text:
    JAMES I. HIGGINS, Plaintiff-Appellant, v. THE BOARD OF EDUCATION OF COMMUNITY UNIT SCHOOL DISTRICT NO. 303, BUREAU COUNTY, Defendant-Appellee.
    Third District
    No. 81-125
    Opinion filed November 17, 1981.

      Ralph H. Lowenstein, of Drach, Terrell & Defenbaugh, P. C., of Springfield, for appellant.
    Everett E. Nicholas and Lorence H. Slutzky, both of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago, for appellee.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

James I. Higgins received notice at the end of the 1975-1976 school term that he was being honorably dismissed from his teaching position with the Board of Education of Community Unit School District No. 303, Bureau County, Illinois, due to a reduction in the size of the teaching staff. Mr. Higgins, believing that his dismissal violated certain statutory rights of tenured teachers, petitioned for a writ of mandamus in the Circuit Court of Bureau County seeking reinstatement of his employment. The circuit court, after hearing evidence on the petition, concluded that Mr. Higgins was not entitled to the relief he requested. He prosecuted this appeal to obtain our review of the lower court order.

The tenure rights which provide the foundation for the appellant’s petition are created by the legislature and set forth in the School Code:

“If a teacher in contractual continued service is removed or dismissed as a result of a decision of the board to decrease the number of teachers employed by the board or to discontinue some particular type of teaching service, written notice shall be given the teacher by registered mail at least 60 days before the end of the school term, together with a statement of honorable dismissal and the reason therefor, and in all such cases the board shall first remove or dismiss all teachers who have not entered upon contractual continued service before removing or dismissing any teacher who has entered upon contractual continued service and who is legally qualified to hold a position currently held by a teacher who has not entered upon contractual continued service. If the board within 1 calendar year thereafter increases the number of teachers or reinstates the position so discontinued, the positions thereby becoming available shall be tendered to the teachers so removed or dismissed so far as they are legally qualified to hold such positions.” (Ill. Rev. Stat. 1975, ch. 122, par. 24 — 12.)

Neither party disputes that Mr. Higgins was a teacher in contractual continued service. What is disputed is whether Mr. Higgins “is legally qualified to hold o position currently held by a teacher who has not entered upon contractual continued service.” (Emphasis added.)

In Illinois the legal qualifications for classroom teachers are determined by regulations promulgated by the Illinois State Board of Education. Specifically, the qualifications are set out in The Illinois Program for Evaluation, Supervision and Recognition of Schools, Circular Series A, No. 160. Therein, the minimum education and/or experience requirements are detailed for teachers of every subject matter at every grade level. Although the inadequacy of the requirements set forth in Circular Series A, No. 160, has been noted in other decisions (Newman v. Board of Education (1981), 98 Ill. App. 3d 976, 424 N.E.2d 1331), they nevertheless offer far more guidance to the definition of “legally qualified” than exists for determining the appropriate definition of “a position.”

“The statutory term ‘position’ becomes complicated because of the practice of self-contained classrooms for some grades, and departmentalization to some extent in the middle grades, and subject matter segregation for majors and minors in high school. School districts may exercise wide latitude and autonomy in determining which grades will be clustered and which subjects will be grouped under one teacher and which departmentalized. The courts cannot allow school boards, whether in good or bad faith, to rearrange teaching assignments (positions) in ways which defeat the rights of tenured teachers and circumvent the purpose and spirit of the tenure laws.” (Hagopian v. Board of Education (1978), 56 Ill. App. 3d 940, 944, 372 N.E.2d 990, 994.)

In reviewing the decision of the circuit court, we must determine whether “a position” existed which the appellant, Mr. Higgins, was “legally qualified” to fill. The factual setting in which this dispute arises follows.

The appellant began employment with the appellee Board of Education during the 1970-1971 school term. For six terms, 1970-1971 through 1975-1976, he taught certain history courses, and for four terms, 1972-1973 through 1975-1976, he also taught psychology and consumer education. At the close of the 1975-1976 term, the appellant received the statutory 60-day notice of honorable dismissal due to a decrease in the number of teachers employed by the appellee.

Subsequent to the dismissal of the appellant, Carol Radtke, the appellee’s French teacher, requested and was granted a maternity leave of absence for the following school term. Radtke had taught four classes of French and one class of mathematics during the prior school term. The appellee was compelled to fill Radtke’s vacancy with someone legally qualified to teach a foreign language, as foreign language was a required offering in the high school curriculum. (Circular Series A, No. 160.) After interviewing several applicants for the vacancy, only one, Steven Sacco, was willing to accept a teaching job with the appellee, and then, for economic reasons, only if the job was to be full-time. Sacco was assigned to teach four French classes, an independent French study program, and world history. Later, the fourth year French class was dropped because of low enrollment, and Sacco was reassigned a consumer education class. Sacco had not entered upon contractual continued service.

Kathy Malone was employed by the appellee district for the 1975-1976 term as well as the 1976-1977 term. In both years, she taught six classes in the area of English communications. In addition, during the second semester of the 1976-1977 school year, Malone taught a course in psychology. Like Sacco, Malone had not yet entered upon contractual continued service.

In his petition, the appellant urges that he was “legally qualified” to teach the history and consumer education courses taught by Sacco as well as the psychology class taught by Malone. He seeks reinstatement to “a position” teaching those three classes and supervising study halls. No argument is made that the appellant was qualified to teach either French or English communications.

The appellee Board of Education defends its actions by asserting first that Mr. Higgins is not “legally qualified” to teach any of the three subjects enumerated in his petition. Second, it argues that “a position” within the definition of the tenure statute cannot be created by assembling a collage of classes taught by various nontenured teachers. The circuit court found it unnecessary to rule on the merits of the Board of Education’s first defense, because it resolved that even if Mr. Higgins were “legally qualified” to teach history, consumer education and psychology, no such “position” within the statutory definition existed during the 1976-1977 school term. We agree.

No regulations or case law has been cited before this court which offers any comprehensive definition of a teaching “position” as contemplated by the Illinois statute. (Ill. Rev. Stat. 1975, ch. 122, par. 24 — 12.) This is not to say that the courts have been silent. Indeed, as previously referenced, the court in Hagopian determined that school districts must be allowed “wide latitude and autonomy” in creating teaching positions, while admonishing that such discretion must not be exercised, in good or bad faith, to “circumvent the purpose and spirit of the tenure laws.” Hagopian v. Board of Education (1978), 56 Ill. App. 3d 940, 944, 372 N.E.2d 990, 994.

We understand Hagopian to permit broad discretion to school boards to create new teaching positions and to rearrange teaching assignments in all cases except where the continued employment of a tenured teacher might be jeopardized. When a tenured teacher’s employment is at stake, teachers cannot be shifted from one established position to another — even in good faith — if the rights of tenure would be defeated. We do not understand Hagopian to preclude the incidental reassignment of a single class to an otherwise established teaching position. Of course, a pattern of incidental reassignments could well be designed to frustrate the purposes of the tenure law, and such a bad faith action by the school board clearly could not be countenanced.

In the instant case, the appellee did not reassign classes to create wholly new positions, nor was there a shifting of tenured and nontenured teachers so that the appellant was no longer legally qualified for the positions taught by Sacco and Malone. Rather, two established teaching positions, one in French and one in English communications, were filled by nontenured teachers. The appellant was qualified to fill neither of these established positions. The incidental assignment of a single additional class to each of these established full-time positions was done, according to the circuit court, without intent to defeat appellant’s tenure rights. The subsequent under-enrollment in fourth year French likewise did not constitute the wholesale rearrangement of teaching assignments such that the established teaching position in French was altered in complexion.

It may always be necessary when a school district decreases the number of teachers in its employ to undertake a reassignment of certain classes offered in the curriculum. Those teaching positions which result from such a reassignment require the closest scrutiny so that the rights of a dismissed tenured teacher are not trammeled upon. Nevertheless, to hold that a tenured teacher may draw a single class or two from teaching positions he is otherwise unqualified to teach and then assert rights of tenure as to that part-time position of his own creation would exceed the protections offered by the statute.

In Herbach v. Board of Education (1981), 94 Ill. App. 3d 889, 419 N.E.2d 456, the plaintiffs were tenured teachers who were dismissed. Although they were not legally qualified for any of the three teaching positions held by nontenured teachers, they sought to force the school board to exercise its discretion by reassigning retained tenured teachers to one of those three positions, thereby creating a teaching position by way of the reassignment that they were legally qualified to fill. The court held in Herbach that such reassignment was not required by law. We believe this decision is consistent with and supportive of our understanding of Hagopian.

In further support of our reading of Hagopian is the decision in Johnson v. Board of Education (1981), 85 Ill. 2d 338, 423 N.E.2d 903. There, the court held that part-time teaching could not be relied on to establish tenure. In explaining the rationale for its decision, the court expressed reservations about a system where “tenure rights [could] be fractionalized.” The court worried that

“ ° * * [s]chool administrators would need to fit the ‘fractionally tenured’ teachers together like a jigsaw puzzle. The growing number of ‘fractionally tenured’ part-time teachers might undermine the desirable continuity and stability normally afforded students by full-time teachers, who have time to develop greater rapport with their students.” (Johnson v. Board of Education (1981), 85 Ill. 2d 338, 348, 423 N.E.2d 903, 908.)

Such a result could follow were we to adopt appellant’s theory of this case. Not only would appellant be teaching a part-time schedule, but the teaching assignments of Sacco and Malone would also be reduced. The only result would be a diminution in the opportunity for interaction between the students and their mentors.

The cases cited by the appellant do not differ with the views we have previously expressed. In Caviness v. Board of Education (1978), 59 Ill. App. 3d 28, 375 N.E.2d 157, a tenured teacher who was reduced from full-time to part-time teaching was permitted to assume the full-time teaching position of a nontenured teacher. No attempt was made to create a new teaching position from the assignments of several others. In Edwards v. Board of Education (1980), 84 Ill. App. 3d 374, 405 N.E.2d 478, the court required that a dismissed tenured teacher be offered the established part-time position held by a nontenured teacher. It was not suggested that the dismissed tenured teacher could create a part-time position where none previously existed. Finally, the court in Newman v. Board of Education (1981), 98 Ill. App. 3d 976, 424 N.E.2d 1331, repeated the admonition of Hagopian that school boards could not be permitted to rearrange curriculum and teaching positions in ways which defeat the rights of tenured teachers. That is clearly the law, but tenured teachers do not have the right to object to the incidental assignment of a single course to established teaching positions which they are unqualified to teach, thereby fractionalizing tenure rights, unless a pattern of incidental reassignments be proved. That proof is absent here.

For the reasons above stated, and with reliance on the authorities hereinbefore set forth, the decision of the Circuit Court of Bureau County is affirmed.

Affirmed.

ALLOY and HEIPLE, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE DOWNING

license: Public Domain

text:
    LUELLA MOORE, Plaintiff-Appellant, v. JACKSON PARK HOSPITAL et al., Defendants-Appellees.
    First District (2nd Division)
    No. 80-2953
    Opinion filed November 17, 1981.

      A. J. Hardiman, Ltd., of Chicago (Terrance J. Coughlin, A. J. Hardiman, and Eugene C. Hardiman, of counsel), for appellant.
    Lord, Bissell & Brook, of Chicago (R. Dennis Rasor, Harold L. Jacobson, and Hugh C. Griffin, of counsel), for appellee Jackson Park Hospital.
    Wildman, Harrold, Allen & Dixon, of Chicago (Richard C. Bartelt and William F. Haley, of counsel), for appellee Enrique Steider.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

Can an amendment to the medical malpractice statute of limitations be applied to a cause of action, immediately barring it on the effective date of the amendment? We think not, and reverse the judgment of the circuit court.

On May 24, 1972, defendant Dr. Enrique Steider performed surgery on plaintiff Luella Moore at defendant Jackson Park Hospital. Plaintiff alleges that a needle was negligently left in her body during surgery. Plaintiff further alleges that she did not discover the presence of the needle until March 17,1978, when an X ray was taken. She filed the instant complaint on October 4,1978. The circuit court dismissed the action with prejudice.

Resolution of this appeal requires a determination of the statute of limitations applicable to this foreign object medical malpractice case. The general statute of limitations for personal injury actions is two years, as set forth in section 14 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 15). In 1964, this court, while expressing dissatisfaction with the result, held that the two-year rule was absolute, rejecting the plaintiff’s request to adopt the “discovery rule,” which would toll the statute of limitations until plaintiff knew or should have known of the injury. (Mosby v. Michael Reese Hospital (1964), 49 Ill. App. 2d 336, 342, 199 N.E.2d 633, appeal denied (1964), 30 Ill. 2d 627.) Mosby involved, as does the instant case, a “foreign object” medical malpractice case, where a surgical instrument was negligently left in plaintiff’s body.

The General Assembly, at its next session, enacted section 21.1 of the Limitations Act (Ill. Rev. Stat. 1965, ch. 83, par. 22.1), effective in July 1965. This statute adopted the discovery rule for the narrow area of medical malpractice cases involving foreign objects left in patients, and provided a maximum period of 10 years following the treatment or operation in which to file such an action. In 1970, the supreme court decided Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, 40, 262 N.E.2d 450, which applied the discovery rule to all cases involving medical malpractice. Thus, after Lipsey, the status of the law was that there was a two-year statute of limitations from the time of discovery in all medical malpractice cases, with an outside limit of 10 years in foreign object cases, and no outside limit in other medical malpractice cases.

The General Assembly, effective November 11, 1975, modified section 21.1 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, par. 22.1) by adding a second paragraph. The first paragraph, adopting the discovery rule with a 10-year statute of repose for foreign object cases, remained the same. The new paragraph dealt with all other medical malpractice claims, creating a two-year statute of limitations running from the time of discovery, with a five-year statute of repose. Thus, at this point, the General Assembly was clearly treating foreign object medical malpractice cases differently from all other medical malpractice cases.

The General Assembly subsequently amended section 21.1. Effective September 19, 1976, the first paragraph dealing with foreign object cases was removed, and the statute of repose in the second paragraph was shortened from five years to four years. Ill. Rev. Stat. 1977, ch. 83, par. 22.1.

In Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 560, appeal dismissed sub nom. Woodward v. Burnham City Hospital (1980), 449 U.S. 807, 66 L. Ed. 2d 11, 101 S. Ct. 54, the supreme court upheld the validity, of this latest version of section 21.1 of the Limitations Act against a barrage of constitutional attacks. Anderson involved two consolidated cases. In Anderson v. Wagner, the occurrence was in 1972, discovery on January 26,1976, and the complaint was filed on June 23,1977. In Woodward v. Burnham City Hospital, the occurrence was on November 27, 1965, discovery in February 1976, and the complaint was filed on December 30, 1976.

Both cases in Anderson were medical malpractice other than foreign object cases. The effective date of the amendment to section 21.1 was September 19, 1976. Thus, if this amendment applied to the Anderson case, the claim would be barred for failure to meet the four-year statute of repose. The supreme court held that the amendment applied because the plaintiffs had a reasonable amount of time after the amendment took effect (September 19,1976) to file their complaint before the amendment would bar their claim (May 20,1977). The Woodward case did not reach this issue because even under the 1975 statute, the claim would have been barred.

Turning to the instant case, the circuit court, specifically relying on Anderson v. Wagner, held that plaintiff’s claim was barred by the four-year statute of limitations. Defendants support this ruling by arguing that section 21.1 of the Limitations Act is the applicable statute of limitations, and since plaintiff’s complaint was filed more than four years after the occurrence, the claim is barred. Plaintiff presents two theories in arguing that the claim is not barred. First, plaintiff argues that section 21.1 does not apply to foreign object cases, but that section 14, the general personal injury provision, applies. Under section 14, there is no four-year statute of repose. Plaintiff alternatively argues that even if section 21.1 applies to foreign object cases, it cannot be applied retroactively to instantaneously bar her cause of action on the effective date of the statute.

Analysis of plaintiff’s argument that section 21.1 does not apply to foreign object cases requires that we determine the intent of the General Assembly. Plaintiff contends that, since the General Assembly has in the past treated foreign object cases differently from all other medical malpractice cases, the General Assembly intends for foreign object cases to be treated differently under current law.

On its face, section 21.1 appears to encompass all medical malpractice actions. It reads, “No action for damages * * * arising out of patient care * ° Prior to the 1976 amendment which removed the first paragraph of section 21.1, this identical language did not apply to foreign object cases. In Anderson v. Wagner, the supreme court stated in dicta that section 21.1 applies to “all malpractice actions against physicians and hospitals arising out of patient care * * (79 Ill. 2d 295, 307.) Other cases have assumed, without actually holding, that section 21.1 now applies to foreign object cases. Jones v. Brill (1981), 97 Ill. App. 3d 943, 944, 423 N.E.2d 930; Cutsinger v. Cullinan (1979), 72 Ill. App. 3d 527, 529-30, 391 N.E.2d 177.

Policy considerations in this area also indicate that a restrictive reading of the statute of limitations, barring foreign object claims after four years, is appropriate. The 1976 amendment to section 21.1 was a part of an entire package of reforms aimed at easing the burden of medical malpractice claims on the health care industry. (See Ill. Laws 1976, at 1349-59.) The supreme court opinion in Anderson v. Wagner devoted substantial space to documentation of the “malpractice crisis,” and the measures designed to alleviate it. In addressing the problems of the health care industry, the court particularly noted the “long tail” of liability, whereby claims arising out of conduct which occurred many years in the past could still be filed under the discovery rule. Thus, the General Assembly evidenced a desire to limit the malpractice exposure of physicians and hospitals.

When interpreting statutory language, we apply the old maxim that language which is plain and unambiguous should mean what it clearly states. The current section 21.1, with the first paragraph deleted, unambiguously applies to all medical malpractice claims against physicians and hospitals. We therefore hold that section 21.1 of the Limitations Act applies to foreign object medical malpractice cases.

Plaintiff next contends that the 1976 version of section 21.1 cannot be applied to her cause of action because it would be a retroactive application of a new statute of limitations that, upon its effective date, instantaneously bars her claim. Prior to the 1976 amendment, plaintiff’s cause of action would have been governed by the first paragraph of the 1975 version of section 21.1 and by section 14, which together provided a two-year statute of limitations, with a discovery rule, and a 10-year statute of repose. Under this law, plaintiff’s claim would be barred absolutely on May 24,1982. If the 1976 amendment is applied to plaintiff’s claim, it was absolutely barred on September 19,1976, the effective date of the statute.

We recently addressed a similar issue in Balzer v. Inland Steel Co. (1981), 100 Ill. App. 3d 1071, 422 N.E.2d 999. Balzer presented the question of whether the retroactive application of the products liability statute of repose (Ill. Rev. Stat. 1979, ch. 83, par. 22.2) to instantaneously bar a claim on the effective date of that statute was proper. We held that it was not, stating: “The general rule utilized where a statute decreases the time in which an action may be filed is that the statute will not be retroactively applied unless there exists a reasonable amount of time after its effective date for filing of claims which ‘existed’ prior thereto.” 100 Ill. App. 3d 1071, 1072.

In Balzer, plaintiff’s claim would have been barred on the effective date of the statute. Thus, we held that the amended statute could not be applied to Balzer, since there was no reasonable time period after the effective date of the statute in which plaintiff could have filed his complaint. An identical result was reached in Jones v. Brill which involved the same medical malpractice statute of repose as the instant case. The court there refused to apply the amended section 21.1 because its application would have barred plaintiff’s claim on the effective date of the statute. (Accord, Isaacs v. Michael Reese Hospital & Medical Center (1981), 101 Ill. App. 3d 876, 428 N.E.2d 941.) Balzer and Jones are in accord with the weight of precedent. See cases collected in Jones v. Brill (1981), 97 Ill. App. 3d 943, 945.

We therefore hold that the 1976 version of section 21.1 of the Limitations Act cannot be applied to plaintiff’s claim. No reasonable amount of time existed after the amendment’s effective date (September 19,1976) for plaintiff to bring her claim. Therefore, plaintiff’s claim is not barred. The judgment of the circuit court of Cook County must be reversed and remanded for further proceedings.

Reversed and remanded.

HARTMAN, P. J., and STAMOS, J„ concur.

       Section 21.1 (Ill. Rev. Stat. 1965, ch. 83, par. 22.1) stated:
      “Whenever in the course of any medical, dental, surgical or other professional treatment or operation, any foreign substance other than flesh, blood or bone, is introduced and is negligently permitted to remain within the body of a living human person, causing harm, the period of limitation for filing an action for damages does not begin until the person actually knows or should have known of the facts of hurt and damage to his body; provided that no such action may be commenced more than 10 years after such treatment or operation.”

       The second paragraph of section 21.1 (Ill. Rev. Stat. 1975, ch. 83, par. 22.1) stated:
      “No action for damages for injury or death against any physician or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care 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, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 5 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.”

       Section 21.1 (Ill. Rev. Stat. 1977, ch. 83, par. 22.1) states in relevant part:
      “No action for damages for injury or death against any physician or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care 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, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.” (Second paragraph omitted.)


author: Mr. PRESIDING JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD FREEMAN et al., Defendants-Appellants.
    First District (1st Division)
    No. 80-800
    Opinion filed November 16, 1981.

      James J. Doherty, Public Defender, of Chicago (Karen A. Popek, Assistant Public Defender, of counsel), for appellants Gerald Freeman, Lamont Johnson, and Matthew Crosby.
    Ralph Ruebner and Steven M. Levin, both of State Appellate Defender’s Office, of Chicago, for appellant Gregory Knox.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin D. Sweeney, and Martin D. Reggi, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

In a bench trial, defendants Gerald Freeman, Lamont Johnson, Matthew Crosby and Gregory Knox were found guilty of aggravated battery and armed violence. (Ill. Rev. Stat. 1977, ch. 38, pars. 12 — 4, 33A — 2.) In addition, Johnson, Crosby and Knox were found guilty of aggravated kidnapping. (Ill. Rev. Stat. 1977, ch. 38, par. 10 — 2.) The issues raised on appeal are: (1) whether Freeman was proven guilty beyond a reasonable doubt of armed violence; (2) whether the convictions of Freeman, Johnson and Crosby for armed violence should be reversed because the evidence was insufficient to establish that any defendant was armed with a gun; (3) whether the convictions of Johnson and Crosby for aggravated kidnapping should be reversed because the offense arose out of the same transaction as the armed violence; (4) whether the court was precluded from imposing an extended term in sentencing Johnson for aggravated battery because Johnson had never been convicted of a felony of the same or greater class; (5) whether the court was precluded from imposing extended terms in sentencing Freeman, Johnson and Crosby for aggravated battery because defendants did not receive notice that they could receive extended terms and because the evidence was insufficient to establish their prior felony convictions; (6) whether the testimony of the victim was sufficient to convict defendant Knox where the State failed to present the testimony of any other witnesses to the acts; (7) whether Knox was denied his right to a fair trial and whether errors at trial amounted to plain error; and (8) whether Knox did not receive effective assistance of counsel where Knox and his three codefendants were represented by a single public defender.

For the reasons set forth herein, we affirm.

Janice Freeman testified that on November 11, 1978, at 1 a.m., she was returning home from a party. As she walked up the back stairway to her apartment and entered the second floor hallway, she saw Gerald Freeman, who is her brother-in-law, Lamont Johnson, Matthew Crosby, Gregory Knox and Gregory Nugent. Freeman approached her and asked her where the “enforcer” was. She understood Freeman to mean the machine gun which Johnson had given her to keep a few days earlier. After getting her roommate’s approval to keep the weapon, she placed the gun which was in a case behind a box in the closet of the apartment. When Gerald Freeman had requested the weapon, she indicated that the weapon was in her apartment. He told her that the weapon was not there.

Janice Freeman stated that the defendants had created a disturbance in the hall which resulted in a few of the people that were in her apartment to come to the apartment door to see what the commotion was about. Gerald Freeman then struck her in the face three times, causing her to fall backwards. Her hand was cut when it went through the window pane of the back door. Gerald Freeman then went into her apartment. Defendant Knox then asked her where the weapon was, and she responded that she did not know. Johnson, Crosby, Knox and Nugent forced her into an apartment which was across the hall from her apartment. Knox then struck her in the face several times. Knox then grabbed a metal lawn chair and hit her across the head and in her abdomen. She doubled over because of the blow to her abdomen and she was kicked and struck several more times. She did not know who was striking her at this time. During this time, Knox repeatedly asked Janice Freeman the location of the machine gun and she replied that she did not know where the weapon was.

She testified that she then went into the hall and was attempting to return to her apartment when Johnson stopped her and placed a gun to her head. Johnson told her that she was going with him, Crosby, Knox and Nugent. She testified that she did not know where Johnson obtained the gun on that occasion, but that she had previously seen the gun when Johnson threatened her boyfriend with it. The four men dragged her out of the hallway and down the back stairway during which time she was screaming for her brother-in-law Gerald Freeman. While she was being dragged down the stairway, Crosby kicked her hand as she was clutching the bannister and then struck her hand with a broken piece of the bannister. At the bottom of the stairs, Johnson, Crosby and Knox picked her up and placed her inside the trunk of a car which was parked nearby. She testified that while she was in the trunk with the trunk lid still open, she saw Gerald Freeman with her daughter. Freeman held the daughter around the shoulders and prevented the girl from running to her mother. Freeman then told the men to make her tell, but do not kill her. A person named Carolyn approached Janice Freeman and told her to tell the defendants where the weapon was. Janice Freeman still said she did not know where the machine gun was. The trunk lid was closed and the car was driven away. Shortly thereafter, the car was stopped and the trunk was opened. Her mouth, hands and feet were bound with rags by Johnson and Crosby while Nugent and Knox watched. The trunk lid was then closed and the car began moving again.

By the time the car had stopped, Janice Freeman had untied the rags, but she could not get out of the trunk. After the trunk was opened, Knox twice struck her in the face with his fist. She testified that she was forced to get out of the trunk and that Knox, Johnson, Crosby and Nugent accompanied her to a basement apartment. She then was led to a bedroom where she was seated in a metal folding chair. Crosby and Johnson bound her feet to the chair with coat hangers. Knox then struck her in the face and stomach while she was tied to the chair. Knox repeatedly asked her where the machine gun was and each time she responded that she did not know. Knox then asked her where her boyfriend lived apparently because Knox thought that she may have given the gun to her boyfriend. Johnson also struck her while she was tied to the chair while Crosby and Nugent watched.

According to her testimony, Knox then gave Nugent a needle and told him to put battery acid in the needle. While Nugent was outside the bedroom, she told the others that they could do whatever they wanted to her, but that she did not take the machine gun. On direct examination, she testified that her money was missing and that she wanted the men to give the money to her daughter. On cross-examination, she denied that she had lost any money and denied that she had offered one of the defendants money to fight. She also denied on cross-examination that she had attempted to arrange a fight between Knox and Johnson. After a few minutes, Nugent returned with the needle and then Knox stuck the needle into her neck. Johnson made a remark about the police and Johnson and Knox left the apartment. Crosby and Nugent untied Janice Freeman and the needle fell from her neck. Crosby then slapped her and she fell against the wall cutting her face. Crosby left the apartment and Nugent remained with her. She then attempted to wipe the blood from her face and eyes. She testified that Officer Shaw entered the apartment with Crosby. She did not answer any questions asked by the officer concerning her injuries. Other police officers arrived and she was then taken back to her apartment building where she spoke with a girlfriend while she was still in the police car. She was then taken to the hospital where she was treated for her injuries. At trial, Janice Freeman identified photographs of her which had been taken after she had been beaten. She also identified the weapon which was held to her head by Johnson. On cross-examination, Janice Freeman testified that there were people in her apartment when she was first struck by Freeman. She stated that she had seen the gun which Johnson held to her head a few weeks earlier when Johnson had pulled the gun on her boyfriend during the course of a fight. She also denied attempting to arrange a fight between Knox and Johnson. Janice Freeman admitted that she had been convicted of possession of heroin.

Officer Shaw testified that he arrived at the basement apartment in response to a complaint. He entered the apartment with Crosby and found the victim with her face almost completely swollen with one eye closed and bleeding. The victim told the officer that the men were not responsible for her condition. Shaw found Nugent in the bedroom of the basement apartment. Shaw then called a beat car. At 5:30 a.m. Shaw went to the apartment where the victim first had been beaten and where Johnson, Crosby, Knox, Nugent and Freeman were. The five men and seven others were arrested and taken to the police station. The officer also testified that there was assorted drug paraphernalia in the apartment.

Officer Bedren testified, without objection, about a conversation that he had with Janice Freeman while she was at the hospital. The victim told Bedren that she was approached by the five men in the hallway of her apartment building. She said the men discussed with her getting a ride and a machine gun. Bedren stated that he went to the apartment where the victim had been beaten because the victim had furnished Bedren with the names of the five men. At trial, Bedren identified Knox, Freeman, Crosby and Johnson as four of the 11 persons who were in the apartment that morning. Bedren stated that 11 persons were arrested that morning. After the arrests were made, Bedren searched the apartment and found a gun in the stove. When he showed the gun to the victim, she told him that it looked like the gun, but that she was not certain. The five photographs of the victim were admitted into evidence without objection. The defense objected to the admission of the weapon based upon relevancy. The trial court overruled defendants’ objection. The State then rested its case.

Gerald Freeman testified that on the evening of the disturbance, he was attempting to restrain Janice Freeman from interfering in a fight between her boyfriend and Johnson. He stated that he struck her during his attempt to restrain her, she fell backwards and her hand went through a window. Freeman testified that he next saw Janice Freeman at the police station at about 5 a.m. He denied that he threw her down the stairs, that he helped put her in the trunk of a car and that he threatened her. Gregory Knox testified that he first had seen the victim at about 1 a.m. at a lounge, at which time her face was swollen. He stated that he went with the victim to the basement apartment where he tried on a suit. He was given money by the victim to shoot Johnson because she was angry with Johnson. Knox claimed that he did not intend to shoot Johnson, but intended to “beat her for the money.” Michael Porshay, one of the individuals who was arrested in the apartment, testified that he saw the victim and Nugent walking down the stairs to the apartment building and get into his car.

The court found all four defendants guilty of armed violence in the commission of an unlawful restraint and guilty of aggravated battery. Defendants Johnson, Crosby and Knox were found guilty of aggravated kidnapping. Each of the defendants’ sentences for aggravated battery were imposed under the extended term provisions of the Unified Code of Corrections. (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 8—2.) Defendants appeal.

I

The first issue raised on appeal is that defendant Gerald Freeman was not proven guilty of armed violence beyond a reasonable doubt because the evidence demonstrated at most that he was guilty of only aggravated battery. Defendant Freeman claims that the testimony of Janice Freeman established that he was present in the hallway near her apartment and that he was present with Janice Freeman’s daughter while she was in the trunk of the automobile. He contends that the court found that the offense of armed violence occurred when Lamont Johnson placed the gun to the head of Janice Freeman and that the testimony failed to prove that he was present. He also argues that the evidence was insufficient to prove that he shared the criminal intent or joined in a common purpose with the other defendants to accomplish the crime. He urges that, without further evidence, he cannot be convicted of the offense of armed violence because the evidence was insufficient to establish his guilt beyond a reasonable doubt. Defendant argues that in order to be convicted under the accountability provisions of section 5 — 2(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 5 — 2(c)), 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) such participation must have taken place either before or during the commission of the offense; and (3) such participation must have been with the concurrent, specific intent to promote or facilitate the commission of the offense. (People v. Ramirez (1968), 93 Ill. App. 2d 404, 410, 236 N.E.2d 284, 288.) He argues that the State has failed to meet its burden of proof in that it failed to establish beyond a reasonable doubt that defendant shared the criminal intent of the principals or that there was “a community of unlawful purpose.” (People v. Ramirez (1968), 93 Ill. App. 2d 404, 411, 236 N.E.2d 284, 288; see People v. Bolden (1978), 59 Ill. App. 3d 441, 375 N.E.2d 898.) Defendant argues that there is insufficient evidence to establish beyond a reasonable doubt that he possessed the requisite prior intent that went beyond the initial act of striking Janice Freeman. At most, defendant urges, the only common purpose defendant shared with the others was to ascertain the location of the machine gun. Defendant suggests that he was found guilty by the court based upon his mere presence at or near the vicinity of the crime and that this is not enough to make him culpable. (See People v. Washington (1970), 121 Ill. App. 2d 174, 257 N.E.2d 190.) He also contends that even if consent or knowledge that an offense was being committed had been established, this could not have been enough to establish that he aided or abetted the other defendants. See People v. Tillman (1971), 130 Ill. App. 2d 743, 265 N.E.2d 904.

The State concedes that defendant’s mere presence at the scene of an offense is not sufficient to impose guilt upon an individual; however, where there is evidence of conduct or other surrounding circumstances which show design on the part of defendant to aid, abet or assist in the perpetration of an offense, he can be held legally accountable for the acts of others without a physical act or participation in the commission of the offense. (People v. Gray (1980), 87 Ill. App. 3d 142, 408 N.E.2d 1150.) The State contends that if the defendant was present at the scene of a crime without disapproving or opposing it, the trier of fact may consider such conduct with other facts and circumstances and conclude that the defendant assented to the commission of a crime, lent his countenance and approval and thereby aided and abetted the commission of the crime. (See People v. Dandridge (1979), 79 Ill. App. 3d 693, 398 N.E.2d 955.) The State urges that the facts of this case, as found by the trial court, establish beyond a reasonable doubt that defendant Freeman was guilty of armed violence under an accountability theory. The State contends that Freeman struck defendant in the hall and forced her to go into the apartment situated across the hall where she was beaten by the other defendants. During the course of the beating, defendant Johnson told Janice Freeman that they were going to kill her. The State argues that when all the events are viewed together, defendant Freeman shares the guilt for the totality of the event based upon his initial participation as well as continued participation in the process of the defendants placing Janice Freeman in the trunk of the car.

Although the court found that defendant Freeman was not present when the crime of armed violence was committed, it did find that Freeman aided and abetted the commission of that offense. Where an individual attaches himself to a group bent on illegal acts which are of a dangerous nature, or which will probably or necessarily require the use of force and violence, he becomes criminally liable for any of the wrongdoings committed by other members of the group in furtherance of the common purpose, or as a natural or probable consequence thereof, even though he did not participate in the overt act itself. (See People v. Tate (1976), 63 Ill. 2d 105, 345 N.E.2d 480; People v. Fields (1978), 65 Ill. App. 3d 278, 382 N.E.2d 337.) In its findings, the trial court stated that it believed the version of events as stated by Janice Freeman. From her testimony, it appeared that Gerald Freeman was the motivating force behind the events which resulted in her beating. Freeman was the first person to strike her, he was one of the individuals who forced her to go into the apartment across the hall and he was present when she was placed in the trunk of the car. Considering that Freeman was the initial perpetrator of the violence directed toward Janice Freeman and the fact that he acquiesced and assisted in her being taken into the apartment where she was beaten, we believe that the trial court’s finding that defendant Freeman was guilty of the crime of armed violence under an accountability theory was based upon sufficient evidence. The acts in which Freeman and the others were involved were designed to elicit the whereabouts of the machine gun. The threatening of Janice Freeman with the gun by Johnson could be viewed as an act in continuation of the common purpose of ascertaining the location of the weapon. See People v. Dandridge (1979), 79 Ill. App. 3d 693, 398 N.E.2d 955; People v. Fields.

II

Defendants Freeman, Johnson and Crosby argue that their conviction for armed violence should be reversed because the evidence was insufficient to establish that any defendant was armed with a gun at the time of the unlawful restraint of Janice Freeman. The defendants contend that the trial court found that when Janice Freeman was taken into the apartment from the hallway where she was beaten, the crime of unlawful restraint had occurred and one of the defendants was armed with a gun. Defendants argue that when she was detained or taken into the apartment, the evidence does not establish, nor did the court find, that any of the defendants was armed with a gun. Defendants also claim that the evidence failed to establish where Lamont Johnson obtained the weapon since Janice Freeman did not see where Johnson had obtained the weapon before he placed it to her head.

The State contends that defendants fail to consider that the actions which comprise the crime of armed violence were not a series of events isolated in time, but rather a succession of events which were continuous and closely related in both time and place. The State argues that defendants’ unlawful restraint of Janice Freeman was a long continuous series of acts and a series of attacks over the course of time. The State argues that the defendants were convicted for what they did and not where they did it and that to permit the defendants to misconstrue the finding of the trial court would work an injustice to the victim.

We believe that the trial court was correct in its finding that defendants were guilty of armed violence. The defendants urge this court to read narrowly the ruling of the trial court which we will not do under the facts of this case. Since the trial court had the opportunity to hear the testimony and to assess the weight of the evidence and the credibility of witnesses, we will not disturb its findings unless the evidence is so improbable as to raise a reasonable doubt. (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) The evidence in this case is not so improbable as to create a reasonable doubt that one of the defendants was armed with a weapon at the time Janice Freeman was unlawfully restrained. Defendants’ contention that the evidence was insufficient to establish their guilt of armed violence is not well founded.

III

Defendants Johnson and Crosby argue that their convictions for aggravated kidnapping should be vacated because the act of aggravated kidnapping arose from the same transaction as the act of armed violence. Defendant relies upon People v. Stewart (1970), 45 Ill. 2d 310, 259 N.E.2d 24, for the proposition that the conviction must be vacated where the acts constituting one offense are not separable from the conduct which constituted the second offense. Defendants argue that the acts of armed violence were directed toward the same objective as the act of kidnapping and that the armed violence was the initial step of the offense of aggravated kidnapping. (See People v. Anthony (1976), 38 Ill. App. 3d 190, 347 N.E.2d 179.) The State contends that the record indicates that the offenses of armed violence and aggravated kidnapping were independently motivated and separable from one another. The State argues that each offense was based upon different physical acts and that it was proper for the court to find defendants guilty of both offenses. See People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273.

Although the offenses were committed in order to learn the whereabouts of the machine gun, we believe that the acts involved in each of the offenses were separate. According to the court’s findings, the offense of armed violence was complete at the time the victim was taken to the apartment by the defendants, whereas the aggravated kidnapping occurred when the victim was transported from her apartment building in the trunk of the automobile. The fact that these two offenses were committed in a series of closely related transactions and that they were motivated by the same objective does not mean that a defendant can be convicted of only a single offense. Each of the two offenses requires proof of different elements and the acts constituting each offense differed in both time and place. See People v. King.

IV

Defendant Johnson contends that the court was precluded from imposing an extended term in sentencing him for aggravated battery because he had never been convicted previously of a felony of the same or greater class. The basis of defendant’s contention is that the court misread his “rap sheet” and that defendant was not convicted of a felony of equal or greater class within the ten years preceding this conviction. Defendant argues that, therefore, his extended-term sentence was improper under the statute (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 8—2), and that the sentence must be vacated and remanded for resentencing. The State argues that defendant’s argument is speculative since the court did not indicate whether it was sentencing defendant to an extended term based on factors considered in aggravation or whether it was sentencing defendant to an extended term because of a prior conviction. The State urges this court to affirm the sentence on either of two grounds. First, the extended sentence was proper because defendant was convicted of a felony of equal or greater class within 10 years of the conviction of this offense, or, second, the sentence was proper because the offense was accompanied by “exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 5—3.2(b)(2).) The State argues that it is proper for this court to affirm the decision of the trial court so long as the ruling was correct since it is the judgment of the court which is being reviewed, not its rationale for the judgment. People v. Brown (1981), 94 Ill. App. 3d 609, 418 N.E.2d 1093; People v. Gardner (1977), 56 Ill. App. 3d 606, 371 N.E.2d 1164.

Our review of the arguments of both parties leads us to conclude that defendant’s contention is not well founded, especially in light of the statements made by the court in imposing the sentence. The court stated that it would “be remiss if [it] failed to note that the beating and treatment of this woman was savage, almost beyond our comprehension.” The judge further stated that beating the victim and throwing her in a car trunk and then taking her to another place where she was beaten again “is something that is so repulsive to this court that I must recognize a duty to society to punish when it occurs.” The court also noted that there was no basis to treat the victim in such a “brutal manner.” On the basis of People v. Brown and People v. Gardner that the extended sentence was imposed solely because of a prior felony conviction, we need not address ourselves to defendant’s contention since we hold that the trial judge could properly sentence defendant to an extended term because of the “exceptionally brutal and heinous behavior indicative of wanton cruelty” which was involved in this crime. Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 5—3.2(b)(2).

V

Defendants Freeman, Johnson and Crosby argue that the court was precluded from imposing extended terms in sentencing for aggravated battery because they were never given notice that they could receive extended terms and because the evidence was insufficient to prove their prior felony convictions. Defendants argue that fundamental fairness pursuant tp the due process clauses of the Federal and State constitutions requires that defendants be given notice prior to trial, or at least prior to sentencing, that their earlier convictions could result in the imposition of extended terms. (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2.) The defendants also contend that the court’s reliance upon “rap sheets” alone was insufficient to prove beyond a reasonable doubt that they had prior felony convictions.

The State argues that Illinois law is clear that the extended sentencing provisions become operative at the sentencing level and not at the indictment level as urged by defendants. (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 —8—2; People v. Butler (1979), 78 Ill. App. 3d 809, 396 N.E.2d 1374.) The State also contends that the court could have imposed an extended sentence based on the brutality involved in the crime, rather than on the defendants’ prior convictions, and that the defendants’ sentence should not be disturbed because the court did have a basis for imposing the extended sentences. See People v. Brown; People v. Gardner.

Defendants’ argument that they were sentenced to extended terms solely because of their prior felony convictions is without merit. We elect to affirm the sentences of defendants because of the brutality involved in the crimes. (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005—5—3.2(b)(2).) As previously indicated the trial judge commented upon the brutal and savage treatment of the victim at the time he imposed the sentences. We believe that this is sufficient justification for the imposition of extended terms. Therefore, it is not necessary for us to consider whether defendants should have received notice that their earlier convictions could result in extended terms or whether the court’s alleged reliance upon the “rap sheets” was improper. People v. Brown; People v. Gardner.

VI

In a separate brief, defendant Knox contends that the uncorroborated, incomplete and contradictory testimony of an admitted narcotics addict (Janice Freeman) was insufficient to convict him, especially where the prosecution failed to present the testimony of other witnesses to an incident that was observed by numerous individuals. Defendant argues that whether a witness is a narcotics addict is an important factor to consider when assessing the witness’ credibility because “ ‘the testimony of a narcotics addict is subject to suspicion due to the fact that habitual users of narcotics become notorious liars.’ ” (People v. Strother (1972), 53 Ill. 2d 95, 99, 290 N.E.2d 201, 204.) Defendant further contends that since the victim had been convicted of possession of heroin and had needle marks on her arm from heroin use, her testimony was highly suspicious and worthy of little credence. He claims that absent the testimony of Janice Freeman, the evidence was insufficient to find him guilty of the offenses. Defendant contends that the testimony of the victim was inherently improbable. He argues that when the victim was accosted in the hall, she was returning home from a party which her boyfriend attended and that it is unlikely that her boyfriend would not accompany her home. Defendant argues that the State’s failure to call other witnesses warrants the trial court in finding that the witnesses would testify adversely to the prosecution. (See People v. Smith (1971), 3 Ill. App. 3d 64, 278 N.E.2d 551.) Defendant contends that the State failed to produce the bannister rail with which the victim was struck, the needle which Nugent stuck in her neck, the metal chair with which she was beaten, the machine gun and the rags with which she was bound. Defendant claims that this evidence was necessary to corroborate the testimony of the victim and that absent this evidence the victim’s testimony is suspect. Defendant also claims that the hospital care which she received casts doubt upon her story because she did not receive the extensive treatment which would be expected where an individual was seriously injured. He contends that the evidence presented by the State was not impeached by the prosecution and that the evidence failed to rebut the defense.

The State argues that the issue of the credibility of witnesses is within the province of the trial judge who is in the position to assess the testimony, demeanor, mannerisms and expressions of witnesses. (People v. Ashford (1974), 17 Ill. App. 3d 592, 308 N.E.2d 271.) The State contends that the testimony of a single witness, if positive and credible, is sufficient to sustain a conviction even though the testimony is contradicted by the accused. (See People v. Carr (1973), 16 Ill. App. 3d 76, 305 N.E.2d 554.) The State further urges that a court of review should not substitute its judgment for that of the trier of fact on a question involving the credibility of a witness and should not reverse a conviction unless the evidence is so improbable as to raise a reasonable doubt. (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) The State refers us to the testimony of the police officers and argues that their testimony corroborates that of the victim. The State also contends that it introduced photographic evidence to substantiate the injuries sustained by Janice Freeman.

The issue raised by defendant is one of the credibility of Janice Freeman. Based upon People v. Strother, defendant urges us to adopt a per se rule that the testimony of a narcotics addict is not to be believed unless corroborated by other credible evidence. The trial judge as the trier of fact is uniquely suited to assessing the credibility of a witness and his evaluation of the testimony of a narcotics addict is based on many factors, including the witness’ addiction. (See People v. Ashford.) The trial court stated that it believed the version of the events as related by the victim and this is sufficient to support the court’s finding defendant guilty even though the State did not offer the items of physical evidence which defendant urges are necessary to corroborate the victim’s testimony. (See People v. Carr.) We do not believe that the evidence introduced at trial was so improbable as to raise a reasonable doubt as to defendant’s guilt. See People v. Manion.

VII

Defendant Knox next contends that a combination of objected-to and unobjected-to errors at trial resulted in plain error and a denial of his right to a fair trial. In support of his contention, defendant argues that the State was permitted to introduce hearsay testimony to bolster the testimony of the victim; that the State was allowed to question defendant about a prior inconsistent statement and failed to introduce into evidence the alleged prior inconsistent statement; and that the defense was precluded from questioning the victim about her narcotics addiction.

The State contends that defendant has waived any error which resulted from the admission of unobjected to testimony because of defendant’s failure to make a timely objection and to indicate the specific basis of the objection. (See People v. Haywood (1978), 60 Ill. App. 3d 236, 376 N.E.2d 328, cert. denied (1979), 440 U.S. 948, 59 L. Ed. 2d 637, 99 S. Ct. 1427.) The State also notes that the court sustained any objections made by the defendant to hearsay evidence. Concerning defendant’s contention that the State improperly was permitted to question defendant about a prior inconsistent statement without introducing evidence to establish the prior inconsistent statement, the State argues that the admission of the testimony did not contribute to the finding of guilt since other relevant, competent and properly admitted evidence was of a substantial nature to warrant finding defendant guilty. (People v. Landgham (1970), 122 Ill. App. 2d 9, 257 N.E.2d 484, cert. denied (1971), 402 U.S. 911, 28 L. Ed. 2d 652, 91 S. Ct. 1389.) The State also contends that the refusal of the trial court to permit the defendant to question the victim about her narcotics addiction was proper. The State argues that if any error did exist, it was harmless and does not require the reversal of defendant’s conviction.

Our review of the arguments made by the parties concerning the objected-to and unobjected-to errors at trial, the use of hearsay to bolster the testimony of the victim and the interrogation of defendant Knox concerning an alleged prior inconsistent statement leads us to conclude that if any error existed, it was harmless considering the other competent evidence concerning defendant’s guilt which was introduced at trial. (See People v. Laurry (1972), 5 Ill. App. 3d 713, 283 N.E.2d 895.) With respect to defendant’s contention that he was not permitted to question the victim about her heroin addiction and this prevented defendant from impeaching the victim, we believe the trial court acted properly. Although we note that the trial court should be concerned with credibility of the testimony of a narcotics addict, it is within the court’s discretion to either permit or deny broad cross-examination of the witness based upon the nature of the case before the court. (See People v. Galloway (1974), 59 Ill. 2d 158, 319 N.E.2d 498.) In instances where a narcotics addict’s testimony is essential to the prosecution for a violation of a drug law, defendant should be permitted to cross-examine the witness in detail concerning his past or present use of narcotics. See (People v. Strother (1972), 53 Ill. 2d 95, 290 N.E.2d 201; People v. Boyd (1959), 17 Ill. 2d 321, 161 N.E.2d 311.) In the instant case, the prosecution of defendant did not involve the violation of any drug law, rather it involved crimes of violence. We do not believe that the trial court erred in prohibiting the defense from extensive cross-examination of the victim concerning her narcotics habit where the subject matter of the prosecution had no relationship to violation of the narcotics laws.

VIII

Finally, defendant Knox argues that representation of him and his three co-defendants by a single public defender deprived him of effective assistance of counsel. Defendant argues that joint representation prevented counsel from inquiring in detail into the relationship of Gerald Freeman, the victim and others. Defendant implies that he had competing interests with the other defendants and that he was prejudiced by joint representation by counsel. (See People v. Ware (1968), 39 Ill. 2d 66, 233 N.E.2d 421.) Defendant also relies upon Holloway v. Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173, to support his contention that he was denied effective assistance of counsel by the trial court’s failure to appoint separate counsel or determine whether the risk of conflict was too remote to require the appointment of separate counsel for defendant.

The State argues that defendant’s reliance on Holloway is misplaced since Holloway involved defense counsel’s motion for the appointment of separate counsel where counsel had received certain confidential information from co-defendants and he risked certain conflicts of interests through joint representation. The State argues that Holloway requires the trial judge to investigate timely objections made by counsel where counsel represents several defendants and the attorney believes that there may be conflicts of interest in joint representation. The State argues that absent special circumstances, the trial court may assume that joint representation involves either no conflict or that the clients knowingly accept such risks which may be involved in joint representation. (Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708.) The State argues that the burden to determine whether a conflict of interest exists or may exist falls upon defendant’s counsel, who is in the best position to ascertain and evaluate the conflict. (Holloway v. Arkansas.) Under Cuyler, the State argues that an actual conflict must be shown where no objection to multiple representation was raised at trial.

Defendant does not indicate where the actual conflict of interest in joint representation lies, rather, defendant urges this court to hold that he received ineffective assistance of counsel because of a hypothetical conflict of interest. Absent an actual conflict of interest, the judgment of the trial court will not be reversed based upon defendant’s unsupported allegations. (See People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649, cert. denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42, 100 S. Ct. 64.) We do not believe that the cases cited by defendant are on point since both Ware and Holloway involved motions by counsel for co-defendants requesting appointment of separate counsel. Defendant has not established that an actual conflict of interest adversely affected his counsel’s performance, and the mere possibility of conflict is not sufficient to warrant reversal of his conviction. See Cuyler v. Sullivan.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

GOLDBERG and O’CONNOR, JJ., concur.


author: Miss JUSTICE McGILLICUDDY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ORVILLE MILLER, Defendant-Appellant.
    First District (3rd Division)
    No. 79-1545
    Opinion filed November 12, 1981.

      James J. Doherty, Public Defender, of Chicago (Emily Eisner and Aaron L. Meyers, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr, Iris E. Sholder and Armand L. Andry, Assistant State’s Attorneys, of counsel), for the People.
   Miss JUSTICE McGILLICUDDY

delivered the opinion of the court:

Following a jury trial, Orville Miller, the defendant, was found guilty of the attempt murder and aggravated battery of Garfield Johnson. The defendant was sentenced to an extended term of 60 years in prison for both offenses to be served consecutively with a term of 100 to 200 years in prison for a prior murder conviction.

On appeal, the defendant contends that he wras denied a fair trial because: (1) the State introduced irrelevant and prejudicial evidence of gang association; (2) the prosecutor improperly referred to the convictions of the other co-defendants; (3) the court permitted evidence to bolster the testimony of the complaining witness; (4) the court permitted improper rebuttal evidence; (5) the State created the impression that the defendant was guilty of prior criminal behavior; (6) the prosecutor made improper closing argument; and (7) the defense was not allowed to discredit the testimony of the complaining witness. The defendant also contends that he was not proved guilty beyond a reasonable doubt and that he was sentenced improperly to a consecutive rather than a concurrent term of imprisonment.

At trial, Opel Johnson, the victim’s sister, testified that on November 8, 1975, at about 6 p.m., she was talking with some friends in a park. Teddy Parrish began to talk to her. As she was walking with Parrish, he pointed a gun at her side and led her into the front entrance of a building. He took her money and began to fondle her clothes. She began to cry and fought off his attempt to take her clothes off. Shortly thereafter, Opel escaped and returned home. She told her brother, Garfield, that Teddy had a gun and had taken her money. Opel testified that she had known Teddy Parrish for a couple of months and had seen him with the defendant, Rudy and Ricky Bell, David Lattimore and “Sundown” (William Doyle) in the area of 89th and Cottage Grove.

Garfield Johnson testified that on November 8, 1975, his sister told him that Teddy Parrish had a gun and had taken her money. At approximately 8:20 p.m. Garfield went with Reginald Vaughn to a liquor store on 90th and Cottage Grove. Teddy Parrish was standing in front of the store and David Lattimore was sitting in a car nearby. While Reginald went into the store, Garfield asked Teddy for his sister’s money and searched Teddy’s pockets. Garfield then walked across the street to a candy store.

When Garfield walked out of the store, he saw Parrish, Lattimore, Ricky Bell and the defendant standing in front of the store. As he began to walk, they followed him. Garfield testified that the defendant grabbed his right shoulder and shot him in the left shoulder. Garfield turned around and saw Parrish and the defendant with guns. Lattimore and Ricky then tried to put him on the hood of a car. Garfield was shot in the back four or five times by the defendant and Parrish as he was on his stomach on the car hood. He then slid off the car to the ground and was shot four or five more times by the defendant and Parrish. The four assailants then got into the defendant’s car and drove away.

Garfield further testified that on the way to the hospital and at the hospital he told the police the names of the men who shot him. On cross-examination he stated that during a prior proceeding he testified that he did not see Parrish shooting him when he was on his stomach on the car hood and that he may have given the police the name “Michael” Lattimore instead of David Lattimore.

Investigator James Doyle of the Chicago Police Department testified that at approximately 8:30 p.m. on November 8, 1975, he transported Garfield Johnson to the hospital. Garfield told Doyle that he had been shot by “Bimbo” and Lattimore.

Investigator Peter Dignan of the Chicago Police Department testified that at 10 p.m. on November 8, 1975, at Jackson Park Hospital, he was told by Garfield Johnson that “Bimbo,” Teddy, David Lattimore and Ricky Bell had shot him. Garfield told Dignan that “Bimbo” was Orville Miller.

As a defense witness, Vickie Nichols testified that she went to the D & J Variety Store located at 8950 South Cottage Grove on the night of November 8, 1975, between 7:15 and 7:30 p.m. In the store at that time were Hank Andrews, George Carter, Orville Miller, Rudy Bell and Jerry Streety. The defendant was a friend of her boyfriend, George Carter. She did not see the defendant with a gun that night. She stated that between 7:45 and 8 p.m. Garfield Johnson and Reginald Vaughn entered the store. Garfield made a purchase and left with Vaughn. Shortly thereafter, gunshots were heard and she and the defendant went outside with Andrews, Carter and Rudy following. Garfield was lying on the ground near the curb and Vaughn was standing over him.

Nichols testified that she had not discussed the shooting with any police officers. She knew the defendant had been charged with the offense a couple of months after the shooting. She stated that William Doyle, nicknamed “Sundown,” had approached her two weeks before the trial and asked her to talk to the defendant’s attorneys. Nichols testified that Doyle had not threatened her or influenced her testimony.

The second alibi witness, Jerry Streety, testified that he was working at the D & J Variety Store on November 8, 1975. That evening a person came into the store and said someone had been shot. Vickie Nichols, George Carter, Rudy Bell and the defendant were present in the store at that time. Rudy and the defendant left the store and drove away in the defendant’s car. Streety further testified that he had not given this information to any State’s Attorney or the police and had not talked to defense counsel until a week and a half before trial. Streety said that he had been visited by “Sundown,” who had asked Streety to see the defendant’s attorneys. About a week later, “Sundown” and Carter visited Streety again to ask him to see the defense counsel.

At the conclusion of the trial, the defendant was convicted of attempt murder and aggravated battery. His motion for a new trial was denied.

I

The defendant first argues on appeal that he was denied a fair trial because the State repeatedly introduced irrelevant and prejudicial evidence of gang association.. The defendant contends that gang association was implied when the State asked Opel Johnson who she saw Teddy Parrish with and when the State asked Garfield Johnson “[w]ho else did David Lattimore associate with besides Teddy?” The defendant argues that additional glaring references to gang affiliation occurred during the State’s cross-examination of Vickie Nichols and Jerry Streety when the following questions were posed:

“Q: “Now, Lattimore, Parrish and the Bell brothers, George Carter, Hank Andrews and Orville Miller all hang out there at 90th and Cottage Grove, don’t they?”
Q: “That’s their place, right?” (Objection sustained.)
Q: “[Does Sundown] also hang around 90th and Cottage Grove?”
Q: “He [Sundown] was of the same organization [as] all these people were, wasn’t he?” (Objection sustained.)
Q: “Well, did George Carter, Orville Miller belong to the same organization?” (Objection sustained.)
Q: “Did Orville Miller and your — and George Carter, did they ever wear any trinkets?” (Objection sustained.)
Q: “[The people that hung around the store] they were gang, weren’t they?” (Objection sustained.)
Q: “And Sundown used to hang out with Orville Miller, didn’t he?”
Q: “They are part of that group that used to hang out at 90th and Cottage Grove?”
Q: “Did they have a name for their group?” (Objection sustained.)
Q: “Any other [phrases used by the defendant] stand out in your mind?”

The defendant argues that the above-listed questions were designed to inform the jury that the defendant belonged to a gang and to draw upon the jury’s prejudices that gang members are more likely to commit heinous crimes.

In a criminal trial, the State may not bring forth evidence which only serves to cause the jury to believe a defendant to be a bad person, and hence likely to be guilty of the crime charged. A defendant’s guilt must be established by “ ‘competent evidence, uninfluenced by bias or prejudice raised by irrelevant evidence, or by unjustified aspersions or insinuations tending to inflame the minds of the jury.’ ” (People v. Oliver (1972), 3 Ill. App. 3d 872, 279 N.E.2d 363.) However, evidence which is relevant and otherwise admissible need not be excluded because it may also have a tendency to prejudice the defendant. People v. Oliver.

Proof of gang membership is admissible if that membership is related to the crime charged. (People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840, cert. denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1658.) In People v. McMurray (1972), 6 Ill. App. 3d 129, 285 N.E.2d 242, cert. denied (1973), 411 U.S. 918, 36 L. Ed. 2d 310, 93 S. Ct. 1554, the court allowed evidence of gang membership to explain the circumstances surrounding the shooting of a police officer who was a member of the gang intelligence unit. We believe a similar situation is present in the case at bar and that evidence of the defendant’s associations was relevant and probative. Garfield Johnson testified that he was attacked by four individuals — Teddy Parrish, David Lattimore, Ricky Bell and the defendant. Shortly before the attack, Garfield had been involved in a confrontation with Parrish. There was no evidence of animosity or confrontation between Garfield and the other three men. Thus, evidence that the defendant was a friend of Lattimore and Ricky Bell and that the three men had associated with Parrish was relevant to show their motive for becoming involved in a dispute between Parrish and Garfield.

Similarly, we believe evidence of William Doyle’s (Sundown’s) association with the defendant was relevant to explain why he visited the defendant’s alibi witnesses before the defendant’s trial. While we do not believe that the testimony regarding these visits created an impression in the minds of the jury that the witnesses had been intimidated with threats of violence, as the defendant contends, we are of the opinion that this testimony was relevant to the issue of the witnesses’ credibility.

II

The defendant also contends that he was denied a fair trial due to repeated references to the prior trial of Teddy Parrish, David Lattimore and Ricky Bell in connection with the attack upon Garfield Johnson. The defendant points to the State’s cross-examination of Vickie Nichols regarding her presence in court during the summer of 1978 at “the trial of Parrish and Bell.” The objection to this questioning was sustained and the jury was instructed to disregard it. The defendant contends that the jury also was advised that the other three men had been convicted when the prosecutor asked Nichols if she had visited the Bell brothers in jail and when in rebuttal argument the prosecutor stated:

“[Prosecutor]: Where is Theodore Parrish? Illinois Department of Corrections.” (Objection sustained.)
“[Prosecutor]: Where is David Lattimore?” (Objection sustained.)

It is well settled that evidence of an alleged accomplice’s conviction for an offense for which the defendant is being tried is inadmissible to prove the guilt of the defendant. (People v. Sullivan (1978), 72 Ill. 2d 36, 377 N.E.2d 17.) In the instant case, however, the jury was never advised directly that Lattimore, Parrish and Ricky Bell had been tried and convicted of the attack upon Garfield Johnson. While the State produced evidence that the three men were incarcerated, the reasons for their incarcerations were never established since defense counsel appropriately objected to the State’s line of questioning and the objections were sustained. Therefore, we believe that no error was committed by the reference to the prior trial of the co-defendants. Reversal also is not warranted since the defendant, himself, initiated questioning regarding the prior court proceedings. During cross-examination Opel Johnson was asked and answered that she first told the State’s Attorney that Parrish had tried to rob her when she attended court in July. Also, in an impeachment attempt by defense counsel, Garfield Johnson was questioned about his testimony in another trial in July of 1978. Finally, in closing argument, defense counsel stated that arrest warrants had been procured for the defendant, Ricky Bell, and David Lattimore but not Teddy Parrish. The defendant cannot complain where he has opened the door and invited comment on inadmissible evidence. People v. Agee (1980), 85 Ill. App. 3d 74, 405 N.E.2d 1245; People v. Kitchen (1977), 53 Ill. App. 3d 521, 368 N.E.2d 528.

Ill

The defendant next contends that the court improperly admitted the testimony of Investigators Doyle and Dignan regarding Garfield Johnson’s identification statements. The defendant relies on People v. Clark (1972), 52 Ill. 2d 374, 288 N.E.2d 363, which held that a witness may not testify as to out-of-court statements he made for the purpose of corroborating his in-court testimony.

Our supreme court has recently held in People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223, that the general rule pronounced in Clark does not apply to statements of identification. The court in Rogers held that evidence of out-of-court identifications by both the identifying witness and a third person who saw or heard the identification is admissible for the limited purpose of corroborating the in-court identification. Such corroboration is justified to rebut the notion that “by the time of trial, the witness’ mind has become so conditioned that there is little likelihood that he would not identify the person in court.” (81 Ill. 2d 571, 578, 411 N.E.2d 223, 227.) In reliance upon Rogers, we therefore hold that the testimony of Investigators Doyle and Dignan, regarding Garfield’s out-of-court identification of the persons who shot him, is admissible to corroborate Garfield’s in-court identification.

We also note, as the trial court so held, that the testimony of the police investigators was admissible as Garfield Johnson’s spontaneous utterances. (People v. Crawford (1962), 23 Ill. 2d 605, 179 N.E.2d 667; see People v. Olmos (1978), 67 Ill. App. 3d 281, 384 N.E.2d 853; People v. Buckley (1976), 43 Ill. App. 3d 53, 356 N.E.2d 1113.) The statements related to the circumstances of an occurrence that was sufficiently startling and that would produce a spontaneous and unreflecting statement due to an absence of time to fabricate. People v. Robinson (1978), 73 Ill. 2d 192, 383 N.E.2d 164; People v. DeArmond (1972), 5 Ill. App. 3d 831, 284 N.E.2d 474.

IV

The fourth issue raised by the defendant is that the court permitted improper rebuttal evidence.

At trial, defense witness Streety testified that he had not discussed the shooting of Garfield Johnson with the police or the State’s Attorney. Over objection, the State was permitted in rebuttal to introduce a stipulation that the defense had failed to disclose the address of Streety during discovery.

Rebuttal evidence is evidence that explains, repels, contradicts or disproves evidence produced by the accused. (People v. Plair (1977), 51 Ill. App. 3d 75, 366 N.E.2d 410.) Rebuttal evidence may be used only to rebut the defendant’s evidence as to a material issue, but not as to a collateral or immaterial matter. (People v. Williams (1981), 96 Ill. App. 3d 958, 422 N.E.2d 199; People v. Gardner (1977), 47 Ill. App. 3d 529, 362 N.E.2d 14.) The State argues that the rebuttal evidence in the instant case was admitted properly to explain Streety’s testimony that he had not been questioned by law enforcement officials prior to trial. We believe this rebuttal evidence was irrelevant to any material issues presented and, thus, was erroneously admitted. However, we will not reverse defendant’s conviction on this basis as the defendant has not shown how he was prejudiced by this erroneous admission of evidence.

V

The defendant next contends that the State improperly created the impression that the defendant was guilty of prior criminal behavior. The defendant cites the State’s cross-examination of Vickie Nichols concerning her presence in court in the summer of 1978 during the trial of Teddy Parrish and Ricky Bell and the State’s re-cross-examination, wherein the prosecutor asked:

“[Prosecutor]: When you said Orville Miller was standing trial, that’s incorrect. He didn’t stand trial in ’78?
Nichols: I came to the Court and he was standing trial—
The Court: Just a minute.
The question was, was he standing trial in 1978 when you came to Judge Garippo’s courtroom? Yes or no.
Nichols: Yes.
[Prosecutor]: Well, that was in March of ’78, wasn’t it?
The Court: I’l [sic] not going to let you go any further.”

The defendant also cites closing argument wherein the prosecutor referred to Nichols’ failure to talk to defendant’s attorneys at the trial in the summer of 1978.

Based on the above-stated questions and comments by the prosecutor, the defendant argues that the jury was led to believe that the defendant either had been tried previously in the summer of 1978 for the shooting of Garfield Johnson or was on trial at that time for another offense. We find no merit to this argument as the record does not contain specific references to prior convictions or offenses committed by the defendant. The inferences that the defendant asks this court to draw clearly are not sustained by the record.

VI

The sixth issue raised by the defendant concerns alleged improper closing argument by the State. Specifically, the defendant contends that the prosecutor shifted the burden of proof when he stated:

“Sundown [William Doyle] is going out and grabbing up some witnesses at the last second because we have to prepare — we have got to put something on. We can’t just sit there.”

The defendant argues that this statement created an inference of guilt and suggested to the jury that the defendant had to prove his innocence by putting alibi witnesses on the stand. As no objection was made by the defendant to this comment at trial, the error, if any is waived. (People v. Daniels (1979), 76 Ill. App. 3d 646, 395 N.E.2d 163.) Furthermore, we reject the inferences suggested by the defendant and find that the prosecutor’s comments were based on the evidence presented at trial. People v. Hawkins (1980), 88 Ill. App. 3d 178, 410 N.E.2d 309.

The defendant also contends that the State committed error by insinuating that the complaining witness was threatened concerning his testifying in court. During rebuttal the prosecutor stated that Garfield Johnson was courageous and had not shirked his responsibility to testify even though he had been visited by “Sundown,” Teddy Parrish and David Lattimore. Again the prosecutor’s comments were based on the evidence. The thrust of the comment, taken as a whole, was to emphasize the credibility of the complaining witness, which had been attacked during defense counsel’s closing argument.

The third prosecutorial comment alleged to be error by the defendant was the prosecutor’s reference to the defendant as a “yellow coward.” In this same context the prosecutor also stated that the defendant and Ricky Bell, David Lattimore and Teddy Parrish were cowards, “[b]ut together, give them a couple of guns and they are men.” The defendant contends that this latter comment, in addition to being an improper opprobrium and denunciation, was an attempt to create the image of gang membership. We disagree. The prosecutor’s comments do not suggest gang activity or membership. The prosecutor merely sought to reflect unfavorably on the defendant by saying that, without support, the defendant was cowardly. An unfavorable description of a defendant is not improper or reversible error. People v. Hovanec (1979), 76 Ill. App. 3d 401, 394 N.E.2d 1340.

The final rebuttal comments alleged to be error by the defendant were the prosecutor’s characterization of the defendant’s case as fraudulent and accusations that defense counsel perpetrated a fraud by presenting the testimony of Vickie Nichols and by referring incompletely to prior court proceedings during impeachment attempts of Garfield Johnson.

Accusations of fraud and suborning perjury are improper commentary that only serve to arouse the antagonism of the jury. (People v. Monroe (1977), 66 Ill. 2d 317, 362 N.E.2d 295; People v. Stock (1974), 56 Ill. 2d 461, 309 N.E.2d 19; People v. Martin (1975), 29 Ill. App. 3d 825, 331 N.E.2d 311.) Where the evidence is close and conflicting so that it is impossible to determine the effect of these improper comments on the jury deliberations, a new trial must be granted. People v. Freedman (1954), 4 Ill. 2d 414, 123 N.E.2d 317; People v. Martin; see People v. Tedder (1980), 83 Ill. App. 3d 874, 404 N.E.2d 437 (no new trial when clear and convincing evidence).

A review of the record in the case at bar indicates that the prosecutor did commit error in his characterizations of defense tactics as fraudulent. We cannot say, however, that the defendant was substantially prejudiced by these remarks, nor can we conclude that the jury’s verdict would have been different had the remarks not been made. Therefore, a new trial will not be ordered. See People v. Porter (1981), 96 Ill. App. 3d 976, 422 N.E.2d 213.

VII

The defendant’s seventh argument is that he was denied a fair trial because he was not allowed to discredit the testimony of Garfield Johnson. Johnson had testified on cross-examination that he did not have a weapon when he went to the area where he was shot. The defendant during his case in chief sought to elicit testimony from Vickie Nichols and Jerry Streety that they had seen Johnson with a gun on the night of the shooting. The State’s objection to this line of questioning was sustained.

The defendant argues that the excluded testimony was highly relevant to show Johnson’s vengeful attitude and bias toward his alleged attackers and to undermine the State’s case by exposing serious doubt about the complainant’s story that he had been unjustifiably attacked. We disagree with this contention and find that the excluded testimony was irrelevant to the case at bar. The testimony would not have indicated an interest, bias or motive by Johnson to testify falsely against the defendant. Unlike the circumstances in People v. Coles (1977), 55 Ill. App. 3d 528, 371 N.E.2d 259, modified (1979), 74 Ill. 2d 393, 385 N.E.2d 694, a case cited by the defendant, the evidence that the defendant sought to admit would not have shown a reason for animosity between the defendant and Johnson. Nor does the fact that Johnson may have carried a gun on the night of the shooting discredit Johnson’s testimony that he was shot unjustifiably and without provocation by the defendant.

VIII

The eighth issue raised by the defendant is whether he was proved guilty of attempt murder and aggravated battery beyond a reasonable doubt. The defendant bases this contention on the strong alibi testimony as compared to Garfield Johnson’s inconsistent testimony and weak identification of the defendant.

The credibility of witnesses and the weight to be given their testimony is to be determined by the trier of fact. (E.g., People v. Williams (1981), 96 Ill. App. 3d 958, 422 N.E.2d 199; People v. Richard (1980), 88 Ill. App. 3d 247, 410 N.E.2d 459.) Courts of review may not substitute their judgment for that of the trier of fact unless the evidence is so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt of the defendant’s guilt. (E.g., People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) It is undisputed that where the identification of the accused is at issue, the testimony of one witness is sufficient to convict, even though such testimony is contradicted by the accused, provided the witness is credible and he viewed the accused under circumstances as would permit a positive identification to be made. (E.g., People v. Yarbrough (1977), 67 Ill. 2d 222, 367 N.E.2d 666; People v. Robinson (1980), 88 Ill. App. 3d 96, 410 N.E.2d 331.) Furthermore, minor conflicts and inconsistencies in testimony do not destroy the credibility of a witness. Precise consistency as to collateral matters is not required to establish guilt beyond a reasonable doubt. People v. Reed (1980), 84 Ill. App. 3d 1030, 405 N.E.2d 1065.

After reviewing the evidence in the instant case, we find that the defendant was proved guilty beyond a reasonable doubt. Garfield Johnson’s identification of the defendant was positive. He testified that he saw the defendant immediately before he was shot. After he was shot in the shoulder, Garfield turned around and again saw the defendant with a gun. Garfield testified that after he slid off the car hood, with his back on the ground, he saw the defendant shoot him again. The fact that Garfield knew the defendant before the shooting further strengthens his identification. People v. Robinson.

Defendant argues that contradictions between Garfield’s testimony at trial and statements he made to the police officers shortly after the shooting and conflicting testimony as to whether or not he had seen his girlfriend at the scene of the shooting render his trial testimony untrustworthy. In view of the fact that Garfield had undergone a traumatic experience at the time of the shooting (People v. Henderson (1976), 36 Ill. App. 3d 355, 344 N.E.2d 239), we find that these inconsistencies do not make his testimony so incredible or improbable as to raise a reasonable doubt of the defendant’s guilt. The contradictions cited by the defendant were weighed in favor of Johnson, and we will not substitute our judgment for that of the trier of fact. (People v. Williams (1979), 71 Ill. App. 3d 547, 390 N.E.2d 32.) Similarly, we will not interfere with the jury’s rejection of the alibi defense as the jury was in a better position to determine the credibility of the defense witnesses. The trier of fact is not required to accept alibi testimony over a positive identification of the defendant. People v. Williams (1981), 96 Ill. App. 3d 958, 422 N.E.2d 199.

IX

The final argument raised in this appeal is that the trial judge improperly ordered that the defendant’s 60-year sentence for the attempt murder of Garfield Johnson be served consecutively with a sentence of 100 to 200 years received previously for an unrelated offense.

Section 5 — 8—4(b) of the Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 8—4(b)) provides:

“The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.”

The decision to sentence an offender to consecutive terms is discretionary with the trial court. (People v. Rose (1979), 75 Ill. App. 3d 393, N.E.2d 698; People v. Reed (1977), 51 Ill. App. 3d 479, 366 N.E.2d 1137.) A consecutive sentence should only be imposed when the court determines that it is required to protect the public from further criminal conduct by the defendant. People v. Henry (1977), 47 Ill. App. 3d 545, 362 N.E.2d 117.

Prior to February 1, 1978, the basis for imposing a consecutive sentence, i.e., the public’s protection, need not have been set forth in the record. (Ill. Rev. Stat. 1977, ch. 38, par. 1005—8—4(b); see People v. Snyder (1979), 77 Ill. 2d 459, 397 N.E.2d 799.) The amended statute requires that the trial judge set forth the basis so as to enable reviewing courts to determine whether the sentencing decision was consistent with the statutory objectives. People v. Green (1980), 83 Ill. App. 3d 982, 404 N.E.2d 930.

The record in the instant case shows substantial compliance with this requirement even though the trial judge did not specifically say that consecutive imprisonment was necessary for the public good. (See People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) During sentencing the trial court noted that within 10 years of his conviction in the present case the defendant had been convicted of murder, for which he was currently serving an extensive sentence. The trial judge noted that the attempt murder offense against Garfield Johnson was exceptionally brutal and heinous as the victim, a young man, was left paralyzed and had lost normal bodily functions. While it is true that the court discussed these factors in the context of sentencing the defendant to an extended term (Ill. Rev. Stat. 1978 Supp., ch. 38, par. 1005 — 5—3.2(b)), the factors also were relevant to the consecutive sentence determination. We believe that the record supports a conclusion that the consecutive sentence was required to protect the public from further criminal conduct by the defendant and find no abuse in the sentence imposed.

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

Affirmed.

RIZZI, P. J., and WHITE, J., concur.

       The co-defendants were Teddy Parrish, David Lattimore (also referred to as David Latimer), and Ricky Bell (also referred to as Rickey Bell). Orville Miller was tried separately.

       At the start of the trial, defense counsel made a motion in limine to preclude the State from introducing evidence of gang association. The trial judge denied this motion.

       The defendant’s trial occurred in January of 1979.