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THIRD DIVISION
Date Filed: July 5, 2001

No. 1-00-1836

PRESIDING JUSTICE HALL delivered the opinion of the court:

On June 10, 1999, the defendant, Agenor Roman, was charged with one countof unlawful use of a weapon on residential property owned, operated and managedby the Chicago Housing Authority (CHA) (720 ILCS 5/24-1(a)(4), (c)(1.5) (West1998))⁽¹⁾, and one count of aggravated assault of a peace officer (720 ILCS 5/12-2(a)(6) (West 1998)). Two other charges were dismissed prior to trial.

Following a jury trial, the defendant was found not guilty of aggravatedassault of a police officer but was found guilty of unlawful use of a weapon onCHA property. The defendant was sentenced to a term of 24 months' probation.

The defendant appeals, raising the following issues: (1) whether theadmission of evidence that the arresting officer received an award of valor inconnection with this case denied the defendant a fair trial; (2) whether thedefendant was denied the effective assistance of counsel; and (3) whetherremarks by the prosecutor denied the defendant a fair trial. We reverse andremand for a new trial.

The trial proceedings in this case are summarized below.

Andrew Sobolewski, a detective with the City of Chicago police department,testified that on June 10, 1999, at approximately 11:30 p.m., he was working inthe area of the Lathrop CHA housing project. As he was proceeding west onDiversey, he observed several individuals standing on the sidewalk who appearedto be having what Detective Sobolewski termed a "confrontation." He thenobserved one person from the group walk southbound between two apartmentbuildings. He described the person as a male Hispanic, between 16 and 19 yearsof age, dressed in dark clothing, including a dark, hooded sweatshirt. Detective Sobolewski identified this individual as Eric Rodriguez. Afterreceiving some information from a woman at the scene, he radioed forassistance. When Officers Brant and Gevrekis arrived at the scene, DetectiveSobolewski gave them a description of Mr. Rodriguez and the information he hadreceived from the woman. Officers Brant and Gevrekis left in their squad carto look for Mr. Rodriguez.

Within a minute of losing sight of their squad car, Detective Sobolewskiheard four or five gunshots and received a call from the officers that shotswere being fired at them. When he arrived at the location where the officershad indicated they were, he found their empty squad car and called for furtherassistance. As he traveled southbound on Leavitt toward Hoyne Street, he heardradio transmissions of a man shot and proceeded to the location of theshooting. At the entrance way to a building at 2742 North Hoyne, he saw thedefendant, who lay in the hallway, bleeding.

Detective Sobolewski spoke with Officer Claeson, who told him what hadoccurred. Detective Sobolewski observed several stairs going down to thebasement area. At the bottom of the basement stairs, he observed a semi-automatic handgun next to the basement door. The defendant was lying severalfeet away from the downstairs.

Eddie Gevrekis, a police officer for the City of Chicago, testified thatafter his partner, Officer Tom Brant, and he had been briefed by DetectiveSobolewski, they drove southbound on Leavitt. At 2741 Leavitt, he observed twomale Hispanics at the opening of a gangway at that location, one wearing allblack clothing and the other all white clothing. Officer Gevrekis identifiedthe defendant as the individual dressed in the all white clothing. The twoindividuals were standing next to each other. The individual dressed in blackdisplayed a weapon and began firing at the officers. As Officer Gevrekisreturned fire, the defendant ran eastbound down a gangway that leads on toHoyne Street where there is a courtyard.

The individual in black fired one more shot at the officers, and OfficerGevrekis fired four more times. Officer Brant called in that they were beingfired upon. The officers pursued the individuals but lost sight of them. Onthe way back to the squad car, they heard four more shots coming from thecourtyard area that they had seen the defendant enter. Later, Officer Gevrekisobserved the defendant being placed in an ambulance.

Dean Claeson, a police officer for the City of Chicago, testified that hispartner, Officer William Smith, and he responded to Officers Gevrekis andBrant's call that shots were being fired at them. Officer Claeson was wearingshorts, a T-shirt and his bulletproof vest. Officers Claeson and Smith arrivedat 2742 Hoyne and proceeded to the back of the building between 2742 Hoyne andthe rowhouses that were south of it.

After searching the building, Officer Claeson went back to the front ofthe building and entered a doorway at 2742 North Hoyne. He noticed that thedoor was open all the way up against the wall. He proceeded into the doorwayand pulled the door back, whereupon he observed an individual, whom heidentified as the defendant, squatting down and pointing a firearm at him. Hethen opened fire. The defendant was about a foot away from him. OfficerClaeson later learned that he had fired four shots.

After he fired his weapon, Officer Claeson backed out of the doorway,pulling the door back. Officers Smith, Graves and another officer arrived andpushed back the door. The defendant lay on the landing of the stairway,bleeding. Officer Graves retrieved the weapon that the defendant had allegedlypointed at Officer Claeson from the bottom of the stairway.

On cross-examination, Officer Claeson testified that he did not rememberwhat hand the defendant was holding the weapon in. He just remembered seeingthe weapon pointed at him, and fearing for his life, he fired. Officer Claesondid not remember the defendant saying anything to him, nor did he hear anotherofficer say to the defendant, "I hope you die." Officer Claeson denied sayingthat he had shot the wrong person.

On redirect examination, Officer Claeson testified that, following aninvestigation of the shooting, he was given an award for valor, which meantbravery above and beyond the call of duty.

Michael Naughton, a detective with the City of Chicago police department,testified that on June 10, 1999, his partner, Rich Szczetkowicz, and heresponded to a call of officers being shot at. After arriving at Diverseybetween Leavitt and Hoyne, the detectives walked south through a courtyardbetween the buildings, at which point they heard four shots coming from around2742 Hoyne Street. They met Officer Claeson coming out of the door saying "hehad a gun." Detective Naughton looked and saw an individual, whom heidentified as the defendant, on the floor. He also observed a gun at the bottomof the stairs about four or five feet from where the defendant was lying.

On cross-examination, Detective Naughton testified that he did not knowhow the gun got down to the bottom of the stairs. The gun was negative forfingerprints. He did not know if the gun was tested for blood. On redirectexamination, Detective Naughton explained that there were prints on the gun butthat they could not be compared. On re-cross-examination, Detective Naughtonfurther explained that it did not mean that the prints had been wiped off ofthe gun.

The parties stipulated that the property at 2742 North Hoyne, known as theLathrop Homes, was owned, operated or managed by the CHA on June 10, 1999. At the close of the State's case, the defendant moved for a directed verdictwhich was denied by the trial court.

Michelle Jackson testified that on June 10, 1999, she lived at the LathropHomes. Late that evening, she and her boyfriend, Patrick, were walking downthe street toward Diversey having an argument. As they were arguing, twicesomeone shouted from the third floor of a building, "who is that?" Ms.Jackson and Patrick ignored the question both times. The third time, theperson said that if they did not answer he was going to shoot at them, and whenthey did not respond, they were shot at. As they continued to walk to thecorner, four men came running after them, one of whom had a gun. The one withthe gun was called "Emo" by the others, but Ms. Jackson knew him as "Eric." Ms. Jackson recognized one of the other men as "Ismal." Eric held the gun toPatrick's head, asking who they were and why they were in his neighborhood. Eric was dressed in dark-colored, knee- length shorts and a long-sleeved"hoodie." One of Ms. Jackson's children, who was with her, began to scream,and Ms. Jackson flagged down a passing police car. The men ran off.

After waiting for the police officer to return, Ms. Jackson and Patrickbegan walking south down Hoyne. Eric and the other men appeared, and Ericcalled her names for stopping the police car. Eric put the gun in her face andtold her he would shoot her if she talked to the police again. Eric kickedPatrick, and then the police arrived. After she returned home, she heard 10gunshots in a row.

Ms. Jackson knew the defendant just to say hello to him. He was not oneof the four men who threatened her. Ms. Jackson described the defendant hashaving something wrong with one of his arms and hands and that he walked with avery bad limp.

Other than when she flagged down the police officer, Ms. Jackson did nottalk to the police until several days after the incident because she wasfrightened of the "gang bangers" that lived in the "projects." Eric was a"gang banger"; he belonged to the Latin Kings. She told the police officer shespoke to what had happened to her on the night of the incident.

On cross-examination, Ms. Jackson testified that the first time she hadever seen Eric/Emo was on June 10, 1999. On redirect examination, Ms. Jacksontestified that she had never seen the defendant run. When he did walk, it waswith a bad limp that was noticeable from a distance.

Sheila Coleman testified that on June 10, 1999, she lived at 2745 NorthHoyne in the Lathrop Homes. Sometime between 11 p.m. and 11:30 p.m., she heardgunshots. She started across the street to the courtyard looking for her 13-year-old daughter when she heard gunshots again, coming from building near thecourtyard. She saw a man standing and shooting. The man had on jeans, tennisshoes, and a T-shirt with what looked like a vest over it. The man also wore aholster. She thought he was a police officer although she did not recognizehim as one of the regular "beat cops."

As the man backed out of the doorway, Ms. Coleman could see the gun in hishand. He then dropped his gun down and said, "damn, I shot the wrong m----r f-----g one. That's notEmo."

On cross-examination, Ms. Coleman testified that she did not see the manwith the gun go back into the hallway. She knew who the defendant was butknew him by the name of "Junito." When she told one of the officers at thescene that she had seen what had happened, he told her "you can go to jailtoo." So she returned home. She acknowledged that she told an investigatorfrom the State's Attorney's office that she would not make a statement untilafter she had spoken with the defense attorney. There was at least one otherofficer present when the man stated that he had shot the wrong person.

Iris Hernandez, the defendant's aunt, testified that on June 10, 1999, shelived at 2738 North Hoyne in the Lathrop Homes. The defendant was born withcerebral palsy, which paralyzed his left side a little bit, affecting his lefthand. He also limped when he walked.

Between 10:30 p.m. and 10:45 p.m., she heard gunshots and, looking out hersecond-floor window, she observed a police officer, dressed in shorts and whitegym shoes, shooting inside a hallway at 2742 North Hoyne. She saw a person'sleg lying inside the doorway. She then called 911. She observed more policeofficers standing out there and talking.

On cross-examination, Ms. Hernandez testified that the defendant had whiteclothes on that night. She described the officer who was shooting as a whitemale, with white hair, wearing blue shorts, a white T-shirt, a vest and whitegym shoes.

Eladio Irizarry testified that he was employed by the CHA as a maintenanceworker. On June 10, 1999, he went to the Lathrop Homes to pick up his bicycle,which was being painted by someone who lived there. He arrived there atbetween 10 p.m. and 10:30 p.m. While he was picking up his bicycle, he saw thedefendant, whom he knew from the neighborhood. The defendant was handicapped,with a very bad limp, and one of his arms was twisted. As Mr. Irizarry wasputting the bicycle in his truck, he was joking with the defendant, who wantedto ride the bicycle. While they were talking, there was a shooting of somesort, and people began running. The defendant did his best to run too but hecould only drag himself away.

Mr. Irizarry drove his truck around the corner but, concerned about thedefendant, he turned around to see if everything was all right. He drovearound Leavitt and came back down Hoyne. Another shooting occurred, and peoplewere screaming what he thought was "Junito." Mr. Irizarry went to see if thatperson was the one he had been talking to, but, after seeing him lying on thehallway floor, he could not tell at first. The police were telling everyone toget back. However, Mr. Irizarry walked in and heard a police officer, who wasdressed in short pants, say that he shot the wrong child. Another officer toldhim not to say anything more and asked if the defendant had a weapon on him. When the officer said no, the other officer told him that he had better findone. The police then told Mr. Irizarry to leave.

On cross-examination, Mr. Irizarry testified that he did not know thedefendant by name, even by his nickname, but he knew the defendant's parentsand knew where the defendant's grandmother lived, due to his job with the CHA. When everyone began to run, the defendant was not running but was able to move.

Mr. Irizarry thought he was wearing his work uniform that night, which waslight blue with navy blue pants. He walked straight into the area where thepolice officers were standing and talking. He thought that the officers mayhave thought that he was also a police officer. He never approached one of theofficers canvassing the neighborhood to tell them what he had heard because hewas afraid to get involved. Although he considered contacting a news stationand his alderman, because of his concern for his job and his family, he nevercontacted the police or followed through reporting what he had heard.

On redirect examination, Mr. Irizarry testified that he did tell aninvestigator from the State's Attorney's office what he testified to in court. The defendant testified that he is 19 years of age, and his nickname is"Junito." On June 10, 1999, he was living with his grandmother at 2760Clybourn. He was born with cerebral palsy and suffers from seizures. Becauseof his cerebral palsy, if he runs fast, he will trip and fall. His left arm isso bad that he cannot tie his shoe.

The defendant knew Eric Rodriguez; Eric was a friend of his and they hungout together. However, he did not see Eric on June 10, 1999. Late in theevening of June 10, 1999, the defendant was in front of his aunt's house in thecourtyard. He spoke to Mr. Irizarry and asked him if he could ride hisbicycle. About 11:30 p.m., he heard shots coming from the back of Hoyne. There were other people standing around. Fearing for his safety, the defendantdecided to hide in the hallway behind the door. He was there four or fiveminutes when an officer came in and saw him behind the door. The officer shotfour times at him, hitting him once. The shot hit him in the left arm, thenpassed through his testicles and exited by his hip. The defendant was facingthe door looking directly at the officer.

Defense counsel then had the defendant remove his sweater and shirt toshow the jury the path of the bullet. The defendant testified that when he wasshot, he did not fall down. He asked the officer why he had shot him. Theofficer told him to shut up and to lie on the floor. The defendant deniedhaving a gun. No one ever asked him if he had a gun.

Defense counsel then asked the defendant about the crown tattoo on hisarm. The defendant explained that the it stood for the Latin Kings. Thedefendant denied that he was a "big shot" in the Latin Kings. He acknowledgedthat he had been a member of the Boy Scouts.

The defendant denied pointing a gun at the police officer or running awayfrom any police officers who were shooting at him. He further denied beingwith Eric Rodriguez when Eric was shooting at the police.

On cross-examination, the defendant testified that Eric Rodriguez was alsoa Latin King.

The defendant further testified that when the gunshots were heard, most ofthe people went into Diana's house. Diana was one of the people standingoutside with the defendant. Because he was arguing with Diana, he did notthink she would let him into her house. The defendant acknowledged that hecould hold a gun in his right hand.

Officer Claeson testified and denied saying that he shot the wrong person. The first time he heard the name "Emo" involved in the case was a week afterthe June 10, 1999, incident. Officer Claeson denied that he was ever told tokeep quiet about the incident or that if there was no weapon that he had betterfind one. He did not see a janitor in the courtyard that night. He could tellthe difference between a janitor's uniform and a Chicago police departmentuniform.

Officer Naughton testified that, after hearing the shots fired, it tookhim about 15 seconds to reach the scene at 2742 North Hoyne. He never heardOfficer Claeson say that he shot the wrong man. He also never heard anyofficer say to Officer Claeson that he should not say any more or that therewas no weapon and that he had better find one. No one other than the policeofficers was at the scene in the courtyard. He did not see anyone dressed likea janitor there. He thought he would know the difference between a janitor'suniform and that of a police officer. Except for the detectives, all thepolice officers were wearing bulletproof vests.

Following deliberations, the jury found the defendant not guilty ofaggravated assault of a peace officer and guilty of unlawful use of a weapon onCHA property. The trial court imposed a sentence of 24 months' felonyprobation.

The defendant contends that the admission into evidence that OfficerClaeson received an award of valor in connection with this case denied him afair trial.

At the outset, the State contends that the defendant has waived this issueon appeal because he failed to object to Officer Claeson's testimony regardinghis award for valor and failed to raise the error in his posttrial motion. SeePeople v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988). The defendantresponds that this court should consider the issue under the plain errordoctrine. See 134 Ill. 2d R. 615(a).

The plain error doctrine permits a court to consider an error not properlypreserved at trial where the evidence is closely balanced or the alleged errorwas so substantial as to deny the defendant a fair proceeding. People v.Emerson, 189 Ill. 2d 436, 479, 727 N.E.2d 302, 326 (2000). The admission ofthis evidence impacts the credibility of the State's main witness against thedefendant. Since this case ultimately came down to whether the jury believedOfficer Claeson's testimony that the defendant possessed a gun or thedefendant's testimony that he did not possess a gun, the evidence is closelybalanced, and therefore, this court will consider the merits of this issue.

The defendant contends that the admission of evidence that Officer Claesonreceived an award of valor was error. The defendant argues that such evidencewas both hearsay and irrelevant.

Hearsay evidence is "'"testimony in court or written evidence of astatement made out of court, such statement being offered as an assertion toshow the truth of matters asserted therein, and thus resting for its value uponthe credibility of the out-of-court asserter." [Citation.]'" People v.Singletary, 273 Ill. App. 3d 1076, 1081, 652 N.E.2d 1333, 1336 (1995), quotingPeople v. Carpenter, 28 Ill. 2d 116, 121, 190 N.E.2d 738, 741 (1963).

The State argues that Officer Claeson's testimony that the award of valormeant that he had performed his job correctly directly rebutted the defendant'sassertion that Officer Claeson believed that he had shot the wrong person andneeded to "frame" the defendant.

Neither party cites any Illinois cases dealing with the admission ofawards of valor to police officers as evidence of credibility. However, thedefendant relies on United States v. Nazzaro, 889 F.2d 1158 (1st Cir. 1989). In that case, the defendant attempted to offer into evidence anecdotal proof ofcommendations he had received while serving in the military police and as apolice officer. The court of appeals held that such awards and commendationsdid not evidence character traits pertinent to the crimes with which thedefendant was charged and that such evidence seemed to be classic hearsay andinadmissable on that basis as well. Nazzaro, 889 F.2d at 1168.

The State responds that the Nazzaro court's holding is not persuasivebecause the court stated only that such evidence "seemed" to be hearsay. TheState notes that the Nazzaro court relied on United States v. Barry, 814 F.2d1400 (9th Cir. 1987). The court in Barry found that letters of commendationwere hearsay but did not address the issue of awards. Barry, 814 F.2d at 1404.

A statement, not technically introduced for the purpose of its truth, isstill hearsay when its purpose is to prove the implicit assertion in thestatement. See People v. Thomas, 178 Ill. 2d 215, 237, 687 N.E.2d 892, 902(1997).

We agree with the defendant that the evidence of Officer Claeson's awardfor valor was hearsay and as such inadmissible. Not only did Officer Claesontestify that he had received the award, but he explained that the award wasgiven for bravery and acting beyond the call of duty. That Officer Claeson washonored for his conduct in this case was an out-of-court statement that wasintroduced for the purpose of proving that he had acted correctly in shootingthe defendant.

Even if we were to conclude that the award of valor was not hearsayevidence, it was still error to admit that evidence on the grounds ofrelevance.

The test to determine the admissibility of evidence is whether it fairlytends to prove the particular offense charged; whether that which is offered asevidence will be admitted or excluded depends upon whether it tends to make thequestion of guilt more or less probable, i.e., whether it is relevant. City ofRockford v. Elliott, 308 Ill. App. 3d 735, 739, 721 N.E.2d 715, 718 (1999). Evidence is relevant when it tends to prove a disputed fact or render thematter in issue more or less probable in light of logic, experience, andaccepted assumptions of human behavior. Elliott, 308 Ill. App. 3d at 739, 721N.E.2d at 718. Although the court and the State are under a duty to avoid theintroduction of evidence whose prejudicial effect outweighs its relevance,relevant, admissible evidence need not be excluded simply because it tends toprejudice the accused. The trial court must weigh the relevance of theevidence against its prejudicial effect on the defendant. Elliott, 308 Ill.App. 3d at 739, 721 N.E.2d at 718. It is within the discretion of the trialcourt to determine whether evidence is relevant and admissible. Elliott, 308Ill. App. 3d at 739, 721 N.E.2d at 718.

Whether Officer Claeson received an award for valor for his conduct inthis case does not tend to prove that the defendant committed either of theoffenses charged or to disprove the defendant's testimony that he did not havea gun in his possession on June 10, 1999.

Not every error requires reversal. Error is harmless where a reviewingcourt can safely conclude that a trial without the error would have produced nodifferent result. Elliott, 308 Ill. App. 3d at 740, 721 N.E.2d at 719. Acrucial issue in this case was the credibility of Officer Claeson. Since theeffect of the complained-of evidence was to inform the jury that OfficerClaeson had been honored for his role in this case, we cannot say that theevidence did not influence the jury's decision here.

Therefore, we conclude that the admission of this evidence was plain errorand requires that the defendant receive a new trial.

While it is unnecessary to address the remaining errors raised by thedefendant, as the likelihood of the same specific errors occurring on retrialis remote, nevertheless, the prosecutor's remarks in closing argument meritcomment.

Prosecutors are allowed great latitude in closing argument and may argueall fair and reasonable inferences that may be drawn from the evidenceintroduced at trial. People v. Dunsworth, 233 Ill. App. 3d 258, 267, 599N.E.2d 29, 35 (1992). However, a prosecutor should refrain from presentingimproper and prejudicial argument. Dunsworth, 233 Ill. App. 3d at 267, 599N.E.2d at 35. A conviction may be reversed if the prosecutor commits improperacts during closing argument. Dunsworth, 233 Ill. App. 3d at 267, 599 N.E.2dat 35.

While the prosecutor is allowed wide latitude in closing argument, thecomments must be based on evidence admitted at trial or on any reasonableinferences therefrom. People v. Bullock, 154 Ill. App. 3d 266, 273, 507 N.E.2d44, 49 (1987). Several times the prosecutor commented on the defendant's lackof respect for police authority, comparing him to individuals who carried outpremeditated attacks on unarmed persons (i.e., Columbine High School). However, nothing in the facts of this case indicatedthat the defendant armed himself with the intent of shooting a police officerthat night or that the defendant pointed the gun at Officer Claeson onlybecause he was a police officer, as opposed to any individual who might haveconfronted the defendant in his hiding place. Although the defendant did notobject to this remark, the mention of Columbine High School was improper. SeePeople v. Barnes, 107 Ill. App. 3d 262, 268-69, 437 N.E.2d 848, 852 (1982)(improper for the State to inject into the case the image of a mass murderer,John Wayne Gacy).

The complained-of remarks also included a reference to "selling drugs" and"sticking up old ladies." The fears and prejudices of the jurors can also bearoused by improper references to drug dealing. People v. Terry, 312 Ill. App.3d 984, 992, 728 N.E.2d 669, 676 (2000).

The State responds that the prosecutor did not argue that the defendantwas selling drugs or "sticking up old ladies." However, as there was noevidence of drugs or drug selling in this case, any reference to drugs wasimproper.

The State argues that the prosecutor's statement that the victims in thiscase were the senior citizens and the children who were afraid to be on thestreets because of criminals like the defendant was proper as it was inresponse to the defense counsel's portrayal of the defendant as a poorhandicapped child and the true victim in this case. However, according to theevidence in this case, on the night of the incident, many people, includingchildren, were outside in the neighborhood prior to the shooting.

Improper remarks require reversal only if they substantially prejudice adefendant. Terry, 312 Ill. App. 3d at 993, 728 N.E.2d at 677. It has beenheld that a prosecutor's improper remark in closing argument does not prejudicea defendant where the trial court immediately instructs the jury to disregardthe remark and later instructs the jury that closing arguments are not evidenceand that it should disregard arguments not based on the evidence. Terry, 312Ill. App. 3d at 993, 728 N.E.2d at 677.

In the present case, when defense counsel did object, the trial courtnever ruled on the objections and did not instruct the jury to disregard theimproper remarks. The trial court merely instructed the jury that thearguments were not evidence and to only consider the evidence. By failing tosustain the objections and to instruct the jury to disregard the remarks, thetrial court may have unintentionally misled the jury into believing thatprosecutor's remarks were based upon the evidence and therefore could beconsidered.

Moreover, in an appropriate case, even the sustaining of objections to theimproper remarks of the State will not cure the error where the misconduct wasflagrant and tainted the entire trial. Terry, 312 Ill. App. 3d at 993, 728N.E.2d at 677. Even if the court were to conclude that each instance ofimproper conduct, by itself, did not require reversal, the cumulative effect ofthe instances of misconduct may require a new trial. People v. Brown, 113 Ill.App. 3d 625, 630, 447 N.E.2d 1011, 1015 (1983). Improper argument isespecially serious where evidence of the defendant's guilt is not overwhelming. Terry, 312 Ill. App. 3d at 994, 728 N.E.2d at 677.

The instances of improper argument in this case coupled with unwillingnessof the trial court to rule on the defendant's objections when they were made,might very well have influenced the jury's verdict given the closeness of theevidence in this case. We trust that the defendant's retrial in this case willnot suffer from the same deficiencies.

The defendant's conviction and sentence are reversed. Because there wassufficient evidence in the record to support the defendant's conviction, thecause is remanded for a new trial.

Reversed and remanded.

CERDA and WOLFSON, JJ., concur.

1. The defendant's indictment on these charges actually read"owned, operated or managed." (Emphasis added.) However, thatchange to the statute was not effective until December 22, 1999. (see Pub. Act 91-673,