev. Stat. 1987, ch. 120, par. 12-1301 (now 35 ILCS 5/1301 (West 1992)).) Similarly, defendant’s reliance on People v. Bradford (1991), 207 Ill. App. 3d 436, is also misplaced. The defendant in Bradford was convicted of forgery, and, under that statute, each forgery is a separate offense. Ill. Rev. Stat. 1987, ch. 38, par. 17-3(a) (now 720 ILCS 5/17-3(a) (West 1992)); see also Bradford, 207 Ill. App. 3d at 438.

We agree with the State that People v. Ensley (1985), 132 Ill. App. 3d 842, is applicable. The defendant in Ensley was charged with stealing 7 items, but 19 items were stolen. The court concluded that because all the items were taken as part of the same offense involving the same victim, the property was related and restitution for the entire amount was proper. (Ensley, 132 Ill. App. 3d at 844.) Here, although defendant was charged with only two specific transactions, all the transactions were part of the same continuing offense involving the same victim. This constitutes “the same criminal conduct” within the meaning of section 5 — 5—6 of the Code.

Furthermore, we agree with the State that defendant’s interpretation of the statute is too narrow. The primary object of statutory construction, which begins with the statutory language itself, is to give effect to the legislative intent. (People v. Lowe (1992), 153 Ill. 2d 195, 201.) The Criminal Code of 1961 defines the term “conduct” as “an act or a series of acts, and the accompanying mental state.” (720 ILCS 5/2 — 4 (West 1992).) The court should also consider the purpose of the enactment. As noted above, the purpose of section 5 — 5—6(b) is to make victims whole for any injury received at the hands of the defendant (Lowe, 153 Ill. 2d at 202), and to make the defendant pay for all of the damages he caused to the victim (Strebin, 209 Ill. App. 3d 1078). In view of these legislative goals and the statutory definition, we believe that the phrase “same criminal conduct” should be construed broadly to effect the remedial purpose of the statute (see Strebin, 209 Ill. App. 3d at 1085) so that it includes uncharged but related offenses based on a series of acts with the same mental state affecting the same victim.

Moreover, had the legislature intended that the amount of restitution be limited to only those charges set forth in the charging instrument, it would have used the term “same charges” instead of “same criminal conduct.” We conclude that a defendant may, under these circumstances, be ordered to make restitution for uncharged but related offenses if his criminal conduct caused damage to the same victim, and the restitution is necessary to make the victim whole. We read subsection (d) of section 5 — 5—6, which governs agreements for restitution as part of plea agreements, to provide for restitution for unrelated offenses. (See 730 ILCS 5/5 — 5—6(d) (West 1992).) Our interpretation of subsection (b) does not render the provisions of subsection (d) meaningless. (See Collins v. Board of Trustees of the Firemen’s Annuity & Benefit Fund (1993), 155 Ill. 2d 103, 111.) (We further note that the evidence must establish that the defendant’s conduct proximately caused the damages or losses (see People v. Hernandez (1992), 236 Ill. App. 3d 983, 985-86; People v. Chapin (1992), 233 Ill. App. 3d 28, 34), and there must be evidence in the presentence report to establish the amount (Lowe, 153 Ill. 2d at 206-07).) For the above-stated reasons, the trial court did not abuse its discretion in setting the amount of restitution.

Defendant further argues that restitution to Harris Bank was not proper because Harris Bank was not a victim of a crime of violence. Our supreme court recently held that section 5 — 5—6 applies to victims of both violent and nonviolent crimes. (Lowe, 153 Ill. 2d at 204.) Defendant’s argument is therefore without merit.

Defendant next argues that the cause must be remanded for the trial court to determine defendant’s ability to pay the restitution and for the court to determine the manner and time of the payments.

The trial court must determine a reasonable time and manner for the payment of restitution to insure that restitution can be paid. (People v. Fuzz (1991), 218 Ill. App. 3d 418, 422.) However, the trial court is not required to consider a defendant’s financial circumstances when setting the amount of restitution; the trial court is only required to consider the ability to pay when determining the time and manner of payment or when considering a petition to revoke restitution. (People v. Gray (1992), 234 Ill. App. 3d 441, 444; Ill. Rev. Stat. 1991, ch. 38, pars. 1005—5—6(f), (i) (now codified, as amended, at 730 ILCS 5/ 5 — 5—6(f), (i) (West 1992)).) “[T]he court shall determine whether restitution shall be paid in a single payment or in installments, and shall fix a period of time not in excess of 5 years within which payment of restitution is to be paid in full.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—6(f) (now codified, as amended, at 730 ILCS 5/5 — 5—6(f) (West 1992)).) Although the trial court did fix the time period at five years, it failed to specify whether the payment would be in installments or a lump sum. We therefore agree with defendant that the cause must be remanded to the trial court for a determination of the method and manner of payment, taking into account defendant’s financial circumstances.

Finally, defendant contends that the Violent Crime Victim’s Assistance Fund fine imposed by the circuit court clerk must be vacated, since the imposition of a fine is a judicial act which can be performed only by a judge. The State concedes error. We therefore vacate the fine and direct the trial court to impose the fine. See People v. Wisotzke (1990), 204 Ill. App. 3d 44, 50.

The judgment of the circuit court is affirmed in part and vacated in part, and the cause is remanded.

Affirmed in part; vacated in part and remanded.

INGLIS, P.J., and COLWELL, J., concur.


author: JUSTICE QUETSCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER ANTCZAK, Defendant-Appellant.
    Second District
    No. 2—91—0289
    Opinion filed October 20, 1993.

      G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers, Stephen E. Norris, Rebecca Sanders, and Kendra Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE QUETSCH

delivered the opinion of the court:

Following a jury trial in the circuit court of Winnebago County, defendant, Christopher Antczak, was convicted of a single count of residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3 (now 720 ILCS 5/19 — 3 (West 1992))). Defendant filed a petition electing treatment for addiction or alcoholism pursuant to sections 10 — 101 and 10 — 102 of the Illinois Alcoholism and Other Drug Dependency Act (20 ILCS 305/10 — 101, 10 — 102 (West 1992)) and was sentenced to a five-year term of probation under the supervision of a designated treatment program.

On the morning of June 25, 1989, Daniel VanSickle returned to his house after spending the night with his girlfriend and discovered that the house had been ransacked. A VCR, a stereo receiver and a camera were missing. According to VanSickle, a warranty card for the camera, which he had completed and left in the camera case, was also missing. In addition, a five-gallon water bottle in the bedroom, which VanSickle used to collect pocket change, had been emptied. The water bottle had previously been approximately half full. A fingerprint found on the water bottle was identified as belonging to defendant. VanSickle testified that to his knowledge defendant had never been in his home and defendant did not have permission to be in Van-Sickle’s home on June 24 or June 25,1989.

The State also presented the testimony of 15-year-old N.H. N.H. was the daughter of VanSickle’s girlfriend, and in May or June 1989, she and defendant (who was then 17 years old) began dating. During the summer of 1989 defendant and N.H. broke off and resumed their romantic relationship several times. The relationship ended late in summer or early in fall of 1989. N.H. testified that at some point during that summer, while she was at defendant’s father’s house, defendant told her that he “did Dan’s house.” N.H. understood that comment to mean that defendant had burglarized Daniel VanSickle’s house. Defendant also threw a piece of paper at N.H. which N.H. observed to be a warranty for a camera. The warranty was signed by VanSickle.

During cross-examination, the following exchange occurred regarding defendant’s alleged admission to N.H.:

“Q. So when [Assistant State’s Attorney] Weinhardt here led you into remembering a conversation in the latter part of June, you don’t know if it was in the latter part of June or July or August, do you?
A. I know it was before he went to jail.
Q. Well, gee, you must have gone right away to the police with this?
A. No, I didn’t.
Q. You never went to the police, did you?
A. No.
Q. You never talked to the prosecutors before this week, right.
A. I don’t know who I talked to in January, but I talked to someone very briefly.
Q. That’s interesting. Yesterday when I talked with you you said that you talked with your mother in December about it and nobody since then until this week. Now you remember a January conversation.
A. I don’t know who it was that I talked to.”

N.H. admitted that she had not mentioned her conversation with defendant to anyone until after her relationship with defendant had ended. On redirect examination, N.H. testified that in December 1989 she told her mother about the conversation.

Over defendant’s objection, the State was permitted to present the testimony of James Gesmer, a former Winnebago County assistant State’s Attorney who had been assigned to defendant’s prosecution during January 1990. He testified that on January 16 he had a telephone conversation with a person who identified herself as N.H. She stated that defendant admitted to her that he and Robin Wynn had burglarized the VanSickle residence and had taken a VCR and stereo equipment. She also told Gesmer that defendant had shown her warranty papers for a camera taken in the burglary. N.H. indicated that the conversation with defendant took place during the summer of 1989.

During cross-examination, defense counsel questioned N.H. regarding her feelings about breaking off her relationship with defendant. N.H. denied that she was “pretty upset about the last break-up.” She also denied crying about their breakup in front of her friend Nikki Triplett. She admitted that after breaking off her relationship with defendant she began dating defendant’s cousin, Duane White, but denied that she had done so to “get back” at defendant. N.H.’s testimony was partially contradicted by Nikki Triplett, who testified for the defense that after N.H.’s relationship with defendant ended N.H. cried about it to Triplett and expressed some anger toward defendant.

The defense attempted to establish that N.H. had been involved in some type of a sexual relationship with VanSickle, or that VanSickle had made sexual advances toward her. Nikki Triplett testified that at some time during the preceding year N.H. told her that VanSickle would “make her drinks and touch her and it would make her feel funny.” Linda White, defendant’s aunt, testified that during early summer 1989 she had conversations with N.H. during which N.H. told her that she was afraid to go home because her mother’s boyfriend was having a sexual relationship with her, and she was afraid to tell her mother. Defendant also testified that he was aware that VanSickle had made sexual advances toward N.H. During cross-examination N.H. denied having a sexual relationship with VanSickle and denied telling Triplett, White or defendant that she had.

Tammy White, defendant’s cousin, testified that during the week before trial she encountered N.H. in school and N.H. told her that she was “trying to put [defendant] away as much as I can for what he did to me.” N.H. did not explain what defendant had done to her. Linda White’s boyfriend, Richard Lanning, testified that about a week and a half before trial he spoke to N.H. while she was working at an Orange Julius restaurant in a shopping mall. Lanning asked her if she had seen defendant and she replied, “I don’t see that son of a bitch.” Lanning asked why N.H. was angry with defendant, and she responded that she thought “he told my mom about the boyfriend.” During cross-examination, N.H. admitted having spoken with White and Lanning, but denied making the statements later reported by those witnesses during defendant’s case in chief.

Defendant testified on his own behalf. He denied any involvement in the burglary to VanSickle’s residence and denied ever telling N.H. that he “did Dan’s house.” He testified, however, that on one occasion he went to VanSickle’s house with N.H., Nikki Triplett and Robin Wynn. VanSickle was not home at the time. N.H. had a key to the house and told defendant that it was all right for them to be in the house. While Triplett and Wynn waited outside, defendant and N.H. went into the bedroom and kissed for awhile. Afterward, they decided to buy cigarettes. N.H. handed defendant the bottle containing Van-Sickle’s pocket change, and they took $2 in coins from the bottle, which they used to buy cigarettes at a gas station after leaving the house. Triplett and Wynn gave similar accounts of the trip to VanSickle’s house. Both recalled that defendant and N.H. had $2 in change when they left the house and that they went to a gas station to buy cigarettes. There were some discrepancies as to whether N.H. used the key to open a sliding glass door, or whether she entered the house through another door and opened the sliding door from inside the house.

N.H. testified that she had never been in VanSickle’s house with defendant and had never been in the house when VanSickle was not present. She also testified that she never had a key to the house. Van-Sickle testified that neither N.H. nor her mother had a key to his house.

Defendant contends that the trial court committed reversible error by permitting James Gesmer to testify to N.H.’s statements during a conversation in January 1990 (approximately 11 months before trial) in which N.H. reported defendant’s admission to her of involvement in the burglary of VanSickle’s residence. Defendant argues that N.H. was motivated to lie at the time she spoke with Gesmer and her statements were therefore inadmissible under the principles governing the use of prior consistent statements. According to defendant, Gesmer’s testimony unduly bolstered N.H.’s credibility, by repetition of her account of her conversation with defendant.

Our supreme court recently set forth the principles regarding the admissibility of prior consistent statements:

“A witness may not be corroborated on direct examination by proof of prior statements consistent with his testimony. (People v. Powell (1973), 53 Ill. 2d 465, 472.) *** However, prior consistent statements are admissible to rebut a charge or an inference that the witness is motivated to testify falsely or that his testimony is of recent fabrication, and such evidence is admissible to show that he told the same story before the motive came into existence or before the time of the alleged fabrication. People v. Clark (1972), 52 Ill. 2d 374, 389; People v. Titone (1986), 115 Ill. 2d 413, 423; see also People v. Harris (1988), 123 Ill. 2d 113, 139; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §611.14 (5th ed. 1990).” (Emphasis added.) People v. Williams (1991), 147 Ill. 2d 173, 227.

See also People v. Patterson (1992), 154 Ill. 2d 414, 453 (“in order for this exception to apply, the trial testimony sought to be corroborated must be charged as recently fabricated or the witness must have a motive for testifying falsely”); People v. Hayes (1990), 139 Ill. 2d 89, 138 (“An exception to [rule that a witness may not testify as to statements made out of court to corroborate testimony at trial] is recognized where the prior consistent statement is introduced to rebut a charge or inference that the witness is motivated to testify falsely or that his in-court testimony is of recent fabrication”); People v. Park (1993), 245 Ill. App. 3d 994, 1004 (“prior consistent statements are admissible to rebut a charge or inference that the witness is motivated to testify falsely or has recently fabricated her in-court testimony”).

Defendant claims N.H. was motivated to testify falsely because she was angry at defendant over the breakup of their relationship. Because the same motive to falsify existed at the time N.H. spoke with James Gesmer in January 1990, defendant argues that her statements to Gesmer were therefore inadmissible.

It is clear that when the prior statement is offered to rebut a charge or inference of a motive to falsify, the statement must have been made before the motive came into existence. (See, e.g., People v. Emerson (1983), 97 Ill. 2d 487, 501.) Moreover, “[t]he party seeking to introduce the prior consistent statement has the burden of establishing that the statement predates the alleged creation of the improper influence, motive, or recent fabrication.” M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §611.14 (Supp. 1993), citing People v. Deavers (1991), 220 Ill. App. 3d 1057.

The record establishes, however, that the State’s objective in offering Gesmer’s testimony was not to rebut the charge that N.H.’s testimony was the product of her animosity toward the defendant. Instead, the State introduced Gesmer’s testimony in response to defense counsel’s line of questioning during cross-examination of N.H. insinuating that N.H. had come forward with her account of her conversation with defendant only shortly before trial. With regard to N.H.’s alleged conversation with defendant, defense counsel stated, “[y]ou never talked to the prosecutors before this week, right.” Thus, as the State argued in the trial court, defendant raised an inference that N.H.’s testimony was of recent fabrication. The State sought to show that, indeed, N.H. had told the same story to the State’s Attorney’s office 11 months earlier. We must therefore determine whether N.H.’s statements were admissible for that purpose notwithstanding the possibility that she may have had a motive to speak falsely when she talked with Gesmer.

Unfortunately, the case law on the subject of prior consistent statements has not been entirely uniform in stating the applicable test, and variations in the language courts have used leave some uncertainty as to the significance of a witness’ motives when a prior consistent statement is offered to rebut a general charge of recent fabrication which is not premised on a specific motive. One group of cases appears to view “motive to falsify” and “recent fabrication” as separate exceptions. Thus, People v. Williams (1991), 147 Ill. 2d 173, states that a prior consistent statement may be admitted “to show that [the witness] told the same story before the motive came into existence or before the time of the alleged fabrication” as the case may be. (Emphasis added.) 147 Ill. 2d at 227; see also People v. Shum (1987), 117 Ill. 2d 317, 340-41 (“Exceptions *** allow the admission of prior consistent statements to rebut a charge or inference that (1) the witness is motivated to testify falsely or (2) that the in-court testimony is a recent fabrication”).

On the other hand, the test for admissibility of prior consistent statements has sometimes been phrased in a manner which suggests that the absence of a motive to falsify at the time of the prior statement must be shown regardless of whether the evidence is offered to rebut a charge of a motive to testify falsely or is offered to rebut a charge of recent fabrication. For instance, in People v. Henderson (1990), 142 Ill. 2d 258, 310, it was stated that “[e]vidence of a prior consistent statement is inadmissible hearsay unless it has been suggested that a witness recently fabricated testimony or has a motive to testify falsely and the prior statement was made before the motive arose.” (Emphasis added.) Similarly, in People v. Ashford (1988), 121 Ill. 2d 55, 71, the court indicated that “proof of a prior consistent statement by a witness is admissible to rebut a charge or inference of recent fabrication or motive to testify falsely, provided the statement is made before the alleged motive to fabricate existed.” (Emphasis added.) See also People v. Harris (1988), 123 Ill. 2d 113, 139 (“A narrow exception to [rule prohibiting corroboration with prior consistent statements] has been created where it is charged that the testimony is recently fabricated or that the witness has some motive for testifying falsely. Then a prior consistent statement may be admitted, but only if made before the motive to fabricate arose”); People v. Gacho (1988), 122 Ill. 2d 221, 250 (“The defendant *** argues that a prior consistent statement is admissible only to rebut a charge that at trial the witness is motivated to testify falsely or that the testimony is a recent fabrication. Evidence of the prior consistent statement is admissible to show that it was made before the motive came into existence”); cf. People v. Emerson (1983), 97 Ill. 2d 487, 501, quoting Lyon v. Oliver (1925), 316 Ill. 292, 303 (for proposition that “ ‘where it is charged that [a witness’] story is a recent fabrication or that he had some motive for testifying falsely, proof that he gave a similar account of the transaction when the motive did not exist or before the effect of the account could be foreseen is admissible’ ”); People v. Finley (1988), 178 Ill. App. 3d 301, 310.

We believe the view espoused in Williams, Shum and other cases, essentially treating charges of recent fabrication and charges of a motive to falsify as separate exceptions, is correct. See also People v. Gray (1991), 209 Ill. App. 3d 407, 418 (“if the following two exceptions exist, prior consistent statements may be admitted to rebut (1) a recent charge of fabrication; or (2) a contention that the witness has a positive motive to testify falsely. [Citations.] In the second exception, it must be shown that the presently imputed motive did not exist at the time of the prior statement” (emphasis added)); accord People v. Ollins (1992), 235 Ill. App. 3d 158, 165 (“it is well established that evidence of a statement made by a witness out of court but which is consistent with his trial testimony is admissible where the witness is charged with recent fabrication or his opponent raises an inference that a motive to testify falsely exists which did not exist at the time that the prior statement was made”); People v. Chandler (1992), 231 Ill. App. 3d 110, 114-15 (“A prior consistent statement may be admitted to rebut an inference that the testimony is a recent fabrication or an inference that the witness has a motive to testify falsely, but this exception applies only if the prior inconsistent [sic] statement was made before the time of the alleged fabrication or the motive to lie came into existence” (emphasis added)); People v. Goebel (1987), 161 Ill. App. 3d 113, 120 (“To invoke the exception successfully it must be shown that the witness told the same story prior to the existence of the motive or prior to the time of the alleged fabrication” (emphasis added)); People v. Andino (1981), 99 Ill. App. 3d 952, 955 (“a prior consistent statement offered to rebut a charge of recent fabrication is admissible only if the declarant told the same story before the motive came into existence or before the time of the alleged fabrication” (emphasis added)).

In the case at bar, defendant essentially attacked N.H.’s credibility on two distinct bases. First defendant suggested that N.H.’s testimony was the product of her hostility toward defendant for breaking off their relationship. However, as noted above, defendant also sought to persuade the jury that N.H.’s testimony was suspect because she waited essentially until the eve of trial to come forward. This theory of impeachment could be viewed as independently viable without proof of any particular motive. The jury could have rejected the charge that well over a year after their breakup N.H. was still angry enough at defendant to commit perjury. But even if the jury rejected this alleged motive, it might still have doubted N.H.’s testimony simply because N.H. had not come forward earlier. We believe N.H.’s statements to Gesmer were admissible to rehabilitate N.H. against this general charge of recent fabrication.

Our decision in People v. Cowper (1986), 145 Ill. App. 3d 1074, supports this conclusion, albeit indirectly. In Cowper, the defendant was charged with residential burglary after being apprehended while the offense was apparently in progress. He testified that he had been deceived into participating in the offense by an acquaintance, Omar Taylor, who asked the defendant to help him move some personal belongings. Taylor told the defendant that his “old lady” had kicked him out. Thus the defendant’s defense was that he thought Taylor had permission to take property from the house, although Taylor did not have a key, and they had to break a window to get inside the house. On cross-examination, the defendant admitted that at the time he was arrested, he did not mention Taylor to the police. On redirect examination, the defendant was barred from testifying that when later interviewed by a detective, he did, in fact, relate Taylor’s involvement.

In discussing the admissibility of prior consistent statements, we did not distinguish, as we do now, between statements offered to rebut a general charge of recent fabrication, and those offered in response to the charge of a specific motive to falsify. Quoting People v. Emerson (1983), 97 Ill. 2d 487, 501, we stated that to be admissible, a prior consistent statement must have been made “ ‘when the motive did not exist or before the effect of the account could be foreseen.’ ” (Emphasis in original.) (Cowper, 145 Ill. App. 3d at 1079, quoting Emerson, 97 Ill. 2d at 501; see also People v. King (2d Dist. 1988), 165 Ill. App. 3d 464, 467 (“a prior consistent statement is admissible to rebut a charge of recent fabrication when the statement was made prior to the time the motive to fabricate arose”). But see People v. Goebel (2d Dist. 1987), 161 Ill. App. 3d 113, 120 (“To invoke the exception successfully it must be shown that the witness told the same story prior to the existence of the motive or prior to the time of the alleged fabrication” (emphasis added)).) However, we found a different basis for admitting the testimony:

“[W]e *** find [the testimony] was admissible under the rules relating to impeachment by a prior inconsistent statement. *** [A] witness may be impeached by proof he failed to speak under circumstances when it would have been natural to relate the matters testified to in court if true. Defendant here was impeached by his failure to mention Omar Taylor at the time of his arrest. We believe he should have been allowed to be rehabilitated by evidence that he did mention Omar Taylor during his questioning by the police.” Cowper, 145 Ill. App. 3d at 1081.

Similarly, here, N.H. was impeached by defense counsel’s suggestion that she never came forward with evidence implicating defendant until shortly before trial. The State was entitled to rehabilitate N.H. by clarifying that she had in fact spoken with an assistant State’s Attorney about 11 months before trial. The case at bar is not completely analogous to Cowper. In Cowper, the defendant’s statement to the detective would appear to have been contemporaneous with his arrest. Here, N.H. did not contact the State’s Attorney’s office until six to seven months after the alleged conversation with defendant. However, defense counsel specifically emphasized the notion that N.H. concocted her story on the eve of trial, and it was appropriate for the jury to hear evidence that, concocted or not, N.H. told her story much earlier. The amount of time N.H. waited before coming forward may have influenced the jury’s view of N.H.’s credibility. We therefore conclude that evidence of N.H.’s statement to James Gesmer was admissible to rebut the inference created by the defense that N.H. fabricated her testimony shortly before trial.

Defendant alternatively argues that, even if N.H.’s statements were admissible, the trial court erred in allowing Gesmer to testify that N.H. had implicated Robin Wynn in the burglary of the VanSickle residence. Defendant also notes that N.H.’s statements to Gesmer differed from her trial testimony in that she told Gesmer that defendant mentioned taking a VCR and stereo equipment. At trial, N.H. testified that defendant did not discuss what was taken from VanSickle’s house. Defendant cites People v. Henricks (1975), 32 Ill. App. 3d 49, for the proposition that where a prior consistent statement is offered for purposes of corroboration, it is unnecessary to show the details of the statement. Henricks did not involve the principles regarding the admissibility of prior consistent statements. Rather the Henricks court expounded upon the scope of evidence admissible under the “prompt complaint” doctrine, which applies only in prosecutions for certain classes of sex offenses, and the principles articulated in Henricks have no application outside that context. We conclude that the trial court did not err in permitting Gesmer to testify to the content of his conversation with N.H.

In connection with Gesmer’s testimony, the jury was instructed as follows:

“THE COURT: Members of the Jury, the testimony of this witness has been admitted for a limited purpose.
It may be considered with all the other facts and circumstances in the case only as it may or may not bear upon the believability of the witness, [N.H.]
It is not to be considered by you as independent proof that the defendant made the admissions to the crime alleged.” (Emphasis added.)

While defendant questions the effectiveness of this limiting instruction, we believe it adequately informed the jury of the purpose for which Gesmer’s testimony was admitted and prevented the jury from improperly considering extraneous matters in N.H.’s statements to Gesmer. Defendant argues that the instruction was inadequate because it did not advise the jury not to consider N.H.’s statements as evidence of Robin Wynn’s guilt. However, the trial court’s statement that Gesmer’s testimony be considered “only as it may or may not bear upon the believability of [N.H.]” sufficiently addresses that concern.

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

Affirmed.

BOWMAN and COLWELL, JJ., concur.

      We note that during his case in chief defendant also developed the theory that N.H. was angry at defendant because she believed he had revealed her sexual relationship with VanSickle to her mother. The State argues that we should focus on this alleged motive in determining the admissibility of N.H.’s statements. We disagree. At the time of Gesmer’s testimony, this theory of impeachment had been discussed outside the jury’s presence, but was not yet before the jury.