{ "id": 7328869, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY J. NEWBILL, Defendant-Appellant", "name_abbreviation": "People v. Newbill", "decision_date": "2007-07-19", "docket_number": "No. 4\u201405\u20140902", "first_page": "847", "last_page": "856", "citations": [ { "type": "official", "cite": "374 Ill. App. 3d 847" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "836 N.E.2d 750", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "page": "768" } ], "opinion_index": 0 }, { "cite": "361 Ill. App. 3d 136", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4260188 ], "year": 2005, "pin_cites": [ { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/361/0136-01" ] }, { "cite": "474 N.E.2d 739", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "740" } ], "opinion_index": 0 }, { "cite": "130 Ill. App. 3d 548", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3494547 ], "year": 1984, "pin_cites": [ { "page": "548-49" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/130/0548-01" ] }, { "cite": "756 N.E.2d 474", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "478" } ], "opinion_index": 0 }, { "cite": "324 Ill. App. 3d 649", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 256322 ], "year": 2001, "pin_cites": [ { "page": "653" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/324/0649-01" ] }, { "cite": "723 N.E.2d 207", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "211", "parenthetical": "the trial court observes the defendant and the proceedings and is therefore in a far better position than a court of review to consider the relevant factors" } ], "opinion_index": 0 }, { "cite": "189 Ill. 2d 48", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224785 ], "year": 1999, "pin_cites": [ { "page": "55-56", "parenthetical": "the trial court observes the defendant and the proceedings and is therefore in a far better position than a court of review to consider the relevant factors" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0048-01" ] }, { "cite": "541 N.E.2d 865", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "867" } ], "opinion_index": 0 }, { "cite": "185 Ill. App. 3d 570", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2648558 ], "year": 1989, "pin_cites": [ { "page": "574" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/185/0570-01" ] }, { "cite": "583 N.E.2d 515", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "526" } ], "opinion_index": 0 }, { "cite": "145 Ill. 2d 353", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596242 ], "year": 1991, "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0353-01" ] }, { "cite": "841 N.E.2d 889", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2005, "pin_cites": [ { "page": "901" }, { "page": "901" } ], "opinion_index": 0 }, { "cite": "217 Ill. 2d 407", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3875001 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "428" }, { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/217/0407-01" ] }, { "cite": "564 N.E.2d 803", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "824", "parenthetical": "holding that statements that a witness did not identify the defendant from photo books and arrays were not statements of identification" } ], "opinion_index": 0 }, { "cite": "139 Ill. 2d 89", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5573939 ], "year": 1990, "pin_cites": [ { "page": "138", "parenthetical": "holding that statements that a witness did not identify the defendant from photo books and arrays were not statements of identification" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/139/0089-01" ] }, { "cite": "775 N.E.2d 921", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "926" }, { "page": "926-27" }, { "page": "926-27" } ], "opinion_index": 0 }, { "cite": "201 Ill. 2d 210", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477006 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "218" }, { "page": "219" }, { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/201/0210-01" ] }, { "cite": "651 N.E.2d 72", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "90", "parenthetical": "noting section 115 - 12 of the Code was born out of the Rogers decision" } ], "opinion_index": 0 }, { "cite": "165 Ill. 2d 305", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483560 ], "year": 1995, "pin_cites": [ { "page": "342-43", "parenthetical": "noting section 115 - 12 of the Code was born out of the Rogers decision" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0305-01" ] }, { "cite": "838 N.E.2d 996", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "parenthetical": "explaining that the requirement stated in Rogers that the declarant must testify about the identification before the third-party statement may be admitted was not required by section 115 - 12 of the Code" } ], "opinion_index": 0 }, { "cite": "361 Ill. App. 3d 1006", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4259539 ], "year": 2005, "pin_cites": [ { "parenthetical": "explaining that the requirement stated in Rogers that the declarant must testify about the identification before the third-party statement may be admitted was not required by section 115 - 12 of the Code" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/361/1006-01" ] }, { "cite": "411 N.E.2d 223", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 1980, "pin_cites": [ { "page": "225" }, { "page": "225" }, { "page": "228" }, { "page": "228" }, { "page": "229" } ], "opinion_index": 0 }, { "cite": "81 Ill. 2d 571", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5479830 ], "weight": 6, "year": 1980, "pin_cites": [ { "page": "574" }, { "page": "574" }, { "page": "580" }, { "page": "580-81" }, { "page": "582" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/81/0571-01" ] }, { "cite": "638 N.E.2d 207", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "216" }, { "page": "217" } ], "opinion_index": 0 }, { "cite": "263 Ill. App. 3d 1098", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5367340 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "1111" }, { "page": "1111" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/263/1098-01" ] }, { "cite": "802 N.E.2d 236", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "241" } ], "opinion_index": 0 }, { "cite": "207 Ill. 2d 555", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 975008 ], "year": 2003, "pin_cites": [ { "page": "563" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/207/0555-01" ] }, { "cite": "792 N.E.2d 1163", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "1188" } ], "opinion_index": 0 }, { "cite": "205 Ill. 2d 52", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1302618 ], "year": 2001, "pin_cites": [ { "page": "89" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/205/0052-01" ] }, { "cite": "842 N.E.2d 290", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 2005, "pin_cites": [ { "page": "297" }, { "page": "300" }, { "page": "301" }, { "page": "294" } ], "opinion_index": 1 }, { "cite": "363 Ill. App. 3d 67", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5765088 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "74" }, { "page": "79" }, { "page": "80" }, { "page": "71" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/363/0067-01" ] } ], "analysis": { "cardinality": 981, "char_count": 23060, "ocr_confidence": 0.802, "pagerank": { "raw": 6.205126254278122e-08, "percentile": 0.384218346320577 }, "sha256": "f299cffd625a03f2f3b1493669fc75dd6323d44b3680f55f5e4aee4f5727f0ab", "simhash": "1:d292f00a224fb4e4", "word_count": 3722 }, "last_updated": "2023-07-14T18:10:59.295026+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "TURNER, J., concurs." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY J. NEWBILL, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE MYERSCOUGH\ndelivered the opinion of the court:\nOn August 16, 2005, following a mistrial due to a hung jury, a subsequent jury found defendant, Anthony J. Newbill, guilty of robbery (720 ILCS 5/18 \u2014 1 (West 2004)). On October 3, 2005, because this was defendant\u2019s third Class 2 felony, the trial court sentenced defendant as a Class X offender, which carries a term of 6 to 30 years\u2019 imprisonment (730 ILCS 5/5 \u2014 8\u20141(a)(3) (West 2004)). On October 3, 2005, the court sentenced defendant to the maximum 30 years. Defendant also received 328 days of credit for his time spent in custody. Defendant appealed his conviction and sentence, arguing that (1) the court abused its discretion in admitting a police officer\u2019s hearsay testimony; (2) the 30-year sentence was excessive; and (3) defendant must get one additional day of credit for time served. We affirm.\nI. BACKGROUND\nIn the early morning hours of November 9, 2004, the 20-year-old victim, Megan Flaherty, met up with some friends at \u201cBrother\u2019s\u201d bar on Green Street in Champaign, Illinois. According to Flaherty\u2019s testimony, Flaherty had only consumed Coca-Cola to drink. Flaherty left the bar by herself and began talking on her cellular telephone as she made the one-block walk back to her apartment. Flaherty noticed two men, one of whom she later identified as defendant, walking behind her. The men followed Flaherty to the foot of the stairs leading up to her apartment.\nDefendant told Flaherty to hang up her phone and Flaherty said, \u201cNo.\u201d Again, defendant told Flaherty to hang up her phone. Flaherty said, \u201cNo, please don\u2019t.\u201d Defendant then pulled Flaherty\u2019s phone away from her ear and pulled Flaherty\u2019s purse off her shoulder. The other man shoved Flaherty to the ground, and the two offenders took off running. Defendant stole Flaherty\u2019s purse, which contained her driver\u2019s license, credit and debit cards, as well as a digital camera valued at $300.\nFlaherty ran upstairs to her apartment, woke up one of her roommates, and fell to the floor crying. Flaherty told her roommate that she had been mugged. The roommate called the police. Champaign police officer Kristy Miller questioned Flaherty at Flaherty\u2019s apartment. During the course of their 15- to 20-minute conversation, Fla-herty provided Miller with a physical description of the defendant but was unable to provide any description of the other perpetrator. Miller then called Flaherty\u2019s father and told him to cancel Flaherty\u2019s credit cards.\nShortly thereafter, the police got a call from the clerk at a local convenience store, who stated that a man had tried to purchase items with a stolen credit card. The man matched the description Flaherty had given police. The store clerk provided the police with a description of defendant\u2019s vehicle and the first several characters of the vehicle\u2019s license-plate number. Police located a vehicle matching the description and performed a stop. Defendant was the driver of the vehicle. Defendant tried to flee the vehicle on foot but was ultimately apprehended. Upon searching defendant, police found Flaherty\u2019s credit cards and driver\u2019s license in defendant\u2019s pocket.\nPolice brought Flaherty to a large parking lot to perform a \u201cshowup\u201d of defendant. Flaherty remained in the police vehicle, and defendant was situated under a streetlight about 100 feet away. Fla-herty asked if defendant could be moved closer, but the police refused for safety reasons. Flaherty told police that she was 85% sure that defendant was the man who had robbed her. Flaherty told the police that the jeans and leather jacket defendant was wearing were a \u201cdefinite match\u201d with the clothes of the man who had robbed her and that the general build of defendant was a match. However, Flaherty had some doubt because the man who had robbed her had been wearing a red sweatshirt underneath the leather jacket and defendant was not wearing a red sweatshirt at the \u201cshowup.\u201d Also, Flaherty did not feel that she was close enough to the defendant at the \u201cshowup\u201d to get a good look at him. After police took defendant away, they showed Flaherty a red sweatshirt that had been in defendant\u2019s car. Flaherty thought this was the same red sweatshirt and then felt more certain that defendant was the man who had robbed her.\nIn court, Flaherty stated that she was 100% sure that defendant was the man who had robbed her. When asked why she was even more certain than she had been at the showup, Flaherty stated that defendant had been less than two feet away from her when he had robbed her. Flaherty had been able to see his facial features very clearly. Flaherty stated that, in contrast, defendant had been standing too far away at the \u201cshowup.\u201d Now that Flaherty could again get a good look at defendant\u2019s facial features in the courtroom, she was 100% certain defendant had robbed her.\nThe State called Officer Miller as a witness. Miller was the officer who had initially interviewed Flaherty in her apartment after Flaherty\u2019s roommates called the police. The State asked Miller \u201cwhat, if anything, [Flaherty] said to [Miller]\u201d during the apartment interview regarding the incident. The defense immediately objected, arguing that Miller\u2019s testimony would constitute hearsay. Following a sidebar conference outside the presence of the jury, the trial court overruled the defense\u2019s objection. Miller was allowed to testify to the content of her 15- to 20-minute interview with Flaherty. Miller testified that Fla-herty had provided a description of the individual who had robbed her, and she specifically testified that Flaherty told Miller the robber was:\n\u201ca black male, 5\u20197\u201d to 5\u20198\u201d, medium build. He had a goatee and a mustache, possibly with some gray in the mustache. Had a dark-colored baseball cap on, a red hoody sweatshirt with a black knee-length leather coat on and jeans.\u201d\nDuring the jury instruction conference, the court stated:\n\u201cTHE COURT: *** [W]e need to make a record on [the] hearsay objection *** concerning the testimony of *** Officer Kristy Miller. [Defense] objected as to hearsay. [The State] indicated exception of the hearsay rule and that it was an excited utterance. I overruled the objection, allowed the testimony. It was a bit more than I thought it was going to be. Anything surplusage to the excited utterance, I believe, would be harmless error beyond a reasonable doubt ***.\u201d\nA jury thereafter convicted defendant of robbery, and the trial court sentenced defendant as stated. At the hearing on the motion for a new trial, the court again addressed defendant\u2019s hearsay objection but this time stated that the testimony was admissible because an officer may testify as to what a victim told her in order to explain subsequent investigatory steps. Again the court held that to the extent the testimony exceeded its legitimate purpose, it was harmless error. This appeal followed.\nII. ANALYSIS\nA. Officer Miller\u2019s Testimony\nDefendant argues on appeal that Officer Miller\u2019s testimony concerning Flaherty\u2019s description of defendant was inadmissible hearsay and the trial court erred in admitting said testimony. Evidentiary rulings are within the discretion of the trial court, and this court will not reverse the trial court\u2019s ruling absent an abuse of discretion. People v. Caffey, 205 Ill. 2d 52, 89, 792 N.E.2d 1163, 1188 (2001).\nThe State argues on appeal that this court should affirm the trial court\u2019s ruling under the statutory hearsay exception for statements of identification. See 725 ILCS 5/115 \u2014 12 (West 2004). Though this specific argument was not raised before the trial court, an appellee may raise any argument in support of the trial court\u2019s judgment, provided they have a sufficient factual basis before the trial court. People v. Pinkonsly, 207 Ill. 2d 555, 563, 802 N.E.2d 236, 241 (2003).\nSection 115 \u2014 12 of the Code of Criminal Procedure of 1963 (Code), entitled \u201cSubstantive Admissibility of Prior Identification,\u201d provides as follows:\n\u201cA statement is not rendered inadmissible by the hearsay rule if (a) the declarant testifies at the trial or hearing, and (b) the declar-ant is subject to cross-examination concerning the statement, and (c) the statement is one of the identification of a person made after perceiving him.\u201d 725 ILCS 5/115 \u2014 12 (West 2004).\nHere, conditions (a) and (b) were clearly met. Flaherty testified at trial and was subject to cross-examination. The question here is whether Flaherty\u2019s statement to Miller was \u201cone of identification of a person made after perceiving him.\u201d\nIn People v. Williams, 263 Ill. App. 3d 1098, 638 N.E.2d 207 (1994), the First District answered the identical question in the affirmative. In Williams, a police officer testified about what one of the victims told her \u201cregarding the offender and his clothing, as well as the type and color of his car.\u201d Williams, 263 Ill. App. 3d at 1111, 638 N.E.2d at 216. The appellate court held that section 115 \u2014 12 of the Code, a statutory exception to the hearsay rule, permitted such testimony. Williams, 263 Ill. App. 3d at 1111, 638 N.E.2d at 217. This court agrees with the holding in Williams.\nFurther support for this result can be found in decisions by the Illinois Supreme Court. Section 115 \u2014 12 was born out of the supreme court\u2019s decision in People v. Rogers, 81 Ill. 2d 571, 411 N.E.2d 223 (1980), superseded by statute as stated in People v. Lewis, 361 Ill. App. 3d 1006, 838 N.E.2d 996 (2005) (explaining that the requirement stated in Rogers that the declarant must testify about the identification before the third-party statement may be admitted was not required by section 115 \u2014 12 of the Code). See People v. Lewis, 165 Ill. 2d 305, 342-43, 651 N.E.2d 72, 90 (1995) (noting section 115 \u2014 12 of the Code was born out of the Rogers decision). Interestingly, Rogers involved a physical description similar to the description at issue herein.\nIn Rogers, a detective testified that the witness described the robber\u2019s age, height, weight, and hair color, and said that the robber wore glasses and had a mustache. Rogers, 81 Ill. 2d at 574, 411 N.E.2d at 225. The detective testified he made a composite sketch based on that description. Rogers, 81 Ill. 2d at 574, 411 N.E.2d at 225. The Rogers court noted that \u201cthe composite and testimony concerning the production thereof constituted extrajudicial statements of identification.\u201d (Emphasis added.) Rogers, 81 Ill. 2d at 580, 411 N.E.2d at 228. The Rogers court found, however, that the trial court did not err by admitting into evidence the composite sketch where the witness testified under oath and was subject to cross-examination, and the evidence was admitted as prior identification evidence to corroborate the prosecuting witness\u2019s in-court identification of the defendant. Rogers, 81 Ill. 2d at 580-81, 411 N.E.2d at 228. The court held \u201cthe trial court correctly admitted the composite sketch and [the witness\u2019s] description in evidence as corroboration of his in-court identification of the defendant.\u201d Rogers, 81 Ill. 2d at 582, 411 N.E.2d at 229. Thus, it appears that prior to the legislature\u2019s enactment of section 115 \u2014 12 of the Code, the supreme court considered an extrajudicial physical description \u2014 such as height and hair color \u2014 as \u201cidentification evidence.\u201d\nMore recently, the supreme court has indicated that \u201cstatements of identification\u201d have been too narrowly construed. In People v. Tisdel, 201 Ill. 2d 210, 218, 775 N.E.2d 921, 926 (2002), the supreme court held that its decision in People v. Hayes, 139 Ill. 2d 89, 138, 564 N.E.2d 803, 824 (1990) (holding that statements that a witness did not identify the defendant from photo books and arrays were not statements of identification), too narrowly construed the term \u201cstatements of identification.\u201d In overruling Hayes, the Tisdel court stated:\n\u201c[T]he Hayes court erred in limiting \u2018statements of identification\u2019 to a witnesses] actual identification of a defendant. This interpretation mistakenly focuses on the result rather than the process. As a consequence, the trier of fact may be deprived of information necessary to an informed decision concerning a witnesses] reliability. In contrast, construing \u2018statements of identification\u2019 to include the entire identification process would ensure that a trier of fact is fully informed concerning the reliability of a witnesses] identification, as well as the suggestiveness or lack thereof in that identification.\u201d (Emphasis added.) Tisdel, 201 Ill. 2d at 219, 775 N.E.2d at 926-27.\nHere, Officer Miller testified to Flaherty\u2019s description of defendant. This was the first step in the \u201centire identification process.\u201d Therefore, the statement was properly admitted.\nJustice Cook posits in his special concurrence that \u201c[t]he majority\u2019s interpretation of section 115 \u2014 12 would broaden it to allow the substantive admission of any discussion of a crime between a victim and a police officer.\u201d 374 Ill. App. 3d at 856. That is not the case. Section 115 \u2014 12 by its very terms applies only to statements of identification, and the supreme court has construed statements of identification to include the entire identification process. See Tisdel, 201 Ill. 2d at 219, 775 N.E.2d at 926-27. Our interpretation would not allow the admission of every discussion between a crime victim and a police officer, only those pertaining to identification of a person made after perceiving him.\nHowever, even if the trial court had erred by allowing the statement, any error was harmless. An error is harmless where it appears beyond a .reasonable doubt that the error did not contribute to the verdict obtained. People v. Patterson, 217 Ill. 2d 407, 428, 841 N.E.2d 889, 901 (2005). Additionally, an error may be considered harmless where properly admitted evidence overwhelmingly favors a conviction or where the improperly admitted evidence is merely cumulative or duplicates properly admitted evidence. Patterson, 217 Ill. 2d at 428, 841 N.E.2d at 901. Here, the evidence against the defendant was overwhelming. Flaherty testified in court that she was 100% certain that defendant was the man who had robbed her. Police testified that they removed Flaherty\u2019s stolen credit cards from defendant\u2019s person. Accordingly, we affirm defendant\u2019s robbery conviction.\nB. Excessive Sentence\nDefendant next argues that his maximum-term, 30-year sentence was excessive. Typically, robbery is a Class 2 felony, carrying a prison term of three to seven years. 730 ILCS 5/5 \u2014 8\u20141(a)(5) (West 2004) (prison term for a Class 2 felony). However, defendant was eligible to be sentenced under a Class X sentencing scheme of 6 to 30 years\u2019 because this was his third Class 2 felony. 730 ILCS 5/5 \u2014 8\u2014 1(a)(3) (West 2004) (prison term for a Class X felony).\nIn sentencing defendant, the trial court noted defendant\u2019s lengthy criminal history, which included one theft conviction, two burglary convictions, two aggravated-battery convictions, one domestic-battery conviction, one conviction for possession of a stolen vehicle, as well as numerous traffic offenses. The court noted that defendant had been sentenced to numerous probationary periods wherein he failed to rehabilitate himself. Further, defendant had been incarcerated in the Department of Corrections (DOC) on at least five prior occasions. The court concluded that this was the type of offense that could be deterred, especially considering that defendant\u2019s accomplice was still \u201cout and about.\u201d\nDefendant\u2019s specific argument on appeal is that the trial judge erred in failing to consider three factors in mitigation: (1) that defendant\u2019s conduct neither caused nor threatened serious harm to another (730 ILCS 5/5 \u2014 5\u20143.1(a)(1) (West 2004)); (2) that defendant has struggled with drugs and alcohol; and (3) that defendant admitted fault and expressed remorse for his actions. This court will not disturb a sentence absent an abuse of discretion. People v. Illgen, 145 Ill. 2d 353, 379, 583 N.E.2d 515, 526 (1991).\nIn considering defendant\u2019s argument, this court notes that drug addiction is not necessarily a mitigating factor (People v. Whealon, 185 Ill. App. 3d 570, 574, 541 N.E.2d 865, 867 (1989)), and the trial court was free to find defendant\u2019s remorse to be incredible. See generally People v. Fern, 189 Ill. 2d 48, 55-56, 723 N.E.2d 207, 211 (1999) (the trial court observes the defendant and the proceedings and is therefore in a far better position than a court of review to consider the relevant factors).\nDefendant\u2019s remaining argument is that the trial court failed to consider altogether whether defendant\u2019s conduct neither caused nor threatened serious harm to another. 730 ILCS 5/5 \u2014 5\u20143.1(a)(1) (West 2004). Defendant\u2019s attorney did present evidence that no one was seriously harmed, and the evidence presented at trial indicated that defendant did not use a weapon in the instant offense. Where a defendant presents evidence in mitigation, it is presumed that the trial court considered said evidence. People v. Pippen, 324 Ill. App. 3d 649, 653, 756 N.E.2d 474, 478 (2001). Defendant contends that the trial court\u2019s statement that \u201cthere really aren\u2019t any [statutory factors in mitigation] that apply to this defendant to this type of case\u201d is sufficient to rebut the presumption that the trial court considered evidence that defendant\u2019s conduct neither threatened nor caused serious harm.\nHowever, stating that no statutory factors in mitigation apply is different than stating that the trial court did not consider a mitigating factor. Here, the State presented evidence that defendant stole a purse from Flaherty\u2019s person and that Flaherty was shoved to the ground in the course of the robbery. The trial court was free to infer that defendant\u2019s conduct threatened serious harm; Flaherty might have reacted unpredictably or Flaherty might have injured her head against the concrete in the fall.\nTherefore, the trial court did not abuse its discretion in sentencing defendant to the maximum term.\nC. Sentencing Credit\nFinally, defendant argues that he is entitled to one additional day of credit for time spent in custody. Typically, a defendant is entitled to credit for any part of any day spent in custody. People v. Johns, 130 Ill. App. 3d 548, 548-49, 474 N.E.2d 739, 740 (1984). Defendant was placed in custody for the instant offense on November 9, 2004. Defendant remained in custody until he was sentenced on October 3, 2005, and was then immediately remanded to DOC. Defendant received credit for 328 days served. Under the general rule in Johns, this period of time spans 329 days.\nHowever, the general rule in Johns of allowing credit for any part of a day in custody does not apply to the day of sentencing if the defendant remains in continuous custody and is remanded to DOC. People v. Foreman, 361 Ill. App. 3d 136, 157, 836 N.E.2d 750, 768 (2005). This is exactly what happened in the instant case. Accordingly, the trial court properly gave defendant 328 days of credit.\nIII. CONCLUSION\nFor the aforementioned reasons, we affirm the trial court\u2019s judgment. As part of our judgment, we grant the State\u2019s request that defendant be assessed $50 as costs for this appeal.\nAffirmed.\nTURNER, J., concurs.", "type": "majority", "author": "JUSTICE MYERSCOUGH" }, { "text": "JUSTICE COOK,\nspecially concurring:\nAfter the incident, Officer Miller questioned Flaherty at Flaherty\u2019s apartment for 15 to 20 minutes. Flaherty was able to provide a description of the perpetrator, but she was unable to identify him. Flaherty did not know the perpetrator, and she did not have the opportunity at that time to pick him out from a lineup or photo array. Nevertheless, Officer Miller was allowed to testify to the content of her 15- to 20-minute interview. The trial court later expressed concern that the testimony should not have been admitted but that any error was harmless. I agree with the trial court.\nA witness\u2019s prior inconsistent statement has always been allowed into evidence to impeach the witness. Section 115 \u2014 12 of the Code, however, allows the substantive admission of a prior \u201cidentification of a person made after perceiving him,\u201d when the declarant (Flaherty in this case) testifies and is subject to cross-examination. 725 ILCS 5/115 \u2014 12 (West 2004). Section 115 \u2014 12 is useful in the situation where a witness identifies a defendant but pressure is brought on the witness and at trial he recants his identification. People v. Miller, 363 Ill. App. 3d 67, 74, 842 N.E.2d 290, 297 (2005). The majority\u2019s interpretation of section 115 \u2014 12 would broaden it to allow the substantive admission of any discussion of a crime between a victim and a police officer. That is improper. An identification may be admitted substantively, but other inconsistent statements may be used only for impeachment, i.e., only for the purpose of deciding the witness\u2019s credibility. Miller, 363 Ill. App. 3d at 79, 842 N.E.2d at 300. A witness\u2019s prior consistent statement is generally inadmissible. Miller, 363 Ill. App. 3d at 80, 842 N.E.2d at 301.\nThe Williams case, relied on by the majority, has been criticized:\n\u201cA prior statement of identification must follow the perception of the perpetrator again at a time following the incident. Under the [Williams] court\u2019s view, any time a victim identifies an assailant, the statement of identification will be admissible provided the declarant is subject to cross-examination at trial. Thus, if a rape victim five days later told her mother it was Bob Smith who raped her, the statement would be admissible. The purpose of the rule permitting introduction of a prior statement of identification is to permit evidence of an identification made after recognizing the assailant on subsequent observation prior to trial; it is not intended to permit introduction of hearsay statements of the victim ***.\u201d M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7611.16, at 469 (8th ed. 2004).\nProfessor Graham apparently did not have the situation in mind where the victim knew her assailant. That was the situation in Miller, where the eyewitness knew the shooter before the incident and recognized him at the time of the incident without any subsequent observation. In that situation, the eyewitness\u2019s statement of identification, subsequently recanted, was admitted under section 115 \u2014 12 of the Code. Miller, 363 Ill. App. 3d at 71, 842 N.E.2d at 294.\nIn the present case, Flaherty did not identify defendant during her conversation with Officer Miller. Because Flaherty did not know her assailant, she could not identify him without a subsequent observation, such as a photo array or physical lineup. Miller should not have been allowed to testify to the conversation.", "type": "concurrence", "author": "JUSTICE COOK," } ], "attorneys": [ "Daniel D. Yuhas and Michael Delcomyn, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Julia Rietz, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Anastacia R. Brooks, all 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. ANTHONY J. NEWBILL, Defendant-Appellant.\nFourth District\nNo. 4\u201405\u20140902\nOpinion filed July 19, 2007.\nDaniel D. Yuhas and Michael Delcomyn, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nJulia Rietz, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Anastacia R. Brooks, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0847-01", "first_page_order": 865, "last_page_order": 874 }