September 10, 2001

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JUSTICE KNECHT delivered the opinion of the court:

After a bench trial in January 1999, the trial courtconvicted defendant, Marlon Pearson, of armed robbery and armedviolence. In March 1999, the trial court sentenced him toconcurrent prison terms of 48 years and 20 years, respectively. He appeals, contending (1) the State failed to prove him guiltybeyond a reasonable doubt because the victims' identifications ofhim were contradicted by other evidence, (2) the trial courtabused its discretion at sentencing by considering the age of thevictim as an aggravating factor when age was an element inherentin the armed violence charge against him, and (3) the 48-yearsentence was excessive because he was only 20 years old and hadthe potential to be rehabilitated.

Defendant also challenges the imposition of a 48-yearextended-term sentence (730 ILCS 5/5-8-2(a)(2) (West 1996)) forhis conviction of the armed robbery of Gerald Gersmehl based onthe 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 argueshis extended-term sentence must be reduced to a term within theregular sentencing range because section 5-5-3.2(b)(4)(ii) of theUnified Code of Corrections (Unified Code) (730 ILCS 5/5-5-3.2(b)(4)(ii) (West Supp. 1997)) violates the fifth amendment'sdue 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. 2d435, 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 testifiedat trial. At the time of the incident in question, Gerald was 80years 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 theirresidence in Decatur when a man, whom they both identified incourt as defendant, approached them and walked through the opendoor of the garage. When he was only two to four feet from themhe produced a black, small-caliber revolver and demanded theirmoney. There were no cars in the garage to obstruct their viewof defendant. After Gerald handed defendant his wallet, defendant stepped close to Nina where he placed his hand on hershoulder and, cocking the hammer on the revolver, held the barrelonly 3 to 12 inches from her head. He then ordered her to goinside the house and get her purse.

Nina did not move even though defendant threatened tokill her several times. Nina instead asked defendant to take themoney from Gerald's wallet and return it to him. Defendantresponded by calling Nina a "bitch" and shoved her into the wallof the garage. Nina was propelled about eight feet. She hit thewall and fell to the floor, where she ended up on her hands andknees. Defendant then left the garage. Gerald saw him turn andwalk away at a fast pace down the street.

At the time of the robbery, Gerald was wearing hiscorrective glasses but Nina was not wearing her bifocals. BothGerald and Nina stated the robbery occurred quickly and theymanaged to stay calm.

Gerald ran into the house without stopping to help Ninaand 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 waswearing dark pants and a black- or dark-hooded sweatshirt with adrawstring to secure the hood, which covered his forehead andchin. They both stated he had no facial hair. Gerald and Ninaidentified in court the clothing defendant was wearing whenapprehended by the police shortly after the robbery as lookinglike the clothing the robber wore. Gerald positively identifiedthe revolver the officers recovered along defendant's path offlight as the gun used by the robber or its "twin."

Police officers escorted Gerald and Nina to a nearbystreet where other officers had detained defendant after notinghe matched the description given of the robber. Both Gerald andNina positively identified defendant as the man who had robbedthem only 20 minutes before.

In response to Gerald's call and his description ofdefendant, 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 asquad car, he pedaled faster and reached beneath his clothes andinto his pocket. The officers momentarily lost sight of defendant when he turned on another street. They caught up withdefendant but defendant crossed to the other side of the streetand onto the sidewalk. Eventually, one squad car pulled in frontof defendant and he was forced to stop. They found a $20 billand four $1 bills in defendant's right front pants pocket. Thiswas the same amount of money Gerald said was in his wallet. Ninastated the robber had placed Gerald's wallet in his pocket.

When the officers retraced defendant's path, they founda .22-caliber black revolver lying on the street where defendanthad turned out of their sight. This was the same gun identifiedby Gerald in court. Fingerprint analysis matched a print on oneof the cartridges in the gun to defendant.

At approximately 5 p.m. that same day, William Hickmanfound a wallet containing Gerald's identification card in thegrass at the rear of his rental home about a block and a halffrom 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 athis grandmother's house at the time of the robbery, and hisgrandmother and sister were there, too. However, his grandmothertestified she did not see defendant any time on October 1 and hadlast seen him several weeks earlier.

The police officers testified defendant had a mustachewhen he was apprehended. Nina testified defendant had a mustacheat the time of trial and described it as being a "thin" mustache. Defendant first argues the identification of him as theperpetrator of the offenses was inadequate to prove him guiltybeyond a reasonable doubt. He correctly notes both Gerald andNina initially described their assailant as clean-shaven but heactually had a mustache as noted by the police officers whoapprehended him. He contends the fact the robbery occurredquickly did not leave the Gersmehls time to see their assailantwell. Further, he notes the fact Nina was not wearing herbifocals at the time and Gerald testified his level of anxietywas increased during the robbery. He argues these factorscontributed to less than ideal circumstances for viewing theirassailant.

The standard of review on a challenge to the sufficiency of the evidence is whether, after viewing the evidence inthe light most favorable to the State, a rational trier of factcould have found the essential elements of the crime beyond areasonable doubt. People v. Minniweather, 301 Ill. App. 3d 574,

577, 703 N.E.2d 912, 913 (1998). As for witness identificationof the accused, a single witness' identification is sufficient tosustain a conviction if the witness viewed the accused undercircumstances permitting a positive identification. People v.Slim, 127 Ill. 2d 302, 307, 537 N.E.2d 317, 319 (1989). Inassessing the reliability of identification testimony, courtsconsider (1) the opportunity for the witness to view the perpetrator at the time of the incident; (2) the witness' degree ofattention; (3) the accuracy of the witness' prior description;(4) the level of certainty of the witness at the subsequentidentification; and (5) the length of time between the crime andthe identification. Slim, 127 Ill. 2d at 307-08, 537 N.E.2d at319. Discrepancies and omissions as to facial and other physicalfeatures are not fatal but affect the weight to be given theidentification testimony. Slim, 127 Ill. 2d at 308, 537 N.E.2dat 319. A witness is not expected or required to distinguishindividual and separate features of a suspect in making anidentification. Slim, 127 Ill. 2d at 308-09, 537 N.E.2d at 320. A witness' positive identification is sufficient even though thewitness gives only a general description based on the totalimpression the accused's appearance made. Slim, 127 Ill. 2d at 309, 537 N.E.2d at 320.

In this case, both Gerald and Nina faced the accused at9 a.m. in their garage from only two to four feet away. Althoughthe robbery took place quickly, both of them remained calmthroughout. Nina never testified or implied she had troubleseeing the robber as a result of not wearing her bifocals. Theyboth described the robber's clothing and stated the clothingshown them in court, taken from defendant, looked like thatclothing. They described the robber as wearing a sweatshirt witha hood tied around his head, which revealed the area from hisforehead to just below his chin. Gerald positively identifiedthe revolver linked to defendant as the weapon used in therobbery. Finally, both Gerald and Nina identified defendant astheir assailant within 15 to 20 minutes of the occurrence.

The fact Gerald and Nina failed to notice defendant hada mustache is not fatal to their positive identification. AsNina noted in her testimony, defendant had a dark complexion andthe mustache she noticed on him in court was "thin." It mightnot have been readily noticeable to the untrained observer whileit was noticeable to the police officers, presumably trained tomake observations helpful in identifications. The totality ofthe evidence, coupled with the identification of defendant,indicates ample evidence supported a finding of guilt beyond areasonable doubt.

Defendant next argues his extended-term sentence forarmed robbery must be reduced to a term within the regularsentencing range because section 5-5-3.2(b)(4)(ii) of the UnifiedCode (730 ILCS 5/5-5-3.2(b)(4)(ii) (West Supp. 1997)) violatedthe 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, 530 U.S. 466, 147 L.Ed. 2d 435, 120 S. Ct. 2348, and Jones, 526 U.S. 227, 143 L. Ed.2d 311, 119 S. Ct. 1215. We disagree.

Section 5-8-1(a)(3) of the Unified Code provides thesentence for the Class X felony of armed robbery shall not beless than 6 years or more than 30 years. 730 ILCS 5/5-8-1(a)(3)(West 1996). Section 5-5-3.2(b)(4)(ii), however, provides:

"(b) The following factors may be considered by the court as reasons to impose anextended[-]term sentence under [s]ection 5-8-2 upon any offender:

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(4) When a defendant is convicted of any felony committedagainst:

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(ii) a person 60years of age or older atthe time of the offenseor such person's property." 730 ILCS 5/5-3.2

(b)(4)(ii) (West 1996).

Section 5-8-2(a)(2) provides:

"(a) A judge shall not sentence an offender to a term of imprisonment in excess ofthe maximum sentence authorized by [s]ection5-8-1 *** unless the factors in aggravationset forth in paragraph (b) of [s]ection 5-5-3.2 were found to be present. Where thejudge finds that such factors were present,he may sentence an offender to the following:

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(2) for a Class X felony, a term shallnot be less than 30 years and not more than60 years." 730 ILCS 5/5-8-2(a)(2) (West1996).

In Apprendi, the Supreme Court held that, "[o]ther thanthe fact of a prior conviction, any fact that increases thepenalty for a crime beyond the prescribed statutory maximum mustbe submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at2362-63 (confirming the opinion expressed in Jones, 526 U.S. at251-52, 143 L. Ed. 2d at 331, 119 S. Ct. at 1228, that, withregard to federal law, the fifth amendment's due process clauseand the sixth amendment's notice and jury trial guaranteesrequire that any fact other than prior conviction that increasesthe maximum for a crime must be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt). In reliance thereon, defendant contends that section 5-5-3.2(b)(4)(ii)of the Unified Code is unconstitutional because it allows a trialcourt to impose a sentence beyond the 6- to 30-year statutoryrange for armed robbery by finding the existence of certain factsthat have not been submitted to a fact finder for proof beyond areasonable doubt.

The issue raised by defendant, the failure to seek thefact finder's determination that defendant's victim was 60 yearsof age or older, was harmless error. This same approach wasrecently used by the Seventh Circuit in finding no need to send acase back for resentencing under Apprendi when it found thefailure to submit to a jury a factor used in sentencing to beharmless error beyond a reasonable doubt where there was "overwhelming" evidence of that factor before the trial court. SeeUnited States v. Jackson, 236 F.3d 886, 888 (7th Cir. 2001). Ifthis case were sent back to a jury for consideration, the jurycould not have found a different age as the undisputed evidencein the record is that the victim of the armed robbery, GeraldGersmehl, was over 60 years of age. Further, this was a benchtrial and the trial judge is presumed to have applied the lawcorrectly.

Defendant next contends the trial court erred insentencing him by using age as an aggravating factor when age wasan element inherent in the armed violence charge against him. Defendant concedes this issue was not preserved for appealbecause his trial counsel failed to include it in his motion toreduce sentence but asks this court to consider it as amountingto plain error.

A trial court's decisions regarding sentencing areentitled to great deference and will not be altered on appealabsent an abuse of discretion. People v. Perruquet, 68 Ill. 2d149, 153, 368 N.E.2d 882, 884 (1977). Generally a factor implicit in a crime may not be used as an aggravating factor whensentencing for that crime. People v. Place, 238 Ill. App. 3d1035, 1048, 605 N.E.2d 634, 642 (1992).

Section 5-5-3.2(b)(4)(ii) of the Unified Code permits acourt to impose an extended-term sentence when a defendant isconvicted of a felony committed against a person 60 years of ageor older at the time of the offense. 730 ILCS 5/5-5-3.2(b)(4)(ii) (West 1998). Defendant was eligible for an extendedterm of up to 60 years. 730 ILCS 5/5-8-2(a)(2) (West 1998). Defendant was sentenced to an extended term of 48 years for hisconviction of armed robbery of Gerald Gersmehl in violation ofsection 18-2(a) of the Criminal Code of 1961 (Code) (720 ILCS5/18-2(a) (West 1998)). Age is not an element of that crime and,thus, Gerald's age could properly be used as an aggravatingfactor in enhancing defendant's sentence on that charge.

Defendant was also convicted of armed violence againstNina Gersmehl in violation of section 33A-2 of the Code (720 ILCS5/33A-2 (West 1998)) predicated on committing, while armed with adangerous weapon, an aggravated battery prohibited by section 12-4(b)(10) of the Code in that "[k]nowingly and without legaljustification" he caused "bodily harm to an individual of 60years of age or older." 720 ILCS 5/12-4(b)(10) (West 1998). Hereceived a sentence of 20 years to be served concurrently withhis sentence for armed robbery. The sentencing range for thisoffense was 15 to 30 years. 720 ILCS 5/33A-3; 730 ILCS 5/5-8-1(a)(3) (West 1998).

At the sentencing hearing, the State presented inaggravation evidence from Paul Fuqua, a 73-year-old resident ofDecatur, who testified that on September 17, 1998, defendant cameto his house under the pretext of looking at a vehicle Fuqua hadfor sale. When he showed defendant to the garage to see thevehicle, defendant produced a dark revolver, which he placed onlythree inches from Fuqua's stomach, and demanded Fuqua give himhis billfold. Defendant fled on foot to a bicycle and then herode off on the bike.

The trial court noted this incident took place only twoweeks before that involving the Gersmehls and considered defendant's proclivity for victimizing the elderly when it sentencedhim for the armed violence charge. Thus, the court did not takeinto consideration Nina's age simply for the fact she was avictim over 60 years old, but instead concluded defendant hadalready demonstrated a pattern of crime from which the public,especially the elderly public, needed to be protected.

There was no use of a factor in aggravation inherent inthe elements of either crime charged, and there was no plainerror. The issue is forfeited for purposes of appeal.

Finally, defendant contends his sentence for armedrobbery was excessive. Defendant argues the trial court failedto take into consideration his youth and potential for rehabilitation. The record indicates the trial court did take intoaccount defendant's potential for rehabilitation and noted it wasnot a pleasant task to sentence someone so young for such aserious offense. However, the court noted defendant's potentialfor rehabilitation was outweighed by the need to protect theelderly public from defendant. He was armed with a fully loadedrevolver pointed directly at the victims at close range. Hecommitted a similar offense only two weeks earlier. The trialjudge deliberately stated he would not consider the State'sarguments for imposing consecutive sentences because he wanted togive defendant some hope as well as protect the public. Discussion at the hearing on the motion to reduce sentence indicatedthe trial court was aware defendant would only be required toserve half of the 48-year sentence and 85% of the 20-year sentence.

A sentence within statutory limits will not be deemedexcessive unless it is greatly at variance with the spirit andpurpose of the law or is manifestly disproportionate to thenature of the offense. People v. Fern, 189 Ill. 2d 48, 54, 723N.E.2d 207, 210 (1999). The record shows no abuse of discretionon the part of the trial court.

We affirm the trial court's judgment.

Affirmed.

STEIGMANN, P.J., and McCULLOUGH, J., concur.