Appeal from Circuit Court of Macon County No. 98CF1496 Honorable Timothy J. Steadman, Judge Presiding
The opinion of the court was delivered by: Justice Knecht
After a bench trial in January 1999, the trial court convicted defendant, Marlon Pearson, of armed robbery and armed violence. In March 1999, the trial court sentenced him to concurrent prison terms of 48 years and 20 years, respectively. He appeals, contending (1) the State failed to prove him guilty beyond a reasonable doubt because the victims' identifications of him were contradicted by other evidence, (2) the trial court abused its discretion at sentencing by considering the age of the victim as an aggravating factor when age was an element inherent in the armed violence charge against him, and (3) the 48-year sentence was excessive because he was only 20 years old and had the potential to be rehabilitated.
Defendant also challenges the imposition of a 48-year extended-term sentence (730 ILCS 5/5-8-2(a)(2) (West 1996)) for his conviction of the armed robbery of Gerald Gersmehl based on the trial court's finding the victim was over 60 years of age. 730 ILCS 5/5-5-3.2(b)(4)(ii) (West Supp. 1997). Defendant argues his extended-term sentence must be reduced to a term within the regular sentencing range because section 5-5-3.2(b)(4)(ii) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-5-3.2(b)(4)(ii) (West Supp. 1997)) violates the fifth amendment's due process clause (U.S. Const., amend. V) and the sixth amendment's notice and jury trial guarantees (U.S. Const., amend. VI) according to Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999). We affirm.
Gerald and Nina Gersmehl, the victims, both testified at trial. At the time of the incident in question, Gerald was 80 years old and Nina was 81. On October 1, 1998, at about 9 a.m., they were standing next to each other in the garage at their residence in Decatur when a man, whom they both identified in court as defendant, approached them and walked through the open door of the garage. When he was only two to four feet from them he produced a black, small-caliber revolver and demanded their money. There were no cars in the garage to obstruct their view of defendant. After Gerald handed defendant his wallet, defendant stepped close to Nina where he placed his hand on her shoulder and, cocking the hammer on the revolver, held the barrel only 3 to 12 inches from her head. He then ordered her to go inside the house and get her purse.
Nina did not move even though defendant threatened to kill her several times. Nina instead asked defendant to take the money from Gerald's wallet and return it to him. Defendant responded by calling Nina a "bitch" and shoved her into the wall of the garage. Nina was propelled about eight feet. She hit the wall and fell to the floor, where she ended up on her hands and knees. Defendant then left the garage. Gerald saw him turn and walk away at a fast pace down the street.
At the time of the robbery, Gerald was wearing his corrective glasses but Nina was not wearing her bifocals. Both Gerald and Nina stated the robbery occurred quickly and they managed to stay calm.
Gerald ran into the house without stopping to help Nina and called 9-1-1. The police arrived in only a few minutes, while Gerald was still on the phone.
Both Gerald and Nina told the police the robber was wearing dark pants and a black- or dark-hooded sweatshirt with a drawstring to secure the hood, which covered his forehead and chin. They both stated he had no facial hair. Gerald and Nina identified in court the clothing defendant was wearing when apprehended by the police shortly after the robbery as looking like the clothing the robber wore. Gerald positively identified the revolver the officers recovered along defendant's path of flight as the gun used by the robber or its "twin."
Police officers escorted Gerald and Nina to a nearby street where other officers had detained defendant after noting he matched the description given of the robber. Both Gerald and Nina positively identified defendant as the man who had robbed them only 20 minutes before.
In response to Gerald's call and his description of defendant, officers initially observed a man meeting that description a few blocks from the Gersmehls' home riding a bicycle. When defendant turned and noticed he was being followed by a squad car, he pedaled faster and reached beneath his clothes and into his pocket. The officers momentarily lost sight of defendant when he turned on another street. They caught up with defendant but defendant crossed to the other side of the street and onto the sidewalk. Eventually, one squad car pulled in front of defendant and he was forced to stop. They found a $20 bill and four $1 bills in defendant's right front pants pocket. This was the same amount of money Gerald said was in his wallet. Nina stated the robber had placed Gerald's wallet in his pocket.
When the officers retraced defendant's path, they found a .22-caliber black revolver lying on the street where defendant had turned out of their sight. This was the same gun identified by Gerald in court. Fingerprint analysis matched a print on one of the cartridges in the gun to defendant.
At approximately 5 p.m. that same day, William Hickman found a wallet containing Gerald's identification card in the grass at the rear of his rental home about a block and a half from the Gersmehls' residence. There was no money in the billfold section but there was about $100 under a hidden flap. Gerald testified he placed as much as $140 in a hidden compartment of his billfold.
Upon his arrest, defendant told detectives he was at his grandmother's house at the time of the robbery, and his grandmother and sister were there, too. However, his grandmother testified she did not see defendant any time ...