## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Cam eron , 2012 IL App (3d) 110020

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. EDGAR CAMERON, De fenda nt-Appellant.

District & N o. Third District Docke t No. 3-11-0020

Filed October 12, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) T h e t ri al court did not shift the burden of proof to defe ndant or fail t o prove him guilty in convicting him of theft and u n l aw fu l possession of firea rm ammunition by a felon, but the restitution order was rema nded for

a deter mination of the proper amount of restitution, the sentenc ing order

was modified to make the sentenc es con curr ent in the absenc e of evidenc e that consec utive sentenc es wer e nece ssary to protec t the public, and monetary cre dits ag ainst defe ndant’s fines wer e war rante d based on his presente nce c ustody

Dec ision Under Review Appea l from the Circuit Court of Knox County
, No. 10-CF- 222; the Hon. J ames B . Stewart, Judge, pr esiding

.

J udg ment Affir med in part, modified in par t, and vac ated in par

t; cause

rema nded.Counsel on

Appea l J essica D. For tier (argued), of State Appellate De fe n d er ’s Offic e, of Chicag o, for a

ppellant.

J ohn T. Pepmeyer, State’s Attorney
, of Galesbur g , (Ter ry A. Mertel and J ustin A. Nicolosi (ar gued), both o f State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE CARTER delivered the judgment of the c ourt, with opinion.
J ustices Ly

tton and Wright conc urre d in the judgme nt and opinion.

OP INION

¶ 1 After a bench trial, defe ndant, Edg ar Cameron, was convicted of unlawful possession of firea rm ammunition by a felon (720 I L CS 5/24-1.1(a) (W est 2010)) and theft (720 I L CS 5/16-1(a) (4)( A) (West 2010)). He was sentenc ed to consec utive terms of imprisonment and 1 order ed to pay restitution and various fines, fee s, and costs. Def endant appea ls, arguing that: (1) the trial court improperly shifted the burden of proof to him at the bench trial in violation of hi s due process rights; (2) he wa s not proven guilty beyond a reasonable doubt of t heft; (3) the trial court err ed in the amount of restitution it ordered; (4) the trial court err ed in imposing consec utive sentenc es upon him; and (5) he is entitled to a cer tain monetary cre dit
ag ainst his fines for the t ime he spent in pre- sentenc e custody and to a reca lculation of hi s Violent Crime V ic ti ms A s s istance Fund assessment. We agree with defe ndant’s third, fourth, and fifth arguments. There fore
, we aff irm defe ndant’s convictions, modify defe ndant’s
sentenc es to concur

rent terms of imprisonment, vacate the trial court’s restitution order
, and

rema nd this case for a restitution hearing, if nece ssary , and for further proce eding s consistent with this opi nion.

¶ 2 FACTS ¶ 3 In J une 2010, def endant wa s char g ed with unlawf ul possession of fire arm ammuniti on by a felon (count I ), theft of Amanda Trejo’ s vehicle (count I I ), and theft of L etha McKe e’s driver’ s license (count I I I ). The amende d charg ing instrument alleg ed that the offe nses wer e

T he cha rging ins trum ent and th e s e n t e nci ng ord er li st the st atuto ry ci ta ti on for the the ft 1 cha rge as sec ti on 16- 1(a )( 1)( A) of the Cri m ina l Code of 1961 (Cod e) (72 0 I LCS 5/1 6- 1(a )( 1)( A) (W est 2010 ))

. However, the la nguage use d in the cha rge it sel f was fr om sec ti on 16- 1(a )( 4)( A) of the Code (7 20 I LCS 5/ 16- 1(a )( 4)( A) ( We st201 0))

.
-2-committed on May 20 (count I I I ) and May 30, 2010 (counts I and I I ). Def endant’ s case 2
proce eded to a bench trial in Sep t em b er 2 0 10. The evidenc e prese nted at trial can be summarized as follows. ¶ 4 L etha McKe e testified for the State that on May 20 at about 7 p.m., she went to the Fa rm King store in Galesbur g

. Upon arrival, McKe e parke d in the parking l o t n ex t to an unoccupie d white Chevrolet with chipped paint and went into the store, leaving her purse in her unlocked car

. When McKe e returne d, her purse was missing and the white car was g one. 3 The purse contained McKe e’s wallet, driver’ s license, chec kbook, and social security car ds, and slightly more than $100 in cash. McKe e did not see anyone g o into her car while she was in the store and did not g ive anyone permission to do so or to take her purse out of he r car

. ¶ 5 Galesbur g police office r Aar on Ritt er testified that he repor ted to the Fa

rm King store in
response to the theft. Upon arrival, Ritt er spoke to McKe e. McKe e g ave Ritt er a description of the white car that was parke d next to hers (the suspect vehicle)
, and store employees g ave Ritt er a description of a potential suspect as a heavie r-se t Afric an-America n male. Ritt er did
not find anyone matching that description at the scene and was unable to locate the suspect vehicle at that time. At some point later, Ri t t er l ea rned that McKe e’s driver’ s license had been rec overe d from defe ndant’s vehicle by Offic er Ing les. Ritt er obtained the driver’ s license a nd went to the jail to speak with defe ndant. Defenda nt denied any involvement in the theft of the purse f

rom McKe e’s ve hicle. ¶ 6 Amanda Trejo testified that she met defe ndant in early May 2010. On May 29, Trejo a nd defe ndant spent the night at a hotel in Galesburg

. Be fore g oing to the hotel, def endant a nd Trejo dropped off defe ndant’ s car, a white Chevrolet with some paint missing, at the Turnber ry apar tments. With Trejo’ s permission, defe ndant drove them to the hotel in Trejo’ s

car , a black 1996 For d Taurus. Upon arrival, defe ndant returne d the key s to Trejo. Trejo did
not te ll de fenda

nt that he could no longe r drive her car

. When Trejo went to be d that night, she put the key s and her cell phone in her bra, but when she woke up the next morning
, her key s, her vehicle, and defe ndant wer e all missing. Trejo informed the front-de sk personne l, and they called the police. Trejo testified that she did not g ive defe ndant permission to take her car that morning

. Trejo also testified that on May 29, she and defe ndant wer e at a bar, and defe ndant told her not to touch him around the waist beca use he did not want his gun to fall
out. ¶ 7 Galesbur g police office r Dar rin Worsfold testified that on May 30, he located Trejo’ s car at t he Turnberry apar

tments afte r he was a dvised by Offic er Ing les that the car m ight be at that location. The key s wer e not in the car , and the car was unoccupie d with no one around it. ¶ 8 Galesbur g police o ff i ce r M ichae l Ing les testified that on May 30 he responde d to the

Unle ss oth erwis e ind ic at ed, al l dat es re fe re nce d fr om thi s poi nt for war d ar e for the ye a r 2 2010 . T he yearhas bee n omitt ed i n most i nst anc es, exc eptwher e ne ces sar y to avoidcon fus ion

.

T he tr ia l te st imony varie d as to whether the whit e vehicl e in que st ion was a C hevrol et 3
I m pal a ora Ch evrol etLumina.

-3-hotel in question reg arding the vehicle- theft complaint. Upon arrival, Ing les spoke to Trejo.

Trejo g ave Ing les a description of the missing vehicle, the suspect, and the suspect’s vehicle. Whil e Ing les was at the hotel, he saw the suspect vehicle g o by

. Ing les g ot into his squad car , caught up to the suspect vehicle, and made a traff ic stop. De fe n dant was the driver of the suspect vehicle, a white Chevrolet with chipped paint, and was also the reg istered owner

. As Ing les approa ched defe ndant’s vehicle, defe ndant made an unprompted statement that, “[h] e did not steal that g irl’s car .” Ing les asked defe ndant if he had the key s to the missing vehicle, and defe ndant turned the key s over to Ing les. Def endant stated that he told Trejo at the hotel that he wa s leavingwith the vehicle a nd that he would be ba ck. ¶ 9 During the course of the traff ic stop, Ing les lear

ned from dispatch that defe ndant was on mandatory supervised rele ase. Ing les asked defe ndant if he could sear ch t h e vehicle, and defe ndant consente d. In the cente r console of defe ndant’s vehicle, Ing les found the driver’ s license of L etha McKe e. Def endant told Ing les that he did n o t kn o w wh ere the driver’ s license ha d come f

rom. In the trunk of the vehicle, Ing les found t wo duffel bag s. In one of the bag s, Ing les found a pill bottle with .22-ca liber bullets in it. In that same bag
, Ing les also found two court documents with de fenda nt’s name on them. Def

endant told Ing les that the bag s belong ed to his cousin. Def endant did not provide the name of his cousin and did not have an ex planation for why his court documents wer e in t he bag. Defe ndant was arr ested
at that time. Ing les notified Offic er Ritt er that he found McKe e’s driver’ s license in defe ndant’s vehic le and late r turned the license ove r to Ritter. ¶ 10 In add i t i o n t o t h e wi tness testimony
, the State also admitted into evidenc e McK ee’ s driver’ s license, which was found in the cente r console of defe ndant’s car ; the bullets, which

wer e found in a bag in defe ndant’s trunk; defe ndant’s court paper work, which was alleg edly found in the same bag as the bullets; and a cer tified conviction for one of defe ndant’s prior felony convictions. ¶ 11 Af

t er the State rested its case -in-chie f, the defe ndant testified i n h i s o wn b eh al f. Def endant stated that he drove a white Chevrolet, which had chipped paint. Def endant had been to F arm King

a fe w times but denied that he, or anyone he was with, took a purse out of a car at Fa

rm King

. Def

endant did not know McKe e or how her driver’ s license g ot into his cente r console, and stated that he never saw the license or McKe e’s purse in his car and that he was not the only person who drove his car

. Acc ording to defe ndant, his sister and his
two friends, “B one” and “Ke nny Mac,” also drove the car

. Def endant did not know the rea l names of his two friends and did not know whe re the y lived. ¶ 12 Def

endant stated that on May 29, he dropped his car off at the Turnber ry apar tments and drove Trejo’ s car to the hotel. Trejo was with him at the time. When defe ndant and Trejo g ot to the hotel
, d ef

en d an t put the key s in his pocket. Trejo never asked for her key s to be
returne d and never tol d defe ndant that he co u l d n o t drive her car any more. Defenda

nt and Trejo wer e both drinking that night. Acc ording to defe ndant, he had permission from Trejo
to drive her car

. Def

endant stated that he woke Trejo up befor e he left the hotel and told her that he was g oing to use the car to g o to his mother’s house to g et his phone cha rg er. Tr ejo

seeme d to understand and said, “ok.” A friend of defe ndant called him that morning and told him that she had hear d his name over the police scanne r and that the police wer e looking for him in relation to a stolen car

. On the way back to the hot el
, d efendant was pulled over.

-4-Be cause defe ndant alre ady knew that the police wer e looking for him in relation to a stolen

vehicle, the first thing he stated to the off icer was that he did not steal that g irl’s ca r. ¶ 13 Def

endant de nied t hat he consente d to a search of his vehicle. The bags in his trunk of the vehicle belong ed to his cousin, wh o wa s visiti ng from C hicag o, and defenda nt did not know that one of the bag s had bullets in it. Def endant denied that his court documents wer e found in the bag and stated that the of fice r proba

bly found them in the g love compar tment and lied about whe re he had found the m. ¶ 14 After defe ndant’s t es t i m o n y , t h e d efe nse rested. The State rec alled Offic er Ing les to testify in rebuttal. Ing les testified that just prior to the traff ic stop, he was standing in uniform by his squad car in front of the hotel. Ing les saw defe ndant’s car g o past and trave l east awa y from the hotel whe n Ing les pursued de fenda nt and made a

traff ic stop. ¶ 15 At t h e co n cl u s ion of the evidenc e, the trial court hear d the closing arguments of t h e attorney s. The State arg

ued that the case came down to a question of cre dibilit y and that the defe nse’s theory of the case–that this was all a misunderstanding or a coincidenc e–we nt well beyond the evidenc e that was prese nted. The defe nse argued that the State had failed to prove the ch ar g es beyond a rea sonable doubt and pointed out wher e it thought that the evidenc e was lac king. ¶ 16 After hearing the arguments , th e trial court found defe ndant guilty of unlawful possession of firea rm ammunition by a felon (count I ) and the theft of McKe e’s driver’ s license (count I I I ) and not guilty of the theft of Trejo’ s vehicle (count I I ). In s o d o i n g, the trial court commented: “Oka y

. The State isn’t require d to–to bring ever y body into court that may have driven Mr. Cameron’ s car at one time or another

. Mr. Bone did not appea r. Mr. Kenny Mac did
not appea r. I haven’ t hear d–there ’s no corr oboration that any body else dri ves the car besides Mr. Came ron. It’s appar ently hi s ca r. He is responsible for what’s in the car

. Whether or not the lugg ag e and the–is–belong ed to his cousin or not, the police are not require d to–the State is not requ i red to prese nt proof that it–that it belong s to somebody else or to Mr. Cameron. It was in Mr. C am er o n ’s car

. At the very least, it’s up to Mr. Cameron to demonstrate that the–that this lugg ag e belong s to somebody other than him. Who’s this cousin? The–a ppare ntly this c o usin knows Mr. Cameron well enough that he comes to Galesbur g and vis its family members, but he won’t come to Gale s b u rg t o testify on behalf of his nephew [ sic ] and admit that this was his and that the bullets wer e his?
You know, the State has to prove beyond a rea sonable doubt. Gra nted, the testimony of Mr. Cameron raises a doubt, but it’s not rea sonable under the circ umstances. This
may be could have been rebutted had–had Mr. Bone and Mr. K Mac come into Court and said–testified that, yeah, I was responsible for it, but appar ently Mr. Cameron is hang ing around with people that may be unsavory and–and–a nd don’t fee l that they can be responsible for

–for their actions. Well, and so as a conseque nce, your g ood buddy
, Mr. Cameron, is g onna take the fall for that be cause it was his car . The prope rty was found in his car . He is re sponsible for

-5-what is there

. The bullets are his as far as I can tell. There ’s no corr oboration that it belong ed to this cousin who could have been here–here in court and i s n ot, and the same is true of the dri v er’s license. It’s simply too coincidenta l it was in his console. He may not h av e known. I mean, I admit the fact that Mr. Cameron tells a g ood story

. He may not–he
may –ever y t h i n g he said may have been entirely true, but its up to him–him to come forwa rd with some evidenc e to c orrobor ate what he said. Under the circ umstances, it’s just not t here . Every

thing e lse points to him

. Now, with the Amanda Trejo business, I think t h at wh o l e t h ing was a littl e hinky and–and so I don’t believe he’s guilty of stealin g t his–this woman’s car , so–but with
reg ard to what the police found in his ca r, I think he’s guilty

. So I make a finding of guilt y o f C o unts I and I I I
, but as to Count I I
, it’s too hinky to–to believe that–that he stole that vehicle.” ¶ 17 A prese ntence investigation repor t (PSI ) was order ed and the case was set for sentenc ing. The PSI showed that defe ndant was 25 year s old, was unmarrie d, and had on e ch i l d
, with whom he had no contac t. Def endant had a h i gh school education and had worke d sporadica lly

. Def

endant had been convicted of unlawful possession of a controlled substance in a 2004 ca se, for

which he r ece ived probation; aggravated unlawf ul use of a w eapon in a 2005 case , for which he rec eiv ed o n e year of imprisonment; and arme d robber y in a 2006

case , for which he was sentenc ed to seven y ea rs’ imprisonment. Def endant also had d is p o s itio n s f

o r v a riou s tra f f ic, ordinanc e-violation, and misdemeanor offe nses and had some delinquency adjudications as a minor for burg lary and unlawful use of a wea pon. The curr ent offe nses wer e committed while defe ndant was on mandatory supervised rele ase for the prior

arme d robber

y

. ¶ 18 A sentenc ing hearing was held i n No v em b er 2 0 1 0

. At t h e s t art of the hearing, the
prosec utor repr esente d to the trial court that his office contac ted L etha McKe e, the victim of the theft, about restitution and was informed that “she [was] due $200 in restitution.” McKe e told the prosec utor’s office that she had a $100 bill in her purse and that she had to have her driver’ s license, three social security car ds, a hunting license, her firea rm owner ’s identification card, and her credit cards reissued, which amo u n t ed t o approximately $200. Def ense c ounsel did not object to that repr esentation. ¶ 19 The State prese nted no evidenc e in ag g ravation, other than the information contained in the P S I

. Defendant prese nted the testimony of Nicole Empson in mitigation. Empson testified that she had known defe ndant for eight or nine months and that they wer e eng ag ed. Empson s t at ed that defe ndant was g ener ally a happy person and that he did what he could
t o help her and her children. On cross-e x amination, howeve r, Empson acknow ledg ed that
at one point in their relationship, she thought defe ndant was using drug s beca use his behavior had chang ed. Empson also acknow ledg ed that at one point, she had ob t ai n ed an order of protec tion ag ainst defe ndant bec ause he had bee n sendingher me an text message s. ¶ 20 The State repr esente d to the trial court that any sentenc e defe ndant rec eived was re quired
to be consec u t i v e t o the sentenc e defe ndant was alre ady serving in the Depa rtment of Correc tions (DOC) for the prior arme d robber y

. Def ense counsel did not object or disagree

-6-with that re p re sentation. The parties agree d that defe ndant was ineligible for probation

beca use of h i s p rior arme d robber y conviction. The State rec ommended that both of defe ndant’s convictions in the prese nt case be order ed to run consec utively to eac h other and that defe ndant be g iven an extended-term sentenc e on the conviction for unlawful possession of fire arm ammuniti on by a felon. Def ense counsel rec ommended that the two convictions in this case be order ed to run concur rently and that defe ndant not be g iven an extended-term
sentenc e. ¶ 21 After hearing the evidenc e, the rec om m en d at i o n s , an d d ef en d an t ’s s t at ement in allocution, the trial court sentenc ed defendant to seven year s’ imprisonment for the ammunition conviction and one year of imprisonment for the theft conviction. The terms of imprisonment wer e order ed to run consec utively to eac h other and to defe ndant’s unexpired DOC sentenc e for the prior arme d robber y

. In making its sentenc ing decision, the trial court stated:
“All right. Well, unfortunate ly
, you have a rea lly serious prior his t o ry , criminal history
, stretching over ten year s back, starting with a burg lary as a juvenile, culminating in a–in the ar

med robbe ry

which wa s a ser ious offense back in ’ 06.
You have had multipl e charg es involving we ap o n s , unlawful use of wea pons, ag g ravated unlawful use of wea pons and then, of course , the–the prese nt one, unlawful possession of firea

rm ammunition by a felon. That’s the most serious, espec ially coming on the hee ls of the ar

med robbe ry

. Of course , you’re looking at a three to fourtee n-year prison sentenc e. I f this was your first offe nse, it would be an entirely differen t m at t er, but it’s the third one involving

wea pons and bullets. As a conseque nce of that, the–the Court has to view that as–as signific ant. Be cause of that also, I think that the State is right to argue that there was a–that there

was threatened serious harm beca use you’re a felon and beca use no g ood explanation has been of fer ed concer

ning these bul lets, and they wer e found to be in your possession as Ifound at the be nch trial.
As a conseque nce, Fa ctor No. 1 [i n ag g ravation] is available for the State. No. 3, I ’ve alre ady made mention of the criminal re cord. N o. 7, it is necessar y that the–that I have
to take into consideration the–the deter rent eff ect of the sentenc e that I impose on others, and finally
, that these offe nses wer e committed when you wer e on mandatory supervised rele ase. You wer e under the require ment to not–not commit any –any further crimes and, of cour se, you wer e cha

rg ed with these two a

nd then found guilty

of them. On y our si de, I don’t find any –I don’t find the pre sence of any serious factors. The only thing that I can see that is in you side–on your–i n y o u r fa v o r i s the fac t that you g raduated from high school. That kind o f sets you apar t a littl e bit from most of the people that I

see, but that isn’t a–a

–a serious factor

in miti g ation.
As a conseque nce of that, you understand that probation is not available to you. This involves a De partment of Corr ections sentenc e. *** You’re looking at a thre e to fourte en-year prison sentenc e. The sentenc es have
to be consec utive to the rea son you’re back in the Depa rtment of Correc tions right now.

-7-* * * Okay . Wit h reg ard to Count I
, the unlawful possession of f irea rm ammunition by

a felon, I ’m g oing to impose a seven year prison sentenc e in lieu of–instead of the ten year [recommended by the State] beca use we’ re not talking about wea pons so much as we’ re talking about bullets. It’s still a serious charg e, and I think seven year s is an appropriate
sentenc e. I will impose a consec utive sentenc e in Count I I for the–or Count I I I
, rathe r, for the theft bec ause those a

re two separa

te offenses. They wer e unrelated to one another, a nd I think it’s only appropriate that you–t h at you serve consec utive sentenc es, and I will impose the three -year

term which w as re commended by the–by the State.
I will also impose restitution of $200. I don’t know what the chanc es of–of that, but it seems to me to be appropriate that when you g et out of the Depa rtment of Correc tions,
you reimburse the victim for the loss she suff ere d.” ¶ 22 In addition to the terms of imprisonment a nd restitution, de fenda

nt w as require d to pa

y various fines, fee s, and costs and was g iven cre dit for 172 day s of prese ntence incar cer ation. Def endant filed a motion for new trial, alleg ing that he was not p ro v en guilty beyond a

rea sonable doubt of the theft charg e. De fenda nt also filed a motion to rec onsider sente nce, alleg ing that his se ntence was excessive. After a hearing, both of the motions we re denied. Def endant a ppeale d.

¶ 23 ANALYSI S ¶ 24 On appea l, defe ndant argues first that the trial court improperly s h i ft ed t he burden of proof to him at his bench trial in v i o l at ion of his due proce ss rights. In support of that
argument, defe ndant asser ts that numerous unambiguous statements made by the trial court when it found d efe ndant guilty indicate that the trial court believed that defe ndant was require d to come forwa

rd with proof of his in nocenc e and also demonstrate that the trial
court errone ously plac ed the burden of proof on defe ndant. Defenda nt rec og nizes that this issue may have been forfe ited beca use t rial counse l did not object to the comments at t rial

or raise the issue in a posttrial motion but argues that we should rea ch the merits of this issue,

never theless, beca

use the issue involves the conduct of the trial court itself or, alternatively
, as a matter of plain e rror

. ¶ 25 The S tate argues first that no err or occurre d and that the t rial co u rt’s comments do not establish that the trial court improperly shifted the burden of proof to defe ndant but, rathe r, show that the trial court was mere ly explaining its cre dibilit y deter mination and the defic iencies it found in defe ndant’s theory of the case

. In the alterna tive, the State argues that
any err or that occur

red was forf

eited and that plain error revie w does not apply in this case

. ¶ 26 T h e first step in plain-er ror analy sis is to conduct a substantive revie w of the is s u e t o deter mine whether an err or occur red. People v. W

alker
, 232 I ll. 2d 1 1 3
, 1 2 4 -25 (2009). Whether the trial court applied the corr ect leg al standard i s a qu estion of law, which is subject t o a de novo standard of revie w on appe al. See People v . Campos , 349 I ll. App. 3d 172, 176 (2004).

-8-¶ 27 Due proce ss require s that the State bear the burden of proving beyond a rea sonable doubt

all of the elements of the charg ed offe nse. People v. Howery
, 178 I ll. 2d 1, 32 (1997). That burden of proof rema ins on the State throughout the entire trial and never shifts to the defe ndant. Howery
, 178 I ll. 2d at 3 2

. T h e d ef endant is presumed innocent throughout the

course of the trial and does not have to prove his innocenc e, testify
, or prese nt any evidenc e. See People v . Dev ine , 295 I ll. App. 3d 537, 544 (1998); People v. Bradley , 70 I ll. App. 2d 281, 286-87 (1966); I llinois Pattern J ury Instructions, Criminal, Nos. 2.03, 2.04 (4th ed. 2000); I ll. S. C t. R. 431(b) (ef f. Jul y 1, 2012). ¶ 28 The trial c ourt is presumed to know the law reg arding the burden of proof and to a pply it proper ly

. Howery
, 178 I ll. 2d at 32. That presumption, howeve r, may be rebutted when the

rec ord co n t ai n s s t rong aff irmative evidenc e to the contra ry

. Howery
, 178 I ll. 2d at 32. In ruling upon an alleg ation such as the one in t h e p re s en t case, the revie wing court must deter mine whether the rec o rd contains strong aff irmative evidenc e that the trial court incorre ctly allocate d the burden of proof to the defe ndant. Howery
, 178 I ll. 2d at 32-33. The trial court’s ef

fo rt s t o test, support, or sustain the defe nse’s theories cannot be viewed as improp er l y diluting the State’s burden of proof or improperly shifting that burden to the defe ndant. See Howery
, 178 I ll. 2d at 35. The trial court is fre e to comment on the implausibil ity o f t h e d ef

en se’s theories, as long as it is clea r from the rec ord that the trial
court applied the proper burden of proof in finding the defe ndant guilty

. Howery
, 178 I ll. 2d at 34-35. ¶ 29 In the prese nt case , afte r revie wing the rec ord, we fi n d t h at i t does not contain strong aff irmative proof that the trial court err oneously diluted the State’s burden of proof or shifted that burden of proof to defe ndant. See Howery
, 178 I ll. 2d at 32-35; Bradley
, 70 I ll. App. 2d
at 286-87. The trial commented upon the State’s evidenc e an d t h eo ries, the defe ndant’s evidenc e an d theories, and the burden of proof in arriving at its decision. The trial court’s

comm ents about defe ndant’s testimony and about evidenc e or witnesses that wer e not prese nted mere ly indicate that the t rial court thoroughly considere d and tested de fenda nt’s theories and cre dibilit y in deciding this case

. As the rec ord is c lear that the trial court knew and proper ly appli ed t h e b u rden of proof, those comments do not support a claim that the trial court err oneously s hifted the burden to defe ndant. See Howery
, 178 I ll. 2d at 34-35. There fore
, we reje ct defe ndant’s argument on this issue. Having deter mined that no err or

occur red, we need not c onsider further the parties’ arg uments on this issue about forf eiture and plain er

ror. ¶ 30 As his second point of contention on appea l, defe ndant argues that he was n o t proven guilty beyond a rea sonable doubt of the theft of L etha McKe e’s driver’ s license. Def endant

asser ts that the State prese nted no evidenc e to prove that he knowing ly obtained control over McKe e’s driver’s license, t hat he knew the driver’ s license was s tolen, or t hat he intended
to deprive McKe e perma nently of her driver’ s l i ce n s e. T he State argues that strong circ umstantial evidenc e was p re s ented in this case and that the evidenc e was sufficie nt to prove de fenda

nt guilty

. ¶ 31 P u rs u ant to the Colli ns standard ( People v. Colli ns , 106 I ll. 2d 237, 261 (1 9 8 5 ))
, a

rev i ew i n g court fac ed with a challeng e to the sufficie ncy of the evidenc e must view the evidenc e in a light most favor able to the prosec ution and deter mine whether any rational trier

-9-of fac t could have found the elements of the crime proven beyond a rea sonable doubt. People

v. Ja ck son , 232 I ll. 2d 246, 280 (2009). The revie wing court will not retry the defe ndant. People v. Jimerson
, 127 I ll. 2d 12, 43 (1989). Determinations of witness cre dibilit y , the weight to be g iven testimony
, and the rea sonable infere nces to be drawn from the evidenc e

are responsibilities of the trier of fac t, not the review ing c ourt. See Jimerson , 127 I ll. 2d at 43. Thus, the Colli ns standard g ives “ ‘full play to the responsibility of the trier of fac t fairly
to resolve conflicts in the testimo n y , t o weigh the evidenc e, and to draw rea sonable infere nces from basic fac ts to ultimate fac ts.’ ” Jack son , 232 I ll. 2d at 281 (quoting Jack son

v. Virginia
, 443 U.S. 307, 319 (1979))

. This same standard of revie w is applied by the revie wing court reg ardle ss of whether the eviden ce i s direc t or circ umstantial, or whether defe ndant rec eived a bench or a jury trial, and circ umstantial evidenc e meeting this standard is sufficie nt to sustain a criminal conviction. Jack son , 232 I ll. 2d at 281; People v. Kotlarz
, 193 I ll. 2d 272, 298 (2000). In applying the Colli ns standard, a revie wing co u rt wi ll not

re v er s e a conviction unless the evidence is so improbable or unsatisfac tory that it leave s a

rea sonable doubt of the defe ndant’s guilt. Jack son , 232 I ll. 2d at 281; People v. Flowers
, 306 I ll. App. 3d 259, 266 (1999). ¶ 32 To sustain the charg e of the theft of M cK ee ’s dri v er’s license in the prese nt case , the State had to pr ove the f

ollowing f

our ele ments beyond a re asonable doubt: ( 1) that McKe e

was the owner of the driver’ s license; (2) that defe ndant knowing ly obtained control over the driver’ s license; (3) that defe ndant knew that the driver’ s license had been stolen or obtained control of it under such circ umstances as would rea sonably induce him to believe that it was stolen; and (4) that defe ndant intended to deprive McKe e perma nently of the use or benef it of the driver’ s license. See 720 I L CS 5/16-1(a) (4)( A) (West 2010); I llinois Pa t t ern J ury Instructions
, C ri m i n al
, No. 13.24 (4th ed. 2000); People v. Price
, 221 I ll. 2d 182, 189-90 (2006). Possession of an item, such as stolen proper ty , may be actua l or constructive. People

v. Mertens
, 77 I ll. App. 3d 791, 795 (1979). A person has constructive possession of an item when he has immediate and exclusive control over the are a wher e th e i t em i s located. Mertens
, 77 I ll. App. 3d at 795. The knowledg e and intent nece ssary for a theft charg e need not be proven by direc t evidenc e and ma y , instead, be pr oven indirec tly by infere nce or

by deduction made by the trier of fac t based upon the fac ts and circ umstances of the case

. Mertens , 77 I ll. App. 3d at 795. ¶ 33 In the prese nt case , there is no dispute that McKe e was the owner of the driver’ s license. The only elements in dispute are the second, third, and fourth elements of the theft charg e–contr ol, knowledg e, and intent. The evidence prese nted at the tria l established that McKe e’s license was stolen from her car when s he was in the Fa rm King store; that the suspect vehicle was parke d next t o McKe e’s ve hicle at F arm Kingwhen she left her purse in her vehicle and enter ed the store; that the suspect vehicle was g one from the s t ore’ s parking lot when McKe e returne d to her vehicle and discovere d that her purs e, wi t h her license in it, had been stolen; that a bout 10 day s afte r McKe e’s driver’ s license was stolen, it was found by the police in the cente r console of defe ndant’s vehicle afte r a traff ic stop was made on the vehicle, which was being driven by defe ndant at the time and was reg istered to defe ndant; and that McKe e’s description of the suspect v eh i cle as a white Chevrolet with chipped paint was identical to a description of defe ndant’s vehicle. Viewe d in the light most

-10-favor able to the State, that ev i d ence was sufficie nt to prove defe ndant guilty beyond a

rea sonable doubt. Def

endant’ s possession of the license in his vehicle, either actua l or constructive, was sufficie nt to establish contr o l and, along with the other fac ts and circ umstances of this case , was suffici en t t o es tablish by infere nce that defe ndant had the requisite knowledg e and intent sufficie nt to support the theft charg e. See Mertens
, 77 I ll. Ap p

. 3 d at 795. Those infere nces wer e further corr oborate d by defe ndant’s improbable version of events–that he had no knowledg e of the driver’ s license in his cente r console and that he loaned his vehicle to persons whos e re al n ames and addre sses he did not know. Although defe ndant was not require d to testify
, once he elec ted to do so and p ro vided an explanation of hi s possession of t he st olen driver’s l icense
, his explanation was s ub j ec t t o the same cre dibility deter

mination as that of any other witness. See Mertens
, 77 I ll. App. 3d at 797 (“[a] defe ndant who elec ts to explain his possession of st olen property must offe r a

rea sonable story or be judge d by its improbability ”). We will not retry this case on appea l or substitut e our judgme nt for that of the trier of fac t on such matters as witness cre dibilit y and the weight to be g iven evidenc e. Jimerson , 127 I ll. 2d at 43. ¶ 34 As his third point of contention on appea l, defe ndant argues that the trial court err ed in ordering restitution of $200. Def endant asser

ts that the restitution amount was not statutorily authorized beca

use defe ndant was only charg ed with, and convicted of, the theft of McKe e’s driv er’ s license, not the theft of McKe e’s purse or the other items in McKe e’s purse, and there was no proof that McKe e suffe red actua l out-of-poc ket losses of $200 for the driver’ s license alone. Def

endant asks that this case be rema nded for a new restitution hearing to deter mine the corr ect amount of McKe e’s actua l out-of-p o ck et losses, if any

. The State
argues that the trial c ourt’s rulingwas prope r and should be a ffirme d. ¶ 35 In g ener al, a trial court’s deter mination on restitution, like other sentenc ing issues, will not be re verse d on appea l absent an a buse of discr etion. See People v . Jones , 145 I ll. App. 3d 835, 839 (1986). Howeve r, wh en t h e i ssue befor e the revie wing court is whether a restitution order is authorized by statute, such as in the prese nt case , that issue is a question of law, which is subject to a de novo standard of revie w on appea l. See People v. Felton
, 385 I ll. App. 3d 802, 805 (2008). ¶ 36 Under section 5-5-6 of the Unified Code of Correc tions (Unified Code), a crime vic tim is entitled to rec over restitution for the actua l out -o f- p o ck et losses that wer e proxi mately

cause d by the criminal conduct of the defe ndant. 730 I L CS 5/5-5-6(a ), (b) (We st 2010); People v. Ensley
, 132 I ll. App. 3d 842, 844 (1985). The trial court may order restitution for losses incurre d b y th e s am e victim as the result of the same criminal conduct of the defe ndant, even if those losses wer e not set forth in the charg ing instrument. Ensley
, 132 I ll. App. 3d at 844. Thus, wher e a defe ndant is c onvicted of theft for the initial taking of items from the victim’s possession, losses for items that we re taken as part of the s ame theft but

wer e not specific ally listed in the charg ing instrument may be included in a restitution order beca use the theft of multipl e items from one victim involves a single course of conduct that constitutes one offense of theft. S ee People v. McClard
, 3 5 9 I ll. App. 3d 914, 917 (2005). Howeve r, when a defe ndant is convicted of theft by possession of stolen proper ty , absent an agree ment to the contra

ry or evidenc e linking defe ndant to the initial taking of the proper ty , the defe ndant may not be require d to pay restitution for the losses associate d with the initial

-11-taking but, rathe r, may only be require d to pay restitution for those losses associate d with all

of the stolen items that wer e in defe ndant’s possession, even if some of those items wer e not listed in the charg ing instrument. See People v. Hernande z , 236 I ll. App

. 3 d 983, 985-86 (1992) (def

endant who had agree d to pay restitution as part of plea agree ment to t h ef t b y possession of stolen proper ty charg es in exchang e for dismiss al of re s i d ential burg lary ch ar ges co u ld not be order ed to pay restitution for the losses sustained in the residential burg laries in which the proper ty that ended up in defe ndant’s possession was initially taken) ; Ensley , 132 I ll. App. 3d at 844; McClard, 359 I ll. App. 3d at 917. ¶ 37 I n t h e p re s en t ca s e, d ef en d an t wa s co n victed of theft by possession of stolen
proper ty –McKe e’s stolen driver’ s license. Def endant was not charg ed with, or convicted of,

a criminal offe nse in relation to the initial taking of the purse or the dri v er ’s license from McKe e’s vehicle. As such, defe ndant could only be order ed to pay restitution for those losses associate d with his possession o f t h e stolen driver’ s license. See Hernande z , 236 I ll. App. 3d at 985-86. Def

endant could not be ordered to pa y restitution for those losses associated with the initial taking of the purse a nd its c ontents from McKe e’s vehicle. See Hernande z , 236 I ll. App. 3d at 985-86. There fore
, the restitution orde r must be vacated and this case

rema nded for a new restitution hearingto determine the amount of out-of- pocket losses, if
any , that wer e cause d to McKe e by defe ndant’s possession of the stolen license only and not the costs of repla cing the other items or the missing money

. See Hernande z , 236 I ll. App. 3d at 986. ¶ 38 As his fourth point of contention on appea l, defe ndant argues that the trial court err ed in imposing consec utive sentenc es upon him. T h e parties agree that mandatory consec utive
sentenc ing does not apply and that thi s i s s u e involves only a question of permissive

consec utive sentenc ing. Def endant as s e r

ts th a t c o n s e cutive sentenc es wer e improper beca use the trial court never found that consec utive sentenc es wer e nece ssary to protec t the public from defe ndant as require d by the statute and beca use there was no basis for such a finding in the rec ord. Def

endant asks that we modify his sentenc es on appea l to concur rent terms of imprisonment. The State arg ues that the imposit ion of consec utive sentenc es was proper and should be aff

irmed. ¶ 39 A trial court’s sentenc ing decisions will not be altere d o n ap p ea l ab s en t an abuse of discretion. People v. Streit
, 142 I ll. 2d 13, 19 (1991); People v. Hartzol
, 222 I ll. App. 3d 631, 650 (1991) (t ri al court’s decision t o impose consec utive sentenc es wil l not be reverse d on appea l a bsent an abuse of discretion). Although the revie wing court may reduc e a sentenc e wher e an abuse of discretion has occur red (I ll. S. Ct. R. 615(b)( 4)), in revie wing the propriety of a sentenc e, the revie wing court should proce ed with g rea t caution and car e and must not substitut e its judgment for that of the trial c ourt mere ly beca use the re viewing court would have w eighed the f

actor s differ ently

( Streit , 142 I ll. 2d at 19). ¶ 40 Section 5-8-4 of the Unified Code p ro v i d es , in pertinent part, that the trial court may impose consec utive sentenc es: “[i] f, having reg ard to the nature and circ umstances of the offe nse and t h e h i s tory and char acte r of the defe ndant, it is the opinion of the court that consec utive sentenc es are require d to protec t the public from further criminal conduct by the defe ndant.” 730 I L CS

-12-5/5-8-4(c )(1) (West 2010).

Although the statute states that the basis for such a finding shall be set forth in the rec ord (see 730 I L CS 5/ 5-8-4( c)( 1) (West 2010)), our supreme c ourt has held that the trial cour t is not require d to rec ite the specific languag e of the statute in d etermining that consec utive
sentenc es are nece ssary (see People v. Hicks
, 101 I ll. 2d 366, 375 (1984))

. Rather, “ ‘[w] hat is require d is that the rec ord show that the sentenc ing cou rt is of the opinion that a

consec utive term is nece ss ary fo r t h e protec tion of the public.’ ” Hicks
, 101 I ll. 2d at 375 (quoting People v . Pittman , 93 I ll. 2d 169, 178 (1982)). ¶ 41 After a revie w of the rec ord in the prese nt case , we find no indication that the consec utive
sentenc es wer e motivated by the trial court’s belief that they wer e require d for the protec tion of the public. See Hicks
, 101 I ll. 2d at 375; People v. Span
, 337 I ll. App. 3d 239, 241 (2003). Although the trial court considere d the nature and circ umstances of the curr ent offe nses and the history and char acte r of defe ndant, it did so as part of its evaluation of the fa ct o rs in
ag g ravation and mitigation. It does not appea r that the trial court considere d that information in the context of a consec utive-sentenc ing decision or that the trial court ever deter mined that

consec utive sentenc es wer e require d to protec t the public from further criminal conduct by defe ndant. There fore
, we modify defe ndant’s sent ence s and order that the terms of imprisonment imposed upon defe ndant for the two cu rr ent offe nses shall be serve d

concur rently with eac h other and concur rently with defe ndant’s unexpired DOC sentenc e for his prior arme d robber

y conviction. ¶ 42 As his final contention on ap p ea l
, defe ndant argues and the State conce des that he is enti t l ed t o a cer

tain monetary cre dit ag ainst his fines for the time he spent in prese ntence

cu s t o dy and to a rec alculation of his Violent Crime Victims Assistance Fund assessment

. Acc ording ly
, we find that defe ndant is e ntitled to a monetary cre dit of $860 for the time he spent in custody
, which should be applied to satisfy in full his $5 teen court fee
, his $5 drug
court fee
, and his $5 child advoca cy cente r fee
, which have all been held by the courts to be “fine s,” rathe r than “fe es,” for the purpose of the monetary cre dit. See People v. Paige
, 378 I ll. App. 3d 95, 103 (2007) (tee n court fee was deter mined to be a fine); People v. Sulton
, 395 I ll. App. 3d 186, 193 (2009) (dr ugcourt fe e wa s determined to be a fine ); People v . Jones
, 397 I ll. App. 3d 651, 664 (2009) (child advoca cy cente r fee was deter mined to be a fine). In addition, beca

use fines wer e imposed, defe ndant’s Violent Crime Victims Assistance Fund
assessment should only be $4 and n o t the $20 that was actua lly imposed. See 725 I L CS 240/10(b), (c )(2) (West 2010). The c ircuit cler k is ordere d to make the listed cha ng es. ¶ 43 For the fore g oing rea sons, we aff irm defe ndant’s convictions, m o d i fy t h e t rial cour t’s
sentenc ing order to make the terms of imprisonment imposed for those two convictions run

concur rently to eac h other and to defe ndant’s unexpired DO C s en t en ce, vacate the trial court’s order of restitution, a nd rema nd this c ase for a restitution he aring
, if nece ssary , and for f urther pr ocee dings c onsistent with thi s opinion.

¶ 44 Affir

med in part, modified in par t, and vac ated in par

t; cause r emande d.

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