{ "id": 5275831, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AARON TRIMBLE, Defendant-Appellant", "name_abbreviation": "People v. Trimble", "decision_date": "1991-08-08", "docket_number": "No. 1\u201488\u20141271", "first_page": "338", "last_page": "356", "citations": [ { "type": "official", "cite": "220 Ill. App. 3d 338" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "105 Ill. 2d 275", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3142311 ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0275-01" ] }, { "cite": "71 Ill. 2d 166", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5448796 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-2d/71/0166-01" ] }, { "cite": "156 Ill. App. 3d 365", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2633320 ], "year": 1961, "pin_cites": [ { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/36/0330-01" ] }, { "cite": "36 Ill. App. 3d 355", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2631304 ], "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/36/0355-01" ] }, { "cite": "40 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857269 ], "pin_cites": [ { "page": "3" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/40/0001-01" ] }, { "cite": "190 Ill. App. 3d 1018", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2520356 ], "year": 1968, "pin_cites": [ { "page": "1030" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/190/1018-01" ] }, { "cite": "204 Ill. App. 3d 75", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2574460 ], "pin_cites": [ { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/204/0075-01" ] }, { "cite": "139 Ill. App. 3d 21", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3569197 ], "pin_cites": [ { "page": "30" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0021-01" ] } ], "analysis": { "cardinality": 1258, "char_count": 39624, "ocr_confidence": 0.796, "pagerank": { "raw": 1.726490857700505e-07, "percentile": 0.7047416664060338 }, "sha256": "4066d62dff3e519e57611b9a0b8c742c684a1433ebfa1fd9f49a89aa20675267", "simhash": "1:b82b40947f27f473", "word_count": 6484 }, "last_updated": "2023-07-14T21:04:36.621238+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AARON TRIMBLE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE JOHNSON\ndelivered the opinion of the court:\nAfter a bench trial, defendant, Aaron Trimble was found guilty of two counts of murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9\u20141(a)(1), (a)(3)), home invasion (Ill. Rev. Stat. 1987, ch. 38, par. 12\u201411(a)(1)), attempted armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 8\u20144), and armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A\u20142). He was sentenced to concurrent terms of 40 years for murder, 30 years for home invasion, 15 years for attempted armed robbery, and 30 years for armed violence.\nThe following issues are before this court for review: (1) whether the State knowingly used perjured testimony at trial; (2) whether the multiple convictions and sentences violated defendant\u2019s right to due process of law; (3) whether defendant received a fair trial in which the trial court received and considered competent evidence; (4) whether the trial court properly found defendant guilty beyond a reasonable doubt; (5) whether defendant received a fair sentencing hearing; and (6) whether the trial court abused its discretion by imposing the maximum possible sentence for each offense.\nWe affirm in part and vacate in part.\nBackground\nOn May 21, 1986, Hattie Bennett resided with her 10-year-old son, Willie Bennett, in a first-floor rear apartment located at 14905 Page in Harvey, Illinois. Around 2:30 a.m. on that date, Bennett was at home with her son, who was asleep in his bedroom. Bennett testified that at that time, she heard an automobile stop behind her apartment and saw the victim, Harold Sylvester, and his friend. She stated that Sylvester\u2019s friend, defendant, and several other people gathered in front of the apartment building, while Sylvester entered her apartment. Then, Bennett told the court, she locked her metal door which was just outside of the door to her apartment. She also stated that both the defendant, and James Amos, his codefendant, had keys to her metal door.\nBennett further testified that shortly thereafter, defendant and James Amos broke through her locked interior living room door. She stated that defendant had a shotgun in his hand when he entered the room. Detective Dennis Hinkle of the Harvey police department later testified that the door \u201ccould be opened with a small amount of pressure.\u201d Bennett\u2019s testimony revealed that defendant demanded $40 from Sylvester as payment for repairing his car. Sylvester responded by stating that he had a job and would pay defendant the money. When defendant continued to threaten him, Sylvester stated that he would ask his mother for the money. Defendant then told Amos to \u201cup the missile\u201d on Sylvester. Bennett later testified that the word \u201cmissile\u201d meant gun. Amos then handed defendant a pistol and defendant, in turn, handed Amos his shotgun. After defendant obtained the pistol, he waved it at Sylvester, taunting him. Defendant and Sylvester continued to argue about the money. At one point Sylvester dropped a chewing gum wrapper on the floor. He stooped to retrieve the wrapper; upon resuming an upright position, defendant shot him in the chest.\nBennett further testified that immediately after Sylvester was shot, Amos said, \u201cGet the man to the hospital, he\u2019s dying.\u201d She stated that the victim walked out of the rear door. Defendant then attempted to lift him into his car and take him to the hospital; however, Sylvester fell to the ground and died.\nWillie Bennett testified that just prior to the fatal shot, defendant and the victim were standing at opposite ends of a table. Based upon a demonstration in the courtroom, the court estimated that Sylvester and defendant were standing 9 or 10 feet apart just prior to the shooting. Willie also testified that Sylvester bent over to pick up a gum wrapper and that defendant \u201cstepped up a little *** further and shot [the victim].\u201d\nWillie Bennett was interviewed by Detective Hinkle shortly after the shooting. Willie later testified. He stated he informed Detective Hinkle that he was asleep in his room and that he was awakened when he \u201cheard a noise like a gunshot.\u201d He also told the detective that he asked his mother about the noise and she replied that it was \u201cthe door.\u201d He further stated that he told Detective Hinkle that he saw the victim holding his chest and bleeding.\nOn cross-examination, Willie stated that he was interviewed by Detective Hinkle in a room separate from his mother on the morning of the shooting; he told the detective that he \u201cwas asleep and awakened by a gunshot\u201d[;] and that he then \u201csaw Harold Sylvester holding his chest and bleeding.\u201d Willie admitted that after he had spoken with the detective he talked to his mother about what had happened, and she told him some information about the incident that he did not know previously.\nDr. Shaki Teas, a forensic pathologist and an assistant Cook County medical examiner, testified by way of stipulation that the cause of the victim\u2019s death was a gunshot wound to the chest. Dr. Teas conducted an autopsy upon the victim. Upon her examination of the decedent, Dr. Teas noted that \u201c[t]he entrance wound showed an area of *** stippling,\u201d which are \u201clittle specks of powder that are embedded in the skin itself.\u201d Dr. Teas concluded that stippling is \u201can indication [of a] *** close range or intermediate gunshot *** indicating [that] the distance where the bullets entered and the barrel of the gun were fairly close *** anywhere from a [distance of a] few inches to a maximum of about 2 feet.\u201d\nShortly after the shooting, Detective Darwin Adams of the Harvey police department arrived at the scene of the incident in response to a report that shots were fired. Detective Adams called an ambulance for the victim and then spoke to Hattie Bennett. Detective Adams later testified on cross-examination that he did not see any physical evidence that Bennett\u2019s door had been broken.\nHattie Bennett later identified photographs of defendant and James Amos. On July, 5, 1986, Detective Jeff Wilkins of the Harvey police department arrested defendant at a bar in Markham, Illinois. Following his arrest, defendant initially refused to cooperate in the fingerprinting process. Amos was also arrested. The prosecutions against the two defendants were severed.\nAt trial, defendant testified that during the year preceding the shooting he had visited Hattie Bennett\u2019s apartment \u201ca bunch of times\u201d in order to purchase and sell cocaine and marijuana. He stated that on May 21, 1986, he and James Amos went to her apartment around midnight in order to sell drugs; he was armed with a loaded .38 caliber handgun at the time. He stated that Harold Sylvester arrived at the apartment sometime later and purchased a syringe from Hattie Bennett for $2. Defendant further testified that he and Sylvester began to argue over money that Sylvester owed him. During the argument, he pulled out a gun which he intended to use to strike Sylvester. However, when he attempted to hit him in the head with the gun barrel, Sylvester raised his arm to block the blow and tried to take the gun. Defendant stated that at that time, the gun discharged and a bullet struck Sylvester. The court stated that it found defendant\u2019s testimony \u201cfar less than credible.\u201d On November 3, 1987, the court found defendant guilty on all counts.\nOn April 12, 1988, the trial court conducted a death penalty hearing for which defendant waived a jury. The court found that defendant was eligible for the death penalty. During the second phase of the hearing, the parties entered into a stipulation regarding defendant\u2019s prior juvenile adjudications and an adult conviction. The State then presented evidence in aggravation by way of stipulation that defendant\u2019s criminal history included juvenile adjudications for felony theft. One such case resulted in defendant being sentenced to one year of probation, and the second case resulted in his being sentenced to a term of one year and eight months in the Juvenile Department of Corrections. In addition, four other cases were referred to juvenile court that resulted in defendant\u2019s detention in the Audi Home Detention Center.\nThe State also called Detective Ray Cobb as a witness in aggravation. Detective Cobb testified that he was previously employed as a juvenile officer for the Harvey police department and that while he was employed in that capacity he had several contacts with defendant. Detective Cobb testified that he arrested defendant and another adult on the charges of murder and armed robbery. The charges against defendant were later dismissed by the juvenile court. Detective Cobb also testified that on six separate occasions various charges against defendant were not referred to the juvenile court but were \u201cstation adjusted.\u201d Detective Cobb stated that he attempted to help defendant by using his discretion to resolve several matters by making \u201cstation adjustments,\u201d and by speaking to defendant\u2019s parents.\nOn cross-examination, defense counsel asked Detective Cobb if his function as a juvenile officer was more similar to that of a law enforcement officer or to a \u201cjuvenile youth counselor.\u201d On redirect, the State asked questions regarding the officer\u2019s counseling functions. Detective Cobb stated during redirect that if defendant had requested help in finding a job or help with school work, he would have attempted to assist him.\nThe People also presented evidence that defendant was convicted as an adult of the felony possession of cannabis in 1986, for which he was sentenced to two years\u2019 probation and 30 days in the Illinois Department of Corrections.\nDefendant\u2019s father and mother, Walter and Mary Trimble, testified on his behalf in mitigation. They identified numerous letters from defendant expressing sympathy for the victim\u2019s family, and advising his nieces and nephews of the dangers of gang affiliation and drug use.\nThe court sentenced defendant to concurrent prison terms of 40 years for murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9\u20141(a)(1), (a)(3)), 30 years for home invasion (Ill. Rev. Stat. 1987, ch. 38, par. 12\u201411(a)(1)), 15 years for attempted armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 8\u20144), and 30 years for armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A\u20142). Defendant now appeals.\nOpinion\nI\nFirst, defendant contends that the State violated his right to due process guaranteed by the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV), and article I, section 2, of the Illinois State Constitution (Ill. Const. 1970, art. I, \u00a72), by using perjured testimony at trial to obtain convictions against him.\nThe State maintains that it did not use perjured testimony, and that any discrepancy between the testimony of the witnesses at trial and their recollections of pretrial statements was merely an inconsistency.\n\u201cThe burden of proving that the State knowingly used perjured testimony lies with the defendant.\u201d (People v. Smith (1985), 139 Ill. App. 3d 21, 30.) \u201cMere inconsistencies in testimony do not establish perjury or that the State knowingly used perjured evidence.\u201d (People v. Amos (1990), 204 Ill. App. 3d 75, 85.) \u201c \u2018Inconsistencies between the testimony of witnesses and an alleged improbability of testimony go only to the weight and credibility of the evidence and fall short of establishing a knowing use of perjury.\u2019 \u201d (People v. Foster (1989), 190 Ill. App. 3d 1018, 1030, quoting People v. Tyner (1968), 40 Ill. 2d 1, 3.) Moreover, \u201c[m]ere conflicts in the testimony of a witness with prior statements made by him does not establish that the witness has given perjured testimony.\u201d (People v. Henderson (1976), 36 Ill. App. 3d 355, 384.) \u201c[I]n order for *** testimony to constitute perjury which is reversible error, the testimony must be shown '*** by clear, convincing and satisfactory evidence to have been, not false merely, but to have been willfully and purposely falsely given ***.\u2019 \u201d (Emphasis added.) People v. Bounds (1976), 36 Ill. App. 3d 330, 337, quoting People v. Lewis (1961), 22 Ill. 2d 68, 71.\nOn direct examination, the witness in question stated that on the night of the murder he was asleep in his bedroom, and that he was awakened when he \u201cheard a noise like a gunshot.\u201d Willie Bennett also testified that he then asked his mother what the noise was and she told him that the sound was made by the door.\nOn cross-examination, Willie Bennett was questioned concerning a conversation he had at the police station with Detective Hinkle. Defendant maintains Willie Bennett stated that he told the detective he was awakened by the sound of the door slamming. This conclusion is not supported by the record. The record shows that Detective Hinkle later testified that Willie Bennett told him he was asleep and was awakened by a gunshot. Defendant has failed to meet his burden of showing either the presence of perjury or its knowing use.\nIn addition, defendant contends Willie Bennett \u201cadmitted\u201d that his mother did not tell him the sound which awakened him was a door slamming until after the conversation with Detective Hinkle. Similarly, this allegation is not supported by the record. Willie Bennett steadfastly maintained at trial that at the time he was awakened he asked his mother what the noise was, and she responded that the door had slammed.\nDefendant has failed to demonstrate by clear, convincing and satisfactory evidence that the testimony in question was willfully and purposely falsely given. Accordingly, we find that the State did not knowingly present perjured testimony.\nII\nDefendant next argues that the trial court violated his right to due process guaranteed by the fourteenth amendment and article I, section 2, of the Illinois State Constitution when it convicted him of multiple counts of murder, home invasion, and armed violence. Defendant maintains that his constitutional rights were violated for three reasons. First, defendant contends that there may only be one conviction for murder where there was only one victim and, therefore, his conviction for felony murder based upon home invasion (Ill. Rev. Stat. 1987, ch. 38, par. 9\u20141(a)(3)) must be vacated. Second, defendant argues that the convictions for home invasion (Ill. Rev. Stat. 1987, ch. 38, par. 12\u201411(a)(1)) and armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A \u2014 2) must be vacated because the aforementioned offenses and the offense of murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9\u20141(a)(1), (a)(3)) arose from the same physical act. Finally, defendant maintains that his right to due process was violated because the offense of home invasion is a lesser included offense of felony murder and that the conviction for home invasion must be reversed.\nThe People maintain that defendant\u2019s convictions, with the exception of the convictions for armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A\u20142) and felony murder (Ill. Rev. Stat. 1987, ch. 38, par. 9\u20141(a)(3)), arose from separate acts and were not included in one another; therefore, multiple convictions and concurrent sentences were proper.\nWhere there is one person murdered, there may only be one conviction. (People v. Mack (1984), 105 Ill. 2d 103, 137.) In addition, \u201cmultiple convictions for both armed violence and the underlying felony cannot stand where a single physical act is the basis for both charges.\u201d (People v. Laboy-Rivera (1984), 126 Ill. App. 3d 197, 205.) For an offense \u201c \u2018to be a lesser included offense, the greater offense must include every element in the lesser offense plus one or more elements; the lesser offense does not have any element that is not included in the greater one. In other words, it is impossible to commit the greater offense without necessarily committing the lesser also.\u2019 \u201d (Emphasis in original.) People v. Garza (1984), 125 Ill. App. 3d 182, 188, quoting People v. Pavic (1982), 104 Ill. App. 3d 436, 448; see also People v. Dixon (1984), 122 Ill. App. 3d 141, 149.\nThe People have correctly noted that one person was murdered, and therefore, there may only be one murder conviction. The People concede that defendant\u2019s conviction and sentence for felony murder (Ill. Rev. Stat. 1987, ch. 38, par. 9\u20141(a)(3)) must be vacated. In addition, we find that defendant\u2019s conviction for armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A\u20142) must be vacated because this conviction was predicated upon the murder conviction and, as such, it was based upon the same act as the underlying felony. However, defendant\u2019s arguments regarding his conviction for home invasion do not pass muster. Defendant\u2019s argument that his conviction for home invasion is a lesser included offense in the felony murder conviction fails in light of the fact that we, here, vacate his conviction for felony murder.\nIn addition, defendant\u2019s alternate argument that his conviction for home invasion (Ill. Rev. Stat. 1987, ch. 38, par. 12\u201411(a)(1)) was based upon the same physical act as the offense of murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9\u20141(a)(1), (a)(3)) also fails. The People correctly argue that neither home invasion nor murder is a lesser included offense of the other, since each crime contains elements which are not elements of the other.\nThe crime of home invasion requires an unauthorized entry into the home (Ill. Rev. Stat. 1987, ch. 38, par. 12\u201411(a)(1)), an element not present in murder. Similarly, murder, as charged here, requires an intentional killing (Ill. Rev. Stat. 1987, ch. 38, par. 9\u20141(a)(1)), an element not present in the crime of home invasion. Accordingly, defendant\u2019s conviction for home invasion will stand.\nIll\nThird, defendant maintains that he did not receive a fair trial for five reasons. First, he alleges that the State improperly cross-examined him concerning his exercise of his right to avoid self-incrimination which is guaranteed by the fifth amendment to the U.S. Constitution. Defendant also alleges that the State improperly introduced evidence of his initial refusal to submit to the impression of his fingerprints. In addition, defendant asserts that the People improperly informed the trial court that his codefendant had been found guilty of felony murder (Ill. Rev. Stat. 1987, ch. 38, par. 9\u20141(a)(3)) in the same case. Next, defendant claims that the State\u2019s assertion that he was convicted of an offense while in possession of a firearm was improper, incorrect, and highly prejudicial. Finally, defendant contends that he did not receive a fair trial because the People suborned perjury from its witness, Willie Bennett.\nThe State maintains that defendant has waived his right to appellate review of each of the aforementioned allegations by failing to preserve the issues for review. The State further maintains that none of the above instances complained of involved prosecutorial misconduct or error on the part of the trial court.\nIn the alternative, the People contend that defendant received a fair trial because there is a presumption that the trial court considered only competent evidence; that it was proper to elicit evidence of defendant\u2019s conduct after the murder; that the admission of evidence that defendant refused to be fingerprinted was proper; that the People did not err by mentioning the codefendant\u2019s conviction; that there was no impropriety and no prejudice to defendant in clarifying the nature of a prior conviction, which he had already acknowledged; and that defendant received a fair trial because he has failed to demonstrate that he was convicted based upon perjured testimony. Furthermore, the State argues that any error made by the trial court was harmless.\nThe Illinois Supreme Court has mandated that it is a \u201cgeneral rule that the failure to raise an issue in a written motion for a new trial results in a waiver of that issue on appeal.\u201d (People v. Enoch (1988), 122 Ill. 2d 176, 186.) \u201cBoth a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial.\u201d (Emphasis in original.) Enoch, 122 Ill. 2d at 186.\nIn the instant case, defendant has waived his right to appellate review of all of the errors alleged above because he failed to object to all but one of the alleged errors at trial, and he failed to mention any of the alleged errors in his motion for a new trial. Therefore, we have no jurisdiction to review these allegations.\nIY\nNext, defendant contends that the State has failed to prove him guilty beyond a reasonable doubt because the People\u2019s only two eyewitnesses were impeached by their prior statements to the police, physical evidence, and expert medical testimony. Defendant alleges that the testimony of Hattie Bennett was contradicted by her prior statements to the police and the physical evidence, and that the testimony of Willie Bennett was contradicted by both his prior statements to the police and the expert medical testimony.\nThe People maintain that the trial court properly found defendant guilty beyond a reasonable doubt because the corroborated testimony of the State\u2019s witnesses proved that defendant forcibly entered a home and fatally shot the victim in the course of an attempted armed robbery.\nWhen faced with a challenge to the sufficiency of the evidence, it is not the function of a reviewing court to retry defendant. \u201c[I]t is entirely within the province of the fact finder to determine the credibility of witnesses, the amount of weight to accord their testimony, and the appropriate inferences to be drawn therefrom.\u201d (People v. Schorle (1990), 206 Ill. App. 3d 748, 758; see also People v. Phillips (1989), 127 Ill. 2d 499, 509; People v. Sanchez (1986), 115 Ill. 2d 238, 261; People v. Collins (1985), 106 Ill. 2d 237, 261; People v. Scherzer (1989), 179 Ill. App. 3d 624, 638.) The relevant inquiry is \u201c \u2018whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt\u2019.\u201d (Emphasis in original.) (Schorle, 206 Ill. App. 3d at 759, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; see also People v. Young (1989), 128 Ill. 2d 1, 49.) \u201c[A]fter a defendant has been found guilty, *** all of the evidence is to be considered in the light most favorable to the prosecution.\u2019 \u201d (Emphasis in original.) (Schorle, 206 Ill. App. 3d at 759, quoting Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789; see also Young, 128 Ill. 2d at 49; Sanchez, 115 Ill. 2d at 261; Scherzer, 179 Ill. App. 3d at 638.) \u201c[A] guilty verdict shall not be disregarded on review unless it is inconclusive, improbable, unconvincing, or contrary to human experience.\u201d Schorle, 206 Ill. App. 3d at 758.\nDefendant first maintains that there is a reasonable doubt as to his guilt because Hattie Bennett\u2019s testimony that he \u201cbusted through\u201d her living room door was contradicted by Detective Adams\u2019 stipulated testimony that he did not observe any physical evidence of the door having been broken in. We find that the conflicting testimony does not raise a reasonable doubt because Ms. Bennett\u2019s testimony was later corroborated by Detective Hinkle when he testified that the door, even when locked, \u201ccould be opened with a small amount of pressure.\u201d\nDefendant further charges that Willie Bennett gave contradictory testimony concerning the incident. Defendant comments upon the fact that Bennett and her son discussed the shooting, and that this action was a step taken by Hattie Bennett to ensure that the testimony of her son would be consistent with her own. However, we find that there is no evidence that Bennett coached or in any way caused her son to give perjured testimony.\nFinally, the allegation that Willie Bennett\u2019s testimony was contradicted by the pathologist\u2019s finding that there was \u201cstippling\u201d around the victim\u2019s wound lacks merit. Dr. Teas testified that \u201cstippling\u201d around the wound indicated that the fatal shot was fired from a distance of two feet or less. Willie Bennett testified that the victim and defendant were separated by a distance of roughly 10 feet. This alleged contradiction was argued before the trial court, which witnessed a demonstration of the shooting. The trial court concluded that, given all of the evidence, defendant\u2019s actions would \u201cput him well within the range\u201d estimated by Dr. Teas. The trial court was in the best position to make a finding with respect to this issue, and we will not set aside its finding upon appeal.\nAfter considering the evidence in the light most favorable to the prosecution, we find that the trial court\u2019s ruling is neither inconclusive, unconvincing, improbable, nor contrary to human experience. We conclude that the court could have found defendant guilty of murder, home invasion, and attempted armed robbery beyond a reasonable doubt. The record shows that defendant forcibly entered the Bennetts\u2019 home and fatally shot the victim in the course of an attempted robbery. The court could have found the essential elements of the crimes with which defendant was charged and concluded that defendant was guilty beyond a reasonable doubt.\nV\nDefendant\u2019s fifth allegation is that he is entitled to a new sentencing hearing due to the admission of irrelevant, unreliable, speculative, and prejudicial evidence. Specifically, he has four contentions. First, he asserts the testimony that he had been arrested for murder as a juvenile was irrelevant and extremely prejudicial. Furthermore, he maintains that the sentencing court improperly admitted evidence of his prior arrests as a juvenile. In addition, he argues that a judgment was erroneously entered on numerous counts arising from a single incident, and the court considered those erroneous convictions when imposing a sentence upon him. Finally, he argues that the capital sentencing statute (Ill. Rev. Stat. 1987, ch. 38, par. 9\u20141(d)) is unconstitutional.\nThe State maintains that defendant received a proper sentencing hearing in which the court considered only relevant and reliable evidence. Specifically, the People argue that evidence of defendant\u2019s prior misconduct was proper even though such conduct did not result in a prosecution. Moreover, the People contend, the juvenile officer\u2019s testimony regarding his contact with defendant was properly admitted to show defendant\u2019s likelihood for rehabilitation. In addition, the People argue that testimony regarding Officer Cobb\u2019s willingness to act as a counselor was provoked by defendant\u2019s cross-examination of the witness. The State also asserts that evidence of defendant\u2019s adjudication of delinquency was properly admitted. The State further maintains that a remand is not necessary since multiple convictions did not influence the trial court\u2019s determination of defendant\u2019s sentence. Finally, the State maintains that the sentencing hearing was conducted pursuant to a constitutionally valid statute.\nThe Criminal Code of 1961 requires the court to \u201cconsider *** any aggravating and any mitigating factors which are relevant to the imposition of the death penalty.\u201d (Ill. Rev. Stat. 1987, ch. 38, par. 9\u20141(c).) Our supreme court has made the following ruling concerning the admissibility of evidence at a sentencing hearing:\n\u201cThe admissibility of evidence at the aggravation and mitigation phases of the sentencing hearing is not governed by the restrictive rules of evidence in effect at the guilt phase of the trial. [Citations.] The broadened standard governing admissibility of evidence allows the State and the defendant considerable leeway in presenting evidence so long as the proffered evidence is relevant and reliable [citations], as determined by the trial court in its sound discretion [citation].\u201d People v. Johnson (1986), 114 Ill. 2d 170, 205.\nSee also People v. Richardson (1988), 123 Ill. 2d 322, 361-62; People v. Brisbon (1985), 106 Ill. 2d 342, 365.\nDuring the aggravation and mitigation phase of a death penalty hearing, it is important that the sentencing court hear \u201cthe most complete information possible regarding defendant\u2019s life and characteristics.\u201d (People v. Lego (1987), 116 Ill. 2d 323, 347.) A court may consider a defendant\u2019s \u201cprospect for rehabilitation and restoration to a useful place in society[ ]\u201d when determining an appropriate sentence. (People v. Ward (1986), 113 Ill. 2d 516, 529.) The Illinois Supreme Court has stated that \u201ca defendant\u2019s prior delinquency adjudications are highly relevant in determining whether the defendant\u2019s character is such that death is the appropriate punishment.\u201d (Lego, 116 Ill. 2d at 347.) Our supreme court has found that the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 702\u201410(1)) does not bar the admission of prior juvenile adjudications in adult sentencing hearings. (People v. Orange (1988), 121 Ill. 2d 364, 388.) In addition, the supreme court has held that evidence of a defendant\u2019s prior misconduct which did not result in his prosecution or conviction is admissible at the aggravation and mitigation phases of his sentencing hearing if relevant and reliable. People v. Young (1989), 128 Ill. 2d 1, 54; Johnson, 114 Ill. 2d at 205; see also Brisbon, 106 Ill. 2d at 364-65.\nA sentence may not be altered by a court of review absent an abuse of discretion. (People v. Cabrera (1987), 116 Ill. 2d 474, 494; People v. Perruquet (1977), 68 Ill. 2d 149, 153; People v. Heredia (1989), 193 Ill. App. 3d 1073, 1083; People v. Whitehead (1988), 171 Ill. App. 3d 900, 908.) \u201cWhen a sentencing hearing is conducted by a trial judge acting without a jury, \u2018the trial judge is presumed to consider only competent and relevant evidence in determining sentence.\u2019 \u201d (People v. Johnson (1986), 114 Ill. 2d 170, 205, quoting People v. Morgan (1986), 112 Ill. 2d 111, 144.) In order to warrant a new sentencing hearing, a defendant must affirmatively show that the trial court relied upon improper evidence in imposing the sentence. This court has found that \u201ceven where improper evidence is presented, such as a showing of the bare fact that an arrest occurred or a charge was made, we will presume that the trial court, knowing the law, considered only proper evidence in imposing sentence, and disregarded that which was improper [citation].\u201d People v. Garza (1984), 125 Ill. App. 3d 182, 186.\nFurthermore, this court has ruled that a court of review is not required to remand a cause for resentencing after it vacates a conviction unless the sentencing court was influenced by the other improper convictions when it sentenced defendant. People v. Cook (1984), 129 Ill. App. 3d 531, 536; People v. Smith (1984), 124 Ill. App. 3d 805, 813.\nWe rule that defendant is not entitled to a new sentencing hearing because he has failed to meet his burden of proof. First, we find that Detective Cobb\u2019s testimony regarding defendant\u2019s arrest for murder and armed robbery was properly admitted. In Illinois, evidence of a defendant\u2019s prior arrest is admissible in a sentencing hearing even though the conduct in question did not result in prosecution or conviction. (See People v. Young (1989), 128 Ill. 2d 1, 54; People v. Johnson (1986), 114 Ill. 2d 170, 205.) Defendant contends that Officer Cobb\u2019s testimony concerning this arrest was irrelevant. We hold that his testimony was relevant because it concerned defendant\u2019s past conduct. It is essential that the sentencing court hear \u201ccomplete information *** regarding defendant\u2019s life and characteristics.\u201d (People v. Lego (1987), 116 Ill. 2d 323, 347.) Such information enables the court to give defendant an appropriate sentence. Furthermore, defendant contends that Officer Cobb\u2019s testimony was not reliable. This contention has no merit. Officer Cobb\u2019s testimony was reliable because he had firsthand knowledge of the incident in question. We also find that his testimony was properly admitted as evidence of defendant\u2019s likelihood for rehabilitation. (See People v. Ward (1986), 113 Ill. 2d 516, 529.) The context of Detective Cobb\u2019s testimony indicates that evidence of defendant\u2019s prior arrests as a juvenile was offered to show his reaction to the officer\u2019s attempts to help rehabilitate him. On these occasions, Detective Cobb attempted to assist defendant by speaking to his parents, and by using his discretion to resolve the matters by \u201cstation adjustments\u201d and referrals to juvenile court. Accordingly, we conclude that the trial court did not abuse its discretion by admitting evidence of defendant\u2019s past conduct as a juvenile which did not result in prosecution or conviction.\nWe find defendant\u2019s reliance upon People v. Harris (1989), 129 Ill. 2d 123, inappropriate. He relies upon Harris to support his contention that evidence of prior acts for which a defendant was not convicted are inadmissible in a sentencing hearing. The Harris case was not remanded because evidence of prior acts for which the defendant was not convicted were presented in a sentencing hearing, but because the trial court treated the prior conduct as a murder conviction, and then refused to allow the defendant to prove that the charges had been dismissed. (Harris, 129 Ill. 2d at 163.) Since this error did not occur in the instant case, Harris is distinguishable from the case at bar.\nFurthermore, we rule that evidence of defendant\u2019s prior juvenile adjudications was properly admitted. Our supreme court has held that the introduction of delinquency adjudications in adult sentencing hearings is proper. (See People v. Orange (1988), 121 Ill. 2d 364, 388; People v. Lego (1987), 116 Ill. 2d 323, 347.) Accordingly, we find that the trial court did not abuse its discretion by admitting evidence of defendant\u2019s prior juvenile delinquency adjudications in aggravation.\nDefendant also contends that this cause must be remanded for resentencing because a judgment was erroneously entered on numerous counts arising from a single incident, and the court considered those erroneous convictions when imposing a sentence upon him. We disagree. We have ruled here that defendant\u2019s convictions are to be vacated for felony murder (Ill. Rev. Stat. 1987, ch. 38, par. 9\u20141(a)(3)) and armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A\u20142). A remand for a new sentencing hearing is not necessary because there is no indication in the record that the court was influenced by the armed violence count and the second murder count when it sentenced defendant. See People v. Cook (1984), 129 Ill. App. 3d 531, 536; People v. Smith (1984), 124 Ill. App. 3d 805, 813.\nIn addition, we find that testimony regarding Detective Cobb\u2019s willingness to act as a counselor was properly admitted during the sentencing hearing. Defendant now contends that he is entitled to a new sentencing hearing because Detective Cobb\u2019s testimony was unreliable, speculative, and irrelevant. We disagree. During cross-examination, defendant asked Detective Cobb about the nature of his duties as a juvenile officer. Officer Cobb testified that, had he asked, he would have helped defendant find employment and would have assisted him with his studies. This court has ruled that \u201cthe defendant may not predicate error on a response by the prosecutor which he himself provoked.\u201d (People v. Carruthers (1974), 18 Ill. App. 3d 255, 267; see also People v. Conner (1976), 42 Ill. App. 3d 234, 239.) Accordingly, we find that the trial court did not abuse its discretion by admitting Detective Cobb\u2019s testimony in aggravation.\nFinally, defendant argues that he is entitled to a new sentencing hearing because he was sentenced pursuant to a capital sentencing provision of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 9\u20141(d)), which was deemed unconstitutional by the Federal district court in United States ex rel. Silagy v. Peters (C.D. Ill. 1989), 713 F. Supp. 1246. This contention has no merit. The United States Court of Appeals for the Seventh Circuit later reversed United States ex rel. Silagy and ruled that the Illinois death penalty statute was constitutional. (Silagy v. Peters (7th Cir. 1990), 905 F.2d 986.) For the reasons aforementioned, we rule that defendant is not entitled to a new sentencing hearing.\nVI\nFinally, defendant prays for a reduction of his sentence for the maximum term of years upon each count for which he was convicted. Defendant contends that his sentence is excessive in the context of the evidence and the mitigation.\nThe People maintain that the trial court properly exercised its discretion in imposing a sentence which was appropriate in light of defendant\u2019s criminal history and his violent conduct in the instant case.\nIn determining an appropriate sentence, \u201c[t]he nature of the crime, protection of the public, deterrence and punishment are relevant as well as defendant\u2019s rehabilitation prospects and youth.\u201d (People v. Whitehead (1988), 171 Ill. App. 3d 900, 908.) The trial judge\u2019s determination of an appropriate sentence must be given great deference and weight, because the trial judge is in the best position to make a sound determination regarding punishment. (People v. Cabrera (1987), 116 Ill. 2d 474, 494; Whitehead, 171 Ill. App. 3d at 908; People v. Partin (1987), 156 Ill. App. 3d 365, 373.) There is a strong presumption that a trial court has considered any evidence of mitigation brought before it. (Whitehead, 171 Ill. App. 3d at 908; Partin, 156 Ill. App. 3d at 373.) Furthermore, as we noted above, a court of review will not disturb a defendant\u2019s sentence absent an abuse of discretion. Cabrera, 116 Ill. 2d at 494; People v. Perruquet (1977), 68 Ill. 2d 149, 153; People v. Heredia (1989), 193 Ill. App. 3d 1073, 1083; Whitehead, 171 Ill. App. 3d at 908.\nIn the instant case, defendant has failed to demonstrate that the trial court abused its discretion when it sentenced him. The trial judge was in the best position to sentence defendant in an appropriate manner. The trial judge heard the testimony of many witnesses, including defendant. The trial court also heard and considered evidence in aggravation and mitigation. The record shows that defendant invaded the Bennett home while armed with a gun. Defendant himself stated that he entered the Bennett home in order to sell drugs. Defendant shot and killed the victim. Further, evidence in aggravation showed that defendant was a juvenile offender, and that he was later convicted as an adult for the possession of cannabis. Moreover, the court\u2019s sentence was within the range prescribed by statute. Therefore, we will not modify the trial court\u2019s sentencing of defendant.\nFor the aforementioned reasons, we affirm the trial court\u2019s conviction and sentence of defendant on one count of murder (Ill. Rev. Stat. 1987, ch. 38, par. 9\u20141(a)(1)), home invasion, and attempted armed robbery. We vacate defendant\u2019s conviction for felony murder (Ill. Rev. Stat. 1987, ch. 38, par. 9\u20141(a)(3)), and his conviction and 30-year sentence for armed violence. In addition, we grant the People\u2019s request and assess defendant $75 in costs and fees and incorporate it as part of our judgment, pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, and People v. Agnew (1985), 105 Ill. 2d 275.\nAffirmed in part and vacated in part.\nLINN and McMORROW, JJ., concur.", "type": "majority", "author": "JUSTICE JOHNSON" } ], "attorneys": [ "Randolph N. Stone, Public Defender, of Chicago (Shelton O\u2019Neal Green, Assistant Public Defender, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Mary Erigid Kenney, and Kenneth T. McCurry, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AARON TRIMBLE, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201488\u20141271\nOpinion filed August 8, 1991.\nRehearing denied October 25, 1991.\nRandolph N. Stone, Public Defender, of Chicago (Shelton O\u2019Neal Green, Assistant Public Defender, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Mary Erigid Kenney, and Kenneth T. McCurry, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0338-01", "first_page_order": 360, "last_page_order": 378 }