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12/22/94 PEOPLE STATE ILLINOIS v. ANTHONY ROBINSON

December 22, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ANTHONY ROBINSON, DEFENDANT-APPELLANT.



APPEAL FROM CIRCUIT COURT OF COOK COUNTY. HONORABLE FRED G. SURIA, JUDGE PRESIDING.

Petition for Leave to Appeal Denied December 6, 1995.

Presiding Justice Cousins delivered the opinion of the court: Murray* and Gordon, JJ., concur.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

Following a jury trial, the defendant, Anthony Robinson, was found guilty of armed robbery. Pursuant to the Habitual Criminal Act (Ill Rev. Stat. 1989, ch. 38, pars. 33B-1 et seq. (now 720 ILCS 5/33B-1 et seq. (West 1992), the trial court sentenced him to a term of natural life without the possibility of parole. Defendant appeals his conviction and sentence.

The issues presented for review are (1) whether the trial court abused its discretion by admitting "other crimes" evidence to demonstrate modus operandi, (2) whether the State proved defendant guilty of armed robbery beyond a reasonable doubt, (3) whether the Habitual Criminal Act is unconstitutional, and (4) whether the State satisfied the requisite burden of proof to have defendant sentenced pursuant to the Habitual Criminal Act.

We affirm.

BACKGROUND

At trial, Geneva Brown testified that, on March 24, 1990, she lived at 7933 South Champlain, in Chicago and that she co-owned a 1986 Chevrolet Celebrity automobile with her daughter. After a day of shopping, the victim backed her car into her garage. As she was gathering her groceries from the back seat of her vehicle, a man stood behind her and put his hand over her mouth and around her neck. The victim said, "Stop playing with me." The man responded, "Bitch, I'm not playing with you." The man spun the victim around.

The offender, who was wearing a ski mask and holding a knife with a white handle, started pushing the victim. He then knocked her to the ground and started hitting her on her head. This encounter took place towards the rear of the victim's car. The defendant told her that he would beat her to death.

He groped her bosom, ran his hands up her girdle and arm sleeves, and then asked her the location of her money. She pointed to the car. He then went to the car, grabbed her purse, took at least $10 dollars, yanked the victim's four diamond rings from her fingers, took her garage door opener, opened the garage, and ran away. The victim noticed that the man was not wearing gloves and that he touched her car. The victim described her assailant as being a black male, 175 pounds, 5 feet and 10 inches tall, and wearing a white hood with black spots. Defendant was ultimately taken to the police station and arrested.

A Chicago police officer testified that on March 31, 1990, he had defendant, who was in lockup, place his fingerprints on a fingerprint card. A Chicago police department evidence technician also testified that he lifted fingerprint number 19 from the left rear door of the victim's automobile. A latent fingerprint examiner testified that after comparing latent fingerprint number 19 with the eighth fingerprint depicted on defendant's fingerprint card, she believed that both impressions were made by the finger of the same man.

The State filed a motion in limine seeking to admit evidence of other crimes at defendant's jury trial. The State sought admission of "other crimes" evidence testimony from Lillie Barber *fn1 (Barber) and a prior victim named Eloise Laws (Laws). The trial court allowed Barber's testimony for common scheme and design, but denied any testimony from Laws.

Barber testified that on March 16, 1990, the defendant was wearing a mask when he accosted her in her garage. She tore off his mask and tried to fight him. Defendant pulled a switchblade out of his pocket, ordered Barber to lie on the ground, hit her, pulled down her pants, invaded her pockets, took her money, and announced that he was going to have sex with her. Barber replied that she was diseased and defendant, while hitting her, told her that she could do other things.

Barber then told defendant that her garage mate would soon return and that he should leave. The defendant then put Barber's coat over her head, patted on her person, and fled. Barber got up, ran to the house, and told someone to call the police. She identified defendant in a lineup on March 31, 1990.

Barber told the police that her assailant was a black male, about 30 years old, 5 feet 6 inches tall, with a dark complexion and no visible scars. He was wearing blue jeans and a white knit face mask.

Following trial, the jury found defendant guilty of armed robbery. At the sentencing hearing, the State presented certified copies of 1978 and 1984 convictions for armed robberies. The State also asked the court to take judicial notice of defendant's conviction in Robinson I. The State asked that defendant be sentenced as an habitual criminal pursuant to section 33B-1 of the Illinois Criminal Code (now 720 ILCS 5/33B 1 West 1992)).

Defendant, at the sentencing hearing, contended that the sentence for the 1984 conviction was not for armed robbery. *fn2 The trial court ruled that the certified copies of convictions in this case were sufficient and adjudged that defendant was an habitual criminal under the Habitual Criminal Act. Ill. Rev. Stat. 1989, ch. 38, pars. 38B-1, 33B-2 (now 720 ILCS 5/33B-1, 33B-2 (West 1992)).

I

Defendant contends that the trial court abused its discretion by admitting "other crimes" evidence to demonstrate modus operandi. Specifically, defendant asserts that the admission of defendant's prior armed robbery of Barber (Robinson I) was neither probative nor substantially similar to identify or establish modus operandi and that such information inflamed the jury.

We disagree.

The State contends that the common law record does not reveal that a post-trial motion on other crimes had been made and, as a result, the defendant has waived his contention that the trial court erred in admitting evidence of other crimes. However, the State does acknowledge that the record of proceedings at defendant's sentencing hearing indicates that defendant indeed filed both a motion and a pro se motion for a new trial, albeit the record does not clearly indicate whether the "other crimes" evidence issue was included in such motion. We cannot conclude that a motion on other crimes was not filed. We elect to consider the "other crimes" evidence issue.

The admissibility of evidence at trial is a matter within the trial court's discretion, and that court's decision may not be overturned onappeal absent a clear abuse of that discretion. ( People v. Illgen (1991), 145 Ill. 2d 353, 364, 583 N.E.2d 515, 164 Ill. Dec. 599.) And, an abuse of discretion will be found only where the trial court's decision is arbitrary, fanciful, unreasonable, or ...


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