author: PRESIDING JUSTICE KARNS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL DOUGLAS MOON, Defendant-Appellant.
    Fifth District
    No. 80-448
    Opinion filed June 11, 1982.

      Randy E. Blue and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Ward, State’s Attorney, of Taylorville (Martin N. Ashley and Stephen E. Norris, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE KARNS

delivered the opinion of the court:

Defendant, Paul Douglas Moon, appeals from a judgment of conviction entered on a jury verdict in the Circuit Court of Christian County finding him guilty of the offense of murder. He was sentenced to a term of 40 years’ imprisonment.

On appeal, defendant raises the following issues: (1) whether the trial court erred in failing to give his tendered instructions on the defense of voluntary intoxication; (2) whether the trial court erred in failing to instruct the jury sua sponte on the definition of armed robbery, the predicate felony to the charge of felony murder; (3) whether the trial court erred in giving a supplemental jury instruction; and (4) whether the trial court abused its discretion in sentencing him to a term of 40 years’ imprisonment where a co-felon received a term of 32 years’ imprisonment.

Evidence introduced at trial establishes that on the afternoon of March 5, 1980, defendant and Nicky John Clucas joined Ronald Dean Battles at the Pasttime Club, a tavern located in Pana, Illinois, where they drank, talked and played pool for about two hours. Prior to leaving the tavern, defendant purchased a case of beer and Battles purchased a quart of vodka. Battles invited defendant and Clucas to his brother’s house in Millersville and Clucas called his friend, Tom Coleman, for a ride. Coleman picked up the men at the Pasttime Club and on the way to Millersville they stopped at the Victory Tavern where Battles went inside to purchase more liquor. Coleman testified that while Battles was inside the tavern, defendant and Clucas told Coleman that they planned to beat Battles and take his money. After arriving at the house, Coleman drank one beer and left.

At trial, Clucas admitted that he had pleaded guilty to Battles’ murder and was awaiting sentencing. Clucas stated he first met Battles on March 5. He claimed that only defendant made statements to Coleman concerning the plan to beat and rob Battles. Clucas testified that after Battles made two sexual advances towards him he hit Battles three times with his fist. Clucas further testified that defendant and Battles then went into the bedroom and that he heard sounds as if someone was being struck. Clucas then related that after he and defendant revived Battles in the bathtub, they both struck Battles repeatedly with their fists and with two wooden boards or clubs.

The recorded statement made by defendant to the police following his arrest that evening was heard by the jury. Defendant recalled the plan to get Battles drunk, beat him and take his money. Defendant stated that after they had been drinking at Battles’ house and Clucas continually “egged it on,” to get the money, defendant devised a scheme to get Battles’ pants off in order to search the pockets for money. Defendant then hit Battles and tied his wrists and ankles with belts. Defendant stated that Clucas entered the bedroom and began hitting Battles in the head with a board while they both asked Battles where his money was located. Defendant then threatened Battles with a large fork that he had taken from the kitchen. Defendant stated that he wanted to “get even” with Battles because Battles the previous year had drugged him and sexually assaulted him. Defendant stated that he only hit Battles once with the club striking him on the back. Defendant further stated that he took about 75 cents from Battles.

Defendant and Clucas were walking towards Pana when they were given a ride by Phillip Palmer. Palmer took the men to the address that they gave him. Palmer saw defendant and Clucas squat behind a car, thought it was suspicious, so he drove to the police station to report the incident.

Shortly thereafter, Benny Battles arrived at the police station. He and his wife had returned to their home and found his brother’s body. Given the information from Palmer and Battles, the police officers went to look for defendant and Clucas. They were located and arrested.

At trial, Dr. Slifer, who performed the autopsy, testified that Battles’ death was caused by a compressed skull fracture on the left side of the head. He also found that the jaw had been broken on both sides, there were abrasions on the knees and forehead and puncture wounds on the back which appeared to have been made by a large fork.

Defendant first assigns as error the refusal of the trial court to give his tendered instructions on the defense of intoxication. He argues, in substance, that the evidence was sufficient to place before the jury the question of whether he was so intoxicated as to negate the intent to commit murder.

During the instructions conference, defendant tendered Illinois Pattern Jury Instructions, Criminal, No. 24.02 (1968) (hereinafter cited as IPI Criminal) (“Voluntary Intoxication or Drugged Condition”) and IPI Criminal No. 25.02 (“Issues in Defense of Voluntary Intoxication or Drugged Condition”). At defendant’s request, defense counsel did not tender an instruction on voluntary manslaughter. The trial court refused these instructions on the basis that there was insufficient evidence to raise the defense of intoxication. We conclude that a fair reading of the evidence supports the trial court’s refusal to give the tendered defense instructions on intoxication.

In order to raise the defense of voluntary intoxication, the accused must show that his intoxication was so extreme as to suspend all reason. (People v. Zynda (1977), 53 Ill. App. 3d 794, 368 N.E.2d 1079.) Merely being drunk or intoxicated is insufficient to create a defense of intoxication (People v. Williams (1973), 14 Ill. App. 3d 789, 303 N.E.2d 585.) At trial, Clucas testified that on the date the offense was committed, he and defendant drank a quart of gin, and they drank several beers and about two quarts of vodka with the victim. He further testified that after leaving Battles’ house, defendant was staggering and needed assistance to get into Palmer’s van. Palmer testified that he saw defendant walking along the highway and when he backed up his van to offer defendant a ride, defendant was lying on the highway. Palmer also stated that defendant was unable to sit upright in the van without Clucas’ help.

Although the evidence showed that defendant had been drinking, no evidence was introduced to prove that defendant’s mental processes were so impaired that he was unable to reason. Indeed, defendant’s recorded statement belies this contention. A detailed recollection of the offense tends to prove that the defendant’s power of reasoning was not suspended entirely. (See People v. Walcher (1969), 42 Ill. 2d 159, 246 N.E.2d 256; People v. Hare (1962), 25 Ill. 2d 321, 185 N.E.2d 178.) Defendant’s statement showed a detailed memory of the brutal attack on the victim. Defendant recalled his plan to get the victim drunk in order to take his money. Defendant also stated that the victim had made a sexual advance towards him the previous year and he wanted to “get him back.” Although defendant claimed a lack of memory of the events following the murder, at no time did defendant state that he did not know what he was doing during the commission of the offense.

We conclude that the evidence would not have justified a jury determination that defendant was so intoxicated as to suspend his power of reason entirely. Therefore, we hold that the trial court did not err in refusing the tendered defense instructions on intoxication.

Defendant next contends that the trial court committed reversible error in failing to instruct the jury on the definition of armed robbery, the predicate felony to the alternative charge of felony murder.

The trial court gave defendant’s tendered definitional and issues murder instructions. (IPI Criminal Nos. 7.01 (modified) and 7.02 (modified).) The given instructions defined murder as follows:

“A person commits the crime of murder who kills an individual if, in performing the acts which cause the death,
(1) he intends to kill or do great bodily harm to that individual; or
(2) he knows that such acts will cause death to that individual; or
(3) he knows that such acts create a strong probability of death or great bodily harm to that individual; or
(4) he is committing the crime of armed robbery.”

Defendant failed to tender an instruction on the definition of armed robbery, but now argues that such failure did not constitute a waiver because the omitted instruction related to the essential elements of the charged offense.

It is primarily the duty of the parties and not the trial court to prepare jury instructions. (Ill. Rev. Stat. 1979, ch. 110, par. 67; 73 Ill. 2d R. 451.) In addition, “no party may raise on appeal the failure to give an instruction unless he shall have tendered it.” (73 Ill. 2d R. 366(b) (2) (i); People v. Underwood (1978), 72 Ill. 2d 124, 129, 378 N.E.2d 513, 515.) In criminal cases, however, the waiver rule does not preclude judicial review of “substantial defects” in the jury instruction where “the interests of justice require.” (73 Ill. 2d R. 451(c).) The issue raised, therefore, is whether the definitional instruction on armed robbery was so basic as to the murder instructions that the failure of the trial court to sua sponte give the instruction resulted in an unfair trial. See People v. Underwood; People v. Carey (1981), 94 Ill. App. 3d 631, 418 N.E.2d 1119.

The committee comment to IPI Criminal No. 7.01 states that when the felony murder instruction is given, it should be followed immediately by a definition of the applicable forcible felony. We are of the opinion, however, that under the facts of this case, the failure of the trial court to give the instruction sua sponte did not constitute a “substantial defect.”

In the instant case, the jury was properly instructed on the alternative theories of murder. In addition, there was sufficient evidence to sustain a verdict of guilt on the alternative charges of murder. A general verdict of guilty is presumed to be based upon any proper count in the indictment to which the proof is applicable. (People v. Collins (1979), 71 Ill. App. 3d 815, 390 N.E.2d 463.) Because there is sufficient evidence to sustain a verdict of guilt on the alternative charge of murder, we need not consider whether the trial court erred in failing to sua sponte instruct the jury on the definition of the predicate felony. (See People v. Collins.) We conclude, therefore, that the omitted instruction was not so basic to the murder instructions that the failure of the trial court to sua sponte give it resulted in an unfair trial.

Finally, we note that although we hold that the trial court did not err in this regard, any error would be harmless. Defendant in his recorded statement admitted that he and Clucas planned to get the victim drunk in order to take his money and that he took about 75 cents. That a robbery was committed by defendant was conceded by defense counsel in his closing argument. The evidence also showed that the victim was beaten by two wooden boards. Therefore, reversal of the conviction on the ground now urged by défendant would be inappropriate. See People v. Jones (1979), 81 Ill. 2d 1, 405 N.E.2d 343.

Defendant next contends that the trial court erred in giving a supplemental instruction defining “act” (IPI Criminal No. 4.01) in response to the jury’s request for clarification.

The record shows that a conference was held about 2M hours after the jury began its deliberations. Judge Dailey stated that he had been requested to take the verdict because Judge Hickman, who presided at trial, had left the county. The judge instructed the bailiff to have the jury submit its question in writing. The bailiff returned with the issues murder instruction (IPI Criminal No. 7.02 (modified)) and the accountability instruction (IPI Criminal No. 5.03). On the murder instruction, the jury had placed a cross and underlined the following: “First: That the defendant performed the acts which caused the death of Ronald Dean Battles.” The record does not contain a written question by the jury. The court determined that the jury’s inquiry concerned the definition of “act,” and, therefore, instructed the jury on that definition (IPI Criminal No. 4.01) over objection of defendant. Defendant did not tender a supplemental instruction.

Defendant now argues that he was denied a fair trial because the substituted judge had no authority to act, and, alternatively, that the supplemental instruction confused the jury.

We have examined the cases relied upon by defendant and find that they do not support the proposition that the substituted judge had no authority to issue the instruction. A party is entitled to the judgment of one judge until the jury retires to consider its verdict. A judge may, however, replace the judge who presided at trial after the jury has retired to begin its deliberations. (People v. Mays (1962), 23 Ill. 2d 520, 179 N.E.2d 654; Huwe v. Commonwealth Edison Co. (1975), 29 Ill. App. 3d 1085, 332 N.E.2d 60.) Although the trial judge should be present where a motion or other matter develops that requires personal knowledge of the case (Huwe v. Commonwealth Edison Co.), we need not determine whether this principle applies to the instant case because we find that the jury was properly instructed.

In support of his contention that the instruction confused the jury, defendant argues that the instruction defining “act,” which includes a failure to act, impermissibly allowed the jury to determine his guilt on an accountability theory merely because he failed to stop Clucas from murdering Battles. We disagree. Although the record does not contain a written question by the jury, the jury’s inquiry evidenced confusion concerning the possibility of convicting defendant on an accountability theory where the murder instruction referred solely to an act performed by defendant. The jury may have had some doubt as to whether they could convict defendant of murder if he did not strike the fatal blow. Clearly under the evidence presented they could do so. The jury was properly instructed on accountability. A person is accountable for the conduct of another when either before or during the commission of an offense, with the intent to promote its commission, he solicits, aids or abets another in the planning or commission of that offense. (Ill. Rev. Stat. 1979, ch. 38, par. 5 — 2(c); People v. Wallace (1981), 100 Ill. App. 3d 424, 426 N.E.2d 1017.) Here defendant bound the hands and feet of the victim and beat him repeatedly. Defendant claimed that it was Clucas and not he who hit Battles in the head with the club. Even if the jury accepted defendant’s version of the commission of the crime, it was clear that he aided Clucas in murdering Battles. We are of the opinion the supplemental instruction properly informed the jury that they could convict defendant even if they found that he did not strike the fatal blow.

Defendant now argues, and the State concedes, that it would have been proper for the court to amend the issues murder instruction to include the phrase “or a person for whom he is legally responsible” after the word “defendant”. (See IPI Criminal No. 5.03, Committee Note (2d ed. 1981).) Defendant did not tender such an amendment at the conference. Although the amendment would have been proper, we find that the court satisfactorily achieved the purpose of properly instructing the jury and that the supplemental instruction did not result in prejudice to the defendant.

Defendant finally contends that the trial court abused its discretion in sentencing him to a term of 40 years’ imprisonment where there was no justification for his co-felon’s disparate sentence of 32 years’ imprisonment.

In order to determine whether a sentence is excessive in light of a lesser sentence imposed on an individual convicted as a result of the same offense, it is necessary to consider differences in criminal background and the degree of participation by each in the commission of the offense. (People v. Martin (1980), 81 Ill. App. 3d 238, 401 N.E.2d 13.) A disparate sentence is appropriate where the defendant receiving the more severe sentence was the moving force in the commission of the crime (People v. Massarella (1979), 80 Ill. App. 3d 552, 400 N.E.2d 436) or has a more serious criminal record. (People v. Henne (1973), 10 Ill. App. 3d 179, 293 N.E.2d 172.) Additionally, the trial judge’s decisions in regard to sentencing are entitled to deference on review and may not be altered absent an abuse of discretion. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

At the sentencing hearing, the court noted both the heinous nature of the crime and the statutory proscription against disparate sentences for similarly situated defendants. The court found that in light of defendant’s background, age and prior connection with the victim, a greater sentence than that imposed on Clucas would be appropriate. We conclude that the record amply supports the court’s determination and find no abuse of discretion in the sentence imposed on defendant.

The judgment of the Circuit Court of Christian County is affirmed.

Affirmed.

JONES and WELCH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WILSON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAYMOND K. BROWN, Defendant-Appellant.
    First District (5th Division)
    No. 80-1349
    Opinion filed June 25, 1982.

      James J. Doherty, Public Defender, of Chicago (Gerald T. Winiecki and James H. Reddy, Assistant Public Defenders, of counsel), for appellant.

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

delivered the opinion of the court:

Following a jury trial, defendants Raymond and Lori Brown were convicted of indecent liberties with a child. (Ill. Rev. Stat. 1977, ch. 38, par. 11 — 4.) The trial court sentenced Raymond Brown to 5 years imprisonment and Lori Brown to a period of probation. On appeal, defendant contends that: (1) the prosecutor committed reversible error by eliciting testimony from complainant as to psychiatric treatment she received after the charged offense, by eliciting testimony of other offenses allegedly committed by defendant, and by inquiring on cross-examination about the contents of allegedly pornographic films that had been specifically excluded from evidence by the trial judge; (2) the court committed reversible error in barring the defense from introducing testimony that complainant had previously claimed to a friend that she had engaged in sexual intercourse with the devil; (3) defendant was deprived of effective assistance of counsel through trial counsel’s failure to move to suppress evidence seized in defendant’s apartment during a warrantless, nonexigent arrest and search; and (4) defendant was not proved guilty beyond a reasonable doubt.

On February 1, 1978, complainant, Rebecca B., who was then 13 years old, was taken to the psychiatric ward of a hospital by her mother. She called police, who were not able to speak to Rebecca until February 20, 1978, because of her hospitalization. Upon investigation of complainant’s charges against defendants police conducted a surveillance of defendants’ apartment from April 1 to April 5, 1978.

On the evening of April 5, 1978, five police officers knocked on the door of the Browns’ apartment and announced their office. When Raymond Brown answered the door the police asked his name and then arrested him and advised him of his rights. They also arrested Lori Brown, who was present in the apartment. They searched the apartment and recovered several pornographic films, a projector, and various sexual devices. A police evidence technician then photographed the kitchen, bathroom, and bedroom. The Browns were charged with having committed indecent liberties with complainant on January 6, 1978.

At trial, Rebecca testified that in September of 1977 she was living . with her mother. She met defendants in October of that year when she went to their apartment with a schoolmate, known as Nina B., to babysit.

Two weeks later, Rebecca returned to the apartment with Nina and she started going to the Browns’ apartment once or twice a week.

Complainant further testified that in mid-November of 1977, she was in the Browns’ apartment with Nina, Raymond, and Lori Brown, talking and smoking reefers. The four of them went into the bedroom and watched a film, “Snow White,” and then a pornographic film. After the film, Raymond and Nina had sexual intercourse on the bed while she and Lori Brown were also on the bed.

Rebecca further testified that she and Raymond had sexual intercourse and then Raymond had intercourse with Nina again. Complainant stated that she went to the apartment three or four times a week between mid-November and January 6,1978, and stayed overnight 2 or 3 nights a week. On those nights Raymond, Lori, and Nina were also present. Rebecca further testified that she had sexual relations with Lori Brown prior to January 6, 1978. On the evening of January 6, 1978, she and Nina, Raymond, Lori, and another girl, were drinking and smoking reefers when Raymond showed them some pornographic films in the bedroom. Rebecca testified that she had seen such films 20 or 25 times before. The prosecution then showed the jury one of the films, which the complainant identified as one that she had seen at the Browns’ apartment on January 6, 1978 and other times.

Rebecca testified that after the movies were shown, Nina had sexual intercourse with Raymond and then she did also. Then Raymond and Nina performed acts of oral sex, after which Raymond put on a dildo and penetrated Nina’s vagina and anus. After that, Raymond directed Nina and then Rebecca to put their mouths on his penis. Then Lori Brown put her mouth on Nina’s vagina and then Rebecca’s. Raymond and Lori performed other sexual acts that day. Complainant testified that she left the next day and never returned, although Raymond and Lori telephoned and asked her to return.

Further testifying, Rebecca stated that she went to school on February 1, 1978, and that her mother removed her from school and took her to Illinois Masonic Hospital, where she stayed for two weeks in the psychiatric ward. Over defense objections, Rebecca stated that she was currently receiving psychiatric treatment but that she had not been receiving it prior to February 1, 1978.

Complainant identified several photographs of the Browns’ apartment and the projector used to show the films.

On cross-examination, Rebecca testified that from October of 1977 to January 6,1978, Nina was living with the Browns. She denied that she was in love with Nina and denied that she had asked Nina to live with her and her mother. Defense counsel asked Rebecca if she were a witch and she answered in the negative before the court sustained the State’s objection. Counsel attempted to further inquire along the same lines but the court again sustained objections. During a conference outside of the jury’s presence, the court ruled that the questions were irrelevant and improper.

In further cross-examination, Rebecca testified that she had had a social worker during the time she was going to the Browns’ apartment but that she never told the social worker about the Browns. To explain her absences from school so she could go to the Browns, Rebecca wrote notes that were supposed to be from her mother. She admitted that the notes contained lies. She did not tell her mother about the occurrences at the Browns’ apartment.

Next to testify was Chicago police officer Patrick Deady, who had spoken to complainant’s mother on February 1,1978, and then had begun the investigation. Officer Deady talked to complainant on February 20, 1978, and a few weeks later he interviewed Lisa A. and Nina B. Subsequently he began the surveillance of the Browns’ apartment. On April 5, 1978, he and four other officers arrested Raymond and Lori Brown in their apartment. He found a projector, sexual devices, reams and films in the bedroom. He saw dirty clothes, garbage, and excrement strewn around.

He further testified that one of the officers thoroughly searched the apartment, recovering 41 films, some cartoons and some adult pornography. Further, Officer Deady stated that complainant had told him that she had engaged in sexual relations with the Browns 70 or 80 times.

The State introduced into evidence, over defense objection, the film identified by complainant and viewed by the jury, two photographs of the bedroom, and the projector. The court did not allow into evidence six photographs of the apartment, stating that they had no probative value, nor did the court admit several films recovered from the apartment. The State then rested.

The first defense witness was Nina B., 15 years old at the time. She had known Raymond and Lori Brown for 4% years and had introduced Rebecca to them. From October 1977 to January 1978 Nina lived with the Browns. She testified that during that time Rebecca would come over to watch TV or listen to the radio and occasionally spent the night. She further testified that at the beginning of November 1977, Rebecca asked her to live with her, but Nina declined. Approximately a month later, complainant again asked her and when she refused, threatened to make trouble for the Browns. Nina then told Rebecca to leave the house and that she no longer wanted to be friends.

Testifying further, Nina said that she did not see Rebecca again until a couple of days before Christmas vacation, when Rebecca apologized. Nina then invited Rebecca to a Christmas Eve party at the Browns’ apartment. During the party, Rebecca told Nina that she loved her and wanted to make love to her. Nina was shocked and left the room. Since that night, Nina stated, she has not spoken to Rebecca.

Nina denied that the Browns ever showed her stag films or gave her wine or marijuana. On one occasion when the Browns were out, Rebecca found a film and they watched it. Nina denied that she or Rebecca ever had sexual relations with Raymond or Lori Brown and further stated that at school Rebecca had a reputation as a liar.

On cross-examination Nina stated that she had lived with the Browns from October of 1977 to January 1978. She did not know if they were married and had only seen their bedroom one time. She also stated that Rebecca had visited the house only 3 or 4 times and had never spent the night.

Nina further testified that a caseworker from the Department of Children and Family Services removed her from the Browns’ home in mid-January 1978. She denied that Rebecca had come to the apartment on January 6, 1978. Further, she testified that upon questioning by police officers in April of 1978 she told a female officer that complainant had said that she would “get” the Browns. Nina denied telling the officer that she had seen pornographic films, taken speed, grass and downers. Nina further denied telling the police officer that she had performed sex acts with Raymond Brown or that he had asked her to make pornographic movies or be a prostitute. She further denied telling the female officer that Raymond Brown had threatened to kill her if she told anyone about it.

Lori Brown next testified for the defense. She denied ever showing stag films to Rebecca or having sexual relations with her or giving her wine or marijuana. To her knowledge, Raymond had never had sexual relations with Nina or Rebecca.

When questioned about her arrest on April 5,1978, Lori testified that when she went to answer the doorbell a police officer “showed his badge and identified himself and was followed into my home by several other police officers and policewomen.” They told the Browns they were under arrest and then “a couple of police officers started going through [their] home pulling things out of the closet, emptying drawers.” She also testified that the photographs of the apartment were taken after the police had pulled things out of the closets and drawers. Lori admitted that Raymond kept stag films and sexual devices in their home.

On cross-examination Lori testified that she had met Raymond Brown in 1975 when she was 16 and he was approximately 43. They did not marry but started living together. They had a child in June 1976. Lori testified that she and Raymond looked at adult films alone. She also admitted that they had dildos and various sexual devices. She also testified that other young girls came over to the apartment during the period of October and November 1977.

Raymond Brown next testified that he was 48 years old and that in 1977 he lived with his “wife” and daughter. He had seen Rebecca a couple of times at the apartment but had not talked to her. He denied that there had been any marijuana or liquor in his home from 1975 through the present and explained that he was a recovering alcoholic who had not had a drink since 1967. He denied having sexual relations with Nina or Rebecca.

On cross-examination Brown admitted that he and Lori were not married and denied that any of the films in his home were of child pornography. Defense counsel objected to questions regarding the contents of the films and the court sustained the objections. Defendant moved for a mistrial but the court denied it and told the jury to disregard the two questions involving specific films.

On redirect examination, Raymond stated that when the police came to arrest him they pushed him down on the couch and started “tearing everything up.” They went through drawers, cabinets, and the refrigerator and told Raymond they were looking for marijuana. He also testified that he was handcuffed.

In rebuttal the State called Officer Rosemary Burzinski, who stated that on March 20,1978, she had spoken with Nina, who told her that she had had sexual intercourse with Raymond approximately 50 times and also with Lori; that Raymond had promised to send Nina to Las Vegas or California for purposes of prostitution, and that when she would arrive there men would buy her clothes and take care of her. Further, Nina told Officer Burzinski that Raymond had warned her not to tell anyone. Further, Nina had told Officer Burzinski that during November 1977 to January or February 1978 the Browns would show pornographic movies, give her and Rebecca speed, marijuana, and have sexual intercourse with them.

After both sides rested and the attorneys gave their closing arguments, the jury found the Browns guilty of indecent liberties with a child. Raymond was sentenced to five years imprisonment and Lori to probation.

Opinion

Defendant specifies certain trial errors that he contends denied him a fair trial. First, he argues that the prosecutor erroneously elicited testimony from Rebecca that she was receiving psychiatric treatment and then underscored the point by commenting in closing argument that “she sees a therapist because of what went on [at the Browns’ apartment].” For support, he cites People v. Gillman (1980), 91 Ill. App. 3d 53, 414 N.E.2d 240, where the court held that it was reversible error to allow the prosecution to present evidence that the victim of a sex offense had undergone psychiatric treatment and also to elicit the cost of such treatment. The Gillman court noted that the testimony was irrelevant to the issue of defendant’s guilt or innocence and was merely an attempt by the prosecutor to elicit the jury’s sympathy and to prejudice defendant. The conviction was reversed for several errors and remanded for a new trial.

The facts of the present case, however, are distinguishable from Gillman. The transcript reveals that the matter of complainant’s psychiatric treatment was not brought out by the State to elicit jury sympathy. Defense counsel’s initial objection to the testimony regarding her treatment apparently was based on his desire to subpoena the hospital’s records for information regarding the therapy she received during her hospitalization after leaving Illinois Masonic Hospital. He said, “She testified about it and I am entitled to that material.” The following colloquy then transpired outside of the jury’s hearing:

“MR. DiBENEDETTO [Assistant State’s Attorney]: Judge, this matter came up two days ago about psychiatric treatment.

THE COURT: Right.

MR. DiBENEDETTO: Mr. Gilman [defense attorney] stated two days ago he had information that this witness was receiving psychiatric treatment prior to her involvement in this case.

MR. GILMAN: That’s right.

MR. DiBENEDETTO: That, in fact, is false. She was not. Now, I think she has a right and the jury has a right to know whether she received treatment, whether she still is and it has nothing to do with the records he’s talking about.

THE COURT: You must ask her a question and I will permit you to ask her. All she is going to testify to is she went to the hospital on this date and she entered a course of therapy. You must ask her, prior to this date, had you ever had any psychiatric treatment.

MR. DiBENEDETTO: Prior to—

THE COURT: To this, prior to the date.

MR. GILMAN: February.

MR. DiBENEDETTO: Sure, I will ask her.

MR. GILMAN: Now, how long, how much—

THE COURT: That is all.

MR. DiBENEDETTO: Can I ask her if she is still undergoing treatment today?

MR. GILMAN: No.

THE COURT: You can ask her, did you embark upon a course of treatment? Yes. Are you still receiving treatment? Yes. I will let you go that far.

e e #

MR. GILMAN: I have an objection. She is still receiving * * * therapy and then I believe, Your Honor, I am entitled to have the child examined * * *.

THE COURT: Obviously, * * * she is a competent witness. She is as competent as can be.

MR. GILMAN: This is not for you or I to determine.

THE COURT: The point is that is for me to determine.”

The defense attorney continued to assert that he had a right to have complainant examined, but the court ruled that she was competent to testify.

From this excerpt it appears that defense counsel was initially concerned with her history of treatment and whether she had received psychiatric care before, but not after, her admission to Illinois Masonic Hospital in February 1978. Since the defense theory of the case was to discredit complainant as a mixed-up, fantasizing child, defense counsel was willing to have her former history of psychiatric treatment brought out. Now, defendant argues on appeal that it was prejudicial error to allow her to testify that she received treatment after the sex offense occurred because it would inflame the jury. We are not persuaded by this argument. Defense counsel’s objection at the time was not seemingly based on the possibility of jury sympathy, but rather was based on his desire to subpoena hospital records and to have complainant examined regarding her mental capacity to testify.

We further find that the prosecutor’s comment in closing argument that Rebecca was seeing a psychiatrist “because of what went on” at the Browns’ home does not constitute reversible error. Defense counsel did not object to the comment and the prosecutor did not further emphasize the point. In view of the fact that defense counsel argued that Rebecca was an unstable child who lied or fantasized, moreover, we do not believe the jury’s knowledge of her psychiatric treatment is prejudicial to defendant.

Defendant’s second point of alleged trial error involves testimony regarding other offenses that he might have committed. On cross-examination of Nina B., the State asked if she had told Officer Burzinski that Brown had asked her to make pornographic movies, to engage in prostitution, and to keep quiet about it or he would kill her. Nina denied this and the State brought in Officer Burzinski as a rebuttal witness. She directly contradicted Nina’s testimony by relating that Nina had told her about those matters and had admitted to being “petrified” of Raymond Brown. Defendant now argues that this evidence should not have been admitted because it implied to the jury that he had committed the crimes of solicitation for prostitution and intimidation. Consequently, defendant maintains he was unfairly prejudiced. We disagree with this contention also.

Evidence that a defendant has a “bad character” or has committed other crimes is inadmissible to show that a defendant was more likely to have committed the crime on trial; the prejudicial impact of such evidence outweighs any probative value. (McCormick, Evidence Sec. 190, at 447 (2d ed. 1972).) This rule of exclusion does not apply, however, if the evidence is substantially relevant for some other purpose than to show his criminal “propensity.” (McCormick, Evidence Sec. 190, at 449 (2d ed. 1972); People v. Romero (1977), 66 Ill. 2d 325, 362 N.E.2d 288; People v. Lehman (1955), 5 Ill. 2d 337, 125 N.E.2d 506.) For example, evidence of a defendant’s other crimes is commonly admitted to show his motive, intent, or modus operandi. (People v. Romero.) In the present case the alleged conversation between Raymond Brown and Nina was not introduced to show that defendant had a propensity to commit crime but instead, to impeach one of defendants’ key witnesses through her prior inconsistent statements. As such, the State’s use of Officer Burzinski’s testimony, after laying a foundation through cross-examination of Nina, was proper. (See People v. Moore (1973), 54 Ill. 2d 33, 294 N.E.2d 297; People v. Morris (1979), 79 Ill. App. 3d 318, 398 N.E.2d 38.) Therefore, the court did not abuse its discretion in admitting this evidence.

We further note that defense counsel did not object to the admission of the evidence or move to strike it; this failure deprived the court of the opportunity to rule on any alleged error and thus operates as a waiver. People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.

We also find meritless the argument that the prosecutor committed reversible error in cross-examination of Raymond by inquiring about the contents of certain films that had been excluded from evidence by the court in a motion in limine. Of the 41 films taken from defendants’ apartment Rebecca identified one at trial, which was shown to the jury. The trial court ruled that the rest of the films would not be admitted into evidence, but also ruled that the State could refer to the fact that other films had been recovered in the search of the Browns’ apartment. Defendant challenges the following excerpt from the trial:

“STATE [to defendant Raymond Brown]: Now, there are some films in [your apartment] of child pornography, aren’t there?

DEFENSE COUNSEL: Objection, your Honor.

THE COURT: Sustained.

THE WITNESS: No, there isn’t.

THE COURT: When I sustain an objection do not answer.

THE PROSECUTOR: Well, there is a film in there of a woman having intercourse with a pig?

DEFENSE COUNSEL: Objection your Honor.

THE COURT: Sustained.”

The court told the jury to disregard the questions and denied defendants’ motion for a mistrial.

We agree with defendant that the prosecutor’s two questions were improper because there was no evidence of the specific contents of the unadmitted films; however, we hold that the questions did not result in reversible error. Generally, improper comment or argument will not result in reversal of a conviction unless it can be viewed as a material factor in the conviction or results in substantial prejudice to defendant. (People v. Mackins (1974), 17 Ill. App. 3d 24, 46, 308 N.E.2d 92.) In the present case, we do not believe that defendant was substantially prejudiced by the two isolated questions on the contents of films not in evidence. Realistically, the jury was already aware of the defendants’ ownership of sexual devices and “adult films”; Lori Brown had already admitted as much. The jury had also viewed one of the films and accordingly had an indication of what similar films might conceivably contain. We doubt that the prosecutor’s reference to two other films swayed the jury or was a material factor in defendants’ convictions. Moreover, the judge sustained the defense objections, after Brown had denied the first question, and told the jury to disregard them. He admonished them to put the questions out of their minds “because it [was] not a part of the case.” We believe that this operated as a cure of the error. (See People v. Baptist (1979), 76 Ill. 2d 19, 30, 389 N.E.2d 1200.) Furthermore, the trial court is in the superior position to evaluate the impact of challenged questions or comments (People v. Olejniczak (1979), 73 Ill. App. 3d 112, 121, 390 N.E.2d 1339) and we conclude that the court properly denied the motion for a mistrial. Therefore, since the error was cured and resulted in no substantial prejudice, it was harmless error and did not deprive defendant of a fair trial.

Next, defendant contends that the trial court committed reversible error by refusing to allow defense counsel to explore complainant’s alleged dealings in witchcraft or devil worship. Defense counsel had asked Rebecca, during cross-examination, whether she was a witch or had told anyone that she was. The State objected and she denied it. After defense counsel attempted to further inquire along the same lines, the court allowed the parties’ counsel to have a side bar conference out of the jury’s presence. The court asked defense counsel what was the relevance of his line of inquiry and he responded that the complainant was a “disturbed kid” who was “nuts” long before January 6, 1978. He further stated that Rebecca went through “a whole devil worship scene” with Nina and another girl. Defense counsel made an offer of proof to indicate that complainant had told two persons that

“she was a witch and that she had at one time put a spell on a dude to make him have a car accident. That she also had a book of chance and a book of spells and that she brought out a black robe with a hood on it, wore it and made all kinds of funny noises.

She said that her mother has got a red robe and that they were going to some devil worship and also that she made love with the devil. This is what — .”

The prosecutor interrupted to ask for a foundation and the court asked defense counsel how it was material or relevant. Counsel replied that Rebecca was a “weird kid” who “lies and fabricates and ° * * has a very vivid imagination * ° °. It goes to her credibility.” The court ruled that the proposed testimony was not relevant to the pending lawsuit and refused to let counsel pursue it.

We disagree with defendant’s contention that the trial court abused its discretion in limiting cross-examination of complainant. Without revealing who the witnesses were that would testify, and without giving a foundation as to the circumstances, defense counsel’s offer of proof merely alleged that Rebecca had told one person that she was a witch who had put a spell on someone, and that she had a hooded robe and occult books. We do not find this material to any issue in the case. Once the court determined that she was competent to testify, it was for the jury to evaluate the credibility of her testimony against the Browns.

Defendant, however, relies on People v. Morgan (1976), 44 Ill. App. 3d 730, 358 N.E.2d 909, affd (1977), 69 Ill. 2d 200, 370 N.E.2d 1063, to support his position that evidence of a complaining witness’ prior statements which show a “propensity to fabricate” are relevant and admissible. In Morgan, defendant’s conviction for indecent liberties with a child was reversed because the appellate court found that “the evidence taken as a whole [did] not create an abiding conviction that the defendant [was] guilty of the crime charged.” (44 Ill. App. 3d 730, 734.) The court noted several inconsistencies and flaws in the 7-year-old’s testimony, and further found that her credibility was undermined by the testimony of her teacher, to whom the complainant had given a version of the alleged incident. She had named a perpetrator other than defendant and had also given her teacher a description of the events that did not correlate with what she had told a police officer. The Morgan court went on to note that the teacher also testified regarding other stories the child had told which indicated her “propensity” to fabricate.

We do not find the Morgan case analogous to the one at bar. In Morgan the impeachment of the complainant’s credibility occurred largely as a result of inconsistencies in her own story of the occurrence to different witnesses. In the pending case, however, the witchcraft accusation does not relate to the crime charged. Moreover, we need not speculate as to the Morgan court’s reasons for admitting testimony regarding the complainant’s prior false statements because it does not appear from the opinion that the admissibility of such evidence was ever in issue. We conclude that the trial court in the pending case did not abuse its discretion in refusing to allow the defense to introduce supposed evidence of Rebecca’s witchcraft or devil worship.

Defendant further argues that he was deprived of effective assistance of counsel because of trial counsel’s failure to move to suppress evidence seized in the apartment during a warrantless, nonexigent arrest and search.

To be granted a new trial, defendant must establish his trial attorney’s “actual incompetence” that resulted in “substantial prejudice” of the type that probably changed the outcome of the trial. People v. Carlson (1980), 79 Ill. 2d 564, 584-85, 404 N.E.2d 233.

“The question of illegal search and seizure even though pursuant to an illegal arrest will not ordinarily be considered on appeal where not raised in the trial court. [Citations.]” (People v. Harter (1972), 4 Ill. App. 3d 772, 775, 282 N.E.2d 10.) The issue is considered waived because the appellate court cannot review the reasonableness of a search and seizure unless it has been put in issue by defendant’s motion to suppress. The prosecution is not ordinarily required to offer proof of reasonableness unless the defense raises it at trial. (People v. Mitchell (1979), 78 Ill. App. 3d 851, 397 N.E.2d 569.) Thus, when the search is challenged on appeal by way of an accusation of trial counsel’s incompetency for failure to move to suppress, the record may not be complete enough to allow the reviewing court to rule on the validity of the challenged search. People v. Mitchell.

In the pending case we cannot ascertain what would have been the result of a hearing on a motion to suppress. The validity of the arrest itself was not challenged at trial, nor does the appellant’s brief seriously contest it. While the record does not contain warrants for the Browns’ arrest and for the subsequent search, the officers apparently were allowed into the Browns’ apartment voluntarily. Even absent an arrest warrant, an officer can effect a valid arrest of persons in their home if he has probable cause and either (1) exigent circumstances exist (Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371), or (2) “voluntary consent is given to enter [the] residence.” (People v. Bean (1981), 84 Ill. 2d 64, 69, 417 N.E.2d 608.) We cannot presume that the arrest was invalid, and therefore hold that any error in connection with the arrest was waived.

Regarding the search of the Browns’ apartment, the record indicates that officers checked each room and recovered various items. Defendants argue that the scope of the search far exceeded that which would have been properly incident to a lawful arrest. Defendant Raymond Brown testified that the officers, in effect, “ransacked” the apartment, pulling out drawers and going through closets. Officer Deady, on the other hand, testified that when he entered the rooms of the apartment he observed, in addition to garbage and dirty clothes, a projector and sexual devices on the dresser and bed. Hence, there is a conflict as to whether the items taken as evidence were in plain view or were ferreted out by the police in an overly broad search of the premises.

In view of the inconclusive nature of the testimony we cannot assume that the search was unlawful. Moreover, even if it was, an attorney’s failure to make a motion to suppress is not per se incompetence. (People v. Mitchell.) The Illinois Supreme Court has recognized situations in which counsel’s failure to file such a motion is insufficient to show such incompetence as would prevent the operation of the waiver rule. (See People v. Moore (1969), 43 Ill. 2d 102, 106, 251 N.E.2d 181; People v. Washington (1968), 41 Ill. 2d 16, 20-21, 241 N.E.2d 425.) Under the circumstances of the present case we find that even if counsel’s failure to make the motion is viewed as “actual incompetence” under the relevant standard, defendant was not so prejudiced by it as to require a new trial. The only evidence admitted as a result of the search was one film and a projector. Had those items been suppressed the jury still would have heard complainant’s testimony regarding the films and sexual devices. It has been held that where erroneously admitted evidence does not prove any element of the crime not established by other properly admitted evidence, the error did not contribute to the finding of guilt and is harmless. (People v. Bacon (1980), 91 Ill. App. 3d 673, 415 N.E.2d 678.) Defendant also admitted to having the films and other items in his apartment. Therefore, even assuming the search was nonconsensual and overbroad in scope, it would not appear that the resulting admission of the film and projector caused substantial prejudice to defendant that would have probably changed the jury’s verdict. Accordingly, we hold that defendant has not established that his trial counsel’s performance deprived him of a fair trial.

Finally, defendant urges this court to reverse his conviction because he was not proved guilty beyond a reasonable doubt'. He cites People v. Kolden (1962), 25 Ill. 2d 327, 185 N.E.2d 170, for the proposition that where a conviction for taking indecent liberties with a child depends on the testimony of the prosecuting witness, there must be substantial corroboration of her testimony, or the testimony must be otherwise clear and convincing. In Kolden defendant’s conviction of rape and indecent liberties was reversed by the supreme court because the 9-year-old complainant’s testimony that defendant had “put his finger in [her] private” was completely discredited on cross-examination when she admitted that she did not know what “privates” were, she did not know what she meant by her own testimony, and she was only saying what the lawyer told her to say. Other evidence further impeached complainant’s story, and there was no evidence to corroborate her story. Since her testimony was not otherwise clear and convincing, the court reversed the conviction.

We disagree with defendant’s contention that Rebecca’s testimony was inherently implausible and thoroughly contradicted, as was the situation in Kolden. Rebecca’s clear testimony against the Browns was not substantially shaken on cross-examination. Moreover, although the evidence of defendants’ sexual devices and “adult” films may not directly corroborate the charge of indecent liberties with a child, it is relevant to Rebecca’s veracity because it indicates that she did not fantasize or fabricate the existence of the items. Defendants, of course, denied her allegations and accordingly the jury had to determine whom to believe. The only other defense witness, Nina, as previously noted, was impeached by Officer Burzinski’s testimony. Finally, although defendant emphasizes that Rebecca admitted that she had fabricated notes from her mother to excuse her absences from school, we do not agree that this proves that she was probably lying in her testimony against the Browns. Accordingly, we hold that the evidence was sufficient for the jury to find, after judging the witnesses’ credibility, that defendant was guilty of the offense beyond a reasonable doubt.

We affirm the judgment.

Affirmed.

LORENZ and MEJDA, JJ., concur.

       This appeal is only by Raymond Brown.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS BLACK, Defendant-Appellant.
    Second District
    No. 80-1002
    Opinion filed July 8, 1982.
    Mary Robinson and Kyle Wesendorf, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Thomas Black, was convicted in a jury trial of rape, burglary and armed violence. He was sentenced to nine years for rape, six years for armed violence and three years for burglary to be served concurrently. Defendant contends on appeal that the prosecutor’s references to him as a “peeping tom” during closing argument were unsupported by the evidence and thus denied him a fair trial.

On February 1, 1980, the victim, a young woman, returned to her apartment about 1 a.m. As she entered her bedroom a man grabbed her from behind. He put his hand over her mouth, and she saw a knife. The man tied a cloth over her eyes and her mouth. He then tied her hands and her feet to her bedposts with nylon stockings, cut off her underwear and raped her.

The man remained in her apartment until 2:30 a.m. He talked to her almost constantly. His voice sounded like he was white and in his mid-twenties. Because she had been blindfolded, the victim did not see the man’s face. However, she heard the sound of Velcro closures on his clothing and the sound of blue jeans being removed when he took down his pants.

Three days later, about 11 p.m., the defendant Black was arrested while walking through the apartment complex where the victim lived. The police were looking for a white male in his twenties, 5' 9" to 6' tall, of medium build, unshaven, wearing blue jeans and clothing with Velcro closures. Defendant was wearing blue jeans, a ski jacket and ski mask. He said he was taking a walk; that he had no identification and that his name was Tom Collins. His footprints in the snow were similar to those found outside the victim’s bedroom window on the night of the rape. A red and white bandanna and an electrical cord were found in the defendant’s pockets. His coat had Velcro closures. Two days later the victim identified Black’s voice as that of her attacker. At trial, police officer Jerry Awe testified regarding the rapist’s footprints found outside the victim’s window on the night she was attacked. He followed the prints past other neighboring apartment buildings. He testified that the rapist had apparently stopped or at least “turned around” in front of various buildings and sliding glass doors. The officer used a chart at trial to illustrate the path of the prints with red pencil, using “red circles” or “blue blurs” to indicate stops or “turn arounds.”

Police officer Ronald Neumann testified regarding defendant’s footprints discovered the night the defendant was arrested. Using the same chart used by Officer Awe, Officer Neumann marked the defendant’s path with a blue pencil. Basically the path was the same as that of the rapist on February 1, 1980, although defendant had deviated to come within 8 to 10 feet of an uncurtained bedroom window in a neighboring apartment building. In addition, Officer Neumann testified that he knocked on that window and asked a young lady who responded if she had seen anyone outside earlier. At trial, Maggy Ransbottom, age 25, testified that she lived in that apartment at that time with her sister and that there was no curtain on the bedroom window. At trial, the victim testified to the events of February 1, 1980, and again identified the voice of the defendant, Thomas Black, as that of her attacker after he repeated several statements made to her by the rapist out of the presence of the jury. Following the denial of defense motion for a directed verdict and the jury instructions conference, closing arguments were made. During those arguments, the prosecutor made reference to a “peeping tom” on five occasions, and there was no objection to any of the references except to the following:

“The path indicates that he had come from here. This is where the car was found, in the parking lot at the Touch of Spain Apartments, these three, walked across here, and he looked in apartment 101, the same window that had been looked in five nights before. That’s why we put on Maggy Ransbottom, one of the women who lived there, to give you an idea of who he was looking at, another attractive young woman; a peeping tom. We know that Thomas Black was doing that.”

Objection was made to this argument as “not a reasonable inference.” No specific mention was made of the “peeping tom” phrase. The trial court overruled the objection. The matter was not raised in the post-trial motion.

Section 116 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 116 — 1) provides that the motion for a new trial shall be in writing and shall specify the grounds therefor. The general rule is that the failure by a defendant to raise an issue in the written motion constitutes a waiver and the issue cannot be urged as a ground for reversal on review. (People v. Precup (1978), 73 Ill. 2d 7, 16; People v. Roberts (1979), 75 Ill. 2d 1; People v. Edwards (1978), 74 Ill. 2d 1; People v. Tannenbaum (1980), 82 Ill. 2d 177.) This waiver rule applies to constitutional as well as other issues. People v. Pickett (1973), 54 Ill. 2d 280.

Supreme Court Rule 615(a), however, provides an exception to this rule of waiver where there has been “plain error.” The rule reads in part:

“Plain errors or defects affecting substantial-rights may be noticed although they were not brought to the attention of the trial court.” (73 Ill. 2d R. 615(a).)

The doctrine of plain error may be invoked in criminal cases where the evidence is closely balanced or where the error is of such magnitude that the accused is denied a fair trial. (People v. Jackson (1981), 84 Ill. 2d 350.) As the supreme court emphasized in People v. Precup (1978), 73 Ill. 2d 7, 16, in the context of Rule 615, plain error, its exceptions to the waiver rule do not operate in the nature of a general saving clause preserving for review all errors affecting substantial rights whether or not they have been brought to the attention of the trial court. Before plain error can be considered as a means of circumventing the general waiver rule, it must be plainly apparent from the record that an error affecting substantial rights was committed. (73 Ill. 2d 7.) This court has held that in considering whether improper argument constitutes prejudicial error, the test is whether the verdict of the jury would have been otherwise had the improper remarks not been made. People v. Oliger (1975), 32 Ill. App. 3d 889.

We believe that error has been committed by the failure of the trial court to sustain the objection to the “peeping tom” reference, but we do not believe this error is reversible error here. The evidence was not closely balanced, and the error was not of such magnitude as to deny the defendant a fair trial. People v. Lucas (1981), 88 Ill. 2d 245.

In view of the evidence in this case, we feel that the prosecutor’s remarks were not prejudicial. Therefore, the decision of the circuit court of Lake County is affirmed.

Judgment affirmed.

LINDBERG and REINHARD, JJ„ concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAWRENCE BRADI, Defendant-Appellant.
    Second District
    No. 81-585
    Opinion filed July 8, 1982.

      Edward J. Egan and Samuel V. P. Banks, both of Chicago, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant was found guilty after a bench trial of possession of more than 30 grams of a substance containing cocaine, a violation of section 402(a) (2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56½, par. 1402(a)(2)), a Class 1 felony. He was sentenced to four years in the penitentiary.

On February 14, 1980, the defendant, a Chicago police officer with 14 years of service, was on suspension for violation of the Chicago residency requirement. On that date at 2:30 a.m., he was a passenger in a red two-seat 1969 Jaguar sports car being driven east on Irving Park Road in Roselle by Henry Budzynski. The car was stopped by Roselle police officer John Zaabel because he did not see a rear license plate. After the car was stopped, Zaabel determined that there was a rear license plate, but it was so obstructed with dirt as to be unreadable. The car was otherwise extremely clean. Officer Zaabel believed the driver of the car was Henry Budzynski; however, when asked for his driver’s license, Budzynski produced a traffic ticket bearing the name “Henry Razem.” Zaabel’s later check of the car license plate showed the owner was Henry Razem. Zaabel’s belief that the driver of the car was Budzynski was corroborated by Roselle Police Lieutenant Sola, who arrived on the scene shortly after the stop, and Zaabel testified the Roselle Police Department had criminal intelligence and a prior arrest record of Budzynski.

At one point after the car was stopped, when the driver exited the vehicle, Officer Zaabel noticed a bottle of champagne or wine on the passenger side floor, with the neck of the bottle wedged between the driver and passenger seats. He could not determine if the bottle was open or closed; however, according to the testimony given at the preliminary hearing, in answer to Zaabel’s question, Budzynski had stated that the bottle was not open. Zaabel had not observed the defendant make any movement after the car was first stopped. According to Zaabel’s testimony, he asked Budzynski and the defendant to exit the vehicle so he could more closely examine the champagne bottle, and for reasons of his own personal safety. As the defendant exited the car, Zaabel observed that he had an object in his hand which he appeared to be trying to throw under the car. Zaabel retrieved the object from the ground, finding that it was a clear plastic baggie containing a white powdery substance and a small piece of aluminum foil. Based on his five years’ experience as a police officer, Zaabel believed the powdery substance to be some type of drug. He then told Budzynski and the defendant that they were under arrest, and orally gave them their Miranda warnings.

In the subsequent search of the car, the champagne bottle was discovered to be sealed, and a search of the console directly behind the two front seats yielded a knife, a brown paper bag containing three clear plastic baggies with white powdery substances in them, a green plastic box containing a scale and some powdery residue, and a two-thirds full envelope of pink pills. While defendant was being transported to the police station, Zaabel testified the defendant asked him to throw the “stuff” away before they got to the police station, since he knew he would have to charge him once they arrived. Zaabel asked the defendant what the substance was, and the defendant replied that “it” was an ounce of coke (cocaine) and that it was for his own personal use. Later at the station, Zaabel testified the defendant asked what it would take to get him “out of this jam,” and that if it was “bread” that he wanted, he would get him anything that the officer wanted.

According to the record, after the various substances were field tested at the police station, the defendant was advised that one of the substances tested did not show the presence of a controlled substance, and he was asked what it was. Defendant answered: “That’s the cut.” At trial, the State’s expert witness, forensic scientist Deborah Juricic, testified the baggie the defendant had dropped was only preliminarily tested for the presence of a controlled substance, and that it contained .2 grams of a white powdery and chunky substance that possibly contained cocaine. Two of the other baggies retrieved from the car’s console were tested and found to contain 20.6 and 23.7 grams respectively of a white powder conclusively determined to contain “L” cocaine. No quantitative analysis was performed to determine exactly how much cocaine was present in the powder.

On appeal the defendant presents the following issues: (1) whether the court erred in denying his motion to suppress; (2) whether he was not proved guilty beyond a reasonable doubt; (3) whether section 402(a) (2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56*2, par. 1402(a)(2)) is unconstitutional; (4) whether the court improperly construed section 402(a) (2) in imposing sentence, and (5) whether the court erred in admitting exhibit No. 6A into evidence.

At the outset, we note the State argues here, as it did below, that the defendant lacked standing to move to suppress the evidence since he was a passenger in the car, and he had not alleged an ownership or possessory interest in the car or a reasonable expectation of privacy therein. (Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421.) Further, the Jones v. United States rule of “automatic standing” was explicitly overruled in United States v. Salvucci. (Jones v. United States (1960), 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725; United States v. Salvucci (1980), 448 U.S. 83, 65 L. Ed. 2d 619, 100 S. Ct. 2547.) Under that former rule in Jones, when possession of the seized evidence was an essential element of the offense charged, the accused automatically had standing to challenge the search and seizure.

The defendant’s position, however, is that he has standing to challenge stop of the car, and that the ordering of him out of the car was without probable cause — thus constituting an illegal seizure — and that the evidence seized thereafter was “fruit of the poisonous tree” which should have been suppressed. Defendant correctly cites our decision in People v. Kunath (1981), 99 Ill. App. 3d 201, in support of his position that defendant, as the occupant of a vehicle stopped by the police, can challenge the stop of the automobile since it entails an infringement of his personal freedom. The defendant argues that even if there was probable cause to arrest the driver, defendant had done nothing, and the officer had no probable cause to order him out of the car. Defendant contends that he was unlawfully “seized” when the officer ordered him out of the car.

The State’s position is that the defendant was not “arrested” until the officer observed him throw the baggie on the ground, and that he had properly been ordered out of the car because the car had been lawfully detained for a traffic violation. In support, the State cites Pennsylvania v. Mimms (1977), 434 U.S. 106, 54 L. Ed. 2d 331, 98 S. Ct. 330, and People v. Ehn (1974), 24 Ill. App. 3d 340.

The defendant finds Mimms and Ehn distinguishable, stating that once the officer determined the vehicle did have a license plate, no further detention of the car was permissible, and that the State is incorrect when it says it is a violation of the law to have an obstructed license plate.

The resolution of this issue turns on whether the defendant was lawfully ordered out of the car. In this respect, Pennsylvania v. Mimms is most persuasive. In that case, the driver of a car was stopped for an expired license plate. The driver was asked by one of the officers to step out of the car and produce his owner’s card and operator’s license. When he stepped out, the officer observed a bulge under his sports jacket and thereupon conducted a frisk which yielded a loaded .38-caliber revolver. A .32-caliber revolver was discovered as well on a passenger in the car. The driver’s motion to suppress the revolver on fourth amendment grounds was denied, and he was convicted. The Supreme Court of Pennsylvania reversed on the basis that the ordering of the driver out of the car constituted an impermissible “ ‘seizure’ ” since the officer had no “ ‘objective observable facts to support a suspicion that criminal activity was afoot or that the occupants of the vehicle posed a threat to police safety.’ ” Pennsylvania v. Mimms (1977), 434 U.S. 106, 108, 54 L. Ed. 2d 331, 335, 98 S. Ct. 330, 332.

In its opinion reversing the Pennsylvania Supreme Court and affirming the defendant’s conviction, the court in Mimms defined the focus of the inquiry as being,

“* * * not on the intrusion resulting from the request to stop the vehicle or from the later ‘pat down,’ but on the incremental intrusion resulting from the request to get out of the car once the vehicle was lawfully stopped.” Pennsylvania v. Mimms (1977), 434 U.S. 106, 109, 54 L. Ed. 2d 331, 336, 98 S. Ct. 330, 332.

In answering the inquiry, the Mimms court weighed the interest of the officer’s safety against the degree of the intrusion into the driver’s personal liberty, and found that “mere inconvenience cannot prevail when balanced against legitimate concerns for the officer’s safety.” Pennsylvania v. Mimms (1977), 434 U.S. 106, Ill, 54 L. Ed. 2d 331, 337, 98 S. Ct. 330, 333.

The initial stop of the car in the case at bar was lawful, first, because the officer thought there was no rear license plate and second, contrary to defendant’s assertion, because it is a violation to have a license plate so dirty that it is illegible. (Ill. Rev. Stat. 1979, ch. 95M, par. 3 — 413(b).) The fact that this very dirty plate was affixed to an otherwise “extremely clean” and classic model automobile qualifies as a rather provocative circumstance on its own. Also of a suspicious nature was the appearance of the name “Henry Razem” on the ticket the driver produced in lieu of an operator’s license, which was the name of the registered owner of the vehicle, when considered in the light of the fact that the officer knew the driver was Henry Budzynski and, in fact, Budzynski’s identity was corroborated by a backup officer. The “corker,” of course, was the officer’s observation of a bottle of wine or champagne on the floor of the passenger side with the neck of the bottle obscured between the two front seats, as a consequence of which it was impossible for the officer to determine whether the bottle was open or closed. Considering also that it was 2:30 in the morning when most stores are closed and that the bottle was not in a bag, the officers could reasonably have concluded the car occupants probably were not just out shopping. Because the prohibition against open liquor in a car applies to a passenger, as well as a driver (Ill. Rev. Stat. 1979, ch. 95)2, par. 11 — 502(a); People v. Zeller (1977), 51 Ill. App. 3d 935, 938), we believe the officer had a legitimate concern for his safety in asking the defendant to step out of the car. The officer was certainly not required to accept Budzynski-Razem’s “word” that the bottle was closed, nor allow the defendant the opportunity to throw the bottle at him rather than hand it to him for inspection, or potentially to risk his life by leaning into the car with the defendant still seated therein, possibly within easy reach of a weapon.

The order to get out of the car was certainly a de minimis intrusion into the defendant’s personal liberty and, in our opinion, did not amount to an arrest. We note here that defendant misstates Mimms as “conceding” that the ordering of a defendant from a car constitutes a “ ‘seizure.’ ” Mimms, in fact, explicitly refused to agree with that conclusion in reversing the Pennsylvania Supreme Court. (Pennsylvania v. Mimms (1977), 434 U.S. 106, 108, 54 L. Ed. 2d 331, 335, 98 S. Ct. 330, 332.) Based on the facts of this cause, we conclude the arrest occurred after the officer observed the defendant’s attempt to dispose of the baggie containing the white powder upon exiting the car, and that the subsequent search of the car and console was lawful, notwithstanding the fact the driver and the defendant were out of the car at the time. See People v. Babic (1972), 7 Ill. App. 3d 36; and People v. Canaday (1971), 49 Ill. 2d 416.

We conclude, therefore, the trial court correctly denied the defendant’s motion to suppress, and no reversal is warranted on the basis of this issue.

The. defendant next argues he was not proved guilty beyond a reasonable doubt of the knowing possession of the two baggies from the console of the car, and that exhibit No. 6A was improperly admitted into evidence. He argues that the State’s attempt to show his knowing possession by virtue of his actions subsequent to arrest {i.e., his request that the officer throw the “stuff” away; his statement that “it” was an ounce of coke for his own use; and his attempted bribe of the arresting officer) does not compensate for what the defendant considers to be deficiencies in the evidence. Specifically, defendant argues he was not the owner or operator of the car, his mere proximity to the substance does not prove his possession, and his statements after arrest do not show the knowledge required for conviction because it was not clear he was talking about anything other than the baggie he had attempted to throw away, i.e., exhibit No. 5A, two-tenths of a gram of a white powder which a preliminary test showed possibly contained cocaine.

Defendant also points to the fact that a “mysterious” bag allegedly recovered from the console was not identified in court and, in fact, was destroyed by Officer Zaabel after it was field tested at the police station. Defendant contends there are too many questions left unanswered to permit a finding of guilty beyond a reasonable doubt. With regard to the admissibility of exhibit No. 6A, the defendant contends the record shows the evidence amounted to a suggestion of tampering. He points to these circumstances: the fact that only a preliminary test was performed on exhibit No. 5A; that exhibit No. 6A was put “to the side” over night; and that after an initial color test of No. 6A failed to reveal the presence of a controlled substance, more tests were later performed which showed conclusively the presence of cocaine and caffeine, and a total substance weight of 20.6 grams.

The State must establish two elements in order to obtain a conviction for possession: first, the knowledge of the defendant of the presence of narcotics and second, his immediate and exclusive control thereof. (People v. Galloway (1963), 28 Ill. 2d 355.) Knowledge may be proved by evidence of acts, declarations or conduct of the accused from which it may be fairly inferred that he knew of the existence of the narcotics at the place they were found. (28 Ill. 2d 355.) Possession may be actual or constructive possession and it may be jointly with another. (People v. Embry (1960), 20 Ill. 2d 331; People v. Harris (1975), 34 Ill. App. 3d 906.) We believe the evidence clearly establishes the defendant had knowledge and constructive possession of the cocaine which was used as the basis of his conviction. That he had knowledge of the drugs located in the console is evident by his answer to Zaabel’s question concerning the substance that field tested as negative for the presence of a controlled substance, “That’s the cut.” His constructive possession of the cocaine was established by proof of his statement to the officer that the “stuff” was an ounce of coke for his own personal use. Despite the defendant’s attempt to suggest otherwise, the record clearly shows the “mysterious missing bag” which was destroyed by Zaabel was the fourth bag tested, it contained a white powder, and it must have been “the cut” since all the other exhibits submitted at trial were tested either preliminarily or conclusively and were determined to contain a controlled substance. Consequently, it is clear the defendant’s reference to the “ounce of coke” was not a reference to the missing bag, nor was it a reference to the baggie he had tried to throw away. That bag contained only .2 grams of a white powdery substance, whereas an ounce is 28.349 grams. By the process of elimination, the defendant’s statement must have been directed toward the contents of exhibits Nos. 6A and 7A, neither one of which, as the record shows, was pure cocaine. Exhibit No. 6A, a white powder substance containing caffeine and cocaine with a total weight of 20.6 grams, contained less than 5 grams of cocaine; exhibit No. 7A, a white powder substance weighing 23.7 grams, was less than 100% pure cocaine, but it was not known how much less than 100%. We conclude the defendant had knowing, constructive possession of the controlled substances contained in exhibits Nos. 6A and 7A. Therefore, his guilt was established beyond a reasonable doubt and his conviction should be affirmed.

With regard to the admissibility of exhibit No. 6A, we note the defendant was asked by the court if he had any objection to the chain of custody in admitting exhibits Nos. 5/5A, 6/6A, 7/7A and 8/8A, and that the defendant’s attorney responded: “Not really Judge, no.” We believe the defendant thereby waived this issue on appeal. Notwithstanding waiver, we believe the defendant’s assertion that the evidence suggests the possibility of tampering or alteration of the evidence is without merit. It was explained that the chemist’s analysis of the various substances submitted to the laboratory is performed subject to time considerations which may limit the number of tests performed, and/or the number of exhibits tested, and that the testing policy is to “look for the highest scheduled substance, or go for a weight limit.” Further, as defense counsel himself elicited, the reason exhibits Nos. 6A and 7A were not tested on the same day was simply that the chemist “ran out of time.” We conclude exhibit No. 6A was properly admitted.

Lastly, the defendant contends that section 402(a) (2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56½, par. 1402(a)(2)) is unconstitutional; alternatively, he contends the statute must be construed so as to find him guilty of only a Class 2, rather than a Class 1, felony. Defendant essentially argues the statute is unconstitutional as a violation of equal protection and/or is void for vagueness. In the alternative, he proposes the statute must be construed for sentencing purposes as proscribing the possession of 30 grams or more of cocaine (rather than 30 grams or more of “a substance containing cocaine”). Under this construction, defendant would be guilty of a Class 2, rather than a Class 1, felony.

The State asserts that People v. Mayberry (1976), 63 Ill. 2d 1, and People v. Yettke (1981), 95 Ill. App. 3d 365, are dispositive. We agree that Mayberry is dispositive. In the consolidated appeal in that case, the Illinois Supreme Court considered the constitutionality of the graduated penalty provisions of the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 56½, par. 701 et seq.) and the Illinois Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56½, par. 1100 et seq.). The respective defendants there had challenged the graduated penalty classifications on due process and equal protection grounds because the classifications were not based on the amount of pure cannabis or controlled substance involved but, rather, upon the amount of the substance containing the cannabis or controlled substance. The court noted the general rule is that a classification scheme will be upheld if any state of facts may reasonably be conceived which would justify the classification; it is only required that there be a reasonable basis for distinguishing between the classes created by the legislation. 63 Ill. 2d 1, 9.

In upholding the classification scheme, the Illinois Supreme Court determined that:

“Our legislature may have believed that any given amount of drug can be distributed to a greater number of people and thus have a greater potential to be harmful if it is mixed with another substance. While the soundness of that belief may be questionable, the determination is one for the legislature to make, and we cannot find that the classifications schemes at issue have no reasonable basis.” 63 Ill. 2d 1, 9.

The defendant’s attempt to distinguish Mayberry from the instant cause on the basis that Mayberry involved delivery offenses rather than possession is without merit. The Mayberry court specifically noted that the Cannabis and Controlled Substances Acts contained several sections (including section 402) with penalty provisions based upon the weight of a mixed substance, rather than upon the weight solely of the substance sought to be controlled. It indicated that “this type of classification scheme” was the primary issue presented in those consolidated appeals. (Emphasis added.) (63 Ill. 2d 1, 6.) Consequently, we conclude Mayberry controlls the result here.

With regard to defendant’s urging that section 402(a) (2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56M, par. 1402(a)(2)) be construed so as to find him guilty of a Class 2, rather than a Class 1, felony, the primary rule in construing a statute is to give effect to the legislature’s intent. (People v. Jones (1981), 99 Ill. App. 3d 882.) In light of Mayberry and its progeny, People v. Yettke (1981), 95 Ill. App. 3d 365, it is clear that the legislature was concerned with the quantity of the mixed substance possessed, not the quality. Consequently, the court must accede to the legislative intent.

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

Judgment affirmed.

LINDBERG and REINHARD, JJ., concur.