{ "id": 1083939, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLINT A. ENGLE, Defendant-Appellant", "name_abbreviation": "People v. Engle", "decision_date": "2004-07-15", "docket_number": "Nos. 3\u201402\u20140575, 3\u201402\u20140576 cons.", "first_page": "284", "last_page": "291", "citations": [ { "type": "official", "cite": "351 Ill. App. 3d 284" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "538 N.E.2d 193", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "194" } ], "opinion_index": 0 }, { "cite": "182 Ill. App. 3d 491", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2621718 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "492-93" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/182/0491-01" ] }, { "cite": "722 N.E.2d 194", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1999, "opinion_index": 0 }, { "cite": "309 Ill. App. 3d 203", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 349633 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ill-app-3d/309/0203-01" ] }, { "cite": "793 N.E.2d 91", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2003, "opinion_index": 0 }, { "cite": "341 Ill. App. 3d 599", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5572838 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ill-app-3d/341/0599-01" ] }, { "cite": "705 N.E.2d 850", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "185 Ill. 2d 81", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 122017 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ill-2d/185/0081-01" ] }, { "cite": "628 N.E.2d 294", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "trial court's allegedly erroneous admission of hearsay deemed harmless error where statutory identification exception applied" } ], "opinion_index": 0 }, { "cite": "256 Ill. App. 3d 434", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5384430 ], "year": 1993, "pin_cites": [ { "parenthetical": "trial court's allegedly erroneous admission of hearsay deemed harmless error where statutory identification exception applied" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/256/0434-01" ] }, { "cite": "643 N.E.2d 789", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "162 Ill. 2d 497", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477543 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-2d/162/0497-01" ] }, { "cite": "593 N.E.2d 675", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "229 Ill. App. 3d 241", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5214383 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/229/0241-01" ] }, { "cite": "363 N.E.2d 429", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "48 Ill. App. 3d 972", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3372726 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/48/0972-01" ] }, { "cite": "775 N.E.2d 921", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "201 Ill. 2d 210", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477006 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/ill-2d/201/0210-01" ] }, { "cite": "486 N.E.2d 1347", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "1354" } ], "opinion_index": 0 }, { "cite": "139 Ill. App. 3d 21", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3569197 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "32-33" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0021-01" ] }, { "cite": "788 N.E.2d 707", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "204 Ill. 2d 159", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609702 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/ill-2d/204/0159-01" ] }, { "cite": "777 N.E.2d 484", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2002, "opinion_index": 0 }, { "cite": "334 Ill. App. 3d 175", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 521914 ], "weight": 3, "year": 2002, "opinion_index": 0, "case_paths": [ "/ill-app-3d/334/0175-01" ] } ], "analysis": { "cardinality": 767, "char_count": 16461, "ocr_confidence": 0.752, "pagerank": { "raw": 8.352133395875945e-08, "percentile": 0.4811933050923046 }, "sha256": "1bc741ce8ace30dc4d1a46e0987d4431fc93cba387ea3eeb24cdd33046efcdbe", "simhash": "1:8b5eedcf3bcffd72", "word_count": 2661 }, "last_updated": "2023-07-14T15:22:07.473803+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HOLDRIDGE, EJ., and O\u2019BRIEN, J., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLINT A. ENGLE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE SLATER\ndelivered the opinion of the court:\nDefendant Clint A. Engle pleaded guilty to possession of a controlled substance (720 ILCS 570/402(c) (West 1998)) in circuit court case No. 99 \u2014 CF \u2014 1619 and was sentenced to probation. His probation was subsequently revoked. While awaiting resentencing for the drug offense, defendant was charged with home invasion and aggravated battery (720 ILCS 5/12 \u2014 11(a)(2), 12 \u2014 3, 12 \u2014 4(a) (West 2002)) in circuit court case No. 02 \u2014 CF \u2014 115. A jury found defendant guilty of both charges. Following a consolidated sentencing hearing, the court imposed consecutive prison sentences of 2, 14 and 2 years, respectively, for the three offenses.\nIn this consolidated appeal, defendant contends that (1) the trial court improperly allowed the State to present rebuttal evidence; (2) an improper comment made during the prosecutor\u2019s closing argument deprived him of a fair trial; (3) his conviction of aggravated battery must be vacated; and (4) consecutive sentencing does not apply to the drug conviction. We vacate defendant\u2019s conviction and sentence for aggravated battery and otherwise affirm the trial court\u2019s judgment.\nFACTS\nIn case No. 99 \u2014 CF \u2014 1619, defendant entered a negotiated guilty plea to unlawful possession of a controlled substance. He was sentenced to 24 months\u2019 probation and ordered to attend substance abuse counseling. Defendant subsequently admitted violating the terms of his probation, and on December 12, 2001, the court accepted the admission and granted the State\u2019s petition to revoke probation. Defendant remained free on a $50,000 personal recognizance bond until January 17, 2002, when he was taken into custody in case No. 02 \u2014 CF \u2014 115. Resentencing in case No. 99 \u2014 CF \u2014 1619 was subsequently delayed pending the trial in case No. 02 \u2014 CF \u2014 115.\nThe State\u2019s evidence in the trial of case No. 02 \u2014 CF \u2014 115 established that defendant lived with Nicole Dodd and her father, John Theres, at Dodd\u2019s marital home in Joliet for about six months pending Dodd\u2019s divorce. In December 2001, Dodd began dating another man, Ron Faust, and Theres ordered defendant to move out of the house. Dodd rented an apartment in nearby Crest Hill and was there with Faust the night of January 11, 2002. Around midnight, defendant broke into the apartment. He fought with Faust and punched Dodd. Dodd described the car defendant drove as a light blue Ford Taurus with a bashed-in fender.\nTheres testified that he was alone and fell asleep on the living room couch of the Joliet residence around 11 p.m. on January 11. He was wakened a couple of hours later by a sharp blow to the side of his head. Theres believed he was being attacked with a golf club. He could not see his attacker and was trying to fend off further blows when he heard defendant say, \u201cYou are going to die tonight, m-----f- \u2014 , for not letting me see your daughter.\u201d Theres said he definitely recognized defendant\u2019s voice, and he was aware of only one person other than himself in the room.\nTo save his life, Theres stopped moving and absorbed more blows. When the beating stopped, Theres watched the assailant leave the room and proceed down a hallway toward the bedrooms. Despite the darkness, Theres could discern that the person was a male and built like defendant. Later, Theres peeked out the front window and saw a man drive off in a light blue Ford Taurus, which he recognized as defendant\u2019s by the damaged front fender. Theres then discovered that the telephone line had been cut, so he drove himself to the emergency room of the hospital where wounds to his head were closed with staples.\nOn cross-examination, defense counsel asked Theres whether he had spoken with a Joliet police officer at the emergency room. Theres said he had. However, he said he had been given \u201cstuff\u2019 when he entered the hospital and was unable to recall whether the policeman was named \u201cPonce\u201d or whether he had told the officer that defendant repeatedly said, \u201cDie, you son-of-a-bitch,\u201d during the beating. Counsel also asked whether Theres had told Joliet police detective Brian Lewis on January 15, 2002, that he recognized defendant as his attacker by his voice and his car. Theres said he had provided this information during the interview. He acknowledged, however, that he may not have told Lewis that he recognized defendant by his silhouette as he walked down the hall.\nFollowing the State\u2019s case in chief, defendant called Officer Tom Ponce to the witness stand. Ponce testified that he visited Theres in the emergency room of the hospital in the early morning of January 12, 2002. At that time, Theres identified defendant as his assailant; however, he did not state that he recognized him by his voice. Ponce also stated that Theres told him defendant owned a blue Ford Taurus with a damaged front fender, but Ponce could not recall that Theres told him he saw defendant drive away in the vehicle after the assault.\nOver defendant\u2019s objection, the State was permitted to introduce Detective Lewis in rebuttal. Lewis testified that on January 15, Theres stated that he recognized defendant\u2019s voice during the assault and that he saw him leave the premises in the damaged blue Ford Taurus.\nFollowing closing arguments and instructions, the jury found defendant guilty, as charged.\nAt a consolidated sentencing hearing on July 23, 2002, the court resentenced defendant to a two-year prison term for the drug conviction in case No. 99 \u2014 CF \u2014 1619. The court also imposed consecutive prison sentences of 14 and 2 years, respectively, for home invasion and aggravated battery in No. 02 \u2014 CF \u2014 115 and ordered that those sentences be served consecutively to the sentence in No. 99 \u2014 CF\u2014 1619. Defendant filed timely motions to reduce his sentences. The court denied the motions, and defendant appeals.\nISSUES AND ANALYSIS\n1. State\u2019s Rebuttal\nInitially, defendant contends that the trial court abused its discretion by allowing the State to introduce Detective Lewis\u2019s testimony in rebuttal. Defendant also argues that the testimony was inadmissible as a prior consistent statement, because its only purpose was to corroborate Theres\u2019 in-court testimony that he recognized defendant\u2019s voice during the attack and that he saw defendant\u2019s car leaving the scene. The State argues that the testimony was properly admitted both to rebut an implication of recent fabrication by the victim and as a prior consistent statement of identification.\na. Rebuttal\nRebuttal evidence is evidence that explains, repels, contradicts or disproves evidence presented by the other party. People v. Henney, 334 Ill. App. 3d 175, 777 N.E.2d 484 (2002). Whether to admit rebuttal evidence is a matter within the sound discretion of the trial court; and, on review, the court\u2019s decision to admit rebuttal evidence will not be disturbed absent a clear abuse of discretion. Henney, 334 Ill. App. 3d 175, 777 N.E.2d 484. An abuse of discretion is shown only where the court\u2019s ruling is arbitrary, fanciful or unreasonable, such that no reasonable person would take the view adopted by the trial court. People v. Donoho, 204 Ill. 2d 159, 788 N.E.2d 707 (2003).\nHere, we cannot say that no reasonable person would rule that Lewis\u2019s testimony rebutted Ponce\u2019s. Arguably, Ponce\u2019s testimony that Theres did not tell him that he recognized defendant by his voice and car on January 12 gave rise to an inference that Theres lacked a basis for believing that defendant was the assailant. Lewis\u2019s testimony with regard to Theres\u2019 statement of January 15 rebutted that inference. Accordingly, we find no abuse of the trial court\u2019s discretion in allowing the State to present Lewis\u2019s testimony in its rebuttal case. See Henney, 334 Ill. App. 3d 175, 777 N.E.2d 484.\nb. Prior Inconsistent Statement\nNext, we consider defendant\u2019s contention that Lewis\u2019s testimony was inadmissible as a prior consistent statement, because it unfairly bolstered Theres\u2019 credibility.\nGenerally, evidence of a statement made by a witness out of court but consistent with his testimony is inadmissible hearsay. People v. Smith, 139 Ill. App. 3d 21, 486 N.E.2d 1347 (1985). Exceptions to this rule apply where the statement is introduced to rebut an inference that the witness\u2019s in-court testimony is of recent fabrication and where the statement is one of identification. People v. Tisdel, 201 Ill. 2d 210, 775 N.E.2d 921 (2002); 725 ILCS 5/115 \u2014 12 (West 2002). By statute, the identification exception applies if a witness testifies that he previously identified the offender and the witness\u2019s veracity is tested on cross-examination. When these conditions are met, a third party\u2019s testimony corroborating the witness\u2019s prior identification may be admitted into evidence. 725 ILCS 5/115 \u2014 12 (West 2002).\nThe record indicates that the trial court allowed the State to introduce Lewis\u2019s testimony concerning Theres\u2019 prior consistent statement under the \u201crecent fabrication\u201d exception. Generally, an inference that a witness\u2019s in-court testimony is of recent fabrication arises from negative evidence that the witness did not speak of the matter at a time when it would have been natural for him to do so. See Smith, 139 Ill. App. 3d 21, 32-33, 486 N.E.2d 1347, 1354, citing People v. VanZile, 48 Ill. App. 3d 972, 363 N.E.2d 429 (1977).\nIn this case, Theres testified that he had been given \u201cstuff\u201d (presumably pain medication) when he entered the hospital and could not recall what he told the officer who interviewed him on that occasion. However, he recalled telling Lewis during another interview a few days later that he knew who the assailant was by his voice and car. Because there was affirmative evidence that Theres had spoken to the police about defendant\u2019s voice and car at a time when it was natural for him to do so, we do not believe that Lewis\u2019s testimony should have been admitted on the ground that it rebutted an inference that Theres\u2019 testimony was recently fabricated. See Smith, 139 Ill. App. 3d 21, 486 N.E.2d 1347.\nEven though it appears that the trial court allowed the State to present rebuttal evidence for the wrong reason, we nevertheless find no reversible error. Lewis\u2019s testimony with regard to Theres\u2019 statement on January 15 was merely cumulative to testimony Theres gave on cross-examination, and it is not reasonably probable that the jury would have acquitted defendant absent the rebuttal testimony. See People v. Quiroz, 229 Ill. App. 3d 241, 593 N.E.2d 675 (1992).\nMoreover, the testimony was clearly admissible under the statutory identification exception. In cross-examination, Theres testified that he identified defendant as the assailant by his voice and car shortly after the attack. Defendant had ample opportunity to cross-examine Theres with regard to this statement. After the State rested, defendant attempted to show in his case in chief that Theres did not immediately tell the police that his identification of defendant rested on hearing defendant\u2019s voice and seeing his car. The foundation for the statutory identification exception having been laid, Lewis\u2019s testimony would have been admissible in the State\u2019s rebuttal case to corroborate Theres\u2019 testimony and rehabilitate his credibility. See People v. Beals, 162 Ill. 2d 497, 643 N.E.2d 789 (1994); 725 ILCS 5/115 \u2014 12 (West 2002). Accordingly, we hold that any error in the trial court\u2019s evidentiary ruling was harmless. See People v. Fry, 256 Ill. App. 3d 434, 628 N.E.2d 294 (1993) (trial court\u2019s allegedly erroneous admission of hearsay deemed harmless error where statutory identification exception applied).\n2. Closing Argument\nNext, defendant argues that he was deprived of a fair trial by a comment made by the prosecutor during closing argument, which he claims improperly played on the sympathies and passions of the jurors. In his closing rebuttal comments, the prosecutor, responding to defense counsel\u2019s attack on Theres\u2019 believability, stated, \u201cI am going to ask you for a moment to put yourself in his place when you judge the credibility of \u2014 .\u201d Defense counsel immediately objected, and the judge stated that she would instruct the jury as to the law. The prosecutor then abandoned the point and, instead, asked the jurors to review the evidence carefully and find defendant guilty as charged.\nA prosecutor\u2019s allegedly improper remarks must be reviewed within the context of the entire closing arguments. People v. Kliner, 185 Ill. 2d 81, 705 N.E.2d 850 (1998); People v. Wood, 341 Ill. App. 3d 599, 793 N.E.2d 91 (2003). While it is improper for the prosecutor to ask jurors to identify with the victim, a jury\u2019s verdict will not be reversed on review unless the improper comment caused substantial prejudice to the defendant. Wood, 341 Ill. App. 3d 599, 793 N.E.2d 91.\nHere, having considered the aborted remark in context, we cannot say that it was so inflammatory as to cause substantial prejudice to defendant. Accordingly, defendant is not entitled to a new trial.\n3. Lesser Included Offense\nNext, defendant contends that his conviction for aggravated battery must be reversed as a lesser included offense of home invasion. The State concedes the point.\nWhere two offenses are carved from the same physical act, one of which is \u201clesser included\u201d in the sense that the charging instrument for the greater offense sets out the main outline of the lesser offense, the defendant\u2019s conviction and sentence for the lesser included offense must be vacated. People v. Damico, 309 Ill. App. 3d 203, 722 N.E.2d 194 (1999). The charging instrument in this case alleged both home invasion and aggravated battery based on defendant\u2019s act of striking Theres with an object and causing injury or great bodily harm to him. Accordingly, the lesser crime \u2014 aggravated battery \u2014 is a lesser included offense, and defendant\u2019s conviction and sentence for that offense must be vacated. See Damico, 309 Ill. App. 3d 203, 722 N.E.2d 194.\n4. Consecutive Sentencing\nLast, defendant contends that the trial court erroneously sentenced him to a consecutive prison term for unlawful possession of a controlled substance. Consecutive sentencing is statutorily required when a person \u201cadmitted to bail\u201d following conviction for a felony commits a separate felony while free on bond. 730 ILCS 5/5 \u2014 8 \u2014 4(i) (West 2002). Defendant takes the position that he was free \u201con his own recognizance\u201d pending resentencing in case No. 99 \u2014 CF \u2014 1619; therefore, since he had not posted security for his release, he was not \u201cadmitted to bail\u201d for purposes of the consecutive sentencing statute.\nDefendant\u2019s argument is novel, but unpersuasive. It has been held that the legislative intent of subsection 5 \u2014 8 \u2014 4(i) of the Unified Code of Corrections (730 ILCS 5/5 \u2014 8 \u2014 4(i) (West 2000)) is to punish persons \u201cwho abuse the privilege of being free on bond following a felony conviction by committing another felony offense during that time.\u201d People v. Brown, 182 Ill. App. 3d 491, 492-93, 538 N.E.2d 193, 194 (1989). Clearly, defendant was such a person. He was free on a $50,000 personal recognizance bond for a felony drug possession conviction when he committed home invasion and aggravated battery. Consistent with the purpose of subsection 5 \u2014 8 \u2014 4(i), the court was authorized to order that defendant\u2019s sentences for the later offenses be served consecutively to the sentence imposed on resentencing for the drug offense. See Brown, 182 Ill. App. 3d 491, 538 N.E.2d 193 (court ruled that consecutive sentencing under subsection 5 \u2014 8 \u2014 4(i) applied, even though defendant\u2019s bond was forfeited when he was sentenced in absentia the day before he committed a separate felony). Accordingly, defendant is not entitled to further sentencing relief.\nCONCLUSION\nFor the reasons stated, we affirm defendant\u2019s conviction and sentence for home invasion and his two-year, consecutive sentence for unlawful possession of a controlled substance. Defendant\u2019s conviction and sentence for aggravated battery are vacated.\nAffirmed in part; vacated in part.\nHOLDRIDGE, EJ., and O\u2019BRIEN, J., concur.", "type": "majority", "author": "JUSTICE SLATER" } ], "attorneys": [ "Robert Agostinelli, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Jeff Tomczak, State\u2019s Attorney, of Joliet (Lawrence M. Bauer and Robert M. Hansen, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLINT A. ENGLE, Defendant-Appellant.\nThird District\nNos. 3\u201402\u20140575, 3\u201402\u20140576 cons.\nOpinion filed July 15, 2004.\nRobert Agostinelli, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nJeff Tomczak, State\u2019s Attorney, of Joliet (Lawrence M. Bauer and Robert M. Hansen, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0284-01", "first_page_order": 302, "last_page_order": 309 }