{ "id": 5386787, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRYL TOLIVER, Defendant-Appellant", "name_abbreviation": "People v. Toliver", "decision_date": "1993-04-19", "docket_number": "No. 1-91-3008", "first_page": "842", "last_page": "852", "citations": [ { "type": "official", "cite": "246 Ill. App. 3d 842" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "388 N.E.2d 1114", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1115" } ], "opinion_index": 0 }, { "cite": "70 Ill. App. 3d 589", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5579244 ], "weight": 2, "pin_cites": [ { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/70/0589-01" ] }, { "cite": "582 N.E.2d 1299", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "221 Ill. App. 3d 1045", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5795953 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/1045-01" ] }, { "cite": "545 N.E.2d 399", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "189 Ill. App. 3d 473", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2681099 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/189/0473-01" ] }, { "cite": "432 N.E.2d 1103", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "104 Ill. App. 3d 478", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5478377 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/104/0478-01" ] }, { "cite": "576 N.E.2d 331", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "216 Ill. App. 3d 348", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5289852 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/216/0348-01" ] }, { "cite": "608 N.E.2d 510", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "240 Ill. App. 3d 505", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5136716 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/240/0505-01" ] }, { "cite": "382 N.E.2d 383", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "65 Ill. App. 3d 155", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3327942 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/65/0155-01" ] }, { "cite": "492 N.E.2d 600", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "142 Ill. App. 3d 1014", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3451124 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/1014-01" ] }, { "cite": "438 N.E.2d 623", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "627" } ], "opinion_index": 0 }, { "cite": "107 Ill. App. 3d 1096", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3018406 ], "pin_cites": [ { "page": "1101-02" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/107/1096-01" ] }, { "cite": "564 N.E.2d 850", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "862" } ], "opinion_index": 0 }, { "cite": "205 Ill. App. 3d 231", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2568864 ], "weight": 2, "pin_cites": [ { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/205/0231-01" ] }, { "cite": "483 N.E.2d 309", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "136 Ill. App. 3d 517", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3565548 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/136/0517-01" ] }, { "cite": "438 N.E.2d 180", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "91 Ill. 2d 346", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3092628 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-2d/91/0346-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1251-53" } ], "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "pin_cites": [ { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "584 N.E.2d 477", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "222 Ill. App. 3d 896", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5261429 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/222/0896-01" ] }, { "cite": "478 N.E.2d 291", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "297" } ], "opinion_index": 0 }, { "cite": "106 Ill. 2d 373", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3139376 ], "pin_cites": [ { "page": "390-91" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0373-01" ] }, { "cite": "557 N.E.2d 596", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "607" }, { "page": "607-08" } ], "opinion_index": 0 }, { "cite": "199 Ill. App. 3d 839", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2468160 ], "weight": 3, "pin_cites": [ { "page": "854" }, { "page": "854" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/199/0839-01" ] } ], "analysis": { "cardinality": 1009, "char_count": 21745, "ocr_confidence": 0.76, "pagerank": { "raw": 4.5828155114230504e-08, "percentile": 0.28715419315952395 }, "sha256": "cae6162b97b526353619da4d6d935a737672e93a4843ae250776158327c9b2a5", "simhash": "1:6b3479f5647736cd", "word_count": 3558 }, "last_updated": "2023-07-14T16:15:27.018701+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. DARRYL TOLIVER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BUCKLEY\ndelivered the opinion of the court:\nDefendant Darryl Toliver was convicted by a jury of aggravated criminal sexual assault and armed robbery. Defendant was sentenced to consecutive extended terms of 60 years for each of the two offenses. Defendant appeals his conviction and sentences.\nJ.M. testified that she left work at 5:30 p.m. on Friday, November 3, 1989, and went to Ranalli\u2019s, where she drank iced tea and ate appetizers for three hours with her girl friends. Thereafter, J.M. went to Diana\u2019s in Greek Town to have dinner with her friends. At about 10:30 p.m., she went to a bar in Greek Town, Dugan\u2019s, where she consumed a total of three beers. At approximately 2 a.m., J.M. left Dugan\u2019s and entered a yellow car she believed was a cab and told the driver to go to 6101 North Sheridan. The driver turned around and she saw his face.\nDefendant drove two blocks south on Halsted, turned right onto Van Bur\u00e9n and drove another two blocks, before stopping the car. Then, defendant jumped into the back seat and covered J.M.\u2019s head with a towel. J.M. was forced out of the car and into the driver\u2019s side of a van. She further testified that defendant said he was going to kill her. Defendant forced J.M. to lie down with her head on his lap while he drove, holding a switchblade knife against her face.\nJ.M. testified that she thought the van was proceeding on the expressway because it was not stopping. Then, the van got off the expressway and made some stops and turns before coming to a complete stop. Defendant forced her through the bucket seats of the van into the back seat. Defendant unzipped his pants and ordered her to perform oral sex on him. J.M. claimed to be too drunk. Thereafter, defendant forced off one leg of her pantyhose and underpants. Defendant put his penis into J.M.\u2019s vagina and had forced sex with her while repeatedly hitting her on the right side of the face with the butt of the knife.\nAfter defendant sexually assaulted J.M., he forced her back into the front seat and demanded money from her. Defendant went through her purse. Then, defendant told her that he was \u201cgonna take [her] out by the airport and slice [her] up.\u201d Defendant also ordered J.M. to give-him her jewelry. She replied \u201cfuck you,\u201d opened the door and fell out the passenger side of the van. She ran towards the rear of the van to the first block, turned around, looked at the license plate and memorized the number. J.M. then ran to a house in the residential area, where she hid in the bushes. J.M. testified that defendant drove the van around the block four or five times before leaving the area. After 20 minutes of hiding in the bushes, she went into the middle of the street to stop a car. She asked the driver of the car to take her to a police station and help her remember the license plate number.\nUpon arriving at the station, J.M. went to the front desk and wrote down the plate number. The police took her to a hospital, where photographs were taken of her wrist, foot and back, which showed scrapes from the attack. Also, a photograph of her inner thigh showing bruises was taken. Two days after the incident, a professional photographer took pictures of J.M.\u2019s face with a black eye and bruises.\nNext, Officer Joann Hammermeister testified that she was working the front desk of the police station when J.M. entered. Hammermeister testified that J.M. was \u201cupset, she had marks, bruises, some blood on her face.\u201d She informed Hammermeister that she had been raped and robbed in a windowed livery van. Hammermeister wrote down the plate number J.M. gave her, 7167LY. She testified that J.M. described her assailant as a black male, approximately 6 feet tall, and 175 to 180 pounds. Although Hammermeister detected an odor of alcohol on J.M.\u2019s breath, she testified that J.M. did not appear to be intoxicated, did not slur her speech or need assistance in walking. Hammermeister\u2019s report indicated that the offense occurred at 4:15 a.m.\nAlvin McCune testified on behalf of the State that he worked the midnight shift on November 4, 1989, as the dispatcher for Plaza Limousine located at 1014 West Van Bur\u00e9n. McCune testified that only himself, defendant and James Thomas worked that morning. Thomas was assigned to drive a stretch limousine. At about 1 a.m., defendant requested use of a van to go get something to eat. Defendant left in a dark Ford Aerostar with the license plate 7167LY and did not return until approximately 5:30 a.m. Lastly, McCune testified that he did not have contact with defendant during the time that he was out.\nOfficer Butler, an evidence technician for the Chicago police department, testified that he photographed a stain located on the rear seat of a dark Ford Aerostar bearing the license plate number 7167LY. A sample of the stain was also taken. Butler further testified that the van had bucket seats.\nDenise Troche, a criminalist for the Chicago police department, testified that the sample of the above stain revealed the presence of semen. Troche further testified that she examined a sexual assault kit of samples taken from J.M. These samples also revealed the presence of semen.\nMark Heimberger testified on behalf of the State that he was employed as a detailer by Plaza Limousine. He stated that on November 2 he detailed the van with the license plate 7167LY and did not notice any stains in the rear seat.\nThe State\u2019s last witness was Detective Mook who, pursuant to a check on the license plate number which J.M. had provided, went to Plaza Limousine. Mook saw the van. He, too, observed a dried stain on the rear seat. Mook arrested defendant at Plaza Limousine. On Sunday morning, November 5, Detectives Mook and Dorsch visited J.M. and displayed seven photographs. She identified defendant as the man who robbed and raped her. J.M. informed Mook that defendant had used a towel to cover her face. Mook went and reinspected the van and found a towel under the driver\u2019s bucket seat. That evening, J.M. viewed a lineup. Each subject in the lineup was told to say some lines. She picked defendant out of the lineup because she recognized his face and his voice.\nThe State introduced several exhibits into evidence, expressly excluding police reports. Upon the State resting its case, defendant moved for a directed verdict, which was denied.\nThe defense entered a stipulation that defendant stands 5 feet 8 inches tall. Thereafter, defendant rested.\nThe jury found defendant guilty of aggravated criminal sexual assault and armed robbery. Defendant\u2019s motion for new trial was denied.\nAt sentencing, the State presented evidence of a certified copy of a 1986 conviction for aggravated criminal sexual assault, armed robbery and armed violence for which defendant received a six-year prison sentence. The State also presented a certified copy of a 1983 conviction for robbery. In mitigation, defense counsel argued that defendant had been \u201cgainfully employed.\u201d The circuit court sentenced defendant to two consecutive extended terms of 60 years\u2019 imprisonment. Defendant appeals his conviction and sentences.\nFirst, defendant contends that the State improperly commented during rebuttal argument on his failure to testify, urged the jury to \u201ctry\u201d defense counsel and not him, and abused the rape shield statute to exhort the jury that the victim not get \u201craped\u201d again. Defendant argues that the above errors deprived him of a fair trial.\nThe State is generally given wide latitude in its closing and rebuttal arguments. (People v. Smith (1990), 199 Ill. App. 3d 839, 557 N.E.2d 596.) The State\u2019s arguments, however, must be based on the evidence or be a reasonable inference drawn therefrom. (Smith, 199 Ill. App. 3d at 854, 557 N.E.2d at 607.) When reviewing allegations of prosecutorial misconduct, the complained-of statements must be considered in the context of the entire closing argument of both the State and the defendant. (Smith, 199 Ill. App. 3d at 854, 557 N.E.2d at 607-08.) Moreover, if the complained-of statements are within the rebuttal argument, the statements will not be held improper if they appear to have been provoked or invited by the defense counsel\u2019s argument. (People v. Lyles (1985), 106 Ill. 2d 373, 390-91, 478 N.E.2d 291, 297.) Even if the statement is found to be improper, it will be considered prejudicial only where defendant can show that the jury would have reached a contrary verdict had the improper statements not been made. (People v. Manley (1991), 222 Ill. App. 3d 896, 584 N.E.2d 477.) Furthermore, if the complained-of statement was not objected to at trial or not raised in defendant\u2019s written post-trial motion, any error is waived unless the statements are so prejudicial as to deprive defendant of a fair trial or so flagrant as to threaten deterioration of the judicial process. People v. Albanese (1984), 104 Ill. 2d 504, 518, 473 N.E.2d 1246, 1251-53.\nThe defendant contends that the following State\u2019s rebuttal comment improperly referred to his failure to testify:\n\u201cThe defendant\u2019s attorney stands here and tells you that the [defendant asserted his innocence, well, we have the burden of proof, ladies and gentlemen. The [defendant is not obligated to present any evidence. He is not obligated to testify and you will be instructed that the fact that he did not testify cannot be held against him or used upon by you in any manner in reaching your determination of his guilt.\nThat is not the same thing as stating that he did not do it.\u201d\nThe above comment was a response to defense counsel\u2019s closing argument, which stated:\n\u201cYou heard that Detective Mook spoke to [defendant]. As [co-defense counsel] told you during opening, [defendant] has asserted his innocence from the beginning.\u201d\nThe implication of defense counsel\u2019s argument is that defendant asserted his innocence to Mook. Although defendant asserted his innocence by pleading not guilty, a review of Mook\u2019s testimony failed to reveal any inference that defendant affirmatively asserted his innocence directly to Hook.\nIn determining whether a defendant\u2019s right to remain silent has been violated, the test is whether the complained-of reference was calculated to direct the attention of the jury to defendant\u2019s failure to avail himself of his legal right to testify. (People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180.) The complained-of statement is permissible when it is motivated by the purpose of demonstrating the absence of any evidentiary basis for defense counsel\u2019s argument, rather than for the purpose of calling attention to the fact that defendant did not testify. People v. Cooper (1985), 136 Ill. App. 3d 517, 483 N.E.2d 309.\nThe State\u2019s complained-of comment, which was invited by defense counsel\u2019s implication during closing argument that defendant asserted his innocence to Hook, was made to clarify the fact that defendant did not assert his innocence to Hook. The State did not make the complained-of remark to draw attention to the fact that defendant did not testify. In fact, the State clearly and correctly informed the jury that defendant did not have to present any evidence or testify and the fact that he did not testify could not be used in any way in reaching the determination that defendant was guilty.\nDefendant\u2019s next allegation of prosecutorial misconduct is that the State urged a guilty verdict based upon fear. Initially, the State argues that defendant has waived this issue by failing to include it in his post-trial motion. We disagree that it was waived because paragraph 13(f) of defendant\u2019s post-trial motion alleges that the State made prejudicial, inflammatory and erroneous statements during closing argument, including the comment \u201cGod forbid we become a victim of a sexual assault.\u201d Defense counsel objected to this statement during rebuttal argument and the circuit court sustained the objection. Therefore, defendant did, not waive this argument because he made a contemporaneous trial objection and included the complained-of statement in his written post-trial motion.\nDefendant attempts to liken the State\u2019s above comment to that made in People v. Gutirrez (1990), 205 Ill. App. 3d 231, 564 N.E.2d 850. In Gutirrez, the State argued \u201c[h]ow many of you, ladies and gentlemen, getting into your automobile, put your hands in the pockets, making yourselves the victim of this man.\u201d (Gutirrez, 205 Ill. App. 3d at 249, 564 N.E.2d at 862.) Defendant also cited People v. Frazier (1982), 107 Ill. App. 3d 1096, 1101-02, 438 N.E.2d 623, 627, wherein the State argued to the jurors that their sisters, wives and daughters might be raped someday because they happened to be sitting next to someone like the defendant. The State\u2019s comment in this case, however, is distinguishable from those comments in the cases cited by defendant. In the instant case, the State is not suggesting that defendant is going to make the jurors themselves or any of their family members his next victim. In fact, the complained-of statement refers to the victim\u2019s ability to identify defendant. The full context in which the complained-of statement was made is as follows:\n\u201cYou know that she had an opportunity to observe him, ladies and gentlemen, because the degree of attention that she had was necessarily high. Many of us, God forbid that we should ever be the victim\u2019s [sic] of sexual assault \u2014 [objection sustained] \u2014 any person, God forbid that anyone should be the victim of such a vile, heinous attack \u2014 [objection overruled] \u2014 would almost necessarily, and you know this by common sense, would pay attention to the man who was attacking you.\u201d\nThe State\u2019s rebuttal argument was not intended to inflame the jury and it did not prejudice the jury against defendant. The State did not urge the jury to convict defendant out of fear. Additionally, defense counsel invited the State\u2019s comments by repeatedly implying that J.M.\u2019s identification of defendant was suspect through comments like \u201c[J.M.\u2019s] memory, her opportunity and the reasonableness of her testimony, that\u2019s what you\u2019re here for.\u201d The State is permitted to respond that J.M.\u2019s identification of defendant is reasonable because he was on top of her while sexually assaulting her. Furthermore, any error which may have occurred concerning these statements was cured by the circuit court sustaining objections and instructing the jury that \u201cany statement or argument made by the attorneys which is not based on the evidence should be disregarded.\u201d\nDefendant further argues that the State committed prosecutorial misconduct because it \u201cdiverted [its] argument to an attack on defense counsel, distracting the jurors from the relevant issues.\u201d During rebuttal argument, the State commented that after J.M. had been robbed, raped, beaten, and searched for while she hid in the bushes, defense counsel wanted the jury to look down on her because in response to defendant\u2019s demand for her jewelry she said \u201cfuck you.\u201d The State included this argument in rebuttal because defense counsel argued in closing, \u201c[w]hat did [J.M.] tell [defendant] when he demanded [her] jewelry? Excuse my language. She said, \u2018F you.\u2019 She didn\u2019t say \u2018F.\u2019 \u201d Defense counsel\u2019s argument that J.M. used profanity is irrelevant and was argued to suggest that the use of profanity should be weighed against J.M. The State did not want to lend credence to this suggestion by not responding to the argument during rebuttal. The rebuttal argument was invited by defendant. (People v. Jennings (1986), 142 Ill. App. 3d 1014, 492 N.E.2d 600.) Again, the circuit court cured any error by instructing the jury to \u201cconsider only the evidence as it applies to the defendant.\u201d\nDefendant\u2019s last contention, that the State\u2019s comments during rebuttal argument amounted to prosecutorial misconduct, focuses on the statement: \u201cwe try to do everything we can to make sure that [J.M.] doesn\u2019t get raped again.\u201d This argument was a response to defense counsel\u2019s closing wherein he argued that the sperm from J.M.\u2019s vagina had not been tested to determine from whom it came. The State was explaining to the jury that it is improper to question a victim about prior sexual activity. The State\u2019s comment that the statute protects a victim from being \u201craped again\u201d was objected to by defendant, and the court sustained the objection and instructed the jury to disregard that comment. The alleged error was cured and did not contribute to the jury\u2019s guilty verdict.\nWe find that the complained-of statements did not constitute prosecutorial misconduct. Accordingly, defendant is not entitled to a new trial on this basis.\nSecond, defendant contends that the circuit court improperly allowed the State to use police reports as substantive evidence. We agree with defendant that police reports are generally not admissible into evidence. (People v. Morris (1978), 65 Ill. App. 3d 155, 382 N.E.2d 383.) Police reports are not to be used to divulge substantive evidence, but may be used for impeachment or to refresh a witness\u2019 recollection. (Morris, 65 Ill. App. 3d 155, 382 N.E.2d 383; People v. Williams (1992), 240 Ill. App. 3d 505, 608 N.E.2d 510.) The reason such reports are inadmissible is because they are the product of secondhand knowledge and, hence, hearsay. (People v. Garrett (1991), 216 Ill. App. 3d 348, 576 N.E.2d 331.) Hearsay, however, in the form of prior consistent statements is admissible to rebut an inference that testimony is a recent fabrication. (People v. Manley (1982), 104 Ill. App. 3d 478, 432 N.E.2d 1103.) Thus, prior consistent statements are admissible to show that a declarant told the same story before the alleged recent fabrication. (Manley, 104 Ill. App. 3d 478, 432 N.E.2d 1103.) In the instant case, the circuit court overruled defendant\u2019s objection to the use of the police* report based on the recent fabrication exception to hearsay.\nOn cross-examination, defense counsel .questioned J.M. about supplying information to a police officer while in the hospital. Specifically, defense counsel asked J.M., \u201cdo you recall telling [the detectives] that [the license plate number] was either 716744 or 716748?\u201d J.M. responded that she had always remembered the license plate as 7167LY. The defense counsel implied that J.M. had not accurately recalled and/or identified the license plate number of the van in which the assault took place. This inference was unsupported by evidence. The additional implication of defense counsel\u2019s questioning was that J.M.\u2019s testimony that she had informed the police that the plate number was 7167LY was a fabrication. To rebut these inferences, the State inquired of Hook what the license plate number was which was written in the police report. Hook read from the report the number 7167LY. The State never attempted to introduce the report, itself, into evidence. We find that the officer\u2019s use of the report was not improper.\nFinally, defendant contends that the circuit court considered improper factors in aggravation during his sentencing. Defendant argues that the circuit court improperly used his employment history and his failure to visit or support his two children born out of wedlock as factors in aggravation. We disagree.\nDefense counsel attempted to assert defendant\u2019s past and cur- ' rent employment as a factor in mitigation. The circuit court responded that after reviewing defendant\u2019s employment history, it was evident that \u201cmost of the time [defendant was] unemployed.\u201d Although defendant was employed at the time of his arrest for this crime, no court should be willing to accept his employment as a factor in mitigation since he used a tool of his employment, namely the livery van in which he raped and robbed his victim, to commit his crimes. The circuit court merely refused to consider defendant\u2019s employment history as a factor in mitigation. The record is devoid of any indication that the circuit court, instead, considered his employment history as an aggravating factor.\nDefendant\u2019s claim that the circuit court improperly considered his failure to support his two children, a nonstatutory factor in aggravation, is meritless. A sentencing court is entitled to consider nonstatutory factors in aggravation when imposing an extended-term sentence. (People v. Diaz (1989), 189 Ill. App. 3d 473, 545 N.E.2d 399.) A sentencing court is allowed to consider defendant\u2019s history and character when imposing a sentence. (People v. Robinson (1991), 221 Ill. App. 3d 1045, 582 N.E.2d 1299.) Therefore, the circuit court properly considered defendant\u2019s lack of responsibility towards his children. Defendant argues that People v. Smothers (1979), 70 Ill. App. 3d 589, 388 N.E.2d 1114, supports his argument that a sentencing court cannot consider a defendant\u2019s failure to support and accept responsibility for his children as an aggravating factor. Smothers, however, held that the circuit court abused its discretion by considering the defendant\u2019s choice to live with a woman to whom he was not married when sentencing him. (Smothers, 70 Ill. App. 3d at 591, 388 N.E.2d at 1115.) The defendant in Smothers did contribute to the support of his children. Therefore, defendant\u2019s citation of Smothers is unpersuasive.\nFor the foregoing reasons, we affirm the conviction and sentences of the circuit court of Cook County.\nAffirmed.\nMANNING, P.J., and O\u2019CONNOR, J., concur.", "type": "majority", "author": "JUSTICE BUCKLEY" } ], "attorneys": [ "Rita A. Fry, Public Defender, of Chicago (John T. Kennedy, Assistant Public Defender, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Margaret J. Faustmann, and Fabio Valentini, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRYL TOLIVER, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1 \u2014 91\u20143008\nOpinion filed April 19, 1993.\nRita A. Fry, Public Defender, of Chicago (John T. Kennedy, Assistant Public Defender, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Margaret J. Faustmann, and Fabio Valentini, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0842-01", "first_page_order": 860, "last_page_order": 870 }