FOURTH DIVI SION MAY 24, 2007

No. 1-05-2636

THE PEOPLE OF THE STATE OF IL LI NOIS, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Co ok Co un ty. ) v. ) ) JERMAIN

E EVANS, ) Honorab le ) Kenneth

J. Wadas, Defend ant-App ellant. ) Judge Presi ding.

JUSTICE CAMPBEL

L del ivered t

he opinion

of the co urt: Following a jury

trial, defendant, Jermaine Evans, was found guilty of first degree murder and sentenced to a total of 100 y ears' imprisonment, receiving 55 y ears' imprisonment for th e murd er, enh anced b y a consecu tive s enten ce of 45 years for p erson ally dis chargin g a firear m proximate ly c ausing t

he death of La rry Simmons. On a

ppeal, de fendant

contends that: (1) the prosecutor improperly cross-examined defense witness Calvin Williams; (2) the trial court impr

operly allowed a

dmission of

other cr imes evide

nce and evidenc e of the d

etails surrounding recovery

of the murder weapon; (3) the prosecutor imprope rly elicited testimony from defendant regarding the testimony of other witnesses who te stified against him; (4) the trial court improperly pr

ecluded defense witness testimony ; and (5) his sentence is excessive. For the following reasons, we affirm defe ndant's conviction and sentence.1-05-2636

1 Prior to tr

ial, the c ourt gr

anted de fendant's motion s in limine to preclude the State from introducing gang membership evidence or any evidence that defendant was involved in drug sales. 2 BACKGROUND On April 11, 2002, Larry

Simmons, age 17, was killed at the intersection of 68th Street and Normal Street in Chicago's south side, as the culmination of a se ries of arguments that occurred between the "68th Stree t Group" and the "69th Street Group." 1 The relevant members of each group are a s follows: The 68th Street Group includes defendant (a/k/a "B aby G" ), Anthony Burke ( a/k/a " Ant" or " Diesel" ), Dean is Turner (a/k/a " Dino"), Keonte Wil liams (a/ k/a "Moo Moo") and Brian Hunter. Me mbers of the 69th Street Group include the victim La rry Simmons (a/k/a "Martell"), Nicholas Gentry (a/k/a "Nick") and Donald Smith (a/k/a " Lil' Don"). At trial, Deanis Turner of the 68th Street Group testified on behalf of the State to the following relevant facts. The first arg ument between the two groups bega n when members of the 68th Str

eet Grou p, namely Turner, Williams and

Burke, went in se arch of marijuana. Their search led them to

70th and E ggle ston, whic h requir ed that they

cross 69t h Street. The 69th Street Group, namely

Simmons, Gentry and Smith, did not "appreciate " the 68th Street Group walking through their "terr itory" and, a

ccording to Turner's testimony , told the young men, " they di dn 't li ke [t he m] wa lk in g t hr ou gh th ey [ sic ] block." The 68th St reet Gr oup understood the 6 9th Street Group's block territory to be 69th and Normal. An argument ensued betwe en Burke of the 68th Street Group and Simmons, the victim, of the 69th Street Group. At some point, the argument subsided and the three y oung men, Turner, Williams and Burke, continued on their way to 70th and Eggleston and eventually met up with defendant. Burke q uickly relay ed the ea rlier en counter betwee n the two g

roups to de fendant . Sometime1-05-2636

3

thereafter the y

oung men from the initial argument, along w ith defendant, returned to 69th and Normal to confront the members of the 69th Street Group who had ar gued with the men earlier. According to Turner's testimony , defendant questioned the 69th Street Group as to the

reason t hey were " mad" tha

t Turner , Burke

and William s walked

through a block that actua

lly "b el on gs to no on e. " T hi s d is cu ss io n q ui ck ly e sc al at ed in to a h ea te d a rg um en t, in wh ic h G en tr y, of the 69th Street Group, allegedly brandished a revolver and threatene d the 68th Street Group, warning them that the 69th Street Group would not be moved from their terr itory. Coincidentally, Brian H

unter, a member of the 68th Street Group, happened upon the scene while driving his car. He g ot out of his car and retrieved a baseball bat fr om his trunk. Gentry quickly

turned his attention toward Hunter, never raising his g un at him, but yelling at him to drop the bat. Hunter complied, dropping the bat and fleeing the scene. This argument eventually subsided and the young

men of the 68th Street Group, defend ant, T urner, Burke a nd Wi llia ms, re turne d to 7 0th an d Eggles ton. Accord ing to Turne r's testimony, the y

oung men were angr

y that the other g

roup had "upped" a gun a t their group. Turner testified that defendant said that if the 69th Street Group wa nted to play with guns, he would show them how to use one. Turner qualified this statement by adding that the defendant was speaking out of anger and no one understood his words to be a foreshadowing of what was to come. So on there after d efenda nt left Tu rner, B urke and

Williams. Tu

rner te stified that he did not know where defendant went at that time. Turner, Burke and Williams proceeded to return to their territory of 68th a

nd Normal, by way of 69th and E ggleston. During this time, Simmons, Gentry and Smith (the 69th Street Group) a pproached them a

nd aga in confr onted the m. An arg

ument ove

r territ ory once ag ain1-05-2636

4

ensued and a fistfight between Bur ke of the 68th Street Group and Gentry of the 69th Street Group eventually be gan. Defendant was not prese nt for the beginning of this fight. Turner f urther te stified that as the fight be tween B urke and

Gentry continue d, Simmons, the victim, backed up against a fence with his hand in his pocket. Williams, Turner, Smith and others were watching the fig ht and Smith allegedly be gan fighting with Burke as well, in an attempt to help out his friend, Gentry. A t some point, defendant pulled up in a blue car, exited the car brandishing a gun a nd began shooting at Simmons, who was still some 10 feet away from the fight between Burke, Smith and Gentry , leaning against the fence . Defendant shot between five and six rounds. T

urner te stified that after

the shots were fir

ed he ra n home. He

also testified that he never saw Simmons, the victim, holding a gun, nor did he see a ny guns other than the gun used by

defendant. Next, Glenda Minor, Simmons' family friend, te stified on behalf of the State. According to Minor's testimony, she was dr iving north on Normal toward 68th Street and stopped at a red light at the intersection of 68th and Normal. While stopped, Minor saw the beginning s of the fistfight between Burke and Ge ntry and she a

lso saw Simmons leaning up against the fence. When the light turned green, Minor beg an to drive through the intersection and noticed a g roup of people, including defendant, crossing Normal. Minor testified that she saw defendant's ar m extended out and that she next heard gunshots and saw sparks fly ing from defendant's hand. Soon thereafter Minor stopped her car in front of w here Gentry

and Burke had been fighting and where Si mmons was n

ow slumped

on the fe nce. Ge ntry , Smith and T

yr one, a pa ssenge

r in Minor's car, quickly

put Simmons in Minor's car and Minor drove to St. Bernard's Hospital. While at the hospital, Minor spoke with Chicago police officers and identified defe ndant as the1-05-2636

5

shooter. The police officers subsequently transported Minor to the 51st Street police station where she identified photographs of def endant, the victim and Gentry

. Minor test

ified tha t she neve r saw the victim, Simmo

ns, with a g

un or wea pon in his hand. Minor never saw a gun on Simmons when he was plac ed in her car. Minor never saw Smith or Gentry in possession of gun, nor did she see a gun removed from Simmons' body

. Next, Nicholas Gentry of the 69th Stree t Group testified to the same essential facts as Turner regarding

the confrontations leading up to the shooting, but denied ever having br an di sh ed a g un ea rl ie r i n t he ev en in g d ur in g t he se co nd co nf ro nt at io n. Ac co rd in g t o G en tr y, he got in to a fistf ight with Burke e ven thoug h it was Simmo

ns who had

been ar guing with Burke. Gentry

stated Simmons is his c ousin so he fought on behalf

of Simmons. Gentry

also testified that he never saw any guns prior to defendant appearing at the scene with one and never saw the victim with a gun, corroborating Minor' s testimony. Next, Keonte Williams of the 68th Street Group testified to the same essential facts as Turner and Gentry , but contradicted Gentry 's denial of the flashing of a g un during the second argume nt. Keont

e Williams te stified that Gentr y, Si mmons and Sm

ith appro ached the 68th Street Group about 15 minutes after the second confrontation and a sked for a "truce." I nstead of

a truce , howeve

r, a fistf ight er upted bet ween Ge ntry and Bur ke. Acc ording t

o Keonte Williams, just prior to the fistfight between Gentry and Burke, Gentry

gave Simmons his watch and a gun for saf ekeepin g. Keon te Williams t

estified that Simmons

put the g un in the r

ight side of his waistban d and that it was visib le at all t

imes prior

to the shooting. Ke onte Willia ms also testified that while he heard a series of g unshots, he did not see defendant until after he (Williams) had run from the scene with his y ounger sister. When Keonte Williams turned and looked ba ck, he sa w defen dant stan ding in the gras s holding

a pistol. K

eonte Willi ams also1-05-2636

6

testified, over the prosecutor's objection, that during the fight between Gentry and Burke he heard Smi

th of the 6 9th Street Group y ell, "Gi ve me the pistol." Accordin

g to Keonte Williams , Smith's de

mand for the gun was made

before defenda nt arrive d at the sc ene. Ke onte Willia ms further stated that Simmons, who had the gun visibly tucked in his waistband, did not pull the gun out or hand it over to Smith. Next, forensic investigator James Shader of the Chicago police de partment testified that he and his partner recovered f our 9-millimeter Lugar c artridge cases from the sce ne of the shooting. Chicago police officer Robert Gar za testified that he and his partner, Officer Amato,

arreste d defend

ant at his h

ome in the

early morning hours of A

pril 12, 20 02. Defe

ndant re adily admitted to the police officers that he knew they were there because ther

e had been a "woo-woo" in which he had shot Simmons. Officer Garza testified, over defense counsel's objections that Officer Garza was not qualified as an e xpert, that "woo-woo" is a street term for fig ht or altercation. Next, Chicago police officer Vernon Mitchell testified on beha lf of the State. After Officer Mitchell testified to his background, the def ense team called for a sidebar, which was held in chambers o

ut of the presenc e and he aring o f the jury. During the sideb ar, the d

efense sought exclusion of evidence that Officer Mitchell rec overed three weapons, only one of which was connected to defendant and the shooting of Simmons, after being notified by a civilian. The prosecutor argued that he wa s only going to describe the circumstances surrounding the discover y of the wea pon and the fact that it was f ound in a b ag with

two other

guns. The defen se objected that a prejudicial inference would a rise in which the two other guns would be improperly conne cted to defendant. The trial court denied the motion.1-05-2636

7

Office r Mitchel l then test

ified tha t on May 18, 2002, Wi lliam L ove wave d down Mitc hell and his partner, Officer Johnson, as they were traveling north on Racine towar d the 7th District police station. Love showed the office rs a black bag containing thre e handguns, including an Interarms Fire

Star 9-millimeter semiautomatic pistol. Forensic investigator Angela H orn testified that the 9-millimeter semiautomatic pistol recovered by Officer Mitchell was the gun that was used in the shooting of Lar ry Simmons. The tr ial co urt de nied t he defe nse's m otio n for a d irect ed verd ict at the cl ose of the S tate's case-in-chief. Anthony Burke , of the 68th Street Group, testified as the first witness on behalf of the defense. Burke corrobora ted earlier testimony tha

t Gentry had br

andished a gun during the second confrontation and threatened the Group, sa ying, " I'll kill y

ou too." Burke noted that defendant had been present during that confrontation. Burke further testified that prior to fighting with Gentry, Gentr

y pulled a g

un out and gave it to Simmons to hold. According to Burke, defenda nt witnessed this exchange. Over the prosecution's objection, Burke testified that while fig hting with Gentry, he

heard Smith of the 69th Street Group yelling something to Simmons. At some point defendant arrived on the scene, but according to Burke, when de fendant first arrived, he was just standing there without a gun. Soon thereafter Burke hear d gunshots and testified that it was defendant who fired. Howe ver, Burke also testified that he saw Simmons with a revolver in his hands. After B urke and Gentry stopped f ighting , Burke

saw Smith r

unning d own the str

eet with t he revol ver he ha d seen in Simmons' hands.1-05-2636

2 Although Calvin Williams testified to his familiarity with several members of defenda nt's 69th Street Gr oup, the r ecord do es not disc lose whether Keo nte Williams

and Calvin Williams ar

e relate d by

blood, g ood frie

nds, or even acquaintanc es. 8 The def ense next c alled Cal

vin Williams. 2 Williams was a passenger in a car when he saw the precursor to the fight betwee n Burke and Gentry . He got out of the car, approac hed the young me n and asked them what the problem was. Both Burke and Gentry r

esponded and then agreed to fight. Prior to the fig ht, Calvin Williams saw Gentry hand Simmons a gun. Accor ding to Calvin Williams, a group of 15 to 20 people watched the fight. Calvin Williams did not particip ate in the

fight a nd preve nted othe rs from jo ining, notably , Smith. Calv in Williams testified that he saw Smith reaching for Simmons' pocket, attempting to grab the gun. Simmons allegedly brushed Smith away. Calvin Williams then heard g unshots but did not see who fired the gun . He late

r testifie d that he s aw Simmons holding a gun, but that the g un was to h

is (Simmons) side. Upon hearing the gunshots, Calvin Williams ran to his mother's house. Soon thereafter, Calvin Williams saw defendant near the Williams' residenc e at which point defendant told Calvin Williams that he (defendant) had shot Simmons. Defendant remained at the Williams' residence, on the back porch, for about five minutes. Calvin Williams never contacted the police, but the next day Detec tive Garza contacted Calvin Williams, who told him what happened. On cross -examinat

ion, over the defe nse's o bjection s, the Stat

e elicite d from Cal

vin Williams that he changed from his jail uniform into a shirt provided for him by the sheriff, that he had a criminal drug conspiracy charge pending, and tha

t he would be returning to the lockup following his testimony. The State also impeac hed Calvin Williams by eliciting information1-05-2636

9

about his two prior convictions for possession of a controlled substance and unlawful use of a weapon. Defendant exercised his right to testify in his own behalf. Defendant corroborated the testimony reg arding the second confrontation betwee n the 68th Street and 69th Street Groups wherein Brian H unter re trieved a baseba ll bat from the trunk

of his ca r, causi ng Gent ry to brandish a revolver, point it at Hunter and threaten to kill someone befor e the yea r was out. Hunter ultimately fled the sc ene and the argument broke up. Ge ntry, Simmons and Smith then walked back toward 69th and Normal, while Bur ke, Keonte Williams and Turner walked the other way. D efendant then began talking w ith two young ladies a

t the scene of the confrontation. Soon there after, Corey

Jackson, a

friend o f defen

dant's, arrive d in a car . Defen dant go t in the car with Jackson and they

drove to 6 7th and Pa

rnell in a failed a ttempt to f

ind Calvin Williams. Jackson and defendant then drove to 68th and Normal, where defenda nt observed Gentry and B urke arguing. Defe ndant corroborated earlier testimony, stating that he saw Gentry give his watch to Smith and a gun to Simmons, who put the gun in his right pants pocket. Defend ant then watched t

he figh t betwee n Gentry and Bur ke from Jac

kson's c ar. He e

ventuall y got out of the car in order to break up the f ight. Calvin Williams happened upon the scene, pulling up in his car behind Jackson and defendant. Defendant then saw Keonte Williams pushing Smith back from the fight. Smith then ran up to Simmons, reaching for Simmons' right pants pocket and y elling, "give me the g

un," and "bus," a street term for " shoot." Simmons then looked up and down the street and finally pulled the gun out, prompting defendant to pull his gun out and fire. A fter shooting once, defendant ran1-05-2636

10

from the s cene wh

ile firin g more shots. Def

endant te stified that he con tinued to shoot beca

use Simmons was shooting at him. Defendant ran to 67th and Parnell, where he met up with Calvin Williams. Defendant asked Calvin Williams if Simmons had been hit, and Calvin Williams replied that he did not know. Defendant went upstairs with Calvin Williams for a few minutes, but eventually ran home, tossing the gun in Ry an Harris Park as he ran. On cross-examination, defendant admitted that he fired the gun tha t killed Simmons and that i t had b een hi s int entio n to s hoot him. The St ate was allow ed, ov er defe nse co unsel 's objection, to elicit information that defendant had been gambling with Brian Hunter earlier in the evening. Additionally , the trial court allowed the prosecutor to ask defenda nt whether defendant had heard the testimony

of previous witnesses which was contrary to his own. Following closing arguments, the jurors were instructed on first degreemurder, selfdefense and second degr

ee murder. The jury

found defendant guilty

of first degree murder. The jury also found that def

endant personally

discharged the firearm that proximately caused Simmons' d

eath, a f actor f or sente ncing e nhance ment. Defendant filed a motion for a new trial on January 24, 2005, and filed a second motion for a new trial on April 19, 2005. Defendant subsequently struck parts of his second posttrial motion. After a hearing on the motion on May 10, 2005, the trial court denied the motion for a new trial. At defendant's sentencing he aring, the trial judge noted that while multiple ag gravating factors applied , no mitig ating f actors a pplied at all. The c ourt sent

enced d efenda nt to 55 y ears' imprisonment for the murder conviction. Because the jury made a special finding that defendant personally dischar

ged the firearm proximately causing Simmons' death, the trial judge sentenc ed1-05-2636

11

defendant to an additional 45-y ear sentence enhanceme

nt, to be served consecutively , pursuant to section 5-8-1(a )(1)(d )(iii) of the Unifi ed Code of

Correct ions. 730 I

LCS 5/5 -8-1(a

)(1)(d )(iii) (West 2002). On July 11, 2005, the court denied defe ndant's motion to reconsider the sentence. Defendant filed a timely

notice of appeal on August 8, 2005. Jurisdiction for this appeal lies pursuant to Supreme Court Rule 603 as this is a direct appeal from a non-capital cr iminal conviction. OPINI ON Initially , defendant contends that the trial court committed reversible er ror by allowing the State to improperly cross- examine defense witness Calvin Williams. The record shows that on cross-examination the State was allowed, over objection by defense counsel, to elicit from Calvin Williams: (1) that he was in custody awaiting tria l at the time of his testimony, (2) that he came from lockup to testify , (3) that he had changed fr om his jail uniform into a regular shirt provided by the sher

iff, (4) that he had a pending felony case in the same courthouse, (5) that he was charged in that case with cr iminal drug conspiracy , and (6) that after he testified he was going back into custody

on that pending charge. It is well settled that the scope of cross-e xamination is within the trial court's discretion and the court's rulings are not over turned absent an abuse of discretion. People v. Nutall , 312 I ll. App. 3d 620, 627, 728 N.E.2d 597, 605 (2000). Defend ant conte nds, howe

ver, tha t while a w

itness may

be impea ched by attackin g his character via proof of conviction, proof of arrests, indictments, charges, or commission of crimes are not admissible. People v. Lucas , 151 I ll. 2d 461, 6 03 N.E.2d 460 (1992 ); People v. Mason , 28 Ill. 2d 396, 400, 192 N.E.2d 835, 837 (1963). I n support, defendant cites authority of our1-05-2636

12

courts which have consistently held that a witness may be impeached only by

the use of former convictions and cannot be interrogated on ar rests or indictments. People v. Pecoraro , 175 Ill. 2d 294, 677 N .E.2d 875 ( 1997); People v. Hoffman , 399 Ill. 57, 63, 77 N.E.2d 195, 198 (1948). Whil e proo f of arr ests, indi ctmen ts and charges are not admis sibl e when a ttack ing a witness's character, showing bias, interest, or motive to testify is a prope r mode of impeachment. People v. Bull , 185 Ill. 2d 179, 705 N.E.2d 824 (1998). Our courts have not quantified the number of pending charge s required before a witness maybe presumed to harbor an antiprosecution bia s. Never

theless, this cour

t has held that a sing

le pendin g char ge is ins ufficie nt to establish an antiprosecution bias. People v. Hughes , 168 Ill. App. 3d 758, 762, 522 N.E.2d 1275, 1278-79 (1988). The Hughes court explained that in order to introduce pending charges, such charg es must pro duce an

infere nce that the witne ss has some

thing ei ther to g ain or los e by

his testimony. Hughes , 168 Ill. App. 3d at 761-62. In the present case , the questions posed to Calvin Williams were proper as part of showing his antiprosecution bias. Calvin Williams testified that he is defendant's friend and that he has tw o prior c onviction s as well a s another charg e pending . The cha rge pe nding a gainst Calvin Willia

ms, couple d with his two prior c onviction s, y ields an inferenc e that Cal vin Williams had something either to gain or lose by his testimony and consequently establishes an anti-prosecution bias. Accordingly, the impeachment was proper. We observe, however, that the State failed to show how the fac t that Calvin Williams was in custody on pending dr

ug charges tended to show that his testimony might have been influenced by inter

est, bias or a motive to testify fa lsely. The State' s reliance on People v. O'Toole , 226 Ill. App. 3d 974, 990, 590 N.E.2d 950, 961 (1992), is unavailing. I n concluding that our c ourts allow the State to use evi dence o f a defe nse witne ss' prior arre sts and charges in1-05-2636

13

order to establish an anti-prosecution bias or motive to testify , the O'Toole court cited People v. Triplett, 108 I ll. 2d 463, 4 75 (1985)which quo ted from People v. Mason , 28 Ill. 2d 396, 400 (1963). Both Triplett

and Masoninvolved issues where trial court precluded the defense from cross-examining State witnesses as to pending chang es to the custody status of witnesses. Our supreme court reversed the defe ndants' convictions in both Triplett and Mason , finding such restrictions violated a defendant's rig ht to confrontation. The State's further reliance on Alford v. United States , 282 U.S. 687, 75 L. Ed. 624, 51 S. Ct. 218 (1 931), is si

milarly misplace d. The Sta

te cites Alford

for th e prop osit ion t hat as king a witness w here he lives is not

only "an app ropriate prelimina

ry to the cr oss-examination" b

ut also "an essential step in identify ing the witness with his environment, to which cross-examination may always be directed." Alford , 282 U.S. at 693, 75 L. Ed. at 628, 51 S. Ct. at 220. There, defense counsel attempted to cross-examine a State witness as to his custody status and pending charges and the trial court sustained the State' s objection. The Supreme Court reversed, holding that "[t]he purpose obviously was *** to show by such facts as proper cross-examination might de ve lo p, th at hi s t es ti mo ny w as bi as ed be ca us e g iv en un de r p ro mi se or ex pe ct at io n o f i mm un it y, or under the coercive effe ct of his detention by offic ers of the United States which was conducting t he present pro secution. " Alford , 282 U.S. at 693, 75 L. Ed. at 628, 51 S. Ct. at 220. Neither Mason , Triplett , nor Alford provides support for the State's argument that the cross-examination of Calvin Williams as to his custody status and pending drug charges was proper. Rather, these cases explain the rationale behind the general rule that defendants may cross-examine witnesses for the State regarding their custody status as well as a ny pending charg es. Notwi

thstandin g our c onclusion

that the Sta

te's cr oss-examination of Ca

lvin Williams1-05-2636

14

on his custody for pending drug charges wa s improper, we find the error harmless in light of the evidence of defendant's ove rwhelming guilt. Finally , we reje ct defe

ndant' s argument objecting to the cross- examination of Calvin Williams on the subject that he "usually wea rs" a jail uniform. Defendant objected to testimony concerning the origin of the shirt Calvin Williams wore in court, but did not object to testimony ab ou t C al vi n W il li am s' cu st od ia l s ta tu s, or hi s h av in g b ee n b ro ug ht in to th e c ou rt ro om by a sheriff. Defendant has waived these c laims for review for failure to both object at trial and file a written posttrial motion. People v. Enoch , 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130 (1988). Next, defendant argues that the trial court er red in allowing the State to introduce evidenc e at tria

l that: (1) defenda nt had bee

n gambli ng ear lier on the

night of Lar ry Simmons' murder, and (2) the murder weapon wa s found in a bag containing two other handg uns. Our courts have repeatedly held that evidence of other crimes is admissible where releva nt for an y pu rpose other than t

o show the

defenda nt's bad charac ter or his propensi ty to commit crime. People v. Wilson , 214 I ll. 2d 127, 1 35, 824 N. E.2d 191, 1 96 (2005) ; People v. McKibbins , 96 Ill. 2d 176, 182, 449 N.E.2d 821, 824 (1983). One such purpose includes the offering of other crimes evidenc e when it "constitutes a continuing narrative of the circumstan ces attendin g the entire tran saction." People v. Carter , 362 Ill. App. 3d 1180, 1189, 841 N.E.2d 1052, 1059 (2005). If evidenc e of other crimes is intertwined with the charge d offense or where the events which oc curred earlier in the evening led to the charged offense, such evidence may

be admissible. People v. Lewis , 243 Ill. App. 3d 618, 625-26, 611 N.E.2d 1334, 1339 (1993). As one court reasoned, "[w]hen facts c oncerning uncharge d criminal conduct are all part of a continuing nar rative which concerns the circumstance s attending the entire trans action, th ey do not concern separat e, distin ct, and uncon nected crimes ." People v.1-05-2636

15

Collette , 217 Ill. App. 3d 465, 472, 577 N.E.2d 550, 555 (1991). Additionally, such evidence may be re levant in placing the defendant in proximity to the time and place of the offense. Lewis , 243 Ill. App. 3d at 626. So long a s the othe

r crimes evidenc e bears

"some th reshold s imilarity" to the c rime charged, such evidence

is admissible. Wilson , 214 I ll. 2d at 13 6. Ultimate ly, the admiss ibility of evidence is within the sound discretion of the trial court, and may not be overturned on appeal absent a clear abuse of discretion. People v. Ilgen , 145 Ill. 2d 353, 364, 583 N.E.2d 515, 519 (1991). Defendant first contends that the trial court erre d in permitting the State to elicit from him on cross-examination that he had been gambling with Bria n Hunter at 73rd and Vincennes earlier on the night of Simmons' murder. Defe ndant argues that the prior crime of gambling had nothing to do with the people or the facts involved in either of the arg uments preceding the shooting or the actual shooting of Simmons, and that this testimony of other crimes evidence served no other purpose than to prejudice him. The State responds that this evidence was properly admitted because it was part of the narrative leading to Simmons' murder and bec ause it related to events that occurred later that night. We agree. The evidenc e of defendant's ga mbling placed defendant in the gene ral proximity in both time

and plac e to the mu

rder. Furthermore, ther

e is no nee d to potent

ially mislead a jury by p lacing

defenda nt in a "s terile e

nvironme nt," par ticularl y " when the

re was a history *** that [was] clearly relevant to a determination of the true facts of wha t took place on the date in q uestion." Carter , 362 Ill. App. 3d at 1190. Additionally, evidence of defendant's gambling de

monstrates his friendship with Brian Hunter, a key

player in the e

vents that unfolded on April 12, 2002. When the 68th Street Group1-05-2636

16

confronted the 69th Street Group earlier in the eve ning of Simmons' murder, Hunter happened upon the scene and grabbed a baseball bat from the trunk of his car when he saw Gentry, of the 69th Street Group, brandishing a gun. Defe ndant was not present for this altercation, but learned of it later and was angry

that the rival group had "upped" a gun at his group. Defenda nt subsequently threate

ned that if the 69th Street Group wanted to play with guns, he would show them how to use one. Defendant's friendship with Hunter, a nd particularly the

specific evidence of time spent with Hunter earlier that evening, wa s therefore part of the narra tive leading to the murder o f Simmons as

it relate d to the ev ents that o ccurre d later that night

. Even if the trial court erred in admitting this evidence, the imprope r introduction of other crimes evidence is harmless when a defe ndant is neither prejudiced nor denied a fair trial ba sed on its admission. People v. Nieves , 193 Ill. 2d 513, 530, 739 N.E.2d 1277, 1285 (2000). Here, defenda nt has fa iled to show that he was preju diced by the evide nce or de nied a fa ir trial by its admission. Next, defendant contends that Officer Mitchell's testimony that he recovered the murder weapon in a bag containing two other revolvers linked to neither defendant nor the dea th of Simmons was improper. Defendant argues that such testimony gives rise to an unfair inference that all the guns belonged to him. The long -standin

g rule i n Illi nois is that

"[a] wea pon generally

may not be adm

itted into evidence unless there is proof to connect it to the defenda nt and the crime or unless the defendant po ssessed th e weapon when arres ted for the cri me." People v. Maldonado , 240 I ll. App. 3d 470, 478, 608 N.E.2d 499, 505 (1992). This court has held that "[t]he potential for prejudic ial infer

ences to be draw n from suc

h a weap on in evide

nce far exceeds a

ny l egitima

te purpose ide ntified by the St ate *** and m ust be condem ned." People v. Jackson , 154 Ill. App.1-05-2636

17

3d 241, 246, 507 N.E.2d 38, 42 (1987). Courts recognize that the admission of unconnected weapon s is i mprop er sin ce they "on ly serve t o arou se the jury and p rejud ice th e defen dant's positio n." People v. Smith , 413 I ll. 218, 223 , 108 N.E. 2d 596 (19 52). The refore , no case upholds the admission into evidence of weapons that were not proved to be in the possession or under the control of the defendant. Smith , 413 Ill. at 221. The State concedes that I llinois case law does not support the admission of unconnected weapons . Notwiths tanding the gen eral ru le prohib iting the

admission o f unconnected w eapons, however, improper admission of such weapons is ty pically regarded as harmless error. See People v. Padget

t , 248 Ill. App. 3d 1018, 1025, 618 N.E.2d 982, 987 (1993) (holding that the error of admitting irrelevant wea pons into evidence was not prejudicial as the evidence did not contribu te to the d efenda nt's con viction sin

ce the de fendant's gui lt was ove rwhelmin g); People v. Jackson , 154 Ill. App. 3d 241, 246, 507 N.E.2d 38, 42 (1987) (deny ing reversal despite error si nc e i t w as ma de cl ea r t ha t t he un co nn ec te d w ea po n w as no t t he mu rd er we ap on ). Ac co rd in gl y, even if the admission of Officer Mitchell's testimony regarding the two unrela ted revolvers recovered along with the murder weapon was error, such error is harmless in light of the overwhelming evidence of defe ndant's guilt. In this case, any

prejudice resulting from the admission of testimony relating to the unconnected weapons was minimized by the nominal role the weapons play ed in the trial. Evidenc e rega

rding the two fir

earms fo und toge ther with the murde

r weapon was brie fly adduced from a police officer a s part of his testimony reg arding the investigation, and the subject was not brought up again. The State neve r suggested that the two unrelated weapons belonged to defen dant or that they

were us ed in the m

urder. M oreover, the wea pons wer e not phy sically in court as far as the record shows. The State did not mention the we apons or the circumstance1-05-2636

18

of their discovery

in its closing argument. Most importantly , forensic investigator Angela H orn testified that the Interarms fire arm was the sole murder weapon, further clarifying

that the unrelated weapons were not involved. Next, defe

ndant ar gues tha t the tria l court e rred in a llowing t he State t o ask him on

crossexamination whethe

r he hea rd the te stimony

of Dean is Turner, Calvin Willi ams and K eonte Williams. Defendant claims that this series of questions enabled the State to repeat and emphasize previous prosecution testimony and f orced defendant to judge the ver acity of witnesses. Defendant contends this line of questioning discredited him in the ey es of the jury. In support, defendant ar

gues that questioning a defendant as to the ve racity of a

prior witness is improper because such que stions inva

de the pr ovince of the jury by i nfring ing upon

its function to determine the credibility of witnesses. People v. Martin , 271 Ill. App. 3d 346, 356, 648 N.E.2 d 992, 1001 (1995); People v. Hicks , 133 Ill. App. 2d 424, 434, 273 N.E.2d 450, 458 (1971). While such questioning is improper however, reversa l is warranted only w

here the prejudice resulting therefrom is substantial. Martin , 271 Ill. App. 3d at 356. Here, the State did not commit reversible error when the pr osecutor questioned defendant about pri or witnes s testimony. The re cord show s that the p rosecut or never asked de fendant

to comment on the veracity

of those witnesses. The following colloquies, which occurre d during the State 's cros s-examina tion of de fendant , are at

issue: First Colloquy "[THE STATE]: Q. When you left that second a rgumen t, you told Deanis Turner, 'They want to play with g

uns? I'll show them how to

play ,' rig ht? [DEFENDANT]: A. No.1-05-2636

19 Q. Never s aid that to Deanis T urner, r ight? A. No. Q. De an is T

ur ne r is y our fr ie nd, rig ht? A. Yes. Q. Yo u he ard hi

m c ome in a nd t es tif y ? A. Yes. Q. You heard him come in and testified [ sic ] that he heard y ou say , 'They

want to pla

y with guns; I' ll show the m how to pla y ,' rig ht? A. Yes. Q. So you went over ther e the third time to break up the fig ht, rig ht? A. Yes." Second Colloquy "[THE STATE]: Q. You heard Deanis Turner testify that he neve r saw a g un out ther

e; y ou were here for that, ri ght? [DEFENDANT]: A. I'm not rea lly sure exactly

what was said. Q. You hear

d Calvin Willi ams testif

y, r ight? A. Yes. Q. Calvin' s yo

ur frien d, right? A. They

all my friends . Every

body around there my friends

.1-05-2636

20 Q. You heard Calvin Williams testify that Martel had the gu n a t hi s si de , rig

ht? A. I'm not sure. Q. Did you hear him testify that Martel was keeping Li ttl e D on a wa y from h im, aw ay from t hegu n? [DEFENSE COUNSEL]: Objection. THE COURT: Overruled. [DEFENDANT]: I'm not for sure . It's been a long week." Th ir d C ol lo qu y "[THE STATE]: Q. You heard [Keonte] testify, Moo-Moo

[ sic ], r ig ht? [DEFEND ANT]: Yes. Q. Did you ever he ar him testify that Martel pointed the gun at y

ou? [DEFENSE COUNSEL]: Objection. [DEFENSE COUNSEL]: Objection, Judge. What is the

re le va nc e o f t hi s i n h ea ri ng so me bo dy' s t es ti mo ny? THE COURT: Sustained. [DEFENDANT]: I'm not for sure – THE COURT: Sustained. Don't answer." In a ny e vent, def endant' s challe

nge to the first c olloquy

has been waived f or failur e to object. Enoch , 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130 (1988). Neverthe less, it should be noted that had this issue been properly preserved for appeal, the State' s cross-examination of1-05-2636

21

defendant was not improper since he was neve r asked to assess or otherwise comment on the veracity of

the witnesses. The two r emaining colloquie s proper

ly preserv ed for a

ppeal re veal pro per cro ssexamination of a criminal defendant. A defendant who testifies in a cr iminal case and subsequently contradicts testimony of the State's witnesses subjec ts himself to questions formulated to point out these contradictions. People v. Adams , 111 Ill. App. 3d 658, 666 (1982). Defendant's reliance on Ryan v. Monson , 33 I ll. App. 2d 406, 179 N .E.2d 449 ( 1961), is factua lly i napposite and of no

persuas ive value , especi ally in light o f the nat

ure of that case

(civil action for personal injury ) and its age (decision rendere d 46 years a go). In that ca se the defenda nt asked t he plaint iff "mor e than onc e" abou

t another witness' s testimony

and whet her it was true or false. Ryan , 33 Ill. App. 2d at 415-16. The court held the que stion improper and explained that such questions do "not contain the element of the possibility of mistake on the part of the wi tness." Ryan , 33 Ill. App. 2d at 416. That case is rea dily distinguishable from the present case since the State never aske d the defendant whether another witness' s testimony was true or false. This case is similar to People v. Tolbert , 323 Ill. App. 3d 793, 753 N.E.2d 1193 (2001). There, the prosecutor asked the defe ndant whether other witnesses' testimony was accurate. Tolbert , 323 Ill. App. 3d at 808. The court held that such que stioning was not improper since asking i f a state

ment was " accura

te" or " inaccur

ate" was not the sa

me as ask ing the d efenda nt if a witness lied. Tolbert , 323 Ill. App. 3d at 809; see also People v. Morse , 33 Ill. App. 3d 384, 391, 342 N.E.2d 307, 312 (1975) (finding no impropriety in State's cross-examination of defendant which asked him whether statements made by witnesses were "wrong" or "mistaken").1-05-2636

22

Similarly, defendant in this case was only asked if he ard the testimony of ea rlier witnesses; he was not even asked to comment on the accurac y of that testimony . While defendant claims he was plac ed in the u

ntenable position of

not only having to defen d himself b

ut also ha ving to explain the observations and recollections of other people, the rec ord shows that the prosecutor never asked defendant whether Deanis Turner, Calvin Williams or Keonte Williams lied during their testimony. According ly, the cross-e

xamination of defendant was proper. Ne xt , d ef en da nt ar gu es th at th e t ri al co ur t e rr ed in su st ai ni ng th e S ta te 's he ar sa y objections to questions directed at defense witnesses, Calvin Williams and Anthony Burke. Defendant claims that Burke and Williams both would have testified that Donald Smith y elled at the vi ctim to giv e him t he gun a nd to shoot . This testi mony woul d have corrob orated defend ant's testimony and his claims of self-def ense and defense of others. Defe ndant argues that Burke and Williams shou

ld have be en permi

tted to testify

what they

allege dly heard Smi

th say just prior to Simmons' murder because the statements either do not constitute hearsa y or they fall within the hearsay exceptions of res gestae and/or excited utterance. The following co lloquies a re at issu e: First Colloquy "[DEFENS E COU NSEL ]: Q. During

that f ive-or sixminute period did you hear anybody in the background say anything? [BURKE]: A. Yes. [THE STATE]: Objection. I'll withdraw the objection. [THE COURT]: Overruled. A. Yes, I hea rd Litt le [D onald Smit h] an d saying –1-05-2636

23 Q. Not what he said but – [THE COURT]: Sustained. Q. Did you he ar anybody saying a nything? A. I heard L

ittle Don saying something

. [THE STATE]: Objection. [THE COURT]: Overruled. Q. Do you know who he' s talking to? A. Yes. Q. Who? A. Larry ." Second Colloquy "[DEFENSE COUNSEL]: Q. Does any thing else happen during t he figh t that invol

ves peop le, other

than the t wo people who we re figh ting? [WILL IAMS]: Yes, sir. Q. What is that ? A. Little

Don, as I took my arm and brushed hi

m, back, I don't know if it ( sic ) he appr oached Martell a nd told Martell to have... Q. Don't say

what he said. [THE STATE]: Objection. [THE COURT]: Sustained. [DEFENSE

COUNSEL ]: Q. He ap

proache s Martell ?1-05-2636

24 A. Yes." Hearsay is defined as "testimony

of an out-of-court statement offered to esta blish the truth of the matter asserted therein, and resting for its value upon the credibility ofthe out-ofcourt assert er." People v. Rogers , 81 Ill. 2d 571, 577, 411 N.E.2d 223, 226 (1980). Consequently, a statement off ered for some reason other than for the truth of the matter asserted therein is generally

admissible. People v. Velasco , 216 Ill. App. 3d 578, 583, 575 N.E.2d 954, 957 (1991). For example, if a statement is offered to prove its ef fect on the listener's state of mind, or to show why the listener ac ted as he did, it is not hearsay

. People v. Perez , 209 Ill. App. 3d 457, 466, 568 N.E.2d 250, 255 (1991). Defendant argues that the stateme nts Smith yelled in the presence of Burke and Williams, "give me the gun," and "bus," were being offere d not for the truth of the matter

asserte d, but to show the stat e of mind o f the re cipient after he aring t he state ment. We re

ject this argument. Defendant was per mitted to testify about the statements he hea rd Smith make; therefore, he was permitted to tell the jurors how those alleged comments affected his state of mind. The effect of Smith's statements on the respective states of mind of both Burke and Williams wa s complete ly im materia l, and thus

their testimony

concer ning Smith 's state

ments was properly

precluded. Alternatively, def

endant argues that Smith's statements fall into the excited utterance hearsa y exception. I

n order f or testimony t

o qualify as an exci

ted utter ance, th ree ele ments must be present: "(1) an occurr ence sufficiently

startling to produce a spontaneous and unreflec ting statement; (2) absence of time to fabricate; and ( 3) the statement must relate to the circumstances of the occurren ce." People v. Poland , 22 I ll. 2d 175, 1 81, 174 N. E.2d 804, 8 07 (1961) ; People v. Johnson , 271 Ill. App. 3d 962, 964, 650 N.E.2d 1, 2 (1995). The ultimate issue is whether the re1-05-2636

25

was lack of su fficient ti me which wou ld allow fo r "reflection an d inventi on." Poland , 122 Ill. 2d at 181. The determination of whether a statement qualifies as a n excited utterance is within the trial court's discretion. People v. Georgakapoulos , 303 Ill. App. 3d 1001, 1012, 708 N.E.2d 1196, 1206 (1999). Defendant argues that all three elements are present. As to the first element, defe ndant notes that a fistfight between people who had pre viously been threa

tening to kill each other was happening at the time of Smith's statements. Defendant fur ther claims that people knew that Simmons was armed. As to the second requirement, Smith allegedly demanded the gun and directed Simmons to shoot at the exact time of the shooting, allowing no time for fabrication. As to the final element, defendant notes that the statements were dire ctly related to the c ircumstances of the shooting. Defend ant's a rgumen t that the e

xcited utte

rance e xception a

pplies is w aived be cause defense counsel did not raise this theory at proceedings on defendant' s motion for new trial. Our courts have repeatedly

held that arguments made for the first time on appea l are waived. People v. Brooks , 187 I ll. 2d 91, 71 8 N.E.2d 8 8 (1999); Peopl e v. Pa ge , 156 Ill. 2d 258, 620 N.E.2d 339 (1993); Enoch , 122 Ill. 2d at 186. Even had this issue been prese rved for appeal, the fight between Burke and Gentry does not qualify as the sort of dramatic, startling event capable of generating an excited utteranc e. This is especially true considering that this was the third confrontation between the two groups in a single evening. Furthermore, our c ourts hold that the excited utterance rule applies only to victims, not to witnesses. People v. Sullivan , 366 Ill. App. 3d 770, 780, 853 N.E.2d 754, 765 (2006). Defendant alternatively

argues that the testimony of Burke and Williams should have been admitted under the theory of res gestae

. Res gestaerefers to the circumstances, facts and1-05-2636

26

declar ations whi ch grow out of the main fact and ser

ve to illust

rate its c haract er, and w hich are so spontaneous and contemporaneous with the main fact as to exclude the idea of deliberation or fabric ations. 23 C.J.S. Crimina l Law §867 (198 9). "As

long as t he main tr

ansacti on continu

es, deeds emanati ng from it beco me part of th at transacti on." People v. Dennis , 181 Ill. 2d 87, 97, 692 N. E.2d 3 25, 33 1 (199 8), ci ting People v. Jarvis , 306 I ll. 611, 615 , 138 N.E. 102 (1923 ). This argument, too, is waived because def endant did not raise it below. Brooks , 187 Ill. 2d at 109. Even had defendant preserved this issue for a ppeal, the principle of res gestae is no longer recognized as a basis for admitting hea rsay evide

nce. Illinois has abandoned the c oncept of res gestae as amorphous because of its indiscriminate application and beca use it cannot be subjected to a reasonable analysis. Dennis , 181 Ill. 2d at 97 (1998). See Kellman v. Twin Orchard Country Club , 202 I

ll. Ap p. 3d 9 68, 56 0 N.E .2d 88 8 (19 90) ( stati ng that I llino is cou

rts no long er re cog

nize the term res gestae ); People v. Rogers , 264 Ill. App. 3d 740, 753, 636 N.E.2d 565, 573 (1992) (Greima n, P.J., spec ially

concurr ing) (hoping thi s concur

rence " can be the equiva

lent of a stake in the heart of res gestae and that t he coff in lid may

be secur ely fastene d"); People v. Giles , 261 I ll. App. 3d 833, 841, 635 N.E.2d 969, 975 (1994) (supporting complete abandonment of the concep t); People v. Hill , 278 Ill . App. 3d 871 , 663 N .E.2d 503 (1 996) ( disav owing res gestae since it serves only to conf use the determination of the admissibility of out-of- court statements or evidence of other crimes). Despite defendant's multiple hearsay exception arguments, which, as stated above, are waived, defendant's entire ar gument ultimately fa

ils because he failed to make an offer of proof concerning what Burke a

nd Williams would have testified had the State's objections been overruled. Failing to make an ade quate offer of proof results in a waiver of the issue on appeal. People v. Andrews , 146 Ill. 2d 413, 421, 588 N.E.2d 1126, 1131 (1992). As our supreme c ourt1-05-2636

27

has explained, there are two primary functions of an offer of proof: (1) to disclose to both the trial judge and opposing counsel the nature of the offered evidence, enabling them to take appropriate action, and (2) to provide the revie wing court with a record to determine whe ther exclusion of the evidence was erroneous and harmf ul. People v. Thompkins , 181 Ill. 2d 1, 10, 690 N.E.2d 984, 989 (1998). Therefore, an offe r of proof must be "considerably detailed and specific." People v. Peeples , 155 Ill. 2d 422, 457, 616 N.E.2d 294, 310 (1993). Defendant's final contention is that his sentence is excessive in light of his y oung age and his lack of adult criminal convictions. The trial court sentenced defe ndant to a total of 100 yea rs in the Illinois Department of Corrections; 55 y ears for first degree

murder and a consecutive 45 years f or personally discha

rging a firearm during

the commission of the offense. Defendant was 21 years old a

t the time of sentencing. Defendant' s criminal record reveals that he rec eived probation once as a juvenile for criminal trespass to a vehic le; the probation was terminated satisfactorily in 2001. It is wel l esta blis hed th at a tr ial co urt ha s broa d dis creti onary auth ority in sente ncing a criminal defendant. People v. Stacey , 193 Ill. 2d 203, 209, 737 N.E.2d 626, 629 (2000). An appellate court ty

pically shows g

reat deference to a trial c ourt's sentencing decision since the trial court is in a better position to decide the appropriate sentence. Stacey , 193 Ill. 2d at 209. Accordingly , a trial court's sentencing dec ision is not overturned absent an abuse of discretion. People v. Perruquet ; 68 Il l. 2d 149, 1 53, 11 368 N .E.2d 882, 883-84 (1 977); Pe op le v. Tye , 323 Ill. App. 3d 872, 887 (2001). The Illinois Constitution mandates the balancing of both retributive a nd rehabilitative purposes of punishment. I ll. Const. 19 70, art. I , §11; People v. Quintana , 332 Ill. App. 3d 96, 109, 772 N.E.2d 833, 846 (2002). The trial court is therefore re quired to consider both the1-05-2636

28

seriousness of the offense and the likelihood of restoring the offender to useful citizenship. Quintana , 332 I ll. App. 3d at 109. I n determ ining an appropr iate sen tence, t he trial j udge is furth er requ ired t o cons ider al l fact ors in aggravat ion an d mit igati on whi ch inc ludes defend ant's credibility, demeanor, general moral charac ter, mentality, social environme nts, habits, and age, as well as the nature and circumstances of the c rime. Qunitana , 332 Ill. App. 3d at 109. Here, the trial court weighed e ach of the statutory factors in aggrava

tion and mitigation and determined that no factors in mitigation applied. The trial court did, howe ver, find several aggravating f

actors applicable. Among the aggravating factors, the tria l court found that defendant's conduct caused se rious harm; that he had a history of prior delinquency ; that the sentence was necessary

to deter others from committing the same crime; that defenda nt was convicted of a felony

committed while on bond for another offense; and that defenda nt committed an offense related to orga nized gang activities. Defendant nevertheless arg ues that the 55-ye ar sentence coupled with the 45-y ear sentencing enhancement is tantamount to a life sentenc e for a y oung man whose crime could very well have been fou nd to be se cond deg

ree mur der. While

defenda nt may have be en rela

tively young a t the time of crime, he admitted that he was raised in a good f amily, never wa

nted for anything, a

nd was never subject to any kind of abuse. Defendant further arg

ues that his rehabilitative potential should have been given g reater consideration. The trial judge, however, is not requir ed to detail precisely

for the record the process by whic

h he determined a sentence nor is he requir ed to make an express finding that defendant lacked rehabilitative potential. Quintana , 332 Ill. App. 3d at 109. Here, the trial c ourt specifically f

ound a "recurring patter

n of criminal behavior on the part of the defenda nt" and ultimately

conclude d that he " would be l ikely to commit a

nother crime." T

he trial c ourt base d its1-05-2636

29

conclusion primarily upon the fa ct that defendant murdered Simmons while on bond for a different offense. In any event, a defendant's potential for re habilitation is but one factor for a sentencing court to consider, and it must be weighed ag ainst other countervailing factors, including the seriousness of the crime. People v. Spencer , 229 Ill. App. 3d 1098, 1102, 595 N.E. 219, 221 (1992). To be sure, the most important factor a court considers when deciding a sentence is the seriousness of the offense. Spencer , 229 Ill. App. 3d at 1102. Rehabilitative potential, therefore , is not accorded more weight than any other factor. Spencer , 229 I ll. App. 3d at 1102. I

n this case, de fendant

failed to reconc ile or re

but the tri al judge 's comme nts conce rning hi s prospec

ts for rehabilitation, or otherwise explain why his rehabilitative potential should be given more weight. Defendant also asserts that his sentence is excessive beca use he has no adult criminal record. However, the absenc e of an adult criminal record is not remarkable c onsidering defendant was only

19 years old whe

n he murdered Simmons. Moreover, the record shows that defendant's criminal record include s a narcotics offense, a juvenile adjudication for criminal trespass to a vehicle, and a serious arrest re cord. As mentioned above, defendant was out on bond for a narcotics offense when he killed Simmons. A sentence is deemed excessive and repre sents an abuse of discretion only where "the sentence is greatly

at variance with the spirit and purpose of the law, or manife stly disproportionate to the nature of t he offense." Stacey , 193 Ill. 2d at 210. See 730 I LCS 5/5-8-1(a)(1)(a) (West Supp. 2005) (sentencing range for first degree murder not less than 20 or more than 60 years) ; 730 IL CS 5/5-8-1(a)(1)(d)(iii) (West 2002) (from 25 y ears up to natural life "shall be added" to sentence where de fendant personally discharged firearm ca

using death). Here,1-05-2636

30

defenda nt's sen tence is consiste nt with the

spirit and purpose o f the law , becau se it compl ies with the legislative intent underly ing he enactment of section 5-8-1(a) (1)(d)(iii). 730 ILCS 5/5-8- 1(a)(1)(a) (West Supp. 2005). The trial court has the authority under subsection (d)(iii) to impose an additional 25 y ears to natura l life to a defenda nt's sen tence w hen the de fendant

is found to

have pe rsonally discharged the firearm proximately causing death. The legislature specifically e

nacted subsection (d)(iii) in an effort to deter the use of fire arms in the commission of felonies. People v. Tolbert , 354 Ill. App. 3d 94, 101, 820 N.E.2d 6, 12-13 (2004). Rely ing on both Illinois case law and legislative history, the Tolbert court found that an "offender' s possession and use of a firearm creates a 'unique, perva sive and enhanced danger,' " due to the speed and ease "with which one can acq uire and use a fir earm tha t 'allow s the per

petrator to effo

rtlessly and insta ntaneous ly execute an i ntent to k ill once it is formed.' " Tolbert , 354 Ill . App. 3d at 1 01-02 , quot ing People v. Zapa ta , 347 Ill. App. 3d 956, 971 (2004). We conclude that defendant's sentence is well within statutory requirements and tha t the trial court properly

considered all factors in sentencing de fendant. For the reasons stated above, we af firm defendant's conviction and sentence

. Affirmed. QUINN, P.J., and MURPHY, J., concur.