author: JUSTICE HEIPLE JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK AMATO, Defendant-Appellant.
    Third District
    No. 3—84—0161
    Opinion filed November 16, 1984.
    STOUDER, J., specially concurring.
    Robert Agostinelli and Stephen Omolecki, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Vicki R. Wright, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Frank Amato, was convicted following a jury trial of attempt (escape). He was sentenced to a term of imprisonment of 2Vz years. At the time of the attempted escape, the defendant was incarcerated at Stateville Correctional Center. The sentence imposed in the instant case is to run consecutively to the sentence he was serving at the time of the attempted escape.

The State presented evidence that the defendant and fellow inmates Randy Velleff and Pat Cecconi obtained chapel passes on the afternoon of December 31, 1982. An inmate count subsequently revealed that the three prisoners were missing. At 9:30 p.m., the defendant returned to his cellhouse dressed in clothing soiled with mud. Velleff and Cecconi succeeded in escaping from the prison.

That night, a muddy rope was found hanging from the wall near an unmanned guard tower on the north side of the prison. A culvert ran along the base of the prison’s north wall. The area around the culvert was muddy.

The State presented the testimony of Randy Velleff. Velleff admitted that he had escaped from Stateville on the night of December 31. While testifying as to the details of the escape, Veleff stated that he did not remember seeing the defendant that night.

The State then requested a conference outside the presence of the jury. The trial court ruled that Velleff could be cross-examined regarding his testimony during a previous administrative hearing. When the trial resumed, Velleff persisted in his testimony that he did not remember whether he saw the defendant on the night of the escape. The State then questioned him as to whether he had testified regarding the escape during an administrative hearing. The witness responded that he did not remember. Over the defendant’s objection, the State then read into the record the transcript of Velleff’s testimony at the administrative hearing. During the administrative hearing, Velleff had testified that Amato participated in the escape effort but had not escaped because Amato was unable to climb the rope.

The defendant testified in his own behalf that he had become drunk while in the chapel and had apparently passed out. When he awoke, his clothing was covered with mud. This testimony was impeached with the defendant’s prior inconsistent statements.

The jury was instructed that evidence of prior inconsistent testimony was to be used solely for the purpose of judging credibility. During its deliberations, the jury sent a note to the court requesting the transcript of Vellef’s testimony in the administrative hearing. The trial court denied this request.

The defendant asserts on appeal that the trial court erred in allowing the State to cross-examine and impeach Velleff with his testimony in the administrative hearing. Specifically, the defendant argues that the State’s impeachment was improper because Velleff’s testimony did not damage the State’s case and because the State intended to introduce the prior testimony as substantive evidence.

The impeachment of witnesses is governed by Supreme Court Rule 238(a). (87 Ill. 2d R. 238(a).) At the time of these proceedings, Rule 238(a) provided:

“(a) The credibility of a witness may be attacked by any party, including the party calling him.”

Thus, Rule 238 establishes that any party may attack the credibility of a witness.

However, the right to impeach a witness is not an unlimited one. In order to impeach a witness with prior inconsistent statements, the impeaching party must show that the “testimony has damaged, rather than failed to support the position of the impeaching party. The reason for this is simple: No possible reason exists to impeach a witness who has not contradicted any of the impeaching party’s evidence, except to bring inadmissible hearsay to the attention of the jury.” People v. Weaver (1982), 92 Ill. 2d 545, 563, 442 N.E.2d 255, 262.

The defendant relies in support of his argument on the Illinois Supreme Court decision in Weaver. The defendant Weaver was charged "with murdering her husband. To establish a motive, the State called Dennis Johnston, with whom Weaver had had an extramarital affair. When Johnston testified that he and Weaver were infatuated, the State was allowed to impeach him with his grand jury testimony that he and Weaver were in love. On appeal, the supreme court found that this impeachment constituted reversible error because his testimony had not actually damaged the State’s case. Johnston’s testimony that he and Weaver were infatuated merely failed to support the State’s position.

The instant case is distinguishable from Weaver in that Velleff’s testimony did in fact damage the State’s case. Velleff testified to an attempted escape. The evidence showed that the escape was carefully planned and executed. The evidence also demonstrated that only three men were present at the time the escape was executed. Velleff’s testimony that he did not remember the defendant’s being present was, under these circumstances, tantamount to a denial of the defendant’s presence. This was damaging to the State’s case. Inconsistency of statements in the literal sense is not required before a witness may be impeached. People v. Gonzalez (1983), 120 Ill. App. 3d 1029, 1038, 458 N.E.2d 1047, 1054.

The State represented during the trial conference that it had expected Velleff to testify consistently "with his prior testimony. The court agreed that Velleff’s testimony was inconsistent and properly allowed the prior testimony for use in impeaching Velleff.

The defendant further argues that the trial court erred in allowing the State to cross-examine and impeach Velleff because the State intended that the prior testimony be considered as substantive evidence. We find the defendant’s argument to be unavailing. Assuming, without deciding, that the State attempted to introduce the prior testimony as substantive evidence, we still find no error in the admission of the prior testimony.

In People v. Jenkins (1982), 104 Ill. App. 3d 522, 432 N.E.2d 1171, a witness called at trial by the State was unable to recall specific events about which he had previously testified in great detail. The witness was then designated a court’s witness and was cross-examined regarding his prior testimony. Each time the witness was unable to recall a fact, the State read the transcript of his prior testimony into evidence. The defendant argued on appeal that the admission of the prior testimony was error. The reviewing court approved the State’s method of impeachment, citing to the witness’ falsified lack of memory, as evidenced by the detailed nature of the prior testimony. The court concluded that the trial court should not be impeded in preventing a witness from making a mockery of the trial.

We find that any attempt by the State to introduce Velleff’s testimony as substantive evidence did not create error, because the prior testimony was admissible as substantive evidence. Velleff, like the witness in Jenkins, had testified previously in great detail. Velleff, like the witness in Jenkins, falsified his lack of memory and attempted to make a mockery of the trial. Velleff’s prior testimony would have been admissible as substantive evidence. The State’s intent in impeaching Velleff did not, therefore, create error.

The judgment of the circuit of Will County is affirmed.

Affirmed.

SCOTT, J., concur.

JUSTICE STOUDER,

specially concurring:

I agree with the result reached by the majority of the court, and in particular I agree the prior statement was properly admitted for impeachment purposes under the authority of People v. Weaver (1982), 92 Ill. 2d 545, 442 N.E.2d 255.

I do not agree with the dicta of the majority that such statement might have been also admissible as substantive evidence. The law in Illinois is that a prior statement which is inconsistent with a witness’ testimony may only be used to impeach the testimony and may not be used as substantive evidence. (People v. Gant (1974), 58 Ill. 2d 178, 317 N.E.2d 564.) To the extent People v. Jenkins (1982), 104 Ill. App. 3d 522, 432 N.E.2d 1171, intimates a prior inconsistent statement can be used as substantive evidence, the opinion is itself confusing and inconsistent and does not rely on Illinois authority.

For all practical purposes Jenkins is based on United States v. Insana (2d Cir. 1970), 423 F.2d 1165, a conclusion which is difficult to understand, since the Insana case applies Federal rules relating to evidence not applicable to Illinois. Insana specifically refers to the proposed Federal Rules of Evidence, not yet then adopted, which apparently incorporated the then existing Federal rule. At the time of the decision in Jenkins, no rule equivalent to this Federal rule of evidence had been approved or applied in Illinois. Consequently, the reliance of Jenkins on Insana seems inappropriate.

I would also note two additional reasons for doubting the applicability of the Jenkins case to the present case. First, the opinion in Jenkins refers to the prior inconsistent statement as impeachment, and second, the legally significant facts in Jenkins are substantially different from those in the present case.


source: Caselaw Access Project

author: PRESIDING JUSTICE MILLS

license: Public Domain

text:
    LONNIE CLARK, Plaintiff-Appellant, v. ST. JOHN’S HOSPITAL OF THE HOSPITAL SISTERS OF THE THIRD ORDER OF ST. FRANCIS et al., Defendants-Appellees.
    Fourth District
    No. 4—84—0179
    Opinion filed November 13, 1984.
    Rehearing denied December 28, 1984.

      Verticchio & Verticchio, of Gillespie, and Love, Collins & Bordner, of Lewistown, for appellant.
    Heyl, Royster, Voelker & Allen, of Springfield, for appellee Anthony Hawe.
    David L. Drake and Richard H. Narup, both of Heckenkamp & Simhauser, P.C., of Springfield, for appellee St. John’s Hospital.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

Medical malpractice.

But specifically: how to apply the statute of limitations.

We agree with the trial court’s interpretation.

We affirm.

Lonnie Clark filed a two-count complaint against St. John’s Hospital and Dr. Anthony Hawe, alleging that they negligently failed to remove a needle inserted into his body during aortic surgery on August 24, 1973.

Plaintiff discovered the needle in his body in June 1983 and filed his complaint on August 19, 1983.

Defendants filed motions to dismiss the complaint for the reason that it was filed more than four years after the alleged negligent act and, therefore, the action was barred under section 13 — 212 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 212).

The trial court allowed the motions and dismissed the complaint with prejudice. -

The substance of section 13 — 212 was originally enacted as section 21.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1), which became effective on September 19, 1976. Section 13 — 212 provides in part:

“No action for damages for injury *** against any physician or hospital *** shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known *** of the injury *** but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission ***.” Ill. Rev Stat. 1981, ch. 110, par. 13 — 212.

Plaintiff filed his complaint within two years after he discovered his injury. The complaint, however, was filed more than four years after the alleged negligent act. If section 13 — 212 is applied retroactively to this case, the action would be barred because it was filed more than four years after the alleged negligent act. If the section is applied prospectively, plaintiff’s complaint would have been timely under the prior statute of limitations, which allowed 10 years to commence an action. See Ill. Rev. Stat. 1973, ch. 83, par. 22.1.

The question of the retroactive application of section 21.1 of the Limitations Act was addressed by the supreme court in Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 447 N.E.2d 408. The court applied the statute neither strictly retroactively nor strictly prospectively. Rather, a middle ground was adopted, with the court stating:

“ ‘[A]n amendment to a limitation statute shortening the period within which an action must be filed will be applied retroactively to actions not as yet commenced, provided there is a reasonable time after the effective date of the amendment within which to bring the action.’ ” (95 Ill. 2d 223, 230, 447 N.E.2d 408, 410, quoting Hupp v. Gray (1978), 73 Ill. 2d 78, 83, 382 N.E.2d 1211, 1213.)

With respect to determining a reasonable time, the court said:

“The period which is scrutinized by the courts for its reasonableness is that time between the statute’s effective date and the date on which the preexisting cause of action would be barred under the new statute as applied.” Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 233, 447 N.E.2d 408, 412.

In Moore, which consolidated three cases, the medical treatment on which the plaintiffs’ claims were based occurred more than four years before the effective date of section 21.1. Consequently, the claims were barred upon the section’s becoming effective. The court characterized the effect of this retroactive application of section 21.1 as “instantaneously” barring plaintiffs’ causes of action, giving plaintiffs no time whatsoever to file their claims after the effective date of section 21.1. Finding that the statute did not give the plaintiffs a reasonable time to file after the effective date, the supreme court remanded to the trial court to determine whether plaintiffs’ complaints were filed within a reasonable time.

The result in Moore indicates that if the period between the effective date of the new statute and the date plaintiff’s cause of action is barred under the new statute does not provide plaintiff with a reasonable time to file his complaint, then a determination must be made as to whether the plaintiff filed his complaint within a reasonable time.

The majority in Moore provided no guidelines by which a court could determine whether a complaint was filed within a reasonable time. But Justice Ryan argued in his special concurrence that persons sustaining injuries prior to the effective date of section 21.1 should be allowed four years after the effective date to file their complaint. It was observed that the legislature — in balancing the rights of plaintiffs and defendants — concluded that it was reasonable to require an injured person to discover and commence his action within four years after the occurrence. Reasoning that it would be consistent with this legislative intent to require someone injured prior to the effective date of section 21.1 to bring his action within four years of the effective date, Justice Ryan stated:

“A person who was negligently injured by a medical practitioner one day after the effective date of the 1976 amendment loses his right to file a suit for recovery of his injuries if his suit has not been filed within four years after the occurrence. It is reasonable to require that a person similarly injured one day before the effective date of the 1976 amendment discover his cause of action and file his suit within four years after the effective date of the amendment.” Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 243-44, 447 N.E.2d 408, 417.

To our view, Justice Ryan’s approach is reasonable, practical, uniform, and certain in application. It has been adopted by the Second District in Roberson v. Taylor (1983), 115 Ill. App. 3d 587, 451 N.E.2d 16, and we adopt it here.

Having sustained his injury prior to the effective date of section 21.1, plaintiff was required to commence his action by September 19, 1980, four years after the effective date of section 21.1. Plaintiff’s complaint was not filed until August 19, 1983, and therefore it was untimely.

We are not unmindful that, under this analysis, plaintiff’s cause of action was barred before he discovered his injury. But such a result is just as likely to occur to persons injured by negligent acts occurring after September 19, 1976. Consequently, persons sustaining injury prior to September 19, 1976, are treated no less favorably than persons injured after that date.

Our decision today is consistent with the majority opinion in Moore. In that case, all of the plaintiffs had filed their complaints within four years after the effective date of section 21.1. Moreover, the majority did not resolve the issue of whether there should be a cutoff date after which the plaintiff’s cause of action would be barred even though he had not discovered his injury until after that date. The majority stated:

“We do not here hold that the 1976 amendment would not apply to any injury sustained after its effective date of September 19, 1976, no matter when it is discovered.” (Emphasis added.) (Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 233, 447 N.E.2d 408, 412.)

In resolving this issue, we have concluded that, in cases where the negligent act occurred prior to the effective date of section 21.1, the complaint must be filed within four years of the effective date.

The judgment of the trial court is affirmed.

Affirmed.

TRAPP and GREEN, JJ., concur.


author: JUSTICE LINDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE EDWARDS, Defendant-Appellant.
    Second District
    No. 82—1015
    Opinion filed November 26, 1984.

      Robert J. Anderson, of Callum, Anderson & Deitsch, of Wheaton, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko, Raymond L. Beck, and Martin P. Moltz, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant, Eugene Edwards, appeals from his conviction in the circuit court of Du Page County for the offense of unlawful possession of a controlled substance and from his 12-year sentence. Defendant contends he was not proved guilty beyond a reasonable doubt and that the trial court erred in denying his severance motion and in tendering certain jury instructions. Defendant challenges his sentence on the grounds that the trial judge considered an improper aggravating factor and that the sentence is excessive. Because we find no reversible error committed by the trial court, we affirm.

Three individuals were arrested on October 13, 1981. Defendant and codefendant Michael Sarfino both were charged with the offense of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1979, ch. 56½, par. 1401(a)(2)), unlawful possession with intent to deliver a controlled substance (Ill. Rev. Stat. 1979, ch. 56½, par. 1401(a)(2)), armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2), and unlawful use of a weapon (Ill. Rev. Stat. 1979, ch. 38, par. 24 — 1(a)(4)). Codefendant Edward Kukla was charged with all offenses but the unlawful use of weapons offense. The arrests were the result of an undercover narcotics investigation.

The principal State witness, Special Agent Angelo M. DeFranco, testified he indicated to informant Wayne Meinhard over the telephone at 3:30 p.m. on October 13, 1981, that he believed drugs would be available for purchase that day at approximately 6 p.m. and informed Meinhard to purchase one pound of cocaine for $24,000. As a part of this drug investigation, special agents began a stake-out of Sarfino’s home from a nearby street on the afternoon of October 13. Special Agent Marshall of the Department of Law Enforcement testified that at approximately 5:23 p.m. on October 13, 1981, he observed Kukla and Meinhard drive up to Sarfino’s house, park in his driveway and enter the house. At 6:12 p.m. that same day, defendant drove up to Sarfino’s house in a white van, exited the vehicle carrying a brown satchel with handles on it, was met at the door by Sarfino and entered the residence. Acting on directions from DeFranco, Meinhard, while at Sarfino’s house, inspected the cocaine and then, at approximately 6:20 p.m., phoned DeFranco to inform him that the cocaine was there.

After receiving Meinhard’s phone call, DeFranco and Special Agent Wayne Fieroh left the Elgin police department (DCI Office), drove to the Holiday Inn in Elmhurst, and arrived at 7:15 p.m. There, they met Meinhard and Kukla, who had left Sarfino’s house at approximately 6:57 p.m., and Kukla thereafter phoned someone in the presence of the special agent and Meinhard. Special Agent Marshall observed Sarfino and Edwards depart from Sarfino’s house at 7:32 p.m. Sometime after his phone call, Kukla informed DeFranco and Fieroh that “he is here” and they all exited the hotel lobby and met with defendant and Sarfino, who were in a white Chrysler Cordoba in the hotel parking lot. There, Fieroh allowed Sarfino to inspect the money. Following the inspection, Sarfino advised DeFranco to follow him to his house where the “stuff” was located. Once at Sarfino’s house, the agents remained in their unmarked, undercover vehicle, and soon Sarfino walked back to and entered the agents’ car. Once inside, Sarfino removed a large package wrapped in newspaper from his pants and opened it. Inside was a large, clear plastic bag containing white powder later determined to be cocaine. Defendant was not in the car when the cocaine was delivered, but did attempt to flee once several unmarked cars converged on the scene. The brown satchel carried by defendant when he first arrived at Sarfino’s house was found by an officer empty nearby the car in which the transaction occurred.

After a jury trial, defendant was found guilty of unlawful possession with intent to deliver, but was found not guilty of the unlawful delivery and armed violence offenses. The State nol-prossed the unlawful use of weapons count. After the trial court denied defendant’s motion for acquittal or for a new trial, it sentenced defendant to a term of 12 years in the Illinois Department of Corrections. Defendant filed a timely notice of appeal.

Defendant first contends that the State failed to prove him guilty beyond a reasonable doubt. Both defendant and the State argue that two prosecution theories could arguably support the jury verdict: (1) defendant was independently proved to have possessed the cocaine, and (2) defendant was proved guilty on an accountability theory. Defendant argues he was not proved guilty beyond a reasonable doubt to have either possessed the cocaine as a principal or to have been accountable for Sarfino’s possession of the cocaine. In reviewing the evidence, this court will not lightly overturn a jury’s verdict, and will not substitute its judgment for that of the trier of fact unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Molstad (1984), 101 Ill. 2d 128.) The evidence in large part pertains to both theories of prosecution and is recounted below.

The two principal State witnesses offering testimony implicating defendant were special agents DeFranco and Fieroh. DeFranco stated that after receiving the call from his informant, Meinhard, he and Fieroh went to the Holiday Inn in Elmhurst. There, they met Meinhard and Kukla. Soon thereafter, Sarfino drove up with defendant in the passenger seat. According to DeFranco, DeFranco approached and stood by the passenger side of the car and then Sarfino stated: “We don’t have the stuff with us here, it is at my house in the van.” Defendant then said, “We have to see the money.” Defendant contends DeFranco’s credibility was impeached by his earlier testimony in which he stated that Sarfino asked him if he had the money without mentioning any statement made by defendant. However, DeFranco one page earlier in his trial testimony confirmed that defendant asked about the money.

“Q. [Defendant’s attorney]: Now, you said that my client said, ‘you have to see the money’?

A. [DeFranco]: ‘We have to see the money.’

Q. ‘We’?

Are you sure my client said that but not Mr. Sarfino; is that correct?

A. He said it and then Mr. Sarfino said it again.”

The credibility of a witness is properly determined by the trier of fact. (People v. McVay (1981), 98 Ill. App. 3d 708, 714, 424 N.E.2d 922, 926.) This evidence is not so improbable as to create a reasonable doubt of guilt.

DeFranco’s testimony that Sarfino stated the stuff was at his house in the van implicates defendant, because the record indicates that defendant drove up to Sarfino’s house in a van. DeFranco then stated he had the money in the car, and Sarfino ordered DeFranco to walk to the car while Sarfino and Edwards drove and parked next to the car. Sarfino exited and, in response to seeing the $24,000 displayed by Fieroh, stated “it looked good.” When DeFranco asked why Edwards was there, Sarfino stated, “That’s my partner.” Sarfino then told everyone to return to his house where the “stuff” was located. DeFranco testified that after he announced that Sarfino was under arrest, he observed defendant running away and ordered the other officers to apprehend defendant. DeFranco admitted that no one told defendant that he was under arrest prior to his flight, but DeFranco stated at least one unmarked car had displayed flashing red lights when converging on the scene.

Additional evidence implicating defendant was offered by Special Agent Marshall, who testified that he observed defendant arrive at Sarfino’s home on October 13, 1981, at about 6:12 p.m. in a white van. The time of his arrival is significant because DeFranco had earlier testified that the plans for the purchase of the cocaine had been set for 6 p.m. that evening. DeFranco instructed Meinhard to call him after viewing the cocaine; Meinhard while at Sarfino’s residence phoned DeFranco at 6:20 p.m. and told him he had observed the cocaine, was leaving, and stated, “I will be meeting you [DeFranco] at the Holiday Inn in Elmhurst.” The reasonable inference from these facts is that defendant brought the cocaine with him at about 6 p.m.

Agent Marshall testified that defendant arrived at Sarfino’s house at 6:12 p.m. carrying a brown satchel with handles into the residence. Defendant was greeted at the door by Sarfino. Marshall admitted on cross-examination that from his observation point across the street from Sarfino’s residence, he observed nothing which would indicate that the satchel contained contraband. Marvin Grehn, an agent with the Department of Law Enforcement, also kept the house under surveillance on the day of the drug sale and testified he found the satchel empty on Sarfino’s front lawn immediately after defendant was arrested. It strains credulity to believe defendant arrived with an empty satchel and there is no evidence in the record that the satchel contained anything other than cocaine. Eight minutes after defendant arrived, Meinhard called DeFranco to inform him he had inspected the cocaine. Had the cocaine already been at Sarfino’s house, Meinhard could have viewed it and called prior to defendant’s arrival, but he did not call until after defendant brought the satchel into the house. The reasonable inference from these facts is that defendant arrived with the cocaine in the satchel, and Sarfino removed the cocaine when he showed it to DeFranco later in the agents’ car. We conclude these facts in conjunction with Edwards’ presence at the Holiday Inn and his subsequent flight establish beyond a reasonable doubt that Edwards possessed the cocaine when he arrived at Sarfino’s house.

Even if defendant was not proved guilty of possession beyond a reasonable doubt as a principal, the State asserts it proved defendant guilty on an accountability theory of delivery of the cocaine. As emphasized by defendant, however, the jury found defendant not guilty of the unlawful delivery charge. Therefore, the issue is whether defendant was proved guilty of possession on an accountability theory.

This court in People v. Schlig (1983), 120 Ill. App. 3d 561, 570, 458 N.E.2d 544, 550-51, stated the rules regarding accountability as follows:

“In order to hold a defendant accountable for the conduct of another, the State must prove beyond a reasonable doubt that: (1) defendant solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense; (2) this participation must have taken place either before or during commission of the offense; and (3) it must have been with the concurrent, specific intent to promote or facilitate the commission of the offense. [Citations.] Mere presence at the scene of a crime, even with knowledge that a crime is being committed, or negative acquiescence is not enough to make a person a principal. It is not necessary, however, to prove that the defendant participated in the commission of the act which constituted the offense. [Citation.] Evidence of conduct showing a design on the part of the defendant to aid in a crime renders the defendant accountable for the perpetrator’s actions. [Citation.] A person may aid or abet without actually participating in the overt act or acts, and evidence that the accused attached herself to a group bent on illegal acts with knowledge of its design supports the inference that she shared the common illegal purpose and will sustain her conviction as a principal for a crime committed by another in furtherance of the venture. [Citation.]”

Our review of the evidence convinces us that defendant was proved accountable for possession of the cocaine. Defendant’s involvement in the drug sale was more than simply presence at the scene of the crime. He arrived at the residence with the satchel. At some point prior to 6:20 p.m., in Sarfino’s house, Meinhard examined one pound of cocaine. Defendant then accompanied Sarfino to the Holiday Inn, where defendant asked to see their money. Sarfino referred to defendant as his partner. From the description of the events which transpired at the Holiday Inn, all present were aware that a drug transaction was in progress. In fact, defendant does not deny that he knew what was occurring. After Sarfino stated that the “stuff” was at his house in a van (driven there by defendant), defendant returned with Sarfino to the residence, where the drug sale was completed. These facts show “a design on the part of the defendant to aid in [the] crime ***.” (People v. Schlig (1983), 120 Ill. App. 3d 561, 570, 458 N.E.2d 544, 551.) Therefore, defendant was proved guilty beyond a reasonable doubt of possession either as a principal or on an accountability theory.

Defendant next asserts that the trial court erred in denying his severance motion based upon his contention that inconsistent defenses and improper testimony confused the jury. The general principles governing severance questions were well explained by the appellate court in People v. Murphy:

“The general rule is that persons jointly indicted should be jointly tried and separate trials are only required when the defenses are so antagonistic that a fair trial can be achieved only through severance. [Citations.] However, it is incumbent upon the defendant moving for a separate trial to demonstrate prior to trial how he would be prejudiced by a joint trial. [Citations.] The decision to grant severance rests within the sound discretion of the trial court. *** The mere apprehension that defenses may prove antagonistic without a showing that such apprehensions are well founded is an insufficient ground for severance. [Citations.]” (People v. Murphy (1981), 93 Ill. App. 3d 606, 609, 417 N.E.2d 759, 761.)

On review, the court will look only to the petition filed by the defendant and the matters alleged therein and will not consider what substantively happens during the trial. (People v. Columbo (1983), 118 Ill. App. 3d 882, 939-40, 455 N.E.2d 733, 775, cert. denied (1984), 467 U.S. _, 81 L. Ed. 2d 351, 104 S. Ct. 2394.) Antagonistic defenses have been confined to those instances where one or more codefendants testify implicating the others. (People v. Jones (1980), 81 Ill. App. 3d 724, 401 N.E.2d 1325.) A conclusory assertion that defenses are antagonistic is insufficient to warrant a severance.

“There must be a true conflict; such as where each defendant attributes an offense to the actions of the other [citation]; where each defendant condemns the other and declares the other will testify to facts exculpatory to himself and incriminating to the other [citation]; where a codefendant’s confession implicating defendant is received into evidence without instructions to the jury limiting its admissibility to the maker of the statement [citation]; or where each codefendant makes an admission or confession orally and the references to the codefendant applying for the severance are not eliminated from the testimony. [Citation.]” People v. Guyon (1983), 117 Ill. App. 3d 522, 531, 453 N.E.2d 849, 858.

In his motion for severance filed on October 25, 1983, defendant stated that he was going to deny at trial his involvement in the cocaine sale and that codefendant Kukla planned to testify, to admit his guilt, and to assert the defense of entrapment. Defendant further stated he was electing a jury trial, while Kukla was electing a bench trial. He asserted that Kukla’s defense would be antagonistic to his own defense and that allowing the jury to hear Kukla’s and Sarfino’s testimony “will impermissibly deny the defendant, EUGENE EDWARDS, of his rights since such testimony will invariably tend to incriminate him.” Apart from these generalized statements, the only specific references to prejudice were hearsay statements incorporated by reference into his severance motion from his motion in limine.

Defendant’s severance motion failed to “demonstrate how the defendant is going to be prejudiced by proceeding with a joint trial.” (People v. Lee (1981), 87 Ill. 2d 182, 186.) Although asserting in his motion that his defense was antagonistic to that of Kukla’s, defendant failed to support his assertion with any facts. “[C]onclusionary assertions *** are no substitute for a detailed recitation of what the codefendant’s defense could be and how it conflicted with his.” (People v. Laboy-Rivera (1984), 126 Ill. App. 3d 197, 202, 466 N.E.2d 1144, 1148.) Likewise, defendant’s conclusory assertion that certain statements of the codefendant listed in his motion were prejudicial did not provide the trial court with an adequate basis to order a severance. Because of the insufficiency of the petition, therefore, the trial court properly denied defendant’s severance request.

Even if we address the merits of defendant’s severance petition, we conclude denial of the motion by the trial court was not error. Defendant’s mere assertion that his defense was antagonistic to Kukla’s entrapment defense does not establish the requisite antagonism. An entrapment defense requires a defendant to admit the acts constituting the offense, but Kukla in admitting the charge need not have implicated defendant. Defendant’s severance motion to be successful should have asserted that Kukla’s entrapment defense would incriminate defendant by involving him in the drug transaction. Absent this assertion, Kukla’s defense would not necessarily be antagonistic to defendant’s defense, and “[m]ere apprehensions of prejudice are not enough.” (People v. Lee (1981), 87 Ill. 2d 182, 186.) More important, in the case at bar, the trial judge specifically granted defendant’s motion in limine which requested that “the jury be precluded from hearing any of the testimony or other evidence offered by Co-Defendant Kukla in support of his entrapment defense.” Given the fact that the jury never heard Kukla’s admission of the act, we fail to see how Kukla’s assertion of entrapment could have prejudiced defendant in any way.

Defendant also appears to assert that his defense was antagonistic to that advanced by Sarfino. Again, his argument lacks merit. Defendant contends his defense at trial was that he was an acquaintance of Sarfino and visited his residence on the day of the arrest only as a friend, thus offering a reasonable hypothesis of innocence. As the State persuasively argues and the record demonstrates, however, Sarfino’s trial defense was that he was attempting lawfully to sell guns and not cocaine to the agent. Sarfino testified that Meinhard framed him by delivering the cocaine. In fact, Sarfino testified that defendant came over to his house for a social visit, traveled with Sarfino to the Holiday Inn to keep Sarfino company, and did not even know Sarfino was attempting to sell firearms, much less cocaine. Sarfino denied he introduced defendant as his partner and testified Edwards was not in the car when Meinhard disclosed the cocaine. Therefore, Sarfino’s defense, if believed by the jury, would absolve and not implicate defendant.

In addition to his assertion that severance was warranted because his codefendants’ defenses were antagonistic to his own, defendant also contends that “hearsay statements of the co-defendant were repeatedly introduced and used against the defendant.” However, defendant does not specifically object to the introduction of the statements, but rather asserts that their introduction rendered erroneous the trial court’s denial of his severance motion.

The reviewing court looks to the allegations in the defendant’s petition for severance when evaluating the correctness of the court’s ruling on the petition. (People v. Columbo (1983), 118 Ill. App. 3d 882, 939-40, 455 N.E.2d 733, 775, cert. denied (1984), 467 U.S __, 81 L. Ed. 2d 351, 104 S. Ct. 2394.) Defendant’s motion for severance only recited four statements made by Kukla and two by Sarfino as evidence of prejudice. As defendant acknowledges in his appellate brief, however, the prejudice was almost entirely cured when the trial court granted defendant’s motion in limine to preclude the jury from hearing Kukla’s testimony. Defendant, therefore, bases his argument not on the direct testimony of Kukla, but on Kukla’s statements which were introduced into evidence by the State through the testimony of DeFranco. However, the only statement of Kukla referenced in the record is the State’s citation to DeFranco’s testimony that Kukla told him a black man would deliver the cocaine. Defendant did reference the portion of the record where, through DeFranco, the State introduced Sarfino’s statements that the cocaine contained rocks in the middle and that defendant was Sarfino’s partner. These three statements, therefore, constitute the only basis for defendant’s allegation of prejudice.

The severance motion properly was denied, however, because defendant did not demonstrate how the joint trial would prejudice him. In support of his severance contention, defendant relies upon People v. McVay (1981), 98 Ill. App. 3d 708, 424 N.E.2d 922, which in turn relied on two earlier supreme court decisions. (See People v. Miller (1968), 40 Ill. 2d 154, 158-59; People v. Clark (1959), 17 Ill. 2d 486, 492.) All three decisions are distinguishable from the situation here. The incriminating statements in those cases were all made by the codefendants after their arrests, and, thus, the statements were subject to the general rule that extrajudicial statements are admissible only against the defendant making them and constitute inadmissible hearsay as to any other defendant unless he adopts the statements as his own. People v. Clark (1959), 17 Ill. 2d 486; People v. Miner (1977), 46 Ill. App. 3d 273, 360 N.E.2d 1141.

Despite the general rule that defendants jointly indicted should be jointly tried, courts have recognized that a codefendant’s admission introduced through an officer’s testimony may be so prejudicial that cautionary instructions regarding the admission are insufficient to ensure that the other defendant receives a fair trial. (See People v. McVay (1981), 98 Ill. App. 3d 708, 712, 424 N.E.2d 922, 927.) This prejudice is highlighted by the fact that were the defendants tried separately, the hearsay rule would prevent use of the codefendant’s admission against the other defendants. Here, in contrast, the statements of codefendants Kukla and Sarfino as related by DeFranco were made not after their arrest, but rather during the commission of the crime. As such, the statements were admissible against defendant based on the co-conspirator exception to the hearsay rule, which provides that acts and declarations of a co-conspirator made in furtherance of the conspiracy are admissible against a defendant even when they are made out of the defendant’s presence. (People v. Jackson (1977), 49 Ill. App. 3d 1018, 364 N.E.2d 975.) In order to avail itself of the co-conspirator exception, the State need not charge the crime of conspiracy or indict and try all the co-conspirators for that offense. Rather, the State is merely required to establish a prima facie case by independent evidence (49 Ill. App. 3d 1018, 1020, 364 N.E.2d 975, 976) that two or more persons were engaged in a common plan to accomplish a criminal goal or to reach another end by criminal means. (People v. Olmos (1979), 77 Ill. App. 3d 287, 291, 395 N.E.2d 968, 971.) The existence of the agreement which is the essence of the conspiracy need not be proved by direct evidence, but may be inferred from all the surrounding facts and circumstances including the acts and declarations of the accused. People v. Olmos (1979), 77 Ill. App. 3d 287, 395 N.E.2d 968.

Although defendant asserts the record is devoid of any independent proof of a conspiracy, the State cites certain facts which it contends establish the conspiracy’s existence. When Kukla at the Elmhurst Holiday Inn placed a phone call to the seller, both Edwards and Sarfino soon thereafter drove up to the hotel. After Sarfino examined the money, the parties drove back to Sarfino’s house, where Sarfino had said the cocaine was located. This statement was not hearsay, because the State did not introduce it for the truth of the matter asserted (that the cocaine was at Sarfino’s house), but rather as evidence of an agreement between Sarfino and Edwards concerning the commission of the offense. Edwards made no effort to disavow the act or to extricate himself from the sale and was within 200 to 250 feet of the place where the drug sale occurred at the time of Sarfino’s arrest. His empty satchel was very near the location where the delivery was made. These facts, although not conclusive of guilt, are sufficient to establish a prima facie case of conspiracy independent from the hearsay statements of the defendants. Therefore, the statements were properly admitted based upon the co-conspirator exception to the hearsay rule. (See People v. Columbo (1983), 118 Ill. App. 3d 882, 455 N.E.2d 733, cert. denied (1984), 467 U.S. __, 81 L. Ed. 2d 351, 104 S. Ct. 2394.) Since we have concluded that these statements are admissible against defendant based upon the co-conspirator hearsay exception, this case is distinguishable from McVay, Miller and Clark, where the incriminating statements were not admissible against those defendants in either separate or joint trials. In contrast, the statements complained of here were admissible against defendant in either a joint or a separate trial based on the co-conspirator hearsay exception. Given this fact, defendant has failed to demonstrate, as he must to warrant a severance, how he would be prejudiced by the joint trial. (See People v. Lee (1981), 87 Ill. 2d 182.) We conclude that the trial court did not abuse its discretion in denying defendant’s severance motion. People v. Laboy-Rivera (1984), 126 Ill. App. 3d 197, 466 N.E.2d 1144.

The third argument advanced by defendant is that the trial court erred in giving multiple instructions to the jury on the offense of accountability. The jury received two instructions regarding accountability. The first was Illinois Pattern Jury Instruction, Criminal, No. 5.03 (2d ed. 1981), which reads:

“A person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of that offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of the offense.”

The jury was also given an additional non-IPI instruction, which stated:

“The Court instructs the jury that if there is evidence that a defendant voluntarily attached himself to a group bent on illegal acts with knowledge of its design, there is an inference that he shared a common purpose and this will sustain his conviction as a principal for a crime committed by another in furtherance of the venture.”

Defendant asserts that submission of both instructions was reversible error because they confused the jury and defeated the goal of Supreme Court Rule 451 (87 Ill. 2d R. 451), which directs that IPI instructions shall be used in criminal cases. Specifically, defendant argues that IPI Criminal No. 5.03 accurately states the law regarding accountability, and that the non-IPI instruction contradicts the IPI instruction and confused the jury regarding the requisite intent for accountability. This court, however, rejected the contention that the non-IPI accountability instruction allows for conviction based on a less culpable mental state in People v. Morris (1975), 29 Ill. App. 3d 900, 906-07, 331 N.E.2d 624, 628-29. Furthermore, the instruction, contrary to defendant’s assertion, does convey the necessity of specific intent by requiring that a defendant voluntarily attach himself to a group bent on illegal acts with knowledge of its design.

Defendant also asserts that the reference in the non-IPI instruction to “crime” instead of “offense” allowed the jury to find defendant guilty of possession upon proof that he aided Sarfino in any offense even if that offense was not cocaine possession. Defendant’s construction of the non-IPI instruction is not reasonable. Our reading of that instruction convinces us that to be convicted thereon, both defendant and the codefendant would have to be involved in the same offense.

Defendant’s most persuasive instructions challenge is that Supreme Court Rule 451 (87 Ill. 2d R. 451) requires the exclusive use of the IPI accountability instruction in criminal cases. In People v. Morris (1975), 29 Ill. App. 3d 900, 331 N.E.2d 624, however, this court rejected the defendant’s contention that the lower court committed reversible error by tendering both the IPI and non-IPI accountability instructions. More recently, the court in People v. Poll (1979), 74 Ill. App. 3d 534, 538, 393 N.E.2d 732, 735, modified on other grounds (1980), 81 Ill. 2d 286, rejected the defendant’s contention that the non-IPI accountability instruction was given improperly and required reversal. However, in dicta, the court reiterated its direction that the IPI instruction should be used:

“While we hold that the giving of such instruction upon this record does not require reversal, we state again, as we did in Hunter, that IPI Criminal No. 5.03 is the appropriate instruction on accountability and it should be used.” (People v. Poll (1979), 74 Ill. App. 3d 534, 538, 393 N.E.2d 732, 735.)

While concurrent use of the instructions is not the desired practice, defendant has not established any prejudice, and we fail to see how the dual instructions could have influenced the jury’s verdict. Therefore, we find no reversible error in the trial court’s submission of both accountability instructions to the jury.

Defendant next asserts that the trial court violated the rule articulated in People v. Conover (1981), 84 Ill. 2d 400, where the supreme court held that consideration of the fact that a defendant was to have received compensation for committing the offense was an improper aggravating sentencing factor when the compensation amounted to a share in the proceeds of the crime. At the sentencing hearing in the instant case, the trial judge made the following reference to compensation:

“Considering the evidence at the trial and the natural inference that flows from the evidence at the trial, the crime for which Mr. Edwards has been convicted by a jury is such that remuneration was to be received someplace along the line. Aside from the plea of not guilty, which is the defendant’s right to plead not guilty, there are no grounds to excuse his behavior from the standpoint of a finding of guilty by the jury.” (Emphasis added.)

We agree with the State’s contention based upon People v. Bourke (1983), 96 Ill. 2d 327, that any Conover violation is harmless error. In Bourke, the trial judge specifically stated in sentencing the defendant that “ T would find that the defendant did receive compensation for committing the offenses that are involved here’.” (People v. Bourke (1983), 96 Ill. 2d 327, 330.) The appellate court affirmed the defendant’s conviction and sentence, finding that the trial court referred to compensation as a factor in aggravation only “in passing.” In his appeal to the supreme court, the defendant argued his case was indistinguishable from Conover. Rejecting his contention, the supreme court found that “where it can be determined from the record that the weight placed on the improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence, remandment is not required.” People v. Bourke (1983), 96 Ill. 2d 327, 332.

The Bourke court examined the record to determine the impact of the compensation factor and noted the trial judge recited additional aggravating factors in reaching his sentencing decision. Likewise, here the trial judge emphasized that the substance involved “has a serious dilatorious [sic] physical effect on people,” indicating that he believed that defendant’s conduct caused or threatened serious harm. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(a)(1).) The court also cited the aggravating factor that the sentence imposed was necessary to deter others from committing the same crime. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(a)(7).) The court also found that imposition of a lesser sentence “would deprecate the seriousness of the crime and the Defendant’s conduct.” The court in Bourke further emphasized that the State did not mention the improperly considered aggravating factor in closing argument; here, this factor was not specifically cited in the State’s closing argument in reference to defendant, although the following comment was made by the State at the sentencing hearing:

“I think it is interesting to note that among the narcotics cases, delivery of cocaine is listed among the Class X felonies, and in comparison with other Class X felonies as set forth by the Legislature, delivery of a controlled substance when it is a Class X also carries with it the Court’s prerogative to also impose an enhanced fine. Now, this is, of course, due to, I think, the nature of the crime in that it’s a monetary or financial gain that may be reaped by certain segments of this society as they wreak their harm on other segments of the society.”

This comment was made to explain why the instant Class X offense could warrant an enhanced fine and was not cited by the State as an aggravating sentencing factor. The trial judge obviously was not influenced by the State’s argument because defendant did not receive a fine.

Another factor emphasized by the Bourke court and which similarly is applicable to the instant case is that both defendants were given sentences far below the maximum available for the offenses. The range of sentences for unlawful possession of a controlled substance is between six and 30 years, and defendant received a 12-year sentence. This fact in combination with those previously discussed warrants the conclusion that “the length of defendant’s sentence was not increased based on the circuit court’s statement that defendant had received compensation for committing [this offense].” People v. Bourke (1983), 96 Ill. 2d 327, 333.

The last argument advanced by defendant is that his 12-year sentence is excessive. As support for his contention, he emphasizes that he has no previous criminal convictions, was self-employed, supporting his family prior to the instant offense, and was convicted for possession with intent to deliver and not delivery of a controlled substance. The State responds that defendant was convicted of a Class X felony and that defendant received far less than the maximum sentence. The State also emphasizes that defendant was not remorseful at the sentencing hearing, but rather stated he was only a victim of circumstances.

The imposition of a sentence is a matter of judicial discretion, and absent an abuse of that discretion, the sentence of the trial court may not be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149.) The trial judge is normally best able to determine the punishment which should be imposed. (People v. Butler (1976), 64 Ill. 2d 485, 490.) In contrast to the appellate court’s review of a cold record, the trial court in determining a defendant’s sentence is able to consider his credibility, demeanor, general moral character, mentality, age and habits. (People v. Dukett (1974), 56 Ill. 2d 432, 452, cert. denied (1974), 419 U.S. 965, 42 L. Ed. 2d 180, 95 S. Ct. 226.) The trial court here found that a lesser sentence would deprecate the seriousness of the offense. The sentence is closer to the minimum than the maximum sentence allowed by statute, and the trial court’s sentencing in the case at bar was not an abuse of discretion.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

REINHARD and UNVERZAGT, JJ., concur.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL AKINS, Defendant-Appellant.
    Fourth District
    No. 4—84—0161
    Opinion filed November 27, 1984.

      Daniel D. Yuhas and John J. Hanlon, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald D. Bernardi, State’s Attorney, of Pontiac (Robert J. Biderman and Michael Blazicek, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

A jury convicted defendant Michael Akins of the armed robbery of a gas station and a separate theft of an automobile. (Ill. Rev. Stat. 1983, ch. 38, pars. 18 — 2(a), 16 — 1(a)(1).) The trial court sentenced him to concurrent terms of 10 years’ imprisonment for theft and 25 years’ imprisonment for armed robbery. On appeal, defendant asserts the State failed to prove his guilt of either offense beyond a reasonable doubt. He also maintains the trial court abused its discretion in sentencing him.

At trial, Jeffrey Patten testified he worked in a gas station on Odell Road in Odell. At about 3:15 a.m., on August 22, 1983, a purple 1982 Pontiac Firebird pulled into the station. The car’s license plate had three letters and two numbers. The driver was a black man, 5 feet 10 inches tall, 140 to 160 pounds, and about 23 or 24 years old. He wore a light blue or purple sweater, a nice pair of blue jeans with fancy stitching on the pockets, and a fairly heavy belt. After Patten filled the tank, the driver pulled out a blue-finished revolver. He told Patten, “I am sorry, I don’t have any money and I am going to take what you do have inside.” The robber took all the bills from the cash register. He also took three canvas change bags. The robber instructed Patten to take the keys from his own car and throw them into a garbage can. After the robber departed, Patten called the Livingston County sheriffs department.

Later that morning, police called Patten to tow away a vehicle. Patten testified it was the same one used in the robbery. The car was upside down in a ditch. At trial, Patten identified three bank bags that police found at the scene as the ones taken in the robbery. He identified a gun found as similar to the one the robber had used. He also testified that pants and a belt taken from defendant resembled those worn by the robber.

On August 22, Livingston County Deputy Roger Dobbs was on patrol on Odell Road a few miles from the gas station. He received a radio call informing him of the robbery. The car involved was described as a purple Firebird with a license plate that had three letters and two numbers. At about the same time Dobbs received the dispatch, a car matching the description drove by him. He followed the car, which he testified was a maroon Firebird and had “three letters and three numbers” on its license plate. The Firebird accelerated to over 85 miles per hour and began to pull away from Dobbs. It then went out of control and crashed. Dobbs stopped about 15 feet from the car, which was lying upside down in a ditch on the south side of the road. After waiting two or three minutes for assistance, Dobbs approached the vehicle. Inside, he discovered a revolver and two green bank bags marked Odell State Bank. A third bag was lying outside the car. The driver had left the car. A farmer across the road thought he heard noises in his house. Dobbs searched but found no one.

Detective Patrick Bost arrived on the scene at 3:55 a.m. Bost and another officer noticed a trail from the ditch on the south side of the road leading into a soybean field. They followed the trial, and approximately 200 feet inside the field, they found defendant. Defendant, who was injured, was wearing a shirt and blue jeans.

Detective Ken White noted the Firebird’s license plate number was YZD 42. White also identified defendant as the man that Bost had found in the field. Defendant had been wearing blue jeans.

Pontiac police officer Michael Bernardini was also on the scene. He testified Bost discovered defendant at about 4:15 a.m. Bernardini stated the car in the ditch was a Pontiac Trans Am. Bernardini drove defendant to the hospital. There, Bernardini cut off defendant’s pants. He found approximately $400 in defendant’s pants, socks, and underwear. Bernardini testified defendant had no shirt on at the hospital, although he could not recall if defendant had one on in the field.

Alexander Mankevich, a fingerprint expert, found several fragments of prints on the gun, but none could be identified. He did not find any prints on the cloth bags or the paper money, but he testified it is difficult to get prints from such objects. Mankevich was not asked to attempt to get prints from the car.

James Buckner testified he owned a dark maroon 1982 Pontiac Firebird with license plate YZD 42. On August 18, in Chicago, a “gentleman with a gun” asked him for the keys to the car. Buckner complied, and the man took the Firebird. Buckner next saw his car in an insurance company parking lot. Although the plates were not on the car, Buckner recognized his bicycle rack and a lantern in a secret compartment of the car. The car had been in an accident.

Defendant testified that he served as an organizer for young voters in Illinois. On August 18, he was in Aurora for a political rally. On August 19 he drove from Aurora to Decatur with a friend, Kevin Johnson, for another rally. He was to meet James Davis and another individual named Goldberg. Instead, three men stopped him on the street and told him that he was not needed there. At gunpoint, they forced him into a 1965 Lincoln. For several days they drove around and beat him. Finally, they beat him until he became unconscious. He awoke in the field when police found him. He assumed he had been dumped out of the car. He was wearing jeans and a cream-colored terrycloth sweater. The money in his pants belonged to his organization, and he kept his personal money in his socks.

Defendant contends the circumstantial evidence presented was insufficient to prove that he committed the armed robbery beyond a reasonable doubt. Circumstantial evidence is sufficient to support a conviction if it is inconsistent with any reasonable hypothesis of innocence. The jury, however, need not seek out all possible explanations and raise them to the- level of reasonable doubt. People v. Rhodes (1981), 85 Ill. 2d 241, 249, 422 N.E.2d 605, 608.

Defendant complains because Patten failed to identify him as the robber and no fingerprints were found. He asserts Patten’s description of the robber is not sufficient proof beyond a reasonable doubt. Yet, every link in the chain of circumstances relied upon to establish guilt does not have to be proved beyond a reasonable doubt. It is only necessary that the evidence, as a whole, produce, with a reasonable and moral certainty, the conclusion that the accused committed the crime. (People v. Armstrong (1983), 111 Ill. App. 3d 471, 475-76, 444 N.E.2d 276, 280.) Except for a seven- to eight-year age difference, defendant matched Patten’s original description of the robber. Patten identified defendant’s belt and pants. Finally, between 45 minutes and one hour after the robbery, police discovered defendant lying injured some 200 feet from where the robbery vehicle crashed. A trail led from the car through the soybean field to defendant.

Defendant alleges inconsistencies in the State’s evidence precluded the jury from concluding that the car in the ditch was the robbery vehicle. Patten originally described the car’s color as purple, but all the other witnesses testified it was maroon. Defendant also notes one officer mistakenly referred to the car as a Trans Am. Additionally, the officer in pursuit testified the license plate had three letters and three numbers. Whether that officer misperceived the license plate during the high speed chase or simply erred while testifying is not clear. The officer, however, never lost sight of the vehicle during the chase. The car in the ditch was a Firebird, and its license plate had three letters and two numbers. It contained bank bags taken from the gas station and a revolver similar to the one used in the robbery. Moreover, Patten identified the Firebird in the ditch as the one used in the robbery. The conclusion that the cars were the same is inescapable.

Further proof of defendant’s guilt was supplied by his own testimony. If a defendant elects to explain his presence at the scene of an offense, it is incumbent upon him to tell a reasonable story or be judged by its improbabilities. (People v. Morehead (1970), 45 Ill. 2d 326, 330, 259 N.E.2d 8, 10.) Defendant’s testimony was simply incredible. He asked the jury to believe that he was taken at gunpoint while walking on a street in Decatur. His kidnapers drove him around the countryside for two days and beat him, but they did not take the $400 that he had. By chance, they happened to dump him into a soybean field near the spot where a robbery vehicle crashed. He also regained consciousness at exactly the same time police searched the field for a robbery suspect with a description that matched defendant’s appearance. Defendant presented no other evidence to corroborate his story. After carefully reviewing the evidence, we conclude the jury correctly found defendant guilty of armed robbery beyond a reasonable doubt.

Defendant also argues the evidence was insufficient to prove his theft of the automobile beyond a reasonable doubt. He contends the jury presumed his guilt from the mere fact that he drove the stolen car. He maintains this presumption violated his due process rights.

Defendant relies on People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151. In Housby, the court ruled the fact that one had exclusive possession of property taken in a burglary was not sufficient, standing alone, to prove that the person committed the burglary beyond a reasonable doubt. The court noted:

“The person in exclusive possession may be the burglar, to be sure, but he might also be a receiver of stolen property, guilty of theft but not burglary, an innocent purchaser without knowledge that the item is stolen, or even an innocent victim of circumstances.” (People v. Housby (1981), 84 Ill. 2d 415, 423, 420 N.E.2d 151, 155.)

The court laid out a three-part test to determine if application of the presumption was constitutional. The inference does not infringe upon defendant’s due process rights if:

“(i) [T]here was a rational connection between his recent possession of property stolen in the burglary and his participation in the burglary; (ii) his guilt of burglary is more likely than not to flow from his recent, unexplained and exclusive possession of burglary proceeds; and (iii) there was evidence corroborating [his] guilt.” (84 Ill. 2d 415, 424, 420 N.E.2d 151, 155.)

Defendant urges this same test be applied in theft cases. See People v. Munoz (1981), 101 Ill. App. 3d 447, 428 N.E.2d 624.

The State argues Housby should be limited to burglary cases. Unlike burglary, theft under section 16 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 16 — 1(a)) is not limited to the conduct of the actor who initiates the wrongful asportation. It includes the conduct of those who subsequently gain possession of the property knowing it to be stolen. (People v. Marino (1970), 44 Ill. 2d 562, 256 N.E.2d 770.); The State concludes the fact that defendant had exclusive possession of stolen property, standing alone, should be sufficient to prove theft beyond a reasonable doubt. The State relies on our decision in People v. Phoenix (1981), 96 Ill. App. 3d 557, 421 N.E.2d 1022. In Phoenix, defendant was convicted of both burglary and theft. This court applied Housby to overturn the burglary conviction, yet we upheld the theft conviction.

A reading of the Phoenix case, however, discloses that we did apply the Housby test in affirming the theft conviction. In Phoenix, the evidence supported the conclusion beyond a reasonable doubt that defendant had obtained the stolen item either by burglary or by purchase, knowing it had been stolen. A defense witness offered evidence to show defendant had purchased the item at a ridiculously low price. Housby, therefore, permitted the inference of theft but precluded defendant’s guilt of burglary from being inferred.

The Housby court discussed the application of presumptions in all criminal cases. In fact, the United States Supreme Court cases relied upon in Housby involved presumption other than the one applied in burglary cases. (County Court v. Allen (1979), 442 U.S. 140, 60 L. Ed. 2d 777, 99 S. Ct. 2213 (defendants’ possession of handguns presumed from fact that defendants were in the same vehicle as handguns); Leary v. United States (1969), 395 U.S. 6, 23 L. Ed. 2d 57, 89 S. Ct. 1532 (inference from defendant’s possession of marijuana that defendant knew it was illegally imported); Tot v. United States (1943), 319 U.S. 463, 87 L. Ed. 1519, 63 S. Ct. 1241 (presumption that firearm was shipped in interstate commerce from possession of firearm by one convicted of a violent crime).) In theft cases, defendant’s possession of stolen property does not preclude the possibility that he was an innocent purchaser or a victim of circumstances. Hence, the presumption alone cannot be sufficient proof beyond a reasonable doubt.

The first part of the Housby test requires a rational connection between the basic facts that the prosecution proved and the ultimate fact presumed. In this case, the automobile was stolen just four days before defendant was arrested. Defendant used the car in an armed robbery. The jury could reasonably infer from the facts presented that defendant was guilty of theft.

The second part of the test is “that the presumed fact be more likely than not to flow from the proved fact ***.” (People v. Housby (1981), 84 Ill. 2d 415, 426, 420 N.E.2d 151, 156.) In other words, the facts presented must make it unlikely that defendant innocently possessed the car. Defendant’s use of the car in a robbery makes it unlikely that he came into possession through some innocent means. His inability to get title for the car negates the possibility that he was an innocent purchaser. Finally, had defendant gained possession as an innocent victim of circumstances, he would have explained those circumstances to the jury rather than denying possession of the car.

The third prong of the Housby test requires corroborating evidence. The Housby court stated sufficient corroboration is presented where defendant himself gives an explanation of possession that the jury reasonably finds to be false. (84 Ill. 2d 415, 430-31, 420 N.E.2d 151, 156.) Although defendant denied possession, his explanation was not credible. His testimony indicated dishonesty and justified application of the presumption. People v. Klein (1983), 115 Ill. App. 3d 582, 585, 450 N.E.2d 1268, 1270.

Lastly, defendant argues his sentence should be reduced. Defendant maintains his age, educational achievements, intelligence, and demeanor demonstrate a high potential for rehabilitation. Defendant was 32 years old when sentenced. He obtained his General Educational Development certificate and a computer programming degree from a junior college. He took one year of courses from Illinois State University. Defendant also contends he did not threaten serious harm to Patten during the armed robbery although he had a gun.

A sentence within the statutory limits will not be disturbed absent an abuse of discretion. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) The record reveals the trial court carefully considered all the mitigating factors at which defendant now points. We note defendant’s scholastic achievements all occurred while he was previously incarcerated. The trial court concluded his criminal conduct spanned his entire adult life except for the periods of incarceration. Defendant was convicted of robbery in 1969, assault and attempted theft in 1971, and murder and aggravated battery in 1973. He was on supervised release at the time of his current offenses. The trial court sentenced defendant to 25 years’ imprisonment for armed robbery. This sentence was within the statutory limit (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—1(3)), and we find no abuse of discretion.

Under the Unified Code of Corrections, the maximum sentence for theft is five years’ imprisonment. The trial court, however, found an extended-term sentence was proper due to defendant’s prior murder conviction. (Ill. Rev. Stat. 1983, ch. 38, pars. 1005 — 5—3.2(b), 1005 — 8—2(a).) The court sentenced defendant to 10 years’ imprisonment. The supreme court has recently interpreted section 5 — 8—2(a) of the Code as limiting the imposition of extended-term sentences to only those offenses within the most serious class of which the accused was convicted. (People v. Jordan (1984), 103 Ill. 2d 192, 205-06.) Thus, the extended-term sentence for the lesser offense of theft was improper.

For the foregoing reasons, the judgment of conviction for armed robbery is affirmed. The judgment relating to the extended-term sentence for the theft conviction is reversed. Pursuant to Supreme Court Rule 615(b) (87 Ill. 2d R. 615(b)), we reduce the sentence for theft to five years, the maximum term authorized. People v. Jordan (1984), 103 Ill. 2d 192.

Affirmed in part and reversed in part.

MILLS, P.J., and GREEN, J., concur.