{ "id": 2966763, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRYL J. SUTTON, Defendant-Appellant", "name_abbreviation": "People v. Sutton", "decision_date": "1993-08-11", "docket_number": "No. 1-92-0337", "first_page": "172", "last_page": "193", "citations": [ { "type": "official", "cite": "252 Ill. App. 3d 172" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "600 N.E.2d 1202", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1977, "pin_cites": [ { "page": "1204" }, { "page": "1204" }, { "page": "1203-04" } ], "opinion_index": 0 }, { "cite": "234 Ill. App. 3d 684", "category": "reporters:state", "reporter": "Ill. 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DARRYL J. SUTTON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE RIZZI\ndelivered the opinion of the court:\nAfter a jury trial, defendant, Darryl J. Sutton, was found guilty of attempted aggravated criminal sexual assault (HI. Rev. Stat. 1991, ch. 38, pars. 8 \u2014 4, 12 \u2014 14), attempted criminal sexual assault (111. Rev. Stat. 1991, ch. 38, pars. 8 \u2014 4, 12 \u2014 13), attempted aggravated criminal sexual abuse (111. Rev. Stat. 1991, ch. 38, pars. 8 \u2014 4, 12 \u2014 16), aggravated battery of a physically handicapped person (HI. Rev. Stat. 1991, ch. 38, par. 12 \u2014 4(a)(6)), and aggravated battery on a public way (HI. Rev. Stat. 1991, ch. 38, par. 12 \u2014 4(b)(8)). Defendant was sentenced to concurrent terms of 10 years for attempted aggravated criminal sexual assault, seven years for attempted criminal sexual assault, five years for attempted aggravated criminal sexual abuse and five years for each count of aggravated battery. We affirm in part, reverse in part and vacate in part.\nThe issues before this court for review are (1) whether defendant\u2019s convictions were based upon a \u201cdoubtful\u201d identification; (2) whether the trial court properly responded to the jury\u2019s three questions during its deliberation; (3) whether defendant was improperly convicted of multiple offenses arising from the same physical acts; (4) whether defendant is entitled to a new sentencing hearing on the basis that the trial court improperly considered the fact that the victim was handicapped at the time of the crime and the impact upon the victim as factors in aggravation; (5) whether defendant is entitled to a new sentencing hearing on the grounds that his convictions for multiple offenses prejudiced the trial judge and influenced him to sentence defendant to 10 years\u2019 imprisonment for attempted aggravated criminal sexual assault; and (6) whether defendant\u2019s sentences were excessive.\nThe following fact scenario occurred. As of March 21, 1991, the complainant, A.R., lived with her mother in Summit, Illinois. At approximately 7:15 p.m., A.R. left her house and walked to a nearby fast food restaurant known as Nicki\u2019s Hot Dog Stand located on West 63rd Street in Summit, Illinois. A.R. testified that she chose to take the fastest route to and from the hot dog stand, which was through the alley behind her home, because she had spina bifida, a disease which impaired her ability to walk. (See Stedman\u2019s Medical Dictionary 1315 (24th ed. 1982).) A.R. was inside the hot dog stand for approximately five minutes. Once A.R. purchased her food, she proceeded back through the alley towards her home.\nA.R. told the court that as she approached the gate to her back yard, she heard footsteps progressing towards her, whereupon she turned around and saw defendant. A.R. testified that defendant was wearing a white sweatshirt and grey pants at that time. A.R. further testified that she noticed that defendant had a very short haircut, a mustache and stubble on his face. A.R. recalled that defendant grabbed her around her neck whereupon she dropped her food and screamed \u201chelp.\u201d A.R. further testified that defendant then dragged her toward the garbage dumpsters in the alley behind her house and pushed her down on the ground as she continued to scream. A.R. recalled that defendant asked her if she would stop screaming if he stopped choking her and that she indicated she would. A.R. told the court that defendant responded by removing his hand from her mouth, at which time she screamed again and defendant struck her on her face. A.R. testified that defendant then grabbed the waistband of her pants. A.R. told the court that she subsequently tried to escape but that defendant pushed her back down on the ground and dragged her further behind the dumpsters where he removed her shoe, pulled her pants and underwear down and placed his body on top of hers. A.R. recalled that defendant then pushed her closer to a building. A.R. testified that she attempted to hit a door on the building in the hopes of making enough noise to get someone\u2019s attention. A.R. further testified that after banging on the door she screamed again and defendant told her to \u201cshut up.\u201d\nErika Gross, an employee of Video Junction, a video rental business located at 7520 West 63rd Street in Summit, Illinois, testified that at approximately 7:30 p.m. on March 21, 1991, she heard a woman scream while she was counting video rental receipts and money in the rear office of the establishment. Gross informed the court that the rear office had a door which led to the alley. Gross testified that upon hearing the scream she walked over to the back door to listen whereupon she heard a man say \u201cshut up, shut up.\u201d Gross stated that she then telephoned the police.\nA.R. further testified that while she was lying on the ground she looked underneath the dumpsters and saw lights moving down the alley towards her. A.R. stated that after seeing the lights, she heard defendant pull the zipper on his pants down. A.R. further testified that she heard someone get out of a car and that she screamed again but that defendant placed his hand over her mouth in an attempt to silence her. A.R. recalled that she was looking right at defendant while his hand was covering her mouth. A.R. further testified that she then saw the police move towards the dumpster whereupon defendant got up and ran away.\nPolice officer Joseph Marrotta testified that on March 21, 1991, he was on patrol in Summit, Illinois, when he received a message on his squad car radio informing him of an assault. Officer Marrotta testified that he responded to the radio dispatch by proceeding down an alley located behind a Video Junction establishment whereupon he heard a female voice screaming and he saw a man jump out from behind some dumpsters and run. Officer Marrotta testified that he then exited the squad car, yelled \u201cstop, police\u201d and chased the suspect. Officer Marrotta was unable to detain the suspect. However, he observed that the suspect was wearing a white shirt, dark trousers and white athletic shoes. He also noted that the suspect was approximately 5 feet 11 inches tall and weighed approximately 200 pounds. Officer Marrotta testified that he got back into his squad car and patrolled the area after losing sight of the suspect. Officer Marrotta stated that when he reached the alley at 75th Avenue, in Summit, Illinois, he saw a green Ford automobile. Officer Marrotta testified that defendant was the driver of that automobile and that he was wearing a soiled white shirt. Officer Marrotta further testified that he questioned defendant, but he did not arrest him at that time.\nNext, Sergeant Michael Stancato testified that on March 21, 1991, he was on patrol in Summit, Illinois, when he heard a radio dispatch informing him of an assault. Sergeant Stancato testified that he responded by proceeding to an alley near 75th Avenue and driving down the alley whereupon he observed a man jump from behind a garbage dumpster and run past his patrol unit. Sergeant Stancato testified that he then approached the dumpster at which time he observed a female sitting on the ground crying. Sergeant Stancato recalled that she was wearing a jogging suit and that her pants and underwear were pulled down to her ankles. Sergeant Stancato testified that he helped the victim, A.R., collect her clothes and that he asked her if she was all right. Sergeant Stancato testified that he then escorted the victim to his squad car and requested, over his radio, that the police dispatcher ask medical personnel to meet him and the victim at the Summit police station. Sergeant Stancato testified that A.R. subsequently gave him a description of her assailant.\nA.R. was then taken to the Summit police station, where she was treated by the paramedics. The victim sustained abrasions on her nose, right arm, right buttock, right leg and bruises around her right eye. The victim also talked to Detective Charles Wasko while she was at the police station.\nAfter this preliminary interview, Detective Wasko, Sergeant Stancato, Officer Marrotta and the victim all returned to the scene of the crime. Detective Wasko testified that when the group arrived at the scene of the crime on the night of March 21, 1991, there were four streetlights in the alley and that all of these lights were illuminated. In addition, the officers found one of the victim\u2019s earrings, a spilled soft drink and a bag of food that she dropped.\nAfter investigating the crime scene, they all returned to the Summit police station, where Detective Wasko prepared a composite of the victim\u2019s assailant at her direction. A.R. described her assailant as a black male in his mid-twenties who was approximately 5 feet 11 inches to 6 feet tall, weighing between 190 and 200 pounds, with short curly hair and a mustache. A.R. also told Detective Wasko that he was wearing a white shirt with dark-colored pants and white or light-colored shoes at the time of the assault.\nOn March 23, 1991, the victim returned to the Summit police station, where she viewed a physical lineup. After viewing the lineup, A.R. identified defendant as her assailant. A.R. later testified that she had never had any direct contact with defendant but that she had seen him before and she knew that he lived in the neighborhood.\nAfter presenting the above evidence, the State rested. Defendant made a motion for a directed finding which was denied by the trial court. The defense then presented its case. Defendant testified on his own behalf. Defendant told the court that he was wearing a tan shirt and brown pants on March 21, 1991. Defendant maintained that on that date, he had a full bushy mustache but he did not have a beard. Defendant further testified that he and Terry Kirksy were working on a car until 7:30 p.m. on that date. Defendant testified that while Kirksy left to get a soft drink, he stayed with the car and talked to another man, named Tony Purchase. Defendant maintained that when Kirksy returned at 7:45 p.m., he and Kirksy went to a liquor store to purchase wine. Defendant testified that they then drove around and that while they were driving, Officer Marrotta stopped them at approximately 8 p.m. and asked them what they were doing but that the policeman allowed defendant to drive away. Defendant testified that he then drove Kirksy home.\nKirksy testified that defendant exited the car around 7:30 p.m. and walked down an alley behind the Acme Food Store in Summit, Illinois. Kirksy further testified that he later encountered defendant hiding behind a garbage dumpster at Nicki\u2019s Hot Dog Stand whereupon defendant jumped into the driver\u2019s seat of the car and told him to move over. Kirksy testified that defendant appeared to be nervous when he entered the car. Kirksy recalled that defendant then put on a jacket which he removed from the back seat. Kirksy testified that the two men then drove down the alley to 75th Avenue, where he and defendant were stopped by Officer Marrotta. Kirksy testified that the two men subsequently went to a liquor store after which defendant went home.\nDefendant further testified that on March 31, 1991, he participated in two lineups which were held approximately 5 to 10 minutes apart. Defendant claimed that he could see A.R. in the viewing room, that he could hear her talking and that she told the police she could not identify anyone in the lineup as her assailant. Defendant admitted that he went to school with A.R.\u2019s brother and that A.R. knew him by sight.\nSergeant Gary Misicka, Detective Wasko and Officer Marrotta also testified concerning the aforementioned lineups. Sergeant Misicka explained that on March 23, 1991, defendant participated in two lineups but that A.R. only viewed the first lineup and the victim of another separate crime viewed defendant in a second lineup. Detective Wasko testified that the second lineup was held for Hilda Walker, a robbery victim. Sergeant Misicka further testified that A.R. viewed the first lineup defendant participated in while she was in a dark room which had a small peephole which allowed her to view the suspects. Officer Marrotta maintained that none of the participants in the lineup could see A.R.\nDuring the jury\u2019s deliberations, the jurors submitted the following three questions to the judge:\n\u201c1. Did [A.R.] initially say anything about a shadow of stubble on his face during the composite drawing?\n2. Why are there scissor cuts on evidence pants?\n3. What was the exact question that defendant\u2019s attorney asked defendant when he asked him did he attack the [victim]? What was the date defendant\u2019s attorney stated the attack occurred?\u201d\nThe trial court convened in order to discuss the questions and possible responses with defense counsel, defendant and the prosecution. After extensive discussion as to what the answers to the questions should be, the trial court responded \u201cyes\u201d to question 1. The response to question 2 was as follows: \u201cThere is no evidentiary testimony during the course of the trial about scissor cuts in [the victim\u2019s] pants.\u201d The court responded to question 3 in the following manner: \u201cCollectively as jurors you will have to determine what the question and answer was [sic] with regard to question number three.\u201d\nFollowing deliberations, the jury found defendant guilty of attempted aggravated criminal sexual assault, attempted criminal sexual assault, attempted criminal sexual abuse, aggravated battery of a physically handicapped person and aggravated battery on a public highway. After hearing arguments in aggravation and mitigation, the trial judge sentenced defendant to one 10-year, one 7-year and three 5-year terms to be served concurrently.\nFirst, defendant maintains on appeal that all of his convictions should be reversed on the basis that A.R.\u2019s identification of him as her assailant was \u201cdoubtful.\u201d The State maintains that the victim\u2019s identification of defendant was sufficient to sustain his convictions because the victim had ample opportunity to observe defendant during the crime and she was able to identify him shortly thereafter. We agree.\nA vague or doubtful identification will not sustain a conviction beyond a reasonable doubt. (People v. Slim (1989), 127 Ill. 2d 302, 307, 537 N.E.2d 317, 319; People v. Ash (1984), 102 Ill. 2d 485, 494, 468 N.E.2d 1153, 1157.) When the identification of a defendant is at issue, however, a single witness\u2019 identification of the accused is sufficient to sustain a conviction, even though such testimony is contradicted by the accused, providing the witness is credible and she viewed defendant under circumstances that would permit a positive identification to be made. (Slim, 127 Ill. 2d at 307, 537 N.E.2d at 319; Ash, 102 Ill. 2d at 494, 468 N.E.2d at 1157.) In assessing identification testimony, a reviewing court may not substitute its own judgment for that of the trier of fact on questions involving the credibility of witnesses or the weight of the evidence and it will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of the defendant\u2019s guilt. People v. Johnson (1986), 114 Ill. 2d 170, 189-90, 499 N.E.2d 1355, 1363; People v. Pietruszynski (1989), 189 Ill. App. 3d 1071, 1076-77, 545 N.E.2d 942, 946.\nThe identification of defendant by A.R. in the present case is not so improbable as to raise a reasonable doubt of defendant\u2019s guilt. First, A.R. had ample opportunity to view defendant\u2019s face both before and during the assault. A.R. testified that she saw defendant just prior to the assault when he approached her while she was standing in an alley at the gate to her backyard. A.R. also gave the police a detailed description of defendant\u2019s appearance at that time. Furthermore, A.R. testified that she was looking right at defendant while she was lying on the ground and he was positioned on top of her. Detective Wasko also testified that there were illuminated streetlights in the alley on the night of A.R.\u2019s assault. The victim was attacked at 7:30 p.m. In addition, A.R. testified that she had seen him in the neighborhood before and defendant himself admitted that A.R. knew him on sight.\nSecond, the victim\u2019s identification of defendant was credible. The record shows that A.R.\u2019s identification of defendant was clear and unequivocal. The victim saw defendant during the assault, she was able to describe defendant to the police and she identified defendant as her assailant when she viewed him in a lineup two days after her attack. Furthermore, there is no evidence that the police encouraged A.R. to identify defendant as her assailant. Later, during the trial, A.R. testified concerning her identification of defendant in the lineup. She stated: \u201cI knew who my attacker was right away. I had no trouble.\u201d In addition, she positively identified defendant in open court. The credibility of A.R.\u2019s identification of defendant is enhanced because she testified and defendant admitted that she had seen him in and around her neighborhood prior to the assault (see People v. Pietruszynski (1989), 189 Ill. App. 3d 1071, 1076, 545 N.E.2d 942, 946 (the credibility of a witness\u2019 identification is enhanced when the witness testifies that she knew the defendant prior to the crime)).\nDefendant\u2019s argument that A.R.\u2019s identification of him is doubtful on the basis that there is some discrepancy between her descriptions of his facial hair to the police and her trial testimony regarding his facial hair is not convincing. Defendant specifically contends that his identification was doubtful because A.R. testified that he did not have a beard but that she in fact told the police that he did have a beard. Defendant also argues that his identification was doubtful because Detective Wasko, who interviewed A.R. and drafted a composite of the suspect, contradicted her testimony about defendant\u2019s facial hair when he testified that she did not tell him that her assailant had a beard. The record shows that the victim testified that she originally told the police that defendant had a beard. She further explained that he did not have a full, thick beard but that his face appeared \u201cscruffy\u201d and \u201cunshaven.\u201d Even if there was a discrepancy between the victim\u2019s description of her assailant to the police and the victim\u2019s testimony concerning her prior description of defendant, her failure to notice or perfectly describe defendant\u2019s facial hair was not fatal to her positive and otherwise credible identification. People v. Slim (1989), 127 Ill. 2d 302, 310, 537 N.E.2d 317, 320; see also People v. Sakalas (1980), 85 Ill. App. 3d 59, 69, 405 N.E.2d 1121, 1130 (victim\u2019s identification testimony held to be sufficient despite his inability to recall whether his assailant had a moustache or a scar); People v. Calhoun (1971), 132 Ill. App. 2d 665, 668, 270 N.E.2d 450, 452 (conviction sustained where the defendant had a thick moustache which the victim did not mention in any preliminary descriptions).\nFor the above reasons, we find that the victim\u2019s positive identification of defendant is sufficient to sustain defendant\u2019s convictions.\nDefendant next alleges that the trial court\u2019s response to the jury\u2019s three questions during its deliberation abridged his right to a fair trial. The State maintains that defendant waived his right to appellate review of this issue. In the alternative, the State argues that the trial court\u2019s response to the jury\u2019s questions was proper.\nIn the present case, defendant has failed to preserve this issue for review because he failed to object to the above issue and he failed to raise it in his post-trial motion. (See People v. Enoch (1988), 122 Ill. 2d 176, 186-88, 522 N.E.2d 1124, 1129-32.) We will, however, review defendant\u2019s allegation pursuant to our authority granted under Illinois Supreme Court Rule 366(a)(5). 134 Ill. 2d R. 366(a)(5); Palomar v. Metropolitan Sanitary District (1992), 225 Ill. App. 3d 182, 188, 587 N.E.2d 1067, 1071; City of Wyoming v. Liquor Control Comm\u2019n (1977), 48 Ill. App. 3d 404, 407-08, 362 N.E.2d 1080, 1083; Occidental Chemical Co. v. Agri Profit Systems, Inc. (1975), 37 Ill. App. 3d 599, 603, 246 N.E.2d 482, 485.\nDuring deliberations, the jury submitted three questions to the judge. The trial court reconvened and discussed the questions and possible responses with defense counsel and the prosecution. With regard to the jury\u2019s first question, which was whether or not A.R. mentioned that defendant had a \u201cshadow of stubble\u201d on his face when she assisted Officer Wasko in drafting a composite drawing of her assailant, the trial court\u2019s response to the question did not abridge defendant\u2019s right to a fair trial. The record shows that after a discussion, defense counsel, the prosecution and the trial court all agreed that the response to the jury\u2019s first question should be \u201cYes.\u201d Later, during the discussion of the responses to the second and third questions submitted by the jury, the trial judge asked defense counsel whether he wanted to withdraw the response to the first question. Defense counsel answered: \u201cNo, no.\u201d Where a defendant acquiesces in the trial court\u2019s answer to a jury\u2019s question, he cannot later complain that the trial court abused its discretion. (People v. Reid (1990), 136 Ill. 2d 27, 38, 554 N.E.2d 174, 179.) Since defense counsel in the present case acquiesced with respect to the trial court\u2019s answer to the jury\u2019s first question, he is now precluded from complaining that the trial court abused its discretion. Furthermore, defendant was not prejudiced by the trial court\u2019s response. In light of all of the evidence, the trial court\u2019s affirmative response to the jury\u2019s first question would not have changed the jury\u2019s verdict. Defendant, therefore, was not prejudiced by the trial court\u2019s response to question 1.\nWith regard to the jury\u2019s second question, concerning scissor cuts on the victim\u2019s pants, defendant again acquiesced to the trial court\u2019s response. After discussing what the appropriate answer to the jury\u2019s second question should be, defendant, the State and the trial court all agreed that the trial court should tender the following response to the jury: \u201cThere\u2019s no evidentiary testimony during the course of the trial about scissor cuts.\u201d After further discussion both parties and the court agreed that the response should be modified to read: \u201cThere was no evidentiary testimony during the course of the trial about scissor cuts in [the victim\u2019s] pants.\u201d Accordingly, defendant cannot now complain that the trial court abused its discretion in rendering this answer to the jury\u2019s question. See Reid, 136 Ill. 2d at 38, 554 N.E.2d at 179.\nFurthermore, defendant was not prejudiced by the trial court\u2019s response. Whether or not the victim\u2019s pants had scissor cuts in them was not a critical issue in the present case. For the aforementioned reasons, the answer to the jury\u2019s second question was neither improper nor prejudicial.\nWith regard to the jury\u2019s third inquiry concerning defense counsel\u2019s question to defendant about the date of the assault, we find that the trial court\u2019s response to the jury was proper. The decision to furnish a jury with transcripts of testimony rests within the sound discretion of the trial court. Absent an abuse of discretion, the trial court\u2019s decision on this matter will not be disturbed on review. (People v. Olinger (1986), 112 Ill. 2d 324, 348-49, 493 N.E.2d 579, 591-92; People v. D\u2019Aguila (1991), 220 Ill. App. 3d 905, 908-09, 581 N.E.2d 336, 339.) In the present case, when the jury asked for the exact question that defense counsel asked defendant, they were in fact requesting a portion of the transcript of defendant\u2019s testimony. For some reason, this portion of the transcript was not available to the trial court. In exercising its discretion, the trial court determined that since the transcripts were not available, it should respond to the jury\u2019s question in the following manner: \u201cCollectively as jurors you will have to determine what the question and the answer was [sic] with regard to the question number three.\u201d There is no evidence that the trial court abused its discretion on this matter.\nAccordingly, the trial court\u2019s response to the jury\u2019s questions during its deliberation did not deprive defendant of his right to a fair trial.\nNext, defendant contends that he was improperly convicted of multiple offenses arising from the same physical acts. Specifically, he alleges that attempted aggravated criminal sexual abuse, attempted criminal sexual assault and both battery convictions were lesser-included offenses of the offense of attempted aggravated criminal sexual assault and should thus be vacated. Defendant reasons that the act which led to the attempted aggravated criminal sexual assault, that of \u201c[p]unching, choking and threatening\u201d the victim, was the same act which was the basis of his convictions for attempted aggravated criminal sexual abuse and attempted criminal sexual assault, and which caused the bodily harm upon which the two aggravated battery convictions were based.\nThe State maintains that defendant waived his right to appellate review of the above issue because he failed to make an objection at trial and to mention the issue in his post-trial motion. (See People v. Enoch, 122 Ill. 2d at 186-88, 522 N.E.2d at 1129-32.) In the alternative, the State argues that defendant was properly convicted and sentenced for the aforementioned crimes because he committed five separate acts which support his five separate convictions.\nAlthough defendant has failed to preserve this issue for review, we will review the allegation pursuant to our authority granted under Illinois Supreme Court Rule 366(a)(5). 134 Ill. 2d R. 366(a)(5); Palomar, 225 Ill. App. 3d at 188, 587 N.E.2d at 1071.\nThe Criminal Code of 1961 defines an \u201cincluded offense\u201d in the following manner:\n\u201c\u00a72 \u2014 9. \u2018Included offense\u2019. Included offense means an offense which\n(a) Is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged, or\n(b) Consists of an attempt to commit the offense charged or an offense included therein.\u201d (111. Rev. Stat. 1991, ch. 38, par. 2-9.)\nSimilarly, Illinois courts have defined a \u201clesser-included offense\u201d as one \u201ccomposed of some, but not all, of the elements of the greater offense, and which does not have any element not included in the greater offense.\u201d (People v. Jones (1992), 149 Ill. 2d 288, 293, 595 N.E.2d 1071, 1073; People v. Russell (1992), 234 Ill. App. 3d 684, 687-88, 600 N.E.2d 1202, 1204.) Multiple convictions and sentences may be imposed where a defendant has committed several interrelated acts if each one of the acts would support a different offense. People v. King (1977), 66 Ill. 2d 551, 565, 363 N.E.2d 838, 843.\nThe first crime that defendant was convicted of and sentenced for was the offense of attempted aggravated criminal sexual assault. An accused commits an attempted crime when, \u201cwith intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.\u201d (Ill. Rev. Stat. 1991, ch. 38, par. 8 \u2014 4(a).) The intent with which an act is committed may be inferred from the act itself and the surrounding circumstances. (People v. Chambers (1973), 15 Ill. App. 3d 23, 27, 303 N.E.2d 24, 27.) By considering the surrounding circumstances, it may be determined whether or not the defendant took a substantial step toward the commission of the offense. (People v. Bonner (1967), 37 Ill. 2d 553, 562, 229 N.E.2d 527, 533.) An accused commits \u201caggravated criminal sexual assault\u201d if he commits criminal sexual assault upon a victim who was physically handicapped at the time of the incident. (Ill. Rev. Stat. 1991, ch. 38, par. 12 \u2014 14(a)(6).) \u201cCriminal sexual assault\u201d is defined as an act of sexual penetration by the use of force or threat of force. (Ill. Rev. Stat. 1991, ch. 38, par. 12 \u2014 13(a)(1).) \u201cSexual penetration\u201d is defined as \u201cany contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person *** into the sex organ or anus of another person ***. Evidence of emission of semen is not required to prove sexual penetration.\u201d Ill. Rev. Stat. 1991, ch. 38, par. 12 \u2014 12(f).\nIn the present case, defendant was charged with attempted aggravated criminal sexual assault on the basis that he performed the following acts: \u201cHe, with the intent to commit aggravated criminal sexual assault, attempted an act of sexual penetration by force, to wit: Punching, choking and threatening [A.R.] while pulling her pants off and while he attempted to take off his pants while [A.R.] was a physically handicapped person when the act was committed[.]\u201d\nThere is evidence that defendant committed each element of the crime of attempted aggravated criminal sexual assault. The record shows that the victim was handicapped within the meaning of the statute because she was afflicted with spina bifida, making it difficult for her to walk. In addition, the record shows that defendant used force when he pushed the victim down on the ground, dragged her behind a garbage dumpster, struck her and attempted to choke her. Furthermore, the record shows that defendant forcefully removed the vietim\u2019s right shoe, pulled down her pants and unzipped his own pants while he was lying on top of her. These actions by defendant evidence his intent to commit aggravated criminal sexual assault and are sufficient to prove that he took a substantial step towards the commission of that offense. Thus, the evidence adduced at trial is sufficient to support the jury\u2019s verdict that defendant was guilty of attempted aggravated criminal sexual assault beyond a reasonable doubt.\nThe second offense for which defendant was convicted and sentenced was attempted criminal sexual assault. A person commits this offense when he commits an act which constitutes a substantial step toward committing an act of sexual penetration. Ill. Rev. Stat. 1991, ch. 38, pars. 8 \u2014 4(a), 12 \u2014 13(a)(ll).\nDefendant in the present case was charged with attempted criminal sexual assault on the basis that he performed the following acts: \u201cHe with the intent to commit criminal sexual assault, attempted an act of sexual penetration by force or threat of force upon [A.R.], to wit: Punching, choking and threatening [the victim] while pulling her pants off and while he attempted to take off his pants.\u201d\nUpon examining the charge above, the elements of the crimes of attempted criminal sexual assault and attempted aggravated criminal sexual assault and the applicable law on included offenses, we find that defendant\u2019s conviction for attempted criminal sexual assault must be vacated. Defendant\u2019s conviction for attempted aggravated criminal sexual assault and his conviction for attempted criminal sexual assault were both based upon his punching, choking and threatening the victim while removing her pants and his effort to remove his pants in an attempt to penetrate her. It is not readily apparent from the record that defendant was convicted of attempted criminal sexual assault based upon acts different from the acts which were the basis of his conviction for attempted aggravated criminal sexual assault. Therefore, we conclude that attempted criminal sexual assault is an included offense in attempted aggravated criminal sexual assault because it may be established by proof of the same or less than all of the facts than that which are required to establish that defendant committed attempted aggravated criminal sexual assault. (See Ill. Rev. Stat. 1991, ch. 38, par. 2 \u2014 9(a).) Attempted criminal sexual assault is also a lesser-included offense of attempted aggravated criminal sexual assault because attempted criminal sexual assault is composed of some, but not all, of the elements of the greater offense and does not have any element not included in the greater offense. (See People v. Russell (1992), 234 Ill. App. 3d 684, 687-88, 600 N.E.2d 1202, 1204.) Accordingly, we must vacate defendant\u2019s conviction for attempted criminal sexual assault.\nThe third offense that defendant was convicted of was attempted aggravated criminal sexual abuse. This offense occurs when the accused attempts to commit an act of sexual conduct by the use of force or threat of force and the victim is a physically handicapped person. P. Rev. Stat. 1991, ch. 38, pars. 8-4, 12-15(aXl), 12-16(aX4).) \u201cSexual conduct\u201d is defined as \u201cany intentional or knowing touching or fondling by the *** accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused *** for the purpose of sexual gratification or arousal of the victim or the accused.\u201d Ill. Rev. Stat. 1991, ch. 38, par. 12 \u2014 12(e).\nDefendant in the present case was charged with attempted aggravated criminal sexual abuse on the basis that \u201c[h]e with the intent to commit criminal sexual abuse, attempted an act of sexual conduct by the use of force or threat of force, to wit: Punching, choking and threatening [A.R.] while pulling her pants off and while he attempted to take off his pants while [A.R.] was a physically handicapped person when the act was committed and such conduct was for the purpose of sexual gratification or arousal of the victim or the accused.\u201d There was sufficient evidence to support the jury\u2019s verdict that defendant was guilty of attempted aggravated criminal sexual abuse beyond a reasonable doubt. Defendant\u2019s act of touching the victim\u2019s body with his constituted a substantial step toward committing sexual conduct.\nUpon examining the above charge, the elements of the crimes of attempted aggravated criminal sexual abuse and attempted aggravated criminal sexual assault, we find that attempted aggravated criminal sexual abuse is not a lesser-included offense of attempted aggravated criminal sexual assault. Defendant\u2019s conviction for attempted aggravated criminal sexual assault and his conviction for attempted criminal sexual assault were both based upon his punching, choking and threatening the victim while removing her pants and his effort to remove his pants. In the present case, however, attempted aggravated criminal sexual abuse is not a lesser-included offense of attempted aggravated criminal sexual assault because although attempted aggravated criminal sexual abuse is composed of some but not all of the elements of the greater offense of attempted aggravated criminal sexual assault, it has the following elements which were not included in the greater offense: (1) \u201cSexual conduct\u201d required under the aggravated criminal sexual abuse statute is a different act than the element of \u201csexual penetration\u201d required by the aggravated criminal sexual assault statute (see People v. Singleton (1991), 217 Ill. App. 3d 675, 698, 577 N.E.2d 838, 852); and (2) the act upon which a conviction for attempted aggravated criminal sexual abuse is based must been committed for the purpose of sexual gratification or arousal of the victim or the accused. Accordingly, we affirm defendant\u2019s conviction for attempted aggravated criminal sexual abuse.\nThe fourth crime for which defendant was convicted and sentenced was the offense of aggravated battery to a physically handicapped person. An accused commits this crime when in committing a battery he knows that the victim is a physically handicapped person. (Ill. Rev. Stat. 1991, ch. 38, par. 12 \u2014 4(b)(14).) A person commits battery if he intentionally or knowingly without legal justification and by any means (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual. Ill. Rev. Stat. 1991, ch. 38, par. 12 \u2014 3.\nThere was sufficient evidence that defendant was guilty of aggravated battery of a physically handicapped person beyond a reasonable doubt. Defendant stated that he recognized the victim from the way that she would limp. The record therefore shows that defendant was aware of the victim\u2019s limp and he intentionally approached her from behind and placed his right arm around her neck, so that she could not breathe.\nDefendant was charged with aggravated battery of a physically handicapped person on the basis that \u201c[h]e, in committing a battery on [the victim], intentionally and knowingly and without legal justification caused bodily harm to [the victim], and knew the individual harmed to be a person who is physically handicapped.\u201d\nUpon examining the above charges, the elements of the crimes in question and the applicable case law, we find that aggravated battery of a physically handicapped person is not a lesser-included offense of attempted aggravated criminal sexual assault. Although defendant\u2019s guilt of aggravated battery to a handicapped person could be established by proof of the same facts needed to establish his guilt of attempted aggravated criminal sexual assault, the crime of aggravated battery of a handicapped person has the following elements which are not included in the offense of attempted aggravated criminal sexual assault: (1) Defendant intentionally, knowingly and without legal justification caused bodily harm to the victim; and (2) defendant knew the victim to be a physically handicapped person. (See People v. Russell (1992), 234 Ill. App. 3d 684, 686, 600 N.E.2d 1202, 1203-04.) Defendant testified that he knew the victim because he had seen her walk around the neighborhood. Thus, we affirm defendant\u2019s conviction for aggravated battery of a physically handicapped person.\nThe final offense for which defendant was charged, convicted and sentenced was aggravated battery of the victim on a public way. A person commits this offense when he is committing a battery and the battery occurs on a public way. Ill. Rev. Stat. 1991, ch. 38, par. 12\u2014 4(b)(8).\nThere was sufficient evidence to support defendant\u2019s conviction for this offense. The record shows that defendant knowingly and intentionally touched the victim in a harmful manner and rendered bodily harm to her while she was on a public way. An alley such as the one where defendant was assaulted constitutes a \u201cpublic way\u201d within the meaning of the aggravated battery statute because it was accessible to the public. People v. Ward (1981), 95 Ill. App. 3d 283, 287-88, 419 N.E.2d 1240, 1244. See also People v. Pennington (1988), 172 Ill. App. 3d 641, 644, 527 N.E.2d 76, 78-79 (sidewalk adjacent to privately owned dormitory was accessible to the public and constituted a \u201cpublic way\u201d within the meaning of the statute); People v. Pico (1987), 161 Ill. App. 3d 225, 231, 514 N.E.2d 224, 228 (a street is a public way); People v. Lee (1987), 158 Ill. App. 3d 1032, 1036, 512 N.E.2d 92, 94 (parking lot of a convenience store is a public way).\nAggravated battery on a public way is not a lesser-included offense of attempted aggravated criminal sexual assault because the crime of aggravated battery on a public way has the following element which is not included in the offense of attempted aggravated criminal sexual assault: Defendant intentionally, knowingly and without legal justification caused bodily harm to the -victim. Accordingly, we affirm defendant\u2019s conviction for aggravated battery of the victim on a public way.\nFor the above reasons, we affirm defendant\u2019s convictions for attempted aggravated criminal sexual assault, attempted aggravated criminal sexual abuse, aggravated battery of a physically handicapped person and aggravated battery on a public way. We reverse defendant\u2019s conviction for attempted criminal sexual assault and we vacate his sentence for that offense because the crime is a lesser-included offense of attempted aggravated criminal sexual assault.\nDefendant also contends that he is entitled to a new sentencing hearing pursuant to People v. Garrett (1987), 152 Ill. App. 3d 212, 504 N.E.2d 236, and People v. Rhodes (1986), 141 Ill. App. 3d 362, 490 N.E.2d 169, because the trial court considered the fact that the victim was handicapped as a factor in aggravation, while this was an element which was inherent in the crimes of attempted aggravated criminal sexual abuse and aggravated battery. Defendant also argues that he is entitled to a new sentencing hearing because the trial court considered in aggravation the impact on the victim of which there was no testimony.\nThe State maintains that defendant has waived his right to appellate review of this issue because he failed to object to the alleged error at trial and he failed to mention the allegation of error in his post-trial motion. In the alternative, the State maintains that defendant has failed to prove that the trial court abused its discretion in sentencing defendant.\nAlthough defendant has failed to preserve this issue for review (see People v. Enoch, 122 Ill. 2d at 186-88, 522 N.E.2d at 1129-32), we will review his allegation pursuant to our authority granted under Illinois Supreme Court Rule 366(a)(5). 134 Ill. 2d R. 366(a)(5); Palomar, 225 Ill. App. 3d at 188, 587 N.E.2d at 1071.\nA trial court\u2019s sentence will not be disturbed on appeal absent a clear abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884; People v. Jenkins (1991), 209 Ill. App. 3d 249, 263, 568 N.E.2d 122, 132.) In order to establish that the trial court abused its discretion in sentencing defendant, defendant must affirmatively show that the sentence was based upon improper considerations or was otherwise erroneous. (People v. Anderson (1986), 112 Ill. 2d 39, 46, 490 N.E.2d 1263; People v. Conley (1983), 118 Ill. App. 3d 122, 133, 454 N.E.2d 1107.) There is a rebuttable presumption that a sentence imposed for a crime was proper, and this presumption may only be overcome by an affirmative showing that the sentence varies greatly from the purposes and spirit of the law or is manifestly violative of constitutional guidelines. (People v. Escobar (1988), 168 Ill. App. 3d 30, 46, 522 N.E.2d 191, 201.) A trial court\u2019s determination of an appropriate sentence for a defendant is entitled to great deference, as the trial judge is in the best position to make a sound determination regarding the appropriate punishment. People v. Cabrera (1987), 116 Ill. 2d 474, 494, 508 N.E.2d 708, 716; People v. Trimble (1991), 220 Ill. App. 3d 338, 350, 580 N.E.2d 1209, 1220.\nDefendant\u2019s contention that improper aggravating factors were relied upon by the trial court in determining his sentences is insufficient to rebut the presumption that his sentences were proper. The trial judge made the following statement upon sentencing defendant:\n\u201cTHE COURT: Without taking away from the seriousness of the offense, taking into consideration what rehabilitation value you may have, the sentence of the Court will be 10 years as to the Class 1.\nWith regard to the Class 2, which is the attempt criminal sexual assault, that\u2019s 3 to 7 years, the sentence of the Court will be considering its a handicapped person and the fact that you are already on felony probation, there will be a sentence of 7 years as to the Class 3 which is the aggravated battery of a physically handicapped person. Aggravated battery on a public way and the other one is 2 to 5. The sentence of the Court will be 5 years. 10 years, 7 years, 5 years.\nDEFENSE COUNSEL: Concurrent?\nTHE COURT: Concurrent is correct, counsel.\u201d\nOne of the factors in aggravation that a trial court may consider when sentencing a defendant is the fact that the defendant committed the crime in question against a person who was physically handicapped at the time of the offense. (111. Rev. Stat. 1991, ch. 38, par. 1005 \u2014 5\u20143.2(9).) The record shows that when the trial judge stated that he was considering the fact that the victim was a handicapped person, he was considering this fact as an aggravating only factor for the offense of attempted criminal sexual assault. The fact that a victim is physically handicapped is not a factor implicit in the crime of attempted criminal sexual assault. Moreover, we reversed defendant\u2019s conviction and vacated his sentence for attempted criminal sexual assault above, making defendant\u2019s contention with respect to his sentence for this crime moot. In addition, the record shows that the trial judge never stated or implied that he was considering the victim\u2019s handicap as an aggravating factor when he was sentencing defendant for the other four crimes. We therefore cannot remand this cause for a new sentencing hearing on the basis that the trial court\u2019s consideration of the fact that the victim was handicapped was improper.\nDefendant also contends that he is entitled to a new sentencing hearing because the trial court improperly commented on the impact that this crime will have on the victim\u2019s future. The State maintains that this comment was proper. We agree. When determining whether a sentence was improperly imposed, a reviewing court should not focus on a few words or statements made by the trial court. The determination of whether or not a sentence was improper must be made by considering the record as a whole. (People v. Ward (1986), 113 Ill. 2d 516, 526-27, 499 N.E.2d 422, 425-26.) In addition, a trial court may consider the nature of the offense when sentencing a defendant. (People v. Saldivar (1986), 113 Ill. 2d 256, 268, 497 N.E.2d 1138, 1143.) There is a strong presumption that a trial court\u2019s sentencing decision is based upon proper legal reasoning and that the court has considered all evidence in mitigation. People v. Glass (1992), 239 Ill. App. 3d 916, 931, 606 N.E.2d 655, 666.\nFurthermore, it was reasonable for the trial court to infer that a victim of such crimes may be affected by them in the future. See Neil v. Biggers (1972), 409 U.S. 188, 200, 34 L. Ed. 2d 401, 412, 93 S. Ct. 375, 382-83; People v. Testa (1984), 125 Ill. App. 3d 1039, 1045, 466 N.E.2d 1126, 1131 (a victim of sexual assault who was conscious during her attack \u201cwas no casual observer, but rather the victim of one of the most personally humiliating of all crimes\u201d).\nUpon examining defendant\u2019s allegation of error and the record in light of the above case law, we conclude that defendant\u2019s sentences were proper. The remark in question is insufficient in and of itself to rebut the presumption that the sentences are proper. The trial court\u2019s comment was not sufficiently erroneous or prejudicial to warrant reversal.\nAccordingly, defendant\u2019s sentences for attempted aggravated criminal sexual assault, attempted aggravated criminal sexual abuse, aggravated battery of a physically handicapped person and aggravated battery on a public way may not be vacated on this basis.\nThe two remaining issues before this court concern sentencing. First, defendant maintains that this cause should be remanded for a new sentencing hearing on the basis that the superfluous convictions could have influenced the trial judge in imposing a 10-year sentence for attempted aggravated criminal sexual assault, the most serious offense of which defendant was convicted.\nAgain, the State maintains that defendant waived his right to appellate review of the above issue because he failed to make an objection at trial and to mention the issue in his post-trial motion. See People v. Enoch, 122 Ill. 2d at 186-88, 522 N.E.2d at 1129-32.\nAlthough defendant has failed to preserve this issue for review, we will review the allegation pursuant to our authority granted by Illinois Supreme Court Rule 366(a)(5). 134 Ill. 2d R. 366(a)(5); Palomar, 225 Ill. App. 3d at 188, 587 N.E.2d at 1071.\nWe decline to remand defendant\u2019s cause for resentencing on the grounds that his conviction for attempted criminal sexual abuse influenced the trial judge to sentence him to 10 years for attempted aggravated criminal sexual assault, because defendant has failed to show that this occurred.\nFinally, defendant maintains that his sentences are excessive. We disagree. The trial court considered factors in aggravation and mitigation, including the fact that defendant was on probation at the time he committed the crimes in question. Since all of defendant\u2019s sentences are within the legislatively prescribed guidelines (HI. Rev. Stat. 1991, ch. 38, par. 1005 \u2014 8\u20141(a)), and defendant has failed to prove that the trial court abused its discretion, defendant\u2019s sentences for attempted aggravated criminal sexual assault, attempted aggravated criminal sexual abuse, and both counts of aggravated battery are affirmed. Defendant\u2019s conviction and sentence for attempted criminal sexual assault are reversed and vacated, respectively, because attempted criminal sexual assault is a lesser-included offense of attempted aggravated criminal sexual assault.\nFor the aforementioned reasons, we affirm in part, reverse in part and vacate in part the judgment of the trial court.\nAffirmed in part; reversed in part and vacated in part.\nCERDA and GREIMAN, JJ., concur.", "type": "majority", "author": "JUSTICE RIZZI" } ], "attorneys": [ "Rita A. Fry, Public Defender, of Chicago (Janet Stewart, Assistant Public Defender, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Judy DeAngelis, and Kristin E. Piper, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRYL J. SUTTON, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201492\u20140337\nOpinion filed August 11, 1993.\nRehearing denied September 28, 1993.\nRita A. Fry, Public Defender, of Chicago (Janet Stewart, Assistant Public Defender, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Judy DeAngelis, and Kristin E. Piper, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0172-01", "first_page_order": 190, "last_page_order": 211 }