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No. 3--01--0892

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

JUSTICE HOLDRIDGE delivered the opinion of the court:

A jury found the defendant, Christopher J. McAfee, guilty ofarmed robbery (720 ILCS 5/18--1(a), 18--2(a) (West 1998)). Hewas sentenced to 21 years' imprisonment. On appeal, thedefendant argues that (1) the State failed to prove him guiltybeyond a reasonable doubt, and (2) the judge erred duringsentencing by considering in aggravation that one of thedefendant's witnesses may have perjured himself. We affirm thedefendant's conviction, but vacate his sentence and remand forresentencing.

BACKGROUND

Amanda Turner testified that at about 8 p.m. onSeptember 14, 1999, she met Jacob Brown in a parking lot behindthe One World Coffee Shop in Peoria. Turner and Brown stood andtalked near Turner's car. Turner was standing next to her carwith the driver's side door open. She saw two men approach herand Brown. One of the men, whom Turner later identified as thedefendant, positioned himself behind Brown and put a gun toBrown's neck. She could see the defendant's face as he peeredover Brown's shoulder to speak to Turner and the other assailant. She testified that she was about four feet from Brown when thedefendant put the gun on Brown's neck.

The other assailant positioned himself next to Turner andtold her to get her purse. She turned and retrieved her pursefrom the front passenger seat of the car. The other assailanttook the purse from her. The defendant then told the otherassailant to let Turner get her identification from the purse. As the other assailant held the purse, Turner took her walletout, got her driver's license and insurance card, and put thewallet back into the purse.

The other assailant told Turner to get her sweater out ofthe car, which she did. The assailant shook the sweater and thenthrew it back into the car. The defendant told Brown to give thedefendant Brown's money. Brown reached in his pocket and gavethe defendant the money he had in a money clip.

The defendant and the other assailant stepped away fromTurner and Brown. Brown testified that he did not see the manwho had the gun on his neck because the man was positioned behindhim during the entire incident. The two men then left theparking lot on foot.

Turner and Brown got into Turner's car and locked the doorswhile they recovered from their ordeal. One of their friendswalked by the car. Turner and Brown told the friend that theyhad just been robbed. The friend told Turner and Brown that shehad seen police officers at a nearby Jimmy John's restaurant. The friend ran to the restaurant, where she told the officersabout the robbery. The officers accompanied the friend to theparking lot.

Officer Kathryn Handing testified that she interviewedTurner and Brown in the parking lot following the incident. Atfirst, Turner was "extremely upset" and "barely able to tell[Handing] what happened." After Turner calmed down, she told theofficer that the man with the gun wore a blue hooded sweatshirt,but that the man did not have the hood on his head. Turnerdescribed the defendant as a black male, about six feet, one inchtall, and weighing about 160 pounds.

Turner testified that her purse had contained her checkbook. On the morning following the robbery, she went to the bank assoon as it opened, closed her checking account, and opened adifferent account.

Michael Woodcock was the branch manager of the bank whereTurner had her checking account. He testified that onSeptember 15, 1999, he was called to the drive-through teller'swindow. The teller advised Woodcock that Aaron Waithe hadpresented a check drawn on Turner's account payable to Waithe. Waithe and the defendant had come to the drive-through window ina taxi. Waithe came inside the bank while the defendant waitedin the taxi. Woodcock called the police, who arrested Waithe andthe defendant.

On September 23, 1999, Turner went to the police station toview a photographic line-up. She identified the photo of thedefendant as the man with the gun during the robbery. OnNovember 4, 1999, she identified the defendant again during anin-person line-up. The officer who conducted the in-person line-up stated that the defendant described himself as being fivefeet, nine inches tall, and weighing 148 pounds.

Aaron Waithe testified for the defendant. Waithe statedthat at about 6 or 6:30 a.m. on September 15, 1999, he saw apurse with its contents scattered near a dumpster. The contentsof the purse included Turner's checkbook. He picked up thecheckbook and proceeded to a friend's house on Ellis Street. Oncross-examination, Waithe said that he had known this friend forabout a year and a half. Waithe knew the friend's first name asSteve, but could not remember Steve's last name, the address ofSteve's house, or where Steve's house was located on EllisStreet.

Waithe said that he asked Steve to forge a check for $300payable to Waithe from Turner's checkbook. In exchange, Waithewould give Steve $50 after cashing the check. Waithe stated thathe then walked to the defendant's house, where he slept duringpart of the day. When Waithe awoke in the afternoon, he askedthe defendant to go with him to the bank. Waithe testified thatthe defendant did not know about the check until they arrived atthe bank.

The defendant testified to a version of events substantiallysimilar to Waithe's version. Additionally, he stated that he wasat home during the evening that the robbery occurred.

The jury found the defendant guilty of armed robbery. Thecause proceeded to sentencing. Prior to imposing sentence thejudge stated the following:

"That Waithe character that you caused to be put on thestand was a patent liar.

* * *

I'm also taking into consideration that you're offeringthis Waithe character to me or to the trier of fact,the jurors, to consider."

The judge then stated that no statutory mitigating factorsapplied. He said that the aggravating factors were the threat ofserious harm caused by the defendant's conduct, the defendant'ssignificant history of prior criminal activity, and the necessityto deter others from committing the same crime. The judgesentenced the defendant to 21 years' imprisonment.

The defendant filed a pro se motion to reduce sentence,which was later supplemented by appointed counsel. In thesupplemented motion, the defendant argued that it was improperfor the trial court to consider "Waithe's alleged perjuredtestimony in aggravation." At the hearing, the judge stated,"This sentence, I felt, was appropriate and it still isappropriate in spite of the fact, or even considering the factors[the defendant] raises." The court denied the defendant's motionand the defendant appealed.

ANALYSIS

I. Reasonable Doubt

The defendant argues that the State failed to prove himguilty of armed robbery beyond a reasonable doubt. Specifically,the defendant submits that Turner's identification of thedefendant was unreliable because her description of the heightand weight of the defendant did not match his stated height andweight.

A person commits armed robbery when he takes property fromthe person of another by the use of force and is armed with afirearm. 720 ILCS 5/18--1(a), 18--2(a) (West 1998). Whenconsidering the sufficiency of the evidence to support a criminalconviction, the standard of review is whether, after viewing theevidence in the light most favorable to the prosecution, areasonable fact finder could have found proof of the elements ofthe crime beyond a reasonable doubt. People v. Chavez, 327 Ill.App. 3d 18, 762 N.E.2d 553 (2001).

In evaluating witness identification testimony, the trier offact should consider (1) the opportunity the victim had to viewthe criminal at the time of the crime; (2) the witness' degree ofattention; (3) the accuracy of the witness' prior description ofthe criminal; (4) the level of certainty demonstrated by thevictim at the time of identification; and (5) the length of timebetween the crime and the identification. People v. Gonzalez,326 Ill. App. 3d 629, 761 N.E.2d 198 (2001). A single witness'identification of the defendant is sufficient to sustain aconviction if the witness viewed the accused under circumstancespermitting a positive identification. Discrepancies concerningphysical features are not fatal but affect the weight to be giventhe identification testimony. People v. Pearson, 324 Ill. App.3d 622, 756 N.E.2d 438 (2001).

In the instant case, the conviction was supported by thefollowing facts: (1) Turner had the opportunity to view thedefendant as he walked toward her, as he looked over Brown'sshoulder from a distance of about four feet, and as he walkedaway; (2) Turner paid close attention to the defendant after heplaced a gun on Brown's neck; (3) she described the defendantreasonably accurately to the police; (4) she positivelyidentified the defendant at both a photo line-up and an in-personline-up; and (5) the time between the robbery and Turner's line-up identifications was not unreasonable. The discrepancy betweenher estimate of the defendant's height and weight and his statedheight and weight was not fatal. This testimony only went to theweight the jury reasonably could have given her testimony.

The jury rationally could have inferred that the defendantforcibly took property from Turner and Brown while armed with afirearm. Taking the evidence in the light most favorable to theprosecution, we hold that the State did not fail to prove thatthe defendant committed armed robbery beyond a reasonable doubt.

II. Sentencing

The defendant contends that the trial judge erred indetermining his sentence by considering in aggravation that thedefendant presented Waithe as a witness, who may have perjuredhimself.

We review a sentencing order for abuse of discretion. People v. Smith, 321 Ill. App. 3d 523, 747 N.E.2d 1081 (2001). Consideration of an improper factor in aggravation affects adefendant's fundamental right to liberty, and therefore, is anabuse of discretion. Although consideration of an improperaggravating factor in sentencing does not always requireremandment, resentencing is required where the appellate court isunable to determine the weight given to the improper factor. People v. Joe, 207 Ill. App. 3d 1079, 566 N.E.2d 801 (1991).

It is improper for a trial judge to consider as anaggravating factor that he believed that a witness testifiedfalsely on the defendant's behalf. A defendant has aconstitutional right to present witnesses in his defense. It isimproper for a sentencing judge to impose a harsher sentencebecause the defendant exercises that right. People v. McPhee,256 Ill. App. 3d 102, 628 N.E.2d 523 (1993).

In the present case, the trial judge stated during thesentencing hearing that he believed Waithe had testified falselyon the defendant's behalf. The judge said that he wasconsidering that the defendant had presented Waithe as a witnessto the jury. These were improper factors for the judge toconsider in imposing the defendant's sentence. Therefore, thetrial judge abused his discretion in sentencing the defendant.

At the hearing on the defendant's motion to reconsidersentence, the judge stated that the defendant's sentence wasappropriate even considering the factors the defendant raised inhis postsentencing motion. However, we cannot determine theweight the judge gave to the improper factor that Waithe may haveoffered perjured testimony as compared with other aggravatingfactors. Therefore, we must vacate the defendant's sentence andremand for resentencing. Further, in order to remove anysuggestion of unfairness, this case should be assigned to a

different judge on remand.

CONCLUSION

For the foregoing reasons, we affirm the defendant'sconviction for armed robbery, but vacate his sentence and remandthe matter to the Peoria County circuit court for resentencingbefore a different judge.

Affirmed in part and vacated in part; cause remanded.

SLATER and MCDADE, JJ., concurring.