author: JUSTICE McNULTY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LONNIE WATKINS, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—2428
    Opinion filed September 30, 1991.

      Daniel T. Coyne, of Chicago (Dennis VanDerGinst, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William P. Pistorius, and Gunta Z. Hadac, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNULTY

delivered the opinion of the court:

Defendant was arrested on August 24, 1986, and charged with possession with intent to deliver. On October 15, 1986, these charges were nol-prossed by the State, and defendant was subsequently charged by indictment on April 30, 1987. His motion to dismiss based upon violation of speedy trial rights was denied by the trial court. A motion to suppress was denied as well. A jury convicted defendant of possession of a controlled substance and at a July 12, 1988, sentencing hearing he was sentenced to five years’ imprisonment to be followed by two years of mandatory supervised release. It is from this judgment that he now appeals.

On August 23, 1986, defendant went to the police station and reported that he had been robbed by Christopher Nelson and threatened with bodily harm by Christopher’s brother, Vernon Nelson. Later that day the police arrested Vernon Nelson and brought him to the police station. Since the arresting officers were unable to reach defendant by phone to inform him of Nelson’s arrest and the upcoming court date, they went to defendant’s home to give him this information. While there is differing testimony as to the events leading up to the police entry into defendant’s apartment (defendant testified that when the police knocked on his door, he asked them to go back outside so that he could verify from his window that they were police; at the suppression hearing Officer McMeel testified that he did not recall being asked to go outside and that defendant had invited the officers into his apartment so that he would not have to discuss his business in the hallway; at trial Officer McMeel testified that the officers were asked to step outside and were later invited into the apartment), there is nevertheless agreement that they did smell phencyclidine (PCP) from the doorway, that they did enter the apartment, and that they did see a plastic bag containing what appeared to be marijuana on the kitchen table. The officers also saw and gathered into evidence other narcotics paraphernalia, including a small brown bottle containing liquid which smelled like PCP, an eye dropper, tin foil packets, and cash totalling $363.

Defendant was arrested on charges of possession with intent to deliver. After these were nol-prossed (October 15, 1986), he was indicted on identical charges (April 30, 1987), and a jury trial ensued. At trial defendant testified that he had been drinking during the evening preceding his arrest, and that he was sleeping at the time the police arrived. Three additional witnesses testified that they had been drinking with defendant earlier that evening before the police arrived. They further testified that although drugs and drug dealers were always present in their apartment building, defendant always chased such persons away. In spite of this testimony, the jury found defendant guilty, and he was sentenced to five years in the Illinois Department of Corrections. It is from this conviction that defendant now appeals.

On appeal defendant first contends that he was denied his statutory and sixth amendment rights to a speedy trial. (Section 103—5(b) of the Illinois Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 103—5(b)) implements an individual’s constitutional right to a speedy trial and provides that every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date the defendant demands trial, unless the delay is occasioned by the defendant.) In his speedy trial argument, defendant notes that he was arrested on August 24, 1986. When the State’s request for a continuance was refused on October 17, 1986 (lab results were not yet available), the case was nol-prossed by the State’s Attorney. Subsequently a grand jury voted a true bill against defendant on April 30, 1987, and an indictment was filed on May 6, 1987. A hearing was held at which the trial court denied the motion, finding that although 203 days had gone by, no demand for a trial had been made at the time of the nolle prosequi, and thus no rights had been violated.

Defendant argues that even though no demand for trial was made at the time of the nolle prosequi, he was not represented by counsel at this time, and therefore the demand requirement should be liberally construed. Furthermore, defendant maintains that he was additionally prejudiced as to his speedy trial rights at the hearing on the motion to dismiss. On this occasion, the defendant’s attorney, Mr. Schierer, mistakenly represented to the judge that defendant had been represented by counsel at the time of the nolle prosequi. The court’s denial of this motion was thus based on the fact that no demand had been made and that the absence of any demand was a tactical decision by counsel. (Although the State argues that defendant did have counsel at the time of the nolle prosequi, a review of the record shows that while the public defender was appointed for the bond hearing, defendant appeared pro se afterwards and was told by the judge that he could speak to the bar association lawyer if he wished.)

The State argues that even if this issue has been preserved for review (it was not included in a post-trial motion), speedy trial rights were not implicated as no demand was ever made. Assuming, arguendo, that a demand had been made, the State further contends that if such a demand was made after the nolle prosequi, it would have been meaningless, as case law indicates that a trial demand which is made at a time when no charges are pending has no value. See People v. Freedman (1987), 155 Ill. App. 3d 469, 474, 508 N.E.2d 326, 331 (which provides that “[i]n order to invoke the 160-day period, the accused must be out on ‘bail or recognizance’ and must demand trial. [Citation.] However, such a demand is meaningless when made at a time no charges are pending upon which the accused can be tried”).

The State further argues that even if a demand for trial had been made before the nolle prosequi (presumably while defendant was still charged and still on bond), in the absence of evidence indicating that the nolle prosequi was undertaken to evade the statutory provisions, the nolle prosequi would have tolled the running of the statutory 160 days, and defendant would not have been denied his right to a speedy trial. Two recent first district cases support this view. (See People v. Decatur (1989), 191 Ill. App. 3d 1034, 548 N.E.2d 509; see also People v. Austin (1990), 195 Ill. App. 3d 17, 55 N.E.2d 1074.) In Decatur and Austin, the reviewing court reversed the trial courts’ findings that there had been violations of the defendants’ speedy trial rights. Both cases involved defendants who had been arrested on charges of possession. Both cases proceeded to the preliminary hearing stage. In Decatur, the defendant demanded trial, while in Austin, he did not. In both cases the State nol-prossed the pending charges due to lack of laboratory results. In Decatur laboratory analysis of the substance at issue was received within 11 days and defendant was not indicted until eight months later. In Austin, the lab analysis was received in 30 days, but defendant was not indicted until &-h months later. In both cases the trial courts found violations of the defendants’ speedy trial rights and dismissed the charges. In both cases the reviewing court reversed, finding that the statutory speedy trial term was tolled in situations where the prosecutor was granted a nolle prosequi, defendant was released from custody, bail, or recognizance, and there was no desire to harass, prejudice, or gain a tactical advantage over defendant by the State.

In view of the factual similarities between Decatur, Austin, and the case at bar, we find that there has been no violation of defendant’s right to a speedy trial. Even if defendant had been represented by competent counsel who had appropriately filed a demand for trial before the nolle prosequi, the State’s right to refile after a long delay as well as the tolling effect of the nolle prosequi has been firmly established by existing case law.

Defendant also contends that Mr. Schierer’s misstatement regarding his representation at the time of the nolle prosequi constituted ineffective assistance of counsel. Our supreme court has stated that effective assistance of counsel refers to competent, not perfect, representation and that, in the absence of a showing that the outcome of a new trial likely would be different, the Constitution does not require a new trial for every defendant whose counsel errs at trial. (People v. Stewart (1984), 104 Ill. 2d 463, 491, 473 N.E.2d 1227, 1240.) Since the analysis of the nolle prosequi and its tolling effect demonstrates that even a timely demand for trial by competent counsel would have had no bearing on the motion to dismiss, surely Mr. Schierer’s misstatement as to defendant’s representation could not have affected the outcome of the case.

Defendant further maintains that he was denied effective assistance of counsel during the time he was represented by Mr. Schierer (December 9, 1987, to March 14, 1988), as unbeknownst to defendant, on February 19, 1988, Mr. Schierer signed an affidavit and motion to have his name stricken from the roll of attorneys licensed to practice law in Illinois, and was actually removed from the roll of attorneys on March 28, 1988. While there is case law which supports the proposition that a defendant who is represented by an attorney not licensed to practice law has been denied assistance of counsel (see Solina v. United States (2d Cir. 1983), 709 F.2d 160), such authority does not support defendant’s claim. Mr. Schierer was licensed to practice law in Illinois during the time he represented defendant. In fact, Mr. Schierer’s name was removed from the roll of licensed attorneys on March 28, 1988, 14 days after defendant fired him. Moreover, apart from Mr. Schierer’s misstatement regarding the nolle prosequi, defendant fails to point to any particular area where Mr. Schierer failed to adequately represent him. Mr. Schierer participated in argument during the hearing on the motion to dismiss. At the hearing on the motion to suppress, Mr. Schierer presented sufficient evidence to survive the prosecutor’s motion for a directed finding, participated in active cross-examination of the prosecution witnesses, and argued both opening and closing statements. In reviewing counsel’s representation of defendant, we conclude that counsel’s performance fell well within the range of “competence demanded of attorneys in criminal cases.” People v. Mitchell (1984), 105 Ill. 2d 1, 15, 473 N. E. 2d 1270, 1275.

Defendant further maintains that he was denied a fair trial due to inappropriate and prejudicial prosecutorial remarks designed to inflame the jury. The State, on the other hand, contends that the prosecutor’s comments were proper as comments upon the evidence or the inferences drawn therefrom or were invited responses to defense counsel’s argument. See People v. Faysom (1985), 131 Ill. App. 3d 517, 523, 475 N.E.2d 945, 950; see also People v. Lyles (1985), 106 Ill. 2d 373. 390. 478 N.E.2d 291. 297.

Most of the complained-of comments occurred during the rebuttal argument of the State’s Attorney. Although all of the offensive remarks were neither objected to at trial nor raised in a post-trial motion, we will assume that they have been preserved for purposes of appeal. Defendant first alleges that the prosecutor implied that defense counsel was trying to confuse the jury about what the case was really about, a practice condemned by Illinois case law. (People v. Jackson (1983), 119 Ill. App. 3d 951, 458 N.E.2d 59, 63-64.) The improper comments complained of by the defendant occur within the following passage:

“Let’s get something straight here before you go back and deliberate. Vernon Nelson is not on trial. Neither is Christopher Nelson. They have had their days in court. And you are not sitting on their jury. The police officers are certainly not on trial. Don’t let anyone misdirect your attention from what this case is about. This case is about this man possessing drugs. And what is he charged with? Is he charged with selling drugs? No. He is not charged with selling drugs. There is no evidence that he sold drugs. Even though there is no evidence of that, and he was never charged with that. Is he charged with using drugs? No. He is not. He is not charged with using drugs.”

The State contends that the prosecutor’s references to Vernon Nelson, Christopher Nelson, and the police are proper because they redirect the jury’s attention to the issues in the case before them. Defense counsel did bring up the fact that his client was robbed and threatened by the Nelson brothers, and also implied that the police were somehow implicated in a conspiracy to frame the defendant. (“Use your common sense deciding whether these things were there before the officers got there.”) The argument is persuasive. We therefore find that these prosecutorial remarks fall into the category of invited responses to defense counsel’s arguments, rather than inappropriate inflammatory remarks.

Defendant also contends that the prosecutor’s comments as to what charges were not placed against him were also improper and created the suggestion that the defendant had already been given a break. While the reviewing court condemned such a practice in People v. Estes (1984), 127 Ill. App. 3d 642, 469 N.E.2d 275, the circumstances of that case differ from the instant action. In Estes, the court held that the prosecutor’s comment was improper and prejudicial because its only purpose was to minimize the significance of finding the defendant guilty of the crime charged. In the case at hand, defense counsel had elicited testimony from every witness that defendant did not use or sell drugs. Thus, the prosecutor’s comments merely clarified what the defendant was charged with and were invited responses to previous trial testimony. Unlike the remarks in Estes, these remarks bore a reasonable relationship to the evidence adduced at trial and thus were not patently inappropriate.

Defendant also claims that the prosecutor’s comments enhanced the testimony of the police officers both by stressing the indignities the police had to suffer by being called liars by Watkins, and also by referring to the officers’ status as policemen, arguing that they had no motive to lie. While it is correct that a police officer’s testimony should not be given greater weight than that of any other witness, the State’s Attorney’s comments in the case at bar were not inappropriate. In his opening remarks and throughout his case in chief, defense counsel suggested that because Watkins was drunk the night of the arrest, he could not have known the drugs were in the apartment, and that somehow the police officers had put them there. (“We don’t know how these drugs got into Lonnie’s apartment. We don’t know who brought them there ***.”) The prosecutor’s comments were thus a reasonable response to defense counsel’s remarks, rather than an improper bolstering of the officers’ testimony.

Defendant also alleges that the prosecutor improperly commented that defendant lied. “If there is one thing that infuriates me about this case, it is that he lied.” While this remark may be inappropriate out of context, case law supports the proposition that a prosecutor may comment that the defendant or a defense witness is a “liar” if conflicts in evidence make such an assertion a fair inference. (People v. Starks (1983), 116 Ill. App. 3d 384, 394, 451 N.E.2d 1298, 1935.) In the case at bar, defendant testified that on the night he was arrested he was not drunk, and also that he was intoxicated, and further that he could not say whether or not he was intoxicated. Based on these inconsistencies, the prosecutor’s comment as to defendant’s veracity was indeed proper.

Defendant also contends that the prosecutor’s remarks about his drinking habits were improper. Specifically, the defendant refers to the prosecutor’s alluding to him as “a loveable old alcoholic” and an “old drunk.” Although at first glance these remarks may seem inappropriate, when considered in the context of the trial, their character changes. There was testimony, both direct and on cross-examination, regarding defendant’s drinking habits and his tendency to be drunk. In fact, one theory of defense was that defendant was so intoxicated on the night of the arrest that he was an easy target for a police setup. In light of the totality of testimony regarding defendant’s drinking, the prosecutor’s remarks should most likely be viewed as a reasonable comment on the evidence or as a reasonable inference therefrom. See People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68.

Defendant further maintains that the prosecutor unfairly influenced the jury by commenting on a Justice Department survey linking drugs and serious crime. While the prosecutor’s single isolated comment was in error, an objection was sustained by the trial court. Additionally, the trial judge cautioned the jurors that the closing arguments were not evidence, but were statements of what the attorneys believed the evidence showed. Based on this instruction and the fact that the objection was sustained, and further, that the offending remarks were not repeated, it is unlikely that the jury was unfairly influenced.

Defendant also argues that the State’s Attorney attempted to shift the burden of proof to the defendant by commenting that defendant never called any witnesses to testify as to a police conspiracy against him. While such a comment would be improper in most circumstances (see People v. Lasley (1987), 158 Ill. App. 3d 614, 511 N.E.2d 661), in the present action it was an invited response to defense counsel’s insinuations that defendant had somehow been set up by the police.

Defendant also insists that the State’s Attorney improperly attempted to instruct the jury as to the law when he stated that being drunk was not a defense to possession of a controlled substance. Even though the State’s Attorney was responding to the defense argument that defendant was so drunk that he let the police in, the trial court nevertheless sustained defendant’s objection and cautioned the jury “to follow the law as the court gives it to you.” In view of these circumstances, we find that defendant was not unfairly prejudiced.

Lastly, defendant urges that the prosecutor improperly attempted to instill fear in the jury by arguing as follows:

“Ladies and gentlemen, how can we ever face our children, how can we ever tell them to say no to drugs, if we let somebody like Lonnie Watkins back out on the street?”

In People v. Ford (1983), 113 Ill. App. 3d 659, 662, 447 N.E.2d 564, the reviewing court found similar remarks (“ ‘I would suggest that the Defense look to the poor, innocent, susceptible children in our community who are tempted and forced by peer pressures’ ”) to be reversible error. While we do not condone such comments, we do note that the effect of the remarks in the instant action is distinguishable from those in Ford. In Ford the effect of the offensive remarks was cumulative, having some degree of bearing on the verdict, while in the instant action the remark was isolated, and balanced against the enormity of the evidence against the defendant, it is unlikely that it constituted a material factor leading to defendant’s conviction.

Defendant also contends that the trial court erred in sustaining the State’s motion in limine to exclude from evidence conversations defendant may have had with police officers subsequent to his arrest. Defendant intended to have Detective Thomas testify concerning an interview he had with defendant the day after his arrest concerning defendants’ complaint against Christopher Nelson. By introducing this conversation into evidence, defendant hoped to show that the police had not arrested Christopher Nelson (the subject of defendant’s burglary complaint) because he was a police informant. Defendant further hoped to imply that Nelson’s status as an informant motivated the alleged police setup of drugs in his apartment. Defendant also argues that by sustaining the State’s motion, the trial judge denied him due process by not allowing him to present his theory of defense.

Motions in limine are addressed to the trial court’s inherent power to admit or exclude evidence (People v. Escobar (1988), 168 Ill. App. 3d 30, 43, 522 N.E.2d 191, 199) and are encouraged in criminal cases to exclude collateral or extraneous matters. (People v. Downey (1987), 162 Ill. App. 3d 322, 334, 515 N.E.2d 362, 369.) In the case at bar, the trial judge heard the evidence and arguments connected with the conversations defendant wished to introduce indicating that the police had orders not to arrest Christopher Nelson. After consideration, the judge determined that defense counsel could only go into this matter if he could obtain further information linking Nelson’s status as an informer to the possession charges in the case at bar. In the absence of a witness who could provide the link between defense counsel’s conspiracy theory and the instant action, the trial judge sustained the motion in limine, but offered to reconsider his ruling if such a witness could be found. Due to the tenuous nature of defense counsel’s evidence, this determination was certainly well within the discretion of the trial judge and will not be overturned by this court.

Defendant also argues that he should have been allowed to introduce the evidence of subsequent conversations in order to show the “complete picture” of his case. In support of this argument, defendant cites the appellate court decision in People v. Mitchell (1984), 129 Ill. App. 3d 189, 472 N.E.2d 114. In Mitchell, evidence of drug-related conversations subsequent to defendant’s arrest was permissible as part of the full circumstances attending the commission of the crime. Although defendant argues the applicability of the Mitchell determination to the case at bar, his reasoning is flawed. In Mitchell, there was no motion in limine, and defendant’s subsequent conversations involved the same offense for which he had been charged. In the instant action, the subsequent conversations involved a third party who could not be linked with the offense that was charged.

Defendant also contends that the evidence presented at the hearing on the motion to suppress was sufficient to show that the seizure of narcotics was unlawful and that the trial court erred when it denied the motion. A reviewing court will not overturn a trial judge’s decision on a motion to suppress evidence unless it is determined to be manifestly erroneous. People v. Jones (1989), 190 Ill. App. 3d 416, 420, 545 N.E.2d 1332, 1334.

When the trial judge denied defendant’s motion to suppress, he stated that he believed the police officer and not the defendant where the testimony was inconsistent. The judge also made the following findings of fact: that defendant made a complaint to the Chicago police officers regarding the Nelson brothers; that the police officers in the normal course of business came to defendant’s apartment to inform him of the court date regarding the Nelson brothers; that defendant, who was intoxicated at the time, invited the police officers into his apartment because he did not want to discuss his personal business in the hall; and that the police officers entered the apartment, smelled PGP and saw marijuana, which gave them probable cause to arrest defendant. The record supports this determination.

Defendant argues that this court should overturn the trial court’s findings on the motion to suppress based on internal inconsistencies in Officer McMeel’s testimony, inconsistencies between Officer McMeel’s and Officer O’Donovan’s testimony, and the incredibility of defendant’s inviting the officers into his apartment when there were narcotics paraphernalia on the kitchen table. Defendant correctly notes that in its review of the decision on the motion to suppress, the reviewing court may consider not only the findings of fact drawn from the hearing on the motion, but also the testimony elicited at trial. (People v. Conner (1979), 78 Ill. 2d 525, 401 N.E.2d 513.) In his argument, defendant calls the court’s attention to conflicts between Officer Mc-Meel’s testimony at the hearing and his testimony at trial. At the hearing on the motion to suppress, Officer McMeel testified that he did not recall being asked to step outside defendant’s apartment to identify himself. At trial he testified that defendant had asked the officers to go outside and was impeached with the prior inconsistency. Also, at the hearing on the motion to suppress, Officer McMeel testified that he spoke with defendant on August 23 (the day the complaint against the Nelsons was made), and at trial, he stated that Officer Daukus spoke with defendant and that he was on the outer reaches of the conversation. Defendant also notes that Officer McMeel testified that he could see what was on defendant’s kitchen table when he entered the apartment, while Officer O’Donovan testified that he could not see what was on the kitchen table until entering the kitchen. Although a review of the record indicates that these discrepancies in testimony do in fact exist, they are not significant enough to warrant a reversal of the trial judge’s determination. The trial judge was in the best position to observe the demeanor of the witnesses and to determine if they were telling the truth. Also, it was within his discretion to believe the testimony of the police officers. The fact that Officer McMeel later recalled being asked to step outside and the variation between his and Officer O’Donovan’s testimony regarding whether the drugs could be seen from the doorway or the kitchen are not sufficient enough to warrant reversal of the denial of the motion to suppress. Furthermore, even though defense counsel maintains that the police version of defendant’s behavior is too incredible to be believed, it is not improbable that because defendant was intoxicated, he invited the officers into his apartment, unmindful of the narcotics on the table. Again, the trial judge heard the testimony of the witnesses and was in the best position to judge their credibility. His determination to deny the motion to suppress is supported by the record and will not be overturned.

Defendant finally contends that the evidence presented at trial was insufficient to show beyond a reasonable doubt that he possessed the controlled substances. When a defendant challenges the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453, 472.) A reviewing court will reverse a guilty verdict only if the evidence is so improbable, impossible, or unsatisfactory as to raise a reasonable doubt as to the guilt of the defendant. People v. Williams (1985), 131 Ill. App. 3d 597, 604, 475 N.E.2d 1082, 1087.

The evidence in the case at bar supports a finding of guilty. Two police officers observed narcotics and narcotics paraphernalia on the kitchen table. Both had smelled PCP when they entered the apartment. Marijuana was also recovered from the apartment. The substances removed from defendant’s apartment were identified by a chemist as controlled substances.

Defendant’s contention that this evidence is insufficient to support a finding of guilty rests largely on his theories of inconsistent police testimony and what he maintains is Watkins’ allegedly unbelieveable behavior in admitting the police to his apartment when drugs were in plain view. In his argument, defendant also maintains that the prosecutor unfairly portrayed him as a slick, womanizing, high rolling, drug kingpin. As previously mentioned, the judge or jury is in the best position to observe the demeanor of the witnesses, assess their credibility, and resolve any factual discrepancies. There is nothing in the record which shows that the jury’s determination is unsatisfactory.

Accordingly, defendant’s conviction is affirmed.

Affirmed.

LORENZ, P.J., and MURRAY, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK GRACA, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—2999
    Opinion filed September 30, 1991.

      Randolph N. Stone, Public Defender, and Rita Fry, both of Chicago (Frederick Weil and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Michael J. Monaco, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNULTY

delivered the opinion of the court:

Following a jury trial, defendant Frank Graca was found guilty of attempted murder, armed violence, aggravated battery by use of a deadly weapon and battery based on great bodily harm. He was sentenced to a term of six years to be served concurrently for attempted murder and armed violence.

The record sets forth the following facts. On August 23, 1986, Frank Graca was at Mr. Charley’s Tavern on 63rd Street. Roy Wokosin and his roommate, Ray Drish, arrived at Mr. Charley’s at approximately 2 a.m. Roy Wokosin had been barred from Mr. Charley’s because of a prior verbal altercation with the manager. Drish, an employee of the tavern, went in to talk to the manager in an effort to get Wokosin readmitted to the bar.

Wokosin testified that as he waited outside, he heard Graca make a comment to Drish about Wokosin. Wokosin testified that defendant said “and there’s that faggot.” Wokosin responded, “You’re not talking to me, calling me a faggot.” A verbal argument then ensued, and both men exchanged insults characterized by vulgar language. When Drish emerged from the bar approximately 25 minutes later, Wokosin and defendant were still in the midst of their argument. Sometime thereafter, Wokosin walked on to the street and challenged Graca to a fist fight. Defendant did not enter the street, but the argument continued. There is conflicting testimony as to what happened from this point on. According to Wokosin, defendant then commented that he was going to get his gun. Defendant, however, testified that he went inside the bar at the owner’s request to wait until Wokosin and Drish left. When he exited the bar, the argument continued. Two friends of Wokosin and Drish, Diane Penchak and Cathy Sheldon, walked out of the bar at about this time. Penchak testified that defendant said to her, “Your boyfriend over there, he’s a fag and I’ve got proof” and “I’m going to pop him.” She testified that two men bet defendant $50 that he wouldn’t “pop” him, and defendant replied, “Well, I’m going to go home and get my gun.”

Shortly thereafter, defendant was escorted by one of Mr. Charley’s bouncers and a patron of the bar to his truck. Wokosin followed defendant and his two escorts as Drish got into his truck and drove away. Drish left to follow defendant and Wokosin. Penchak and Sheldon then got into Penchak’s car and followed Drish. They met up with Drish near defendant’s home and waited for defendant to arrive.

There is conflicting testimony as to what happened next. Wokosin and Penchak testified that they went to defendant’s house to talk to defendant. Penchak testified that after defendant arrived home from the bar, defendant told her, “I don’t care if I spend the rest of my life in jail, I’m going to shoot that faggot.” She testified that she saw a gun in defendant’s hand when he made that statement. Wokosin testified that defendant pulled out a gun from his waist area and started walking toward Wokosin. Wokosin then said, “Hey Frank, what’s going on? What’s the deal? I’m on your neighbor’s property. I mean, you are not going to shoot me?” When defendant did not respond, Wokosin then began to back up. Defendant kept walking straight toward Wokosin and shot him in the stomach.

Defendant testified to a different scenario. Defendant claimed that after he arrived home from the bar, he went into his house and retrieved his .22 revolver for protection. He then went to his father’s house two blocks away and told his father that some guys were after him, that they were at his house looking for trouble and to call the police for him, because if they came after him, he was going to shoot them. Defendant then returned home, and upon exiting the truck, saw Wokosin in his gangway. He testified that Wokosin then came after him. Defendant told Wokosin that he had a gun, but Wokosin said that he didn’t care. Defendant pointed the gun at Wokosin and told him to leave him alone and that if he didn’t stop he would shoot, to which Wokosin replied, “Not unless I get you first.” Defendant testified that he then saw Wokosin reach behind himself, at which point defendant pulled the trigger once, shooting Wokosin in the stomach.

On appeal, defendant contends that (1) the State failed to prove beyond a reasonable doubt that he did not act in self-defense when he shot Roy Wokosin; (2) improper comments made during opening and closing statements by the prosecutor deprived him of a fair trial; (3) he was improperly prevented from introducing evidence as to the reputation of the victim’s violent character and nature; and (4) his convictions for aggravated battery and armed violence were improper since they are lesser included offenses of attempted murder.

Defendant first maintains that the State failed to prove beyond a reasonable doubt that he did not act in self-defense when he shot Roy Wokosin. Once the defendant raises the affirmative defense of self-defense and presents some evidence, the State has the burden of proving beyond a reasonable doubt that defendant did not act in self-defense. (People v. Evans (1982), 104 Ill. App. 3d 598, 432 N.E.2d 1285.) Whether an act was justified under the law of self-defense is for the trier of fact and depends on all of the surrounding facts and circumstances. (People v. Woods (1980), 81 Ill. 2d 537, 410 N.E.2d 866.) A decision as to whether a defendant acted in self-defense will not be disturbed on review unless it is so improbable or unsatisfactory that it raises a reasonable doubt of defendant’s guilt. People v. Balfour (1986), 148 Ill. App. 3d 215, 498 N.E.2d 547.

Defendant maintains that the weight of the evidence clearly shows that he reasonably believed he was in imminent danger of receiving great bodily harm given the fact that he had just had a confrontation with Wokosin and Drish at the bar, Drish and Wokosin then followed him home and Wokosin approached him at the gangway of his house. Defendant cites People v. Honey (1966), 69 Ill. App. 2d 429, 217 N.E.2d 371, and People v. Reeves (1977), 47 Ill. App. 3d 406, 362 N.E.2d 9, in support of his argument. These cases can be easily distinguished from the case at bar. In Honey, the court found that the defendant reasonably believed the use of force was necessary to defend himself in light of the fact that the defendant and the victim had engaged in a fist fight four days earlier. Likewise, in Reeves, a history of violence existed between defendant and the victim. In fact, the defendant in Reeves had been beaten so severely on numerous occasions that hospitalization was required.

In the case at bar, defendant and Wokosin had not previously engaged in a physical altercation. We are instead faced with the evidence that the defendant and Wokosin argued in front of Mr. Charley’s tavern for over 30 minutes, and no blows were struck. Although threats of fighting were made, the argument remained simply verbal. While Wokosin maintains that conversation was all that he had in mind when he went over to defendant’s house, it is reasonable to believe that Wokosin intended to escalate the argument into a physical altercation, especially since Wokosin had previously challenged defendant to a fist fight at the tavern. In addition, we are faced with conflicting testimony as to the events occurring immediately before the shooting, such as whether Wokosin was backing up from defendant when he was shot or whether Wokosin kept coming at defendant despite defendant’s pleas for Wokosin to leave him alone. It is the function of the jury to observe the demeanor of the witnesses and judge their credibility. (People v. Almo (1985), 108 Ill. 2d 54, 483 N.E.2d 203.) Where the evidence is merely conflicting, a reviewing court will not substitute its judgment for that of the trier of fact. (People v. Montgomery (1977), 51 Ill. App. 3d 324, 366 N.E.2d 623.) Accordingly, our review of the record reveals that there was sufficient evidence for the jury to conclude that it was not reasonably necessary for the defendant to shoot Wokosin in order to prevent the threat of great bodily harm. See People v. Collins (1989), 187 Ill. App. 3d 531, 543 N.E.2d 572; People v. Alcazar (1988), 173 Ill. App. 3d 344, 527 N.E.2d 325.

Defendant next contends that certain remarks made by the prosecutors in their opening and closing statements misstated the law and misinformed the jury on evidence, thereby denying him a fair trial. We initially note that the alleged errors may be waived by defendant’s failure to object at trial to the errors or to mention them in his written motion for a new trial. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The plain error exception to the waiver rule will apply where the accused was deprived of a fair and impartial trial and in criminal cases in which the evidence is closely balanced. (People v. Eddington (1984), 129 Ill. App. 3d 745, 473 N.E.2d 103.) We will, therefore, review the alleged errors in order to ascertain whether they so seriously prejudiced the defendant as to deprive him of a fair trial.

Defendant alleges that the prosecutor misstated the evidence in opening statement on two occasions. Defendant first cites the following portion of the opening statement as being unsupported by the testimony at trial:

“What he (defendant) did is start yelling about his gun. I’m going to go home and get my gun. I’ll take care of you I’ll get my gun! Over and over again about his gun ***. Because this guy’s (defendant) yelling about going to get a gun ***.”

Defendant contends that nobody at trial testified that defendant yelled he was going to get his gun, said defendant was going to “take care” of Wokosin or that defendant repeatedly stated that he was going to get his gun. A review of the record demonstrates that while Penchak, Drish and Wokosin each testified that defendant said he would go home and get his gun, they all refer to the same time that it was said. All three witnesses testified that the statement was made just before defendant was escorted to his truck by two men. Both Drish and Penchak testified as to the same conversation occurring just prior to the statement being made. The record is also devoid of any testimony that defendant yelled or repeated the statement that he was going to get his gun. Furthermore, even the State concedes that there was no exact testimony regarding defendant’s statement that he would “take care” of Wokosin. The State argues, nonetheless, that both Drish and Penchak testified that defendant said he was going to “pop” Wokosin and that “take care of someone” or “pop him” mean the same thing, to shoot a person.

Defendant also maintains that the prosecutor misstated evidence by attributing a statement made by defendant to Drish as applying instead to the victim, Wokosin. The prosecutor stated in his opening statement that Graca told Penchak:

“I don’t care if I spend the rest of my life in prison, I’m going to shoot that faggot.”

On cross-examination, Penchak testified that after Graca made that comment, she told Drish that Graca “wanted to shoot him.”

An opening statement in a criminal trial should outline the fact which the prosecutor in good faith expects to prove. (People v. Foss (1990), 201 Ill. App. 3d 91, 559 N.E.2d 254.) To include in opening statements matters which are not later proved at trial is improper if it is done with the prosecutor’s foreknowledge. (People v. Coleman (1989), 187 Ill. App. 3d 541, 543 N.E.2d 555.) However, reversible error occurs only where the impropriety is attributable to the deliberate misconduct of the prosecutor and results in substantial prejudice to the defendant. People v. Wills (1987), 153 Ill. App. 3d 328, 505 N.E.2d 754.

Although these remarks by the prosecutor may have been improper, we find that the remarks did not “substantially prejudice” the defendant so as to require a new trial. The fact that the prosecutor said that defendant yelled over and over again about going to get his gun does not amount to substantial prejudice, particularly in light of the fact that the testimony shows that defendant did make this statement at least once. Furthermore, while “pop” someone and “take care of” someone may not mean the same thing, we do not find that the use of the term “take care of” was the result of deliberate misconduct by the prosecutor or resulted in substantial prejudice to the defendant. Nor do we find reversible error in the prosecutor’s reference to defendant’s comment about shooting “that faggot,” which defendant claims referred to Drish rather than Wokosin. It is a fundamental principle of trial practice that statements based upon facts in evidence or upon reasonable inferences drawn therefrom are within the scope of proper argument. (People v. Beier (1963), 29 Ill. 2d 511, 194 N.E.2d 280.) During cross-examination, defendant admitted that during his verbal argument with Drish and Wokosin outside of Mr. Charley’s, he called both Drish and Wokosin “faggots.” Thus, when defendant referred to “that faggot” later in the evening outside of his home, the prosecutor was drawing a reasonable inference that defendant was referring to Wokosin, and not just Drish. We also find significant the fact that before the opening statements were made, the court informed the jury that opening statements were not to be considered as evidence.

We next consider whether remarks made by the prosecutor in closing argument deprived defendant of a fair trial. Defendant contends that the prosecutor misstated the law and injected extraneous inflammatory comments into his closing arguments.

It is well established that a prosecutor is given great latitude in closing argument and the propriety of his comments are within the trial court’s discretion. (People v. Morrison (1985), 137 Ill. App. 3d 171, 484 N.E.2d 329.) In closing argument, the prosecution may base its argument on the evidence presented or reasonable inferences therefrom, respond to comments by defense counsel which clearly invite or provoke response, denounce the activities of defendant and highlight inconsistencies in defendant’s argument. (Morrison, 137 Ill. App. 3d at 184, 484 N.E.2d at 340.) A statement made during closing argument constituting alleged prejudice to the defendant will be cured when the trial court subsequently instructs the jury that closing arguments are not evidence and that they should disregard any argument not based on the evidence. (People v. Scott (1990), 194 Ill. App. 3d 634, 551 N.E.2d 288.) To merit a reversal a prosecutor’s improper comments must be of “substantial magnitude” when viewed in the context of the entire record and argument. (Scott, 194 Ill. App. 3d at 645, 551 N.E.2d at 295.) If the improper comments did not constitute a material factor in the conviction of the defendant, the verdict will not be disturbed. Scott, 194 Ill. App. 3d at 645, 551 N.E.2d at 295.

Defendant maintains that the prosecutor in his closing argument again improperly attributed defendant’s statement that he was going “to shoot that faggot” to Wokosin when it actually referred to Drish. As noted above, this argument was properly based on the reasonable inferences drawn from the evidence.

Defendant next claims the following statement made during closing argument was a misstatement of fact:

“Well, where was he going to look for these guys that had just insulted him *** the reason he went and got a gun is because he intended to pop one of them.”

Once again, the prosecutor’s statement is based on the evidence and the reasonable inferences created therefrom. While the evidence shows that it was Drish and Wokosin who initially went looking for defendant, there is also evidence that after defendant saw Drish outside of his home, defendant entered his house to retrieve his gun and then went back outside. Furthermore, there is testimony that just before the shooting, defendant said that, “I don’t care if I spend the rest of my life in jail, I’m going to shoot that faggot.”

Defendant next contends that the following statements during the State’s closing arguments were not supported by the evidence:

“You heard him say, T thought he had a gun in the bar.’ The defendant told you that from the witness stand ***. I thought the other guy had a gun. *** But this guy said, he would have had bulges in his pants he would have had something in his belt *** 11

The record does, however, reveal testimony sufficient to support the prosecutor’s statement. For example, when the prosecutor questioned defendant about the argument at the bar, the following exchange occurred:

“Q. By fighting him, he wanted to work it out with his fists, didn’t he?
A. I don’t believe so, no.
Q. Roy didn’t have any weapons on him that you could see, did he?
A. That doesn’t mean he didn’t have any weapons.”

Moreover, defendant testified that he believed Wokosin had a gun when he approached him on the gangway. Defendant also testified that he had known Drish to carry a weapon.

Defendant next alleges prosecutorial misconduct in the prosecutor’s statement:

“Did ever you hear the neighbors (the Dresdons) call the police? They hear a shot, four o’clock in the morning. They see these people, they call the police? No.”

The State contends that the prosecutor’s statement was reasonable in that the failure of the Dresdons to call the police directly speaks to their credibility. The credibility of witnesses is a proper subject for closing argument if it is based on the facts in the record or inferences drawn from those facts. (People v. Flores (1989), 128 Ill. 2d 66, 538 N.E.2d 481.) As the defendant correctly points out, however, the neighbors were never questioned as to whether or not they called the police. Nevertheless, even if this remark by the prosecutor was improper, we do not find that that comment constitutes a material factor in defendant’s conviction.

Defendant next claims that the following statement made by the prosecutor during closing argument was not based on the evidence:

“But that is why Mr. Drish wanted to go talk to this guy, he wanted to save his job.”

Drish testified:

“They wanted to know why I was there and I said, ‘Well, this basically is going to have to end. I really should talk to him, you know I don’t want any repercussions at the bar.’ ”

Accordingly, this statement by the prosecutor was indeed based on the evidence presented at trial.

Defendant next argues that the following statements were made by the prosecutor solely to inflame the jury, were not based on the evidence, and shifted the burden of proof:

“Roy Wokosin is lucky to be alive.
* * *
*** [I]f he had actually killed him, we would be talking about murder, not attempt.
***
I submit to you, when a person takes a gun, points it right at a person, and pull[s] that trigger, knowing that weapon is loaded, that he intends to kill that person. He almost accomplishes his purpose.
* * *
Some of the other stuff the defendant said was to bolster his side of the case to get you to have sympathy for him ***.”

We agree with defendant that it was improper for the prosecutor to state that “Wokosin is lucky to be alive” and that “if [defendant] had actually killed him, we would be talking about murder, not attempt.” In People v. Estes (1984), 127 Ill. App. 3d 642, 650, 469 N.E.2d 275, the prosecutor made the following comment:

“ ‘Well, one thing we know and I want you to keep in mind first of all is that Mrs. Estes is not charged with murder.’ ”

The court agreed with defendant that the prosecutor’s irrelevant comment in closing argument was for the obvious purpose of minimizing the significance of finding the defendant guilty to the crime charged. Likewise, the prosecutor’s comments in the instant case were made to inform the jury that defendant was lucky not to be charged with murder and therefore defendant would still be getting a break even if he were found guilty of attempted murder. While these comments by the prosecutor were indeed improper, we find that the comments did not constitute a material factor in defendant’s conviction.

In contrast, we find nothing improper with the prosecutor’s statement that when you aim a gun at somebody, you have an intent to kill, since here the prosecutor is merely stating an opinion based on a reasonable inference from the evidence. We likewise find no merit to defendant’s contention that the prosecutor improperly commented on defendant’s attempt to gain sympathy from the jury. The record reveals that the prosecutor’s statement regarding defendant’s attempt to gain sympathy for his cause constitutes invited comment. (See People v. Hall (1989), 192 Ill. App. 3d 819, 549 N.E.2d 681.) Defense counsel stated in his closing argument:

“Now, he is scared and he is afraid. Some officers coming in, shouting, ‘this is going to kill your mother. Your mother is going to die because of this.’ ”

In addition, we disagree with defendant’s contention that the prosecutor left the jury to speculate when he referred to the word “stuff” when commenting on defendant’s attempt to gain sympathy. A review of the record demonstrates that the prosecutor did give specific examples of defendant’s plea to sympathy right after making his general statement. The prosecutor followed by saying:

“They told me my mother is going to die, she is going to have a heart attack. Did you hear them ask Detective Ciegelski, did you hear them ask that question ***[?] They didn’t give him an opportunity to say, no, that never happened *** because there is a reason why, because none of that was ever said.”

Therefore, considering the foregoing portion of the prosecutor’s closing argument, it is clear that the prosecutor did mention the “stuff” he had in mind when referring to the attempt by defendant to play on the jury’s sympathy.

Defendant next claims the following statements made by the prosecutor in rebuttal unfairly shifted the burden of proof:

“Might have, maybe (had a gun) isn’t good enough to use deadly force.
* * *
Did you hear him once give you one fact why he thought he would have a gun?
***
Did he tell you where he saw the gun? No he did not. Did he tell you when he saw the gun? No, he did not. Did he bring any State firearms owner’s identification card in to say that this guy ever went to get a card to be able to purchase a gun? No, he did not. There is nothing here beside the defendant’s blatant assertion, his friend had a gun, I thought he could have had a gun.
What evidence is there of that (imminent death or bodily harm)? There is none. There is not one dot of evidence to suggest that this shooting was reasonable.”

Defendant contends that these comments unfairly addressed themselves to evidence not introduced by defendant and therefore shifted the burden of proof to him and made it appear as though he was trying to keep unfavorable evidence from the jury. Once the issue of self-defense has been raised, the State has the burden of proving the defendant’s guilt beyond a reasonable doubt. (People v. Ranola (1987), 153 Ill. App. 3d 92, 505 N.E.2d 1191.) In addition, when some evidence of self-defense is presented by a defendant, the State must disprove the defense beyond a reasonable doubt. (People v. Colson (1989), 187 Ill. App. 3d 423, 543 N.E.2d 282.) In other words, the burden is on the State to prove defendant acted unreasonably when he used deadly force. In light of defendant’s testimony that he thought Wokosin had a gun, in making the foregoing comments, the prosecutor was merely disputing defendant’s belief that deadly force was reasonable under the circumstances, he was not shifting the burden of proof.

Defendant next maintains that the following remarks by the prosecutor were misstatements of law:

“The phrase reasonable belief or reasonably believes means that a person can only use deadly force when you are confronted with a situation wherein your life is in jeopardy, wherein you are confronted with deadly force. This is certainly not the situation wherein a person is entitled to use deadly force.
* * *
It is not reasonable to fire a weapon at an individual who is not using or about to use deadly force against him. There is no indication in this trial that the victim was ever going to use deadly force.
***
Only if he reasonably believes such force is necessary to prevent imminent death. Imminent.
* * *
It is not enough to use deadly force in defense of your home, your car, your truck, unless you are being threatened with deadly force.”

Defendant contends that these statements of law made by the prosecutor are shaded to favor the State’s case and prejudice defendant by overlooking the element of “great bodily harm.” It is well established that the use of deadly force in self-defense is justified only where that deadly force is reasonably necessary to prevent imminent death or great bodily harm to himself or another. (People v. Balfour (1986), 148 Ill. App. 3d 215, 498 N.E.2d 547.) Yet none of the prosecutor’s statements contain the phrase “great bodily harm.” Only phrases “deadly force” and “imminent death” are mentioned by the State. From our review of the record, we find that the prosecutor’s statements, although misstating the law of self-defense, were not so prejudicial as to deny defendant a fair trial. The jury was properly instructed on the law of self-defense and further instructed that neither opening nor closing arguments are evidence. Accordingly, any error by the prosecutor’s statements was cured by the jury receiving the proper instructions. See People v. Lawler (1991), 142 Ill. 2d 548, 568 N.E.2d 895.

Defendant’s next contention is that the prosecutor continued to improperly define self-defense with the following statements:

“You know, if that was the police officer that shot him in the back, that police officer would probably be in an awful lot of trouble, an awful lot. The same standard is applied to the defendant.
* * *
Might have had a gun isn’t good enough to use deadly force.
***
There is no question as to the intent in this case because self-defense requires him to say I intended to shoot the victim. There is only the question before you ladies and gentleman of the jury of whether or not it was reasonable to believe that the victim had a gun.”

We find that these remarks by the prosecutor were not definitions of the law but were instead permissible deductions from the evidence. The comments by the prosecutor merely address the question of whether defendant’s use of force was reasonable under the circumstances.

Defendant next argues that the following two statements are improper:

“Because under the law, I believe mere words are not enough to use force of any kind against somebody just because somebody calls somebody fat, faggot, anything like that. That is not enough to start a fight.
* * *
Somebody calls you up and says I am going to kill your kids. I have got them, they are kidnapped, and we are coming to get you. That is imminent, pending, right there.”

Defendant’s argument is specious, however, since rather than state why he thinks the foregoing two statements by the prosecutor are improper, he merely states that he disagrees with the prosecutor’s characterization of imminent. Once again, the State was merely attempting to persuade the jury based on the evidence and reasonable inferences therefrom.

Defendant also maintains that the State improperly commented on defendant’s failure to retreat. Defendant cites People v. Estes (1984), 127 Ill. App. 3d 642, 469 N.E.2d 275, for the proposition that a prosecutor should not place the suggestion before the jury that the defendant had a duty to retreat because it is a misstatement of Illinois law and could have substantially influenced the determination of the jury. What defendant cites as the specific instance of the prosecutor stating there was a duty to retreat is the following:

“I will go home and get my gun. In fact, that is exactly what he did. He went home, got his gun. You saw the gun. He loaded the gun. Did he stay at home then? No, he went back out in his pick up truck.”

That statement by the prosecutor did not so blatantly suggest to the jury that there is a duty to retreat so as to have substantially influenced the determination of the jury.

Defendant’s final allegation is that the prosecutor implied a fabricated theory of defense. Unless based on some evidence, statements made in closing arguments by the prosecution which suggest that defense counsel fabricated a defense theory, attempted to free his client through trickery or deception, or suborned perjury are improper. (People v. Emerson (1983), 97 Ill. 2d 487, 455 N.E.2d 41.) Defendant cites the following statements by the prosecutor as improper in these regards:

“And then, when he came into court today, he again told you what he thought you should hear. He told you what he thinks will hopefully get him off. He used some magic words, T really thought he had a gun, I reasonably believed that.’ Did you hear him once give you one fact why he thought he would have a gun?
***
But the defendant has got these magic words that he is supposed to say.
***
Now, the fact that a juror [sic] of his peers is going to judge him, are you expecting to believe that he is not going to try to lie now at this last moment to get out from underneath this charge? That is incredible.
***
You have been told lies in the case. The reason you have been told lies is because he has to try to worm his way from underneath the reasonable belief. He lied down the line. He lied to you in court today.”

A prosecutor may challenge the credibility of a defendant and his theory of defense in closing argument when there is evidence which justifies this challenge. (People v. Muzard (1991), 210 Ill. App. 3d 200, 569 N.E.2d 26.) In fact, a prosecutor may state his opinion that a defendant is lying provided that the statement is based on the evidence. (People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174.) The record in this case shows that there were adequate bases for the State to challenge the defendant’s credibility. There are instances where defendant’s testimony conflicted with that of other witnesses. In addition, defendant admitted that he had lied to the police officer who came to his house to investigate the shooting. The evidence demonstrated that Wokosin was shot with a .22 caliber gun. Yet when defendant was questioned about the ownership of a gun, defendant told the officer that he owned only a .9 millimeter gun. Defendant later retracted that statement and admitted that he did own a .22 caliber handgun and that after the shooting he had hid the gun in a garage owned by a friend. Defendant also lied to the detective investigating the shooting. Defendant initially told the detective that he had had an argument with Wokosin outside of Mr. Charley’s but he had not seen Wokosin again after he left the bar. When the detective informed defendant that witnesses had given a different account of the events, defendant told the detective about his confrontation with Wokosin outside of his house. Moreover, at trial, defendant initially denied that he had told his father that he was going to shoot Wokosin and Drish if they came after him. However, after being confronted with his written statement to the police, defendant admitted to the contents of the statement which contained the statement made to his father that he would shoot Wokosin and Drish if they came after him. Accordingly, the prosecutor had ample justification for challenging the defendant’s credibility.

Defendant next contends that the trial court erred in not allowing testimony that defendant sought to introduce through one of his own witnesses, Bob Jordan, as to the reputation of Roy Wokosin’s violent nature. As the State correctly points out, the defendant’s failure to make an offer of proof regarding the questions to Jordan precludes his claim on review.

The purpose of an offer of proof is to inform the trial court and a court of review of the nature and substance of the evidence sought to be introduced. (People v. Sanchez (1989), 131 Ill. 2d 417, 546 N.E.2d 574.) In order to preserve a question for review where the trial court refuses to allow the testimony of a witness to a certain matter, a formal offer of proof is required unless it is apparent that the trial court clearly understood the nature and character of the evidence sought to be introduced. People v. Montgomery (1977), 51 Ill. App. 3d 324, 366 N.E.2d 623.

The relevant portion of the record contains the following:

“Q. Okay, now during the period of time that Mr. Wokosin has been frequenting Mr. Charley’s and up to the date of this incident, did you have any occasion to ever discuss Mr. Wokosin’s reputation with anybody?
[PROSECUTOR]: Objection, Your Honor.
[THE WITNESS]: A. Yes, probably.
THE COURT: Sustained.
[DEFENSE COUNSEL]: I will rephrase the question, Your Honor.
Q. During that period of time, and prior to the date of that incident, have you heard, how often have you heard, how often have you heard Mr. Wokosin discussed by people?
[PROSECUTOR]: Objection, Your Honor.
THE COURT: Sustained.
[DEFENSE COUNSEL]: I have nothing further of this witness.”

It is undisputed that defendant ceased questioning Jordan without making a formal offer of proof. What is unclear from a review of the two questions posed by defendant to Jordan, however, is exactly what type of reputation evidence defendant sought to elicit. We cannot ascertain whether defendant was seeking to elicit testimony regarding specific acts to establish defendant’s character or to establish his reputation. (See People v. Montgomery (1977), 51 Ill. App. 3d 324, 366 N.E.2d 623.) Accordingly, defendant’s failure to make an offer of proof at trial precludes review of defendant’s claim on appeal concerning the victim’s violent reputation or character.

Lastly, defendant contends that his convictions of aggravated battery based on bodily harm, aggravated battery based on use of a deadly weapon and armed violence are improper since they are lesser included offenses of attempted murder. The State agrees with defendant under the authority of People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, where our supreme court held a defendant may not be convicted of multiple offenses which arise from a single act or course of conduct.

Accordingly, we affirm defendant’s conviction for attempted murder and vacate defendant’s conviction for aggravated battery and armed violence.

Affirmed in part; vacated in part.

LORENZ, P.J., and MURRAY, J., concur.