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03/09/88 the People of the State of v. Kenneth E. Neither

March 9, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

KENNETH E. NEITHER, JR., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

520 N.E.2d 1247, 166 Ill. App. 3d 896, 117 Ill. Dec. 896 1988.IL.327

Appeal from the Circuit Court of Champaign County; the Hon. Harold L. Jensen, Judge, presiding.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. KNECHT and LUND, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

On April 2, 1987, defendant Kenneth E. Neither, Jr., was charged by indictment in the circuit court of Champaign County with one count of armed robbery, a Class X felony (Ill. Rev. Stat. 1985, ch. 38, par. 18-2(a)). Specifically, the indictment alleged that on March 13, 1987, the defendant, "while armed with a dangerous weapon, a knife, took property, being United State's [ sic ] currency, from the presence of Leonard B. Biehl, by threatening the imminent use of force."

A jury trial commenced on June 16, 1987. The evidence adduced at trial will be discussed where relevant to the issues presented. At the Conclusion of the trial, the jury found the defendant guilty of the offense of armed robbery.

On July 10, 1987, defendant filed a post-trial motion and a motion to declare sections 4.7 and 21 of the Alcoholism and Substance Abuse Act (the Act) (Ill. Rev. Stat. 1985, ch. 111 1/2, pars. 6304.7, 6321) unconstitutional. On July 13, 1987, defendant filed a petition for election of treatment under section 21 of the Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 6321). Defendant's motions were heard and denied on July 13, 1987. Thereafter defendant was sentenced to 12 years' imprisonment with credit for 123 days served.

Defendant now appeals his conviction and sentence. Defendant also appeals the finding that he was ineligible for probation and drug treatment under section 21 of the Alcoholism and Substance Abuse Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 6321), and challenges the constitutionality of that statute.

Defendant first contends that he was not proved guilty of armed robbery beyond a reasonable doubt. Specifically, defendant argues that the State failed to prove he was armed with a dangerous weapon. Defendant asserts that the arresting officers found no weapon and that none was offered into evidence. Defendant further asserts that although a knife sheath was admitted into evidence, this sheath bore the name of a different individual and was smaller than the weapon described by the victim, Leonard Biehl. Finally, defendant contends that Biehl's testimony as to the weapon involved in the crime should not be "found credible" because Biehl only viewed the object for a brief period of time and never saw the object out of the defendant's hand.

The State contends that Biehl's clear and unequivocal testimony and the knife sheath found underneath the driver's seat in defendant's car were sufficient to prove beyond a reasonable doubt that defendant was armed with a dangerous weapon.

It is the function of the jury to weigh the evidence, Judge the credibility of the witnesses, and determine factual matters in a conflicting set of circumstances. (People v. Dillon (1975), 28 Ill. App. 3d 11, 327 N.E.2d 225.) Where the evidence on an issue is conflicting but legally sufficient if the prosecution's witnesses are believed, the question is for the trier of fact. (People v. Carpenter (1963), 28 Ill. 2d 116, 190 N.E.2d 738.) The testimony of a single witness, even if it be that of a crime victim and even if it is contradicted by the accused, is sufficient to convict if that testimony is positive and credible. (People v. Daily (1968), 41 Ill. 2d 116, 242 N.E.2d 170, cert. denied (1969), 395 U.S. 966, 23 L. Ed. 2d 752, 89 S. Ct. 2112.) Only where the evidence is so improbable as to raise a reasonable doubt of guilt will a reviewing court disturb the jury's determination of guilt. People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.

The defendant here was charged with the offense of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-2), which required the State to prove that the defendant took property from the person or presence of another by use of force or by threatening the use of force while armed with a dangerous weapon. (See People v. Ditto (1981), 98 Ill. App. 3d 36, 424 N.E.2d 3; People v. Carr (1986), 149 Ill. App. 3d 918, 501 N.E.2d 241.) Certain weapons, such as knives and operative guns, are dangerous as a matter of law whenever they are in the possession of a robber, even when their sole role in the robbery was display, in order to put the victim in fear, or when they played no role in the robbery whatsoever. (People v. Elam (1972), 50 Ill. 2d 214, 278 N.E.2d 76; People v. De La Fuente (1981), 92 Ill. App. 3d 525, 414 N.E.2d 1355.) Where the character of the instrument is in issue, it is for the jury to determine whether it was dangerous. (People v. Dwyer (1927), 324 Ill. 363, 155 N.E.2d 316; People v. Agee (1980), 85 Ill. App. 3d 74, 405 N.E.2d 1245.) Convictions for armed robbery have been sustained even though the weapon itself is neither seen nor accurately described by the victim. People v. Elam (1972), 50 Ill. 2d 214, 278 N.E.2d 76; People v. Dupree (1979), 69 Ill. App. 3d 260, 387 N.E.2d 391.

We have reviewed the record and conclude that there is sufficient credible evidence to sustain the conviction. The victim, Leonard Biehl, testified that he was working alone as a cashier at the Convenient store in Urbana, Illinois, at 5:45 a.m. on March 13, 1987. According to Biehl, a male customer came into the store by himself and asked for cigarettes. As Biehl gave the man the cigarettes, the man pulled a knife from his right coat pocket and pointed it at Biehl's stomach. Biehl indicated that the man held the knife with his right hand extended and his elbow slightly bent. Biehl described the knife as a three-inch hunting knife with a double-edged blade on both sides, coming to a point. Biehl saw the blade, but not the handle since the man's hand was covering it. Biehl initially refused to open the drawer to the cash register. The man then began punching the keys with the knife tip, but the drawer did not open. Biehl then opened the register, believing that if he did not the man would come around the counter with the knife. Biehl identified the man as the defendant. On cross-examination Biehl stated ...


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