Filed 9/15/08 NO. 4-07-0647

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from

Plaintiff-Appellee, ) Circuit Court of

v. ) Vermilion County

KEVIN POTTER, ) No. 07CF153

Defendant-Appellant. )

) Honorable

) Michael D. Clary,

) Judge Presiding.

_________________________________________________________________

JUSTICE COOK delivered the opinion of the court:

On June 5, 2007, a jury found defendant, Kevin Potter,

guilty on an accountability theory of (1) possession of anhydrous

ammonia with intent to manufacture methamphetamine (720 ILCS

646/25(a) (West 2006)), (2) tampering with anhydrous ammonia

equipment (720 ILCS 646/25(d)(1)(C) (West 2006)), and (3) possession of anhydrous ammonia in an unauthorized container (720 ILCS

646/25(c) (West 2006)). The trial court sentenced Potter to four

years' imprisonment for possession with intent to manufacture and

two years' imprisonment on the remaining convictions, each

sentence to be served concurrently. Defendant appeals, arguing

that he was deprived of a fair trial where the State permitted a

witness to falsely testify that no plea agreement had been

reached in exchange for her testimony. We affirm.

I. BACKGROUND

A. Trial Evidence Concerning Underlying Crime
- 2 -

Three Tennessee residents were involved in the crime at

issue: defendant (age 22), defendant's friend Randall Johnson

(age 32), and Randall's live-in girlfriend Sarah Norman (age 38). 

Defendant and Randall had been friends for many years. Defendant

knew that Randall had previously been incarcerated for manufacturing methamphetamine and had smoked methamphetamine with

Randall in the past. 

According to defendant, on February 25, 2007, defendant

called Randall on the phone several times with no apparent

purpose in mind. At first, Sarah tried to block defendant's

calls. When defendant finally reached Randall, Randall told

defendant he was going on a road trip to see some friends and

purchase some marijuana. Defendant agreed to go with Randall but

did not ask any questions regarding the details of the trip. 

Randall's girlfriend Sarah was upset by this plan and did not

want Randall to use her car because he had previously crashed it. 

Sarah finally conceded to the trip but decided that if Randall

was going to go, she would go as well to ensure the safety of her

car.

Randall and Sarah picked defendant up at his home at

approximately 11 p.m. Randall began driving toward Vermilion

County, Illinois. Defendant testified that he did not really

know where they were headed. Sarah testified that she was not

certain they were headed to Vermilion County but that she had
- 3 -

taken a prior road trip with Randall to Vermilion County, on

which occasion Sarah had stayed in a hotel while Randall stole

anhydrous ammonia. During the seven-hour car ride, the group

ingested methamphetamine and marijuana. Sarah testified that all

three people used methamphetamine, whereas defendant testified

that only Randall and Sarah used methamphetamine. Defendant

testified he smoked only one joint of marijuana. 

According to Sarah, when the group was about half-way

to Danville, Vermilion County, Randall told the group that he

intended to steal anhydrous ammonia from a "place" (i.e., Illiana

Seed agricultural supply company) he had heard about through a

friend. Randall said that he intended to sell the anhydrous

ammonia for $200 to $500 per quart. According to Sarah, defendant reacted to Randall's anticipated profits by saying, "Oh,

really?" Defendant denied that Randall ever broached the subject

of stealing anhydrous ammonia during the trip.

When the group neared Danville, Randall pulled over at

a Wal-Mart store and everyone went inside. Randall purchased a

mask, a set of goggles, and plastic hosing. Defendant testified

he did not notice that Randall purchased these items because he

was busy playing a "claw machine game." Sometime after the trip

to Wal-Mart, defendant took over the driving. Randall gave him

directions on where to go. According to defendant, defendant did

not know where they were headed and he did not ask.
- 4 -

The group reached Illiana Seed at 6:30 a.m. Illiana

Seed is in a flat, rural, open area and has only a few buildings. 

Randall got out of the car carrying a duffel bag containing two

small storage tanks. Randall told defendant to drive away and

return in 5 or 10 minutes. According to defendant, defendant did

not know what Randall was planning to do and he did not ask. 

Defendant also denied seeing the storage tanks contained in the

duffle bag.

Meanwhile, Illiana Seed employees were beginning to

arrive to work. Tom Kentner, the owner of Illiana Seed, testified that as he approached the facility he saw Sarah's car

sitting nearby with a man in the driver's seat. Kentner was

slightly suspicious because he did not recognize the car. 

Kentner then saw white vapor coming from the area of the property

where Illiana Seed stored its anhydrous ammonia. Kentner drove

to the area and saw that one of the tanks was leaking anhydrous

ammonia. Kentner also noticed that someone had attached a hose

to the tank's valve with duct tape and that a duffle bag containing two "frosted up" tanks was lying nearby. Finally, Kentner

saw Randall curled up in a ball behind one of Illiana Seed's big

tanks. Kentner pretended that he did not see Randall, walked

over to his truck, and called the authorities on his cellular

phone. Randall was subsequently arrested without incident. At

the time of his apprehension, Randall was dressed in camouflage
- 5 -

and netting and smelled of ammonia. 

When defendant and Sarah arrived back at Illiana Seed

to pick Randall up, they saw Randall with his hands up against a

squad car. Defendant turned around and started driving the other

way. The police followed and turned on their lights. Defendant

continued to drive at a rate of 55 to 65 miles per hour, though

he did not swerve or accelerate. According to defendant, he

called his mother on his cellular phone to ask what he should do. 

Defendant's mother told him to pull over and so he did.

B. Circumstances Surrounding Sarah's Alleged Plea Agreement

On February 26, 2007, the morning of the crime, Sarah

provided the police with a statement. The content of that

statement is not in the record. On March 6, 2007, however, Sarah

filed an answer to the State's motion for discovery that indicated an intent to plead not guilty and to potentially assert the

defense of lack of criminal intent. 

On June 1, 2007, the trial court held a pretrial

hearing for all three defendants. Robert McIntire represented

both defendant and Randall. The judge asked Sarah's attorney,

Mark Christoff, how he would like to proceed and Christoff

answered, "Judge, we have an agreement." The State then added,

"We'd like to present that later, next week." When the court

suggested taking Randall's plea, the State said, "I'd just as

soon have it done after the trial on [defendant]." The court
- 6 -

stated it would recall the case on June 4, 2007, for the trial of

defendant and for Sarah and Randall's pleas.

On June 4, Randall pleaded guilty (and subsequently

received seven years' imprisonment). The State requested that

the trial court continue Sarah's plea hearing until after she

testified at defendant's trial. Sarah was present when the State

made this request. 

At defendant's trial, defendant's attorney crossexamined Sarah as follows:

"DEFENSE: Now, you're charged in this

case as well, right?

SARAH: Right. 

* * *

DEFENSE: You are set for a plea tomorrow; is that right?

SARAH: Yes.

DEFENSE: And to your understanding, what

are you supposed to get for this plea?

SARAH: I'm not for sure yet.

DEFENSE: So, you don't know what the

plea is going to be?

SARAH: Right.

DEFENSE: But you're testifying here

because of the fact that you do have a deal
- 7 -

to testify against--well, or testify in [defendant's] case; is that right?

SARAH: I've not been offered anything,

if that's what you're asking.

DEFENSE: Well, you understand you don't

have to testify, don't you?

SARAH: No. I didn't know.

DEFENSE: Your lawyer didn't tell you

that you had a [f]ifth[-a]mendment right

against self-incrimination? 

SARAH: No. I thought I would have to

testify.

DEFENSE: Who is your lawyer?

SARAH: Mark Christoff.

* * *

DEFENSE: Do you know if your lawyer's

been offered anything he hasn't told you?

THE STATE: Objection, Your Honor.

THE COURT: Overruled. The answer was

no.

DEFENSE: You don't know what arrangement

your lawyer and Mr. Young have, do you?

SARAH: No.

DEFENSE: But, essentially, you are tes-
- 8 -

tifying here to help yourself in your case;

isn't that true?

SARAH: No. 

* * *

DEFENSE: Has [your lawyer] recommended

that you testify?

SARAH: No.

* * *

DEFENSE: Do you know if you are even

pleading guilty or not tomorrow?

SARAH: I guess I am.

DEFENSE: Okay. Well, do you know--is

that your decision or someone else's?

SARAH: It's mine. I want to go back

home to my kids as soon as I can get this

over with. 

* * *

DEFENSE: And are you hoping that your

testimony here today will help you get out of

jail as soon as possible?

SARAH: No. I know it won't." 

And then, on redirect:

"THE STATE: *** With regards to what

your attorney told you if you took the stand,
- 9 -

what were you to tell the court and the jury?

SARAH: He just told me to tell the

truth." 

Later, defense counsel requested that the State disclose any plea

discussions concerning Sarah. The trial court called Sarah's

attorney Christoff to appear in court. The following exchange

then took place outside the presence of the jury:

"DEFENSE: *** As I understand it, after

talking with [the State] and [Christoff], it

was proposed by the State that [Sarah]

testif[y] against [defendant]. Mr. Christoff

hopes that his client having done so will

result in some benefit for her. His hope is

probation. He has not communicated any particular or specific expectation along those

lines to his client, because there hasn't

been anything formally established. I think

that's a fair statement. I believe he does

think she knows that she does not have to

testify and can choose to testify or not

against [defendant]. Mr. Christoff can correct me if I'm wrong.

CHRISTOFF: That's all true, Judge. 

Nothing has been promised to myself or to
- 10 -

her. The only request from the State was

that she be interviewed and testify truthfully if called to do so.

* * * 

DEFENSE: Well, Judge, what I'm asking be

disclosed to the jury is that there have been

negotiations between the State and [Sarah's]

lawyer, and that [Sarah's] lawyer is hopeful

of some benefit to his client even though ***

nothing has been communicated of any promise

to disposition.

* * *

THE STATE: Your Honor, I think we have

to look at this one, it's what the witness

knew at the time she took the stand. She

didn't have an agreement. To her knowledge,

she didn't have an agreement. That goes to

the interest, bias that she would have, and

she can think what she wants, and testify to

what she was testifying. She testified

truthfully that she did not have a deal. 

There was no deal. There was no agreement

for testimony. The conversations I had with

her attorney, Mr. Christoff, he did not even
- 11 -

relay those to her. She was told to get up

on the stand and testify truthfully. My

conversations with Mr. Christoff certainly

weren't something that she was aware of, so

that certainly can't come into her testifying

with regards to bias. My conversation with

Mr. Christoff, there wasn't a deal. She

testifies, she testifies truthfully, we'll

see.

* * * 

CHRISTOFF: The reason *** I allowed her

to testify without the benefit of an agreement or bargain is because no matter what

happens today, if I don't get the plea agreement I'm seeking with [the State], I still

have the option and am prepared to say ready

for trial, because one of the defenses I plan

to raise on behalf of [Sarah], if I need to,

doesn't have anything to do with the

codefendants in this case. *** I told her I

recommended that she do it because I didn't

think giving truthful testimony would ever

hurt her. But there has been nothing promised as a matter of fact. 
- 12 -

* * * 

THE COURT: *** I don't see that anything

[Sarah] has said is at odds with what counsel's told me so far has happened in her

case. *** [Y]ou are wanting me now to also

somehow submit to the jury that there has

been some negotiation between the State and

the defense, but there's no agreement reached? 

DEFENSE: Yes, Judge.

THE COURT: How is that impacting anything?

DEFENSE: I think, Judge, that it would

[imply] to the jury *** with the dots they

can connect that essentially there is quid

pro quo. The quid is just being withheld

until the pro quo is given. 

THE COURT: So what is it? What's the

quid pro quo?

DEFENSE: Leniency in exchange for the

testimony." 

The parties finally agreed that the trial court would stipulate

to the jury that there had been plea negotiations between the

State and Christoff, but no agreement was reached.
- 13 -

In closing, the defense stated the following regarding

Sarah's potential bias:

"Who would know better than a fellow criminal

about what [defendant] as a criminal supposedly did? Or you could say, as I suggested,

hey, [Sarah's] got something at stake here

too. *** Yeah, she hasn't been promised anything, but does that make it more or less

likely that you would try to help out the

person who is involved in your negotiations?"

The defense suggested that it would be human nature for Sarah to

presume that testifying against defendant would help her get out

of jail. Additionally, the defense stated that, given that Sarah

was represented by an attorney, her testimony that she did not

know she had a fifth-amendment right not to testify was incredible. The jury found defendant guilty as stated.

On June 6, 2007, the day after she testified at defendant's trial, Sarah pleaded guilty to attempt (possession of

methamphetamine). In exchange, the State agreed to request

first-offender probation and drop the remaining charges, which

were the same charges for which defendant had been convicted. 

Christoff informed the trial court that the plea agreement had

been reached that day over lunch. Christoff, noting that Sarah

had already served five months in jail and had testified truth-
- 14 -

fully in defendant's trial, then requested that the court reduce

Sarah's bond from $500,000 (10%) to $50,000 (10%). The court

went beyond that request and reduced Sarah's bond to $20,000

(10%). At a subsequent sentencing hearing, the court sentenced

Sarah to probation.

On July 25, 2007, the trial court held a hearing on

defendant's motion for a new trial. Defendant argued that the

proceedings and circumstances surrounding Sarah's plea deal

indicated that there had been at a minimum a "tacit understanding" between Sarah's attorney Christoff and the State at the time

of defendant's trial. The court denied defendant's motion. The

court indicated it did not believe there had been an agreement

between Christoff and the State. In any case, the court noted

there was a lack of prejudice because Sarah's testimony did not

differ greatly from defendant's and because circumstantial

evidence other than Sarah's testimony also implicated defendant. 

The court sentenced defendant as stated. This appeal followed.

II. ANALYSIS

Defendant argues that he was deprived of a fair trial

because the State permitted Sarah to falsely testify that no plea

agreement had been reached in exchange for her testimony. In

support of his assertion that a plea agreement did in fact exist,

defendant notes that the week before defendant's trial, attorney

Christoff indicated that he had an agreement with the State
- 15 -

regarding Sarah's plea, and the State indicated it would like to

wait until after defendant's trial before the court entered any

pleas as to either Sarah or Randall. However, during defendant's

trial and outside the presence of the jury, Christoff denied that

an official agreement existed, claimed he only "hoped" Sarah

would receive probation in exchange for her testimony, and told

the court that he recommended that Sarah testify simply because

there would be no harm in testifying truthfully. Defendant

argues that this statement rings hollow because, clearly, Sarah

did incriminate herself by her testimony. Moreover, the State,

in its representations to the court, seemed to evade the question

of whether an agreement actually existed, stating, "To her

knowledge, she didn't have an agreement. *** My conversations

with Mr. Christoff certainly weren't something that she was aware

of. *** She testifies, she testifies truthfully, we'll see." 

Finally, at Sarah's plea hearing held the day after she testified

at defendant's trial, Christoff and the State told the court that

Sarah had testified truthfully in defendant's trial, and the

State recommended probation, which the court ultimately granted. 

Additionally, the State amended Sarah's possession charge to the

lesser offense of attempt and dismissed the remaining two charges. 

A conviction obtained by the use of false evidence,

known to be such by representatives of the State, violates a
- 16 -

defendant's due-process rights. Napue v. Illinois, 360 U.S. 264,

269, 3 L. Ed. 2d 1217, 1221, 79 S. Ct. 1173, 1177 (1959). If

false evidence is introduced to the jury, the State is required

to correct it, whether the State solicited the false evidence or

not. Napue, 360 U.S. at 269, 3 L. Ed. 2d at 1221, 79 S. Ct. at

1177. This principle holds true even if the false evidence does

not directly implicate the defendant, but instead speaks to

witness credibility. Napue, 360 U.S. at 269, 3 L. Ed. 2d at

1221, 79 S. Ct. at 1177. "The jury's estimate of the truthfulness and reliability of a given witness may well be determinative

of guilt or innocence." Napue, 360 U.S. at 269, 3 L. Ed. 2d at

1221, 79 S. Ct. at 1177.

The motivation that a given witness may have for

testifying against a defendant, such as the hope or promise of

leniency in his own pending case, is relevant to the jury's

determination of that witness's credibility. The State does not

have an affirmative duty to disclose promises of leniency in

exchange for witness testimony. People v. Pecoraro, 175 Ill. 2d

294, 313, 677 N.E.2d 875, 885 (1997). At the same time, if a

witness falsely testifies that the State has made no promises of

leniency, the State must correct the falsity. See People v.

Ellis, 315 Ill. App. 3d 1108, 1114, 735 N.E.2d 736, 742 (2000). 

The agreement between the State and the testifying witness need

not be a formal contract, as "'due process of law cannot hinge
- 17 -

upon such "gossamer distinctions."'" Ellis, 315 Ill. App. 3d at

1114-15, 735 N.E.2d at 742, quoting People v. Jimerson, 166 Ill.

2d 211, 227, 652 N.E.2d 278, 286 (1995), quoting People v.

McKinney, 31 Ill. 2d 246, 250, 201 N.E.2d 431, 433. Instead, the

witness simply must have reached an understanding with the State

that he would receive a distinct benefit by testifying against

the defendant. Ellis, 315 Ill. App. 3d at 1114, 735 N.E.2d at

742. The State should not allow the jury to be misled regarding

the leverage that the State may have had over the testifying

witness. People v. McMillan, 239 Ill. App. 3d 467, 493, 607

N.E.2d 585, 603 (1993).

The question of whether some sort of an agreement

between the State and the witness existed is one of fact. See,

for example, People v. Griffin, 109 Ill. 2d 293, 308, 487 N.E.2d

599, 605 (1985); People v. Bassett, 56 Ill. 2d 285, 293, 307

N.E.2d 359, 364 (1974). A bargain may be inferred from such

circumstances such as the timing of the defendant's trial in

relation to the witness's plea hearing and actual results of

leniency at the witness's hearing. See Ellis, 315 Ill. App. 3d

at 1114, 735 N.E.2d at 742. However, more than just a positive

result for the testifying witness is needed to infer that a deal

existed. People v. Harris, 55 Ill. 2d 15, 17, 302 N.E.2d 1, 2-3

(1973).

In People v. Nino, 279 Ill. App. 3d 1027, 1034, 665
- 18 -

N.E.2d 847, 852 (1996), the court found that the State improperly

misled the jury regarding its dealings with witness Aldava. 

There, Aldava testified at the defendant's murder trial that he

(Aldava) was currently in custody for residential burglary and

arson and could potentially be sentenced to 15 years' imprisonment. Nino, 279 Ill. App. 3d at 1035, 665 N.E.2d at 852. The

following exchange then took place:

"'[DEFENSE:] You're kind of hoping the

State is going to give you a deal if they

haven't already, is that correct?

[ALDAVA:] No. They ain't give me no

deal.

[DEFENSE:] Are you kind of hoping that

they do?

[ALDAVA:] Hope, hoping.

[DEFENSE:] Hoping.

[ALDAVA:] But I know I'm not going to

get it.

[DEFENSE:] You know you're not going to

get it?

[ALDAVA:] Correct.

[DEFENSE:] Is there a reason why your

case has been continued about three times

until after you testify in this case before
- 19 -

it's disposed of?

[ALDAVA:] No.

[DEFENSE:] If you're not going to get a

deal, why don't you just set the case for

trial or your lawyer set the case for trial?

[ALDAVA:] I don't know.

[DEFENSE:] He doesn't tell you why? 

[ALDAVA:] Nope.'" Nino, 279 Ill. App.

3d at 1035-36, 665 N.E.2d at 853.

The day after the jury found the defendant guilty, Aldava's

pending cases were disposed of pursuant to a negotiated disposition. Aldava's attorney admitted that, prior to the defendant's

trial, he had preliminary discussions with the State regarding

Aldava's pending charges. The State would not dispose of Aldava-

's case until after the defendant's trial. The State later

testified this had nothing to do with Aldava's disposition, but

"'had everything to do with the fact that he couldn't be a

convicted felon at the time he testified, which is another form

of impeachment.'" (Emphasis omitted.) Nino, 279 Ill. App. 3d at

1036, 665 N.E.2d at 853. Under these circumstances, the court

determined that the State purposefully manipulated the timing of

Aldava's pending cases, thereby allowing Aldava's testimony to

appear in a misleading light and thereby preventing Aldava's

credibility from being impeached before the jury. Nino, 279 Ill.
- 20 -

App. 3d at 1037, 665 N.E.2d at 853-54; compare McMillan, 239 Ill.

App. 3d at 494, 607 N.E.2d at 604 (where the only evidence to

suggest there had been an agreement was that after the witness

testified in the defendant's case, the witness's murder charges

were dropped, and the witness pleaded guilty to armed robbery). 

The facts of the instant case bear strong similarity to

the facts in Nino. Like the witness in Nino, Sarah gave the jury

the impression that she was simply testifying in the interest of

truth and justice by stating that she "knew" her testimony would

not help her get any preferential treatment and that her attorney

gave her minimal advice as to whether she should testify. 

However, also like the witness in Nino, Sarah's case was essentially disposed of the day after she testified in defendant's

trial, and the record indicated that the timing of Sarah's

disposition had been manipulated so that she could not be impeached on the stand. Moreover, in this case, Sarah's counsel

indicated to the court a few days before defendant's trial that

Sarah had an "agreement" with the State regarding Sarah's plea. 

The State did not deny this, but twice indicated that it would

like Sarah's plea taken the following week, after defendant's

trial. The circumstances of this case involve more than the

coincidence of the testifying witness later receiving a lenient

sentence. 

One can infer from the circumstances of this case that
- 21 -

an agreement did in fact exist between Sarah's attorney and the

State. See Ellis, 315 Ill. App. 3d at 1114, 735 N.E.2d at 742

(an agreement need not be formal to be labeled as such so long as

it is clear to the witness that he will be receiving a distinct

benefit by testifying). To tell the jury that Christoff and the

State had negotiated without reaching agreement seems to

mischaracterize what really happened. Christoff and the State

initially represented to the trial court that they had an agreement but that they would delay the agreement until after Sarah

testified. At defendant's trial, the State seemed to evade the

question of whether an agreement existed by emphasizing that

Sarah herself was not aware of any negotiations and by implying

that whether any agreement would come to pass would depend upon

whether Sarah testified truthfully. Conditioning the activation

of the agreement on Sarah's truthful testimony sounds like an

agreement by any definition of the word. Finally, immediately

following defendant's trial, Sarah received a favorable disposition, indicating that Christoff and the State's initial representations to the court were accurate. For the reasons stated, the

trial court's finding that the jury was not misled as to the

degree of leverage the State had over Sarah is against the

manifest weight of the evidence. 

There is also the question of whether it matters that

Sarah herself knew of the agreement in order to find that the
- 22 -

State allowed Sarah's testimony to be presented in a misleading

light. To highlight this issue, we point to the State's evasive

representations to the trial court as to whether it had reached

an agreement with Christoff: "To [Sarah's] knowledge, she didn't

have an agreement. *** My conversations with Mr. Christoff

certainly weren't something that she was aware of ***. She

testifies, she testifies truthfully, we'll see." In dicta, our

supreme court has indicated that where the attorney for the

witness keeps the witness in the dark concerning the agreement

with the State, the witness's representation to the jury that no

agreement existed cannot be considered incredible or misleading. 

Griffin, 109 Ill. 2d at 308, 487 N.E.2d at 605. However, other

jurisdictions have made findings to the contrary. In Hayes v.

Brown, 399 F.3d 972, 980-81 (9th Cir. 2005), the court held that

the State violated due process when it allowed a witness to deny

that the State had offered to drop pending charges against him in

exchange for his testimony even though the witness's testimony

was not perjury because the witness had been deliberately kept

uninformed of the agreement between his counsel and the State. 

The Hayes court reasoned that due process protects defendants

from the knowing use of any false evidence by the State, and

"that the witness was tricked into lying on the witness stand by

the State does not *** insulate the State from conforming its

conduct to the requirements of due process." Hayes, 399 F.3d at
- 23 -

981. The court further noted that the witness's counsel may have

influenced the content of the testimony, whether deliberately or

not, and that the fact that the witness was not complicit in the

falsehood gave it the ring of truth, thereby making the falsehood

more dangerous, not less so. Hayes, 399 F.3d at 981. In any

case, we note that Sarah was present at the pretrial hearing when

the State specified that it wanted to wait until after she

testified before it accepted her plea, so we have our doubts as

to whether Sarah was completely uninformed as to the benefits she

could receive in exchange for her testimony. 

While it appears that the State allowed the jury to be

misled as to the degree of leverage it had over Sarah, we cannot

say the State's failure to correct the inaccuracy of Sarah's

testimony regarding her plea agreement led to defendant's guilty

verdict. "A conviction obtained by the knowing use of perjured

testimony must be set aside if there is [a] reasonable likelihood

that the false testimony could have affected the jury's verdict." 

People v. Olinger, 176 Ill. 2d 326, 349, 680 N.E.2d 321, 333

(1997). Here, it is uncontested that defendant aided Randall in

the commission of these offenses by driving the car to the

anhydrous ammonia tanks. The only question is whether defendant

intended to do so. Evidence establishing intent is usually

circumstantial. People v. Moreno, 334 Ill. App. 3d 329, 344, 778

N.E.2d 180, 191 (2002). The evidence in this case overwhelmingly
- 24 -

indicates defendant's intent.

Defendant had known Randall for many years. By his own

admission, he had used methamphetamine with Randall in the past

and knew Randall manufactured methamphetamine. Defendant dropped

Randall off at an industrial setting where anhydrous ammonia was

being stored. Upon arriving to pick up Randall, defendant saw

the police and attempted to flee the scene. Three police cars

drove alongside defendant at 55 to 65 miles per hour with flashing lights before defendant finally pulled over. See People v.

Johnson, 105 Ill. App. 2d 204, 206, 245 N.E.2d 85, 86 (1969)

(evidence that the defendant fled from arrest is admissible to

show guilt). 

Additionally, defendant's alternative explanation is

implausible. If a defendant chooses to give an explanation for

an incriminating situation, "he should provide a reasonable story

or be judged by its improbabilities." People v. Shevock, 335

Ill. App. 3d 1031, 1037-38, 782 N.E.2d 949, 954-55 (2003). Here,

defendant expected the jury to believe that he decided to go on a

seven-hour road trip in the middle of the night, without ever

inquiring as to the final destination. Defendant apparently did

not find it odd to drive seven hours to purchase marijuana from a

friend. Defendant further expected the jury to believe that he

did not notice or inquire into Randall's curious Wal-Mart purchases, which included a mask, a set of goggles, and rubber
- 25 -

hosing. Defendant also failed to inquire as to why he was being

instructed to drop Randall off in a field with a large duffle bag

concealing two empty tanks near a facility that stored farming

supplies such as anhydrous ammonia and to return in 5 to 10

minutes.

Because we find the evidence against defendant overwhelming independent of Sarah's testimony, we choose not to

address defendant's alternative argument that the trial court

erred in not informing jurors that Sarah's attorney "hoped" for a

sentence of probation based upon his negotiations with the State.

III. CONCLUSION

For the aforementioned reasons, we affirm the trial

court's judgment. As part of our judgment, we grant the State

its statutory assessment of $50 against defendant as costs of

this appeal. 

Affirmed.

 KNECHT and STEIGMANN, JJ., concur.