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No. 3--02--0575

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

JUSTICE SLATER delivered the opinion of the court:

Defendant Clint A. Engle pleaded guilty to possession of acontrolled substance (psicosyn) (720 ILCS 570/402(c) (West 1998))in circuit court case No. 99--CF--1619 and was sentenced toprobation. His probation was subsequently revoked. Whileawaiting resentencing for the drug offense, defendant was chargedwith home invasion and aggravated battery (720 ILCS 5/12--11(a)(2); 12--3, 12--4(a) (West 2002)) in circuit court case No.02--CF--115. A jury found defendant guilty of both charges. Following a consolidated sentencing hearing, the court imposedconsecutive prison sentences of 2, 14 and 2 years, respectively,for the three offenses.

In this consolidated appeal, defendant contends that (1) thetrial court improperly allowed the State to present rebuttalevidence; (2) an improper comment made during the prosecutor'sclosing argument deprived him of a fair trial; (3) his convictionof aggravated battery must be vacated; and (4) consecutivesentencing does not apply to the drug conviction. We vacatedefendant's conviction and sentence for aggravated battery andotherwise affirm the trial court's judgment.

In case No. 99--CF--1619, defendant entered a negotiatedguilty plea to unlawful possession of a controlled substance. Hewas sentenced to 24 months' probation and ordered to attendsubstance abuse counseling. Defendant subsequently admittedviolating the terms of his probation, and on December 12, 2001,the court accepted the admission and granted the State's petitionto revoke probation. Defendant remained free on a $50,000personal recognizance bond until January 17, 2002, when he wastaken into custody in case No. 02--CF--115. Resentencing in caseNo. 99--CF--1619 was subsequently delayed pending the trial incase No. 02--CF--115.

The State's evidence in the trial of case No. 02--CF--115established that defendant lived with Nicole Dodd and her father,John Theres, at Dodd's marital home in Joliet for about sixmonths pending Dodd's divorce. In December 2001, Dodd begandating another man, Ron Faust, and Theres ordered defendant tomove out of the house. Dodd rented an apartment in nearby CrestHill and was there with Faust the night of January 11, 2002. Around midnight, defendant broke into the apartment. He foughtwith Faust and punched Dodd. Dodd described the car defendantdrove as a light blue Ford Taurus with a bashed-in fender.

Theres testified that he was alone and fell asleep on theliving room couch of the Joliet residence around 11 p.m. onJanuary 11. He was wakened a couple of hours later by a sharpblow to the side of his head. Theres believed he was beingattacked with a golf club. He could not see his attacker and wastrying to fend off further blows when he heard defendant say,"You are going to die tonight, m_____f_____, for not letting mesee your daughter." Theres said he definitely recognizeddefendant's voice, and he was aware of only one person other thanhimself in the room.

To save his life, Theres stopped moving and absorbed moreblows. When the beating stopped, Theres watched the assailantleave the room and proceed down a hallway toward the bedrooms. Despite the darkness, Theres could discern that the person was amale and built like defendant. Later, Theres peeked out thefront window and saw a man drive off in a light blue Ford Tauruswhich he recognized as defendant's by the damaged front fender. Theres then discovered that the telephone line had been cut, sohe drove himself to the emergency room of the hospital wherewounds to his head were closed with staples.

On cross-examination, defense counsel asked Theres whetherhe had spoken with a Joliet police officer at the emergency room. Theres said he had. However, he said he had been given "stuff"when he entered the hospital and was unable to recall whether thepoliceman was named "Ponce," or whether he had told the officerthat defendant repeatedly said, "Die, you son-of-a-bitch," duringthe beating. Counsel also asked whether Theres had told Jolietpolice detective Brian Lewis on January 15, 2002, that herecognized defendant as his attacker by his voice and his car. Theres said he had provided this information during theinterview. He acknowledged, however, that he may not have toldLewis that he recognized defendant by his silhouette as he walkeddown the hall.

Following the State's case-in-chief, defendant calledOfficer Tom Ponce to the witness stand. Ponce testified that hevisited Theres in the emergency room of the hospital in the earlymorning of January 12, 2002. At that time, Theres identifieddefendant as his assailant; however, he did not state that herecognized him by his voice. Ponce also stated that Theres toldhim defendant owned a blue Ford Taurus with a damaged frontfender, but Ponce could not recall that Theres told him he sawdefendant drive away in the vehicle after the assault.

Over defendant's objection, the State was permitted tointroduce Detective Lewis in rebuttal. Lewis testified that onJanuary 15, Theres stated that he recognized defendant's voiceduring the assault and that he saw him leave the premises in thedamaged blue Ford Taurus.

Following closing arguments and instructions, the jury founddefendant guilty, as charged.

At a consolidated sentencing hearing on July 23, 2002, thecourt resentenced defendant to a two-year prison term for thedrug conviction in case No. 99--CF--1619. The court also imposedconsecutive prison sentences of 14 and 2 years, respectively, for home invasion and aggravated battery in No. 02--CF--115 andordered that those sentences be served consecutively to thesentence in No. 99--CF--1619. Defendant filed timely motions toreduce his sentences. The court denied the motions, anddefendant appeals.

Initially, defendant contends that the trial court abusedits discretion by allowing the State to introduce DetectiveLewis' testimony in rebuttal. Defendant also argues that thetestimony was inadmissible as a prior consistent statement,because its only purpose was to corroborate Theres' in-courttestimony that he recognized defendant's voice during the attackand that he saw defendant's car leaving the scene. The Stateargues that the testimony was properly admitted both to rebut animplication of recent fabrication by the victim and as a priorconsistent statement of identification.

Rebuttal evidence is evidence that explains, repels,contradicts or disproves evidence presented by the other party.People v. Henney, 334 Ill. App. 3d 175, 777 N.E.2d 484 (2002).

Whether to admit rebuttal evidence is a matter within the sounddiscretion of the trial court; and, on review, the court'sdecision to admit rebuttal evidence will not be disturbed absenta clear abuse of discretion. Henney, 334 Ill. App. 3d 175, 777N.E.2d 484. An abuse of discretion is shown only where thecourt's ruling is arbitrary, fanciful or unreasonable, such thatno reasonable person would take the view adopted by the trialcourt. People v. Donoho, 204 Ill. 2d 159, 788 N.E.2d 707 (2003).

Here, we cannot say that no reasonable person would rulethat Lewis' testimony rebutted Ponce's. Arguably, Ponce'stestimony that Theres did not tell him that he recognizeddefendant by his voice and car on January 12 gave rise to aninference that Theres lacked a basis for believing that defendantwas the assailant. Lewis' testimony with regard to Theres'statement of January 15 rebutted that inference. Accordingly, wefind no abuse of the trial court's discretion in allowing theState to present Lewis' testimony in its rebuttal case. SeeHenney, 334 Ill. App. 3d 175, 777 N.E.2d 484.

Next, we consider defendant's contention that the Lewis'testimony was inadmissible as a prior consistent statement,because it unfairly bolstered Theres' credibility.

Generally, evidence of a statement made by a witness out ofcourt but consistent with his testimony is inadmissible hearsay. People v. Smith, 139 Ill. App. 3d 21, 486 N.E.2d 1347 (1985). Exceptions to this rule apply where the statement is introducedto rebut an inference that the witness' in-court testimony is ofrecent fabrication, and where the statement is one ofidentification. People v. Tisdel, 201 Ill. 2d 210, 775 N.E.2d921 (2002); 725 ILCS 5/115--12 (West 2002). By statute, theidentification exception applies if a witness testifies that hepreviously identified the offender and the witness' veracity istested on cross-examination. When these conditions are met, athird party's testimony corroborating the witness' prioridentification may be admitted into evidence. 725 ILCS 5/115--12(West 2002).

The record indicates that the trial court allowed the Stateto introduce Lewis' testimony concerning Theres' prior consistentstatement under the "recent fabrication" exception. Generally,an inference that a witness' in-court testimony is of recentfabrication arises from negative evidence that the witness didnot speak of the matter at a time when it would have been naturalfor him to do so. See Smith, 139 Ill. App. 3d 21, 32-33, 486N.E.2d 1347, 1354 (citing People v. VanZile, 48 Ill. App. 3d 972,363 N.E.2d 429 (1977)).

In this case, Theres testified that he had been given"stuff" (presumably pain medication) when he entered the hospitaland could not recall what he told the officer who interviewed himon that occasion. However, he recalled telling Lewis duringanother interview a few days later that he knew who the assailantwas by his voice and car. Because there was affirmative evidencethat Theres had spoken to the police about defendant's voice andcar at a time when it was natural for him to do so, we do notbelieve that Lewis' testimony should have been admitted on theground that it rebutted an inference that Theres' testimony wasrecently fabricated. See Smith, 139 Ill. App. 3d 21, 486 N.E.2d1347.

Even though it appears that the trial court allowed theState to present rebuttal evidence for the wrong reason, wenevertheless find no reversible error. Lewis' testimony withregard to Theres' statement on January 15 was merely cumulativeto testimony Theres gave on cross-examination, and it is notreasonably probable that the jury would have acquitted defendantabsent the rebuttal testimony. See People v. Quiroz, 229 Ill.App. 3d 241, 593 N.E.2d 675 (1992).

Moreover, the testimony was clearly admissible under thestatutory identification exception. In cross-examination, Therestestified that he identified defendant as the assailant by hisvoice and car shortly after the attack. Defendant had ampleopportunity to cross-examine Theres with regard to thisstatement. After the State rested, defendant attempted to showin his case-in-chief that Theres did not immediately tell thepolice that his identification of defendant rested on hearingdefendant's voice and seeing his car. The foundation for thestatutory identification exception having been laid, Lewis'testimony would have been admissible in the State's rebuttal caseto corroborate Theres' testimony and rehabilitate hiscredibility. See People v. Beals, 162 Ill. 2d 497, 643 N.E.2d789 (1994); 725 ILCS 5/115--12 (West 2002). Accordingly, we holdthat any error in the trial court's evidentiary ruling washarmless. See People v. Fry, 256 Ill. App. 3d 434, 628 N.E.2d294 (1993) (trial court's allegedly erroneous admission ofhearsay deemed harmless error where statutory identificationexception applied).

Next, defendant argues that he was deprived of a fair trialby a comment made by the prosecutor during closing argument,which he claims improperly played on the sympathies and passionsof the jurors. In his closing rebuttal comments, the prosecutor,responding to defense counsel's attack on Theres' believability,stated, "I am going to ask you for a moment to put yourself inhis place when you judge the credibility of --." Defense counselimmediately objected, and the judge stated that she wouldinstruct the jury as to the law. The prosecutor then abandonedthe point and, instead, asked the jurors to review the evidencecarefully and find defendant guilty as charged.

A prosecutor's allegedly improper remarks must be reviewedwithin the context of the entire closing arguments. People v.Kliner, 185 Ill. 2d 81, 705 N.E.2d 850 (1998); People v. Wood,341 Ill. App. 3d 599, 793 N.E.2d 91 (2003). While it is improperfor the prosecutor to ask jurors to identify with the victim, ajury's verdict will not be reversed on review unless the impropercomment caused substantial prejudice to the defendant. Wood, 341Ill. App. 3d 599, 793 N.E.2d 91.

Here, having considered the aborted remark in context, wecannot say that it was so inflammatory as to cause substantialprejudice to defendant. Accordingly, defendant is not entitledto a new trial.

Next, defendant contends that his conviction for aggravatedbattery must be reversed as a lesser included offense of homeinvasion. The State concedes the point.

Where two offenses are carved from the same physical act,one of which is "lesser included" in the sense that the charginginstrument for the greater offense sets out the main outline ofthe lesser offense, the defendant's conviction and sentence forthe lesser included offense must be vacated. People v. Damico,309 Ill. App. 3d 203, 722 N.E.2d 194 (1999). The charginginstrument in this case alleged both home invasion and aggravatedbattery based on defendant's act of striking Theres with anobject and causing injury or great bodily harm to him. Accordingly, the lesser crime--aggravated battery--is a lesserincluded offense, and defendant's conviction and sentence forthat offense must be vacated. See Damico, 309 Ill. App. 3d 203,722 N.E.2d 194.

Last, defendant contends that the trial court erroneouslysentenced him to a consecutive prison term for unlawfulpossession of a controlled substance. Consecutive sentencing isstatutorily required when a person "admitted to bail" followingconviction for a felony commits a separate felony while free onbond. 730 ILCS 5/5--8--4(i) (West 2002). Defendant takes theposition that he was free "on his own recognizance" pendingresentencing in case No. 99--CF--1619; therefore, since he hadnot posted security for his release, he was not "admitted tobail" for purposes of the consecutive sentencing statute.

Defendant's argument is novel, but unpersuasive. It hasbeen held that the legislative intent of subsection 5--8--4(i) ofthe Unified Code of Corrections is to punish persons "who abusethe privilege of being free on bond following a felony convictionby committing another felony offense during that time." Peoplev. Brown, 182 Ill. App. 3d 491, 492-93, 538 N.E.2d 193, 194(1989). Clearly, defendant was such a person. He was free on a$50,000 personal recognizance bond for a felony drug possessionconviction when he committed home invasion and aggravatedbattery. Consistent with the purpose of subsection 5--8--4(i),the court was authorized to order that defendant's sentences forthe later offenses be served consecutively to the sentenceimposed on resentencing for the drug offense. See Brown, 182Ill. App. 3d 491, 538 N.E.2d 193 (court ruled that consecutivesentencing under subsection 5--8--4(i) applied, even thoughdefendant's bond was forfeited when he was sentenced in absentiathe day before he committed a separate felony). Accordingly,defendant is not entitled to further sentencing relief.

For the reasons stated, we affirm defendant's conviction andsentence for home invasion and his two-year, consecutive sentencefor unlawful possession of a controlled substance. Defendant'sconviction and sentence for aggravated battery are vacated.

Affirmed in part; vacated in part.

HOLDRIDGE, P.J., and O'BRIEN, J., concurs.