People v. Potter ( 2008 )

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) posses-
sion 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
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 manufac-
turing 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
- 2 -
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, defen-
dant 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.
- 3 -
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, testi-
fied 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 contain-
ing 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
- 4 -
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 indi-
cated 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
- 5 -
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 cross-
examined Sarah as follows:
"DEFENSE: Now, you're charged in this
case as well, right?
SARAH: Right.
* * *
DEFENSE: You are set for a plea tomor-
row; 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
- 6 -
to testify against--well, or testify in [de-
fendant'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-
- 7 -
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,
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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 par-
ticular 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 cor-
rect me if I'm wrong.
CHRISTOFF: That's all true, Judge.
Nothing has been promised to myself or to
- 9 -
her. The only request from the State was
that she be interviewed and testify truth-
fully 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
- 10 -
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 agree-
ment or bargain is because no matter what
happens today, if I don't get the plea agree-
ment 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 prom-
ised as a matter of fact.
- 11 -
* * *
THE COURT: *** I don't see that anything
[Sarah] has said is at odds with what coun-
sel'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 reache-
d?
DEFENSE: Yes, Judge.
THE COURT: How is that impacting any-
thing?
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.
- 12 -
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 suppos-
edly did? Or you could say, as I suggested,
hey, [Sarah's] got something at stake here
too. *** Yeah, she hasn't been promised any-
thing, 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 incredi-
ble. The jury found defendant guilty as stated.
On June 6, 2007, the day after she testified at defen-
dant'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-
- 13 -
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 understand-
ing" 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
- 14 -
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 charge-
s.
A conviction obtained by the use of false evidence,
known to be such by representatives of the State, violates a
- 15 -
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 truthful-
ness 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
- 16 -
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
- 17 -
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' imprison-
ment. 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
- 18 -
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 disposi-
tion. 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.
- 19 -
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 essen-
tially 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 im-
peached 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
- 20 -
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 agree-
ment 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 disposi-
tion, indicating that Christoff and the State's initial represen-
tations 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
- 21 -
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
- 22 -
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
- 23 -
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 flash-
ing 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 pur-
chases, which included a mask, a set of goggles, and rubber
- 24 -
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 over-
whelming 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.
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