PEOPLE v. SMITH (1998)

On October 19, 1993, a statewide grand jury filed a 40-count indictment naming several defendants involved in a conspiracy to distribute cocaine and cannabis.   Defendant, Larry Smith, was one of these defendants.   Following a jury trial, he was found guilty of various offenses and was sentenced to concurrent imprisonment terms as follows:  calculated criminal drug conspiracy (18 years), criminal drug conspiracy (18 years), narcotics racketeering (15 years), possession of a controlled substance (cocaine) with intent to deliver (18 years), unlawful possession of cannabis with intent to deliver (7 years), residential burglary (15 years), unlawful restraint (3 years), unlawful harassment of a witness (3 years), and unlawful structuring of a currency transaction (7 years).

The defendant appeals and raises several issues.   We affirm most of his convictions in the unpublished portion of this opinion.

We address defendant's challenge to his conviction for structuring currency transactions to evade recording and reporting requirements of the law.   The challenge assails the sufficiency of the proof as well as the jury instructions by which that proof was measured.

We find that the evidence was sufficient to sustain the guilty verdict for unlawful structuring of currency transactions.   However, we overturn the verdict and remand for a new trial because the jury was never told of the reporting requirements that those transactions were allegedly structured to evade.

We first consider the sufficiency of the evidence.   In considering this type of claim, it is not our duty to resolve factual disputes or assess witness credibility.  People v. Bowen, 241 Ill.App.3d 608, 619, 182 Ill.Dec. 43, 52, 609 N.E.2d 346, 355 (1993).   Where the evidence is not so palpably contrary to the jury's findings or otherwise so unreasonable or unsatisfactory such that defendant's guilt is called into doubt, the jury's finding should be affirmed.  People v. Moore, 171 Ill.2d 74, 94, 215 Ill.Dec. 75, 84, 662 N.E.2d 1215, 1224 (1996).   Proof of intent does not require direct evidence and can be inferred from the surrounding circumstances.  People v. Richardson, 104 Ill.2d 8, 12, 83 Ill.Dec. 604, 606, 470 N.E.2d 1024, 1026 (1984).

The defendant and his coconspirators acquired large quantities of currency as a by-product of drug dealings.   During the conspiracy, the defendant and coconspirators repeatedly entered banks to exchange small denomination bills of currency for $100 bills.   On three different occasions, one of which included defendant, members of the conspiracy used the County National Bank of Hillsboro to convert small bills of currency into $100 bills.   On another occasion, a conspirator used the First National Bank of Raymond, entering with $2,000 in various denominations and exiting with 20 $100 bills.   The Litchfield National Bank was also used on numerous occasions during the same time frame to transact identical currency exchanges.   The transactions usually involved only $1,000 at a time.

The defendant admitted that he exchanged small bills of currency for larger ones at a Litchfield bank.   He further admitted that he attempted to do the same at a Hillsboro bank.   He also acknowledged that other members of the drug conspiracy were exchanging currency at the same time.

Defendant claims that the State failed to establish an intent to evade recording and reporting requirements, a necessary element to the crime of unlawful structuring of currency transactions.

Not all currency transactions must be reported.   The statute's command extends only to currency transactions over $10,000 (205 ILCS 685/4 (West 1992)) and the issuance or sale of bank checks, cashier's checks, traveler's checks, or money orders of $3,000 or more (205 ILCS 685/5 (West 1992)).   Defendant takes two somewhat contradictory positions with regard to these reporting requirements.

 First, defendant suggests that the proof fails because none of the transactions exceed the requirements.   Of course, had any of the transactions exceeded the statute's monetary thresholds, the reporting requirement would have been triggered and the financial institution would have ensured the reporting of the transaction.   Indeed, had the drug conspirators engaged in transactions large enough to trigger reporting, we might well agree that the evidence falls short of establishing an intent to evade reporting requirements.   Such a transaction diminishes the inference that flows from a pattern of currency transactions beneath the reporting monetary thresholds.

The defendant also argues that since the monetary transactions were significantly less than the statute's reporting thresholds, a rational trier of fact could not have concluded that the transactions were engaged in with the requisite intent to evade the reporting that accompanies those thresholds.   This argument touches on the flaw in the jury instructions.   The amount of the transaction in relationship to the monetary limits for reporting is a valid consideration in determining whether a structured transaction is intended to evade the reporting requirements.

The Currency Reporting Act (Act) (205 ILCS 685/1 et seq. (West 1992)) has a simple design.   It tracks cash.   The legislature looks to the root of all evil as a simple indicator of evil.   It therefore assures that the Director of the State Police stays abreast of people who engage financial institutions in large cash transactions.   The statute seeks law enforcement knowledge of cash dealings because “reports and records of transactions involving United States currency * * * have a high degree of usefulness in criminal, tax or regulatory investigations or proceedings.”  205 ILCS 685/2 (West 1992).

In order to safeguard this purpose, the Act outlaws any plan to evade the Act's reporting requirements by the “[s]tructure, assist in structuring, or attempt to structure or assist in structuring any transaction with one or more financial institutions.”  (Emphasis added.)  205 ILCS 685/7(a)(3) (West 1992).   The scope of this edict is indeed broad.   Any cash transaction is potentially covered.   Notwithstanding, a proper limitation is imposed by the need to prove that a transaction was structured to evade the reporting requirements.

Clearly, as the transaction's cash amount approaches the monetary thresholds for reporting, the inference rises that the transaction is structured to evade the reporting requirement.   The individual who deposits $9,999 leaves a strong inference that the deposit was structured to evade the transaction's report.   Although the amount of the transaction is a significant factor in determining an unlawful structure, it is not the only factor.

In our case, the transaction amounts were far removed from the amounts that trigger the reporting requirement.   The key here is not the transaction amounts but the transactions themselves.   The pattern of activity clearly shows an objective to avoid the scrutiny and attention that often accompany large quantities of cash.   The conspirators moved from one bank to another within the same time frame.   Rather than exchange all of their smaller bills for $100 bills at a single bank, they chose to travel significant distances to transact smaller exchanges at numerous banks.   The amounts exchanged were large but not exceedingly large.   The exchanges were performed by different conspirators.   Moreover, the transactions themselves are instructive.   They evince a need to maintain large quantities of $100 bills.   Such a need kindles curiosity that the transactions were designed to minimize.

Defendant and his cohorts may not have known of the reporting requirements.   They may simply have been interested in avoiding the attention of the specific cashiers and bank officials.   Nevertheless, they did not so claim.   There was nothing offered to negate the inference that the pattern of activity constituted a structuring of transactions to evade the reporting requirements, other than the fact that the amounts of cash involved were far less than those amounts that trigger the Act's reporting requirements.   While the transactional amounts give rise to an inference that the reporting requirements were not the motivation behind the structuring, such inference is not determinative.   The jury might well conclude that the pattern of activity was designed to evade the statute's reporting requirements.   The conspirators may have been generally aware that banks report large cash transactions, without knowing the specific triggering amounts.   Then again, they may have had explicit knowledge of the specific triggering amounts and simply chose to keep their patterned exchanges clear of the threshold.

Viewing the evidence in a light most favorable to the prosecution (see People v. Collins, 106 Ill.2d 237, 261, 87 Ill.Dec. 910, 919-20, 478 N.E.2d 267, 276-77 (1985)), we hold that a rational trier of fact could reasonably find that defendant and his coconspirators engaged in a pattern of cash transactions structured with the design to evade the currency reporting requirements.

We next examine defendant's claim that the jury instructions related to the crime of unlawful structuring of a currency transaction were incomplete.   At trial, defendant objected to the instructions but offered no alternative.

There are no pattern jury instructions relating to the crime of unlawful structuring of a currency transaction, and therefore the State became creative out of necessity.   More for what was not included in these instructions, it is useful to include their complete text.

The State's instruction number 40 stated, “A person commits the offense of Unlawful Structuring of a Currency Transaction when he structures, assists in structuring, or attempts to structure or assist in structuring any transaction with one or more financial institutions for the purpose of evading the recording or reporting requirements of the Currency Reporting Act.”   This instruction generally tracks the following language of section 7(a)(3) of the Currency Reporting Act (205 ILCS 685/7(a)(3) (West 1992)):  “No person shall for the purpose of evading the recording or reporting requirements of Sections 4 and 5 of this Act * * * [s]tructure, assist in structuring, or attempt to structure or assist in structuring any transaction with one or more financial institutions.”   The only substantive difference between the two is that the statutory language obviously contemplates specific reference to the two statutes containing the reporting and recording requirements, as opposed to the instruction's simple reference to the “recording or reporting requirements.”

The People's instruction number 41 stated, “A person structures a transaction if he was acting alone, or in conjunction with or on behalf of other persons and conducts, attempts to conduct, or assists in conducting one or more transactions in currency, cashier's checks, money orders or travelers checks in any amount, at one or more financial institutions, on one or more days in any manner for the purpose of evading the reporting requirements of the Currency Reporting Act.”   This language is virtually identical to section 7(b) of the Act (205 ILCS 685/7(b) (West 1992)).

On appeal, the State correctly argues that the two instructions virtually mirror the statute outlining the elements of the offense.   The first instruction set forth the elements of the offense.   The second instruction defined the phrase, “structuring a transaction.”   The intent element of this crime requires a finding that the defendant and/or others so structured a financial transaction or series of transactions “for the purpose of evading the recording or reporting requirements of the Currency Reporting Act.”

 Notwithstanding, the instructions are incomplete because the jury was not instructed as to the Act's recording or reporting requirements.   The requirements are not self-defining and should not be drawn out of a jury's imagination.   The requirements are quite specific.   The dollar amounts involved are $10,000 for currency (205 ILCS 685/4 (West 1992)) and $3,000 for money orders, cashier's checks, bank notes, and traveler's checks (205 ILCS 685/5 (West 1992)).   By not including or otherwise defining the dollar amounts at issue and thereby providing a measuring device, the implicit message to the jury is that there is always a reporting requirement and that any cash amount would suffice.   The omission is critical in this case because the reporting or recording requirements represent an element of the offense and defendant's involvement with $1,000 transactions does not carry nearly the inference of transactions that closely approximate the monetary reporting limits.   Unless the jury has been given the statutory recording and reporting parameters, they cannot fairly draw the appropriate inferences from the defendant's and his codefendant's smaller dollar amount transactions.

Jury instructions will not amount to harmless error if they incorrectly advise the jury as to an essential element of the crime.  People v. Stromblad, 74 Ill.2d 35, 41, 23 Ill.Dec. 98, 101, 383 N.E.2d 969, 972 (1978).   Because the error is fundamental, the evidence presented at trial need not be reviewed.  Stromblad, 74 Ill.2d at 42, 23 Ill.Dec. at 101-02, 383 N.E.2d at 972-73.   Accordingly, we reverse defendant's conviction for unlawful structuring of a currency transaction and remand for a new trial on that charge.

Upon retrial, the jury should be instructed upon the recording and reporting requirements as factually applicable to the case.   In other words, if no evidence establishes transactions with bank checks, cashier's checks, traveler's checks, and money orders, then it would be inappropriate to instruct the jury as to the $3,000 requirement.   If the evidence involves only currency, the jury should be instructed that the reporting and recording requirements of the Currency Reporting Act require all financial institutions to record and report currency transactions involving more than $10,000.

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Defendant's next issue on appeal is whether the drug conspiracy counts of the indictment are constitutionally void because each one alleges separate and disparate acts.   An indictment is void if it charges a defendant in the disjunctive with having committed disparate and alternative acts, the performance of any one of which constitutes the offense.   See People v. Eagle Books, Inc., 151 Ill.2d 235, 176 Ill.Dec. 852, 602 N.E.2d 798 (1992);  People v. Capitol News, Inc., 137 Ill.2d 162, 148 Ill.Dec. 1, 560 N.E.2d 303 (1990);  People v. Heard, 47 Ill.2d 501, 266 N.E.2d 340 (1970).   If a charge strictly follows the statutory language and that statutory language uses the disjunctive “or,” the language may or may not present a problem.  Heard, 47 Ill.2d at 504-05, 266 N.E.2d at 342.   The disjunctive “or” is problematic when its use results in uncertainty or confusion as to which of the alternatives the accused is charged with committing.  Heard, 47 Ill.2d at 504-05, 266 N.E.2d at 342.   For example, if a particular statute is violated by either the sale or the delivery of obscene material, as in Capitol News, Inc., the commission of either a sale or a delivery constitutes the offense.   Capitol News, Inc., 137 Ill.2d at 173-74, 148 Ill.Dec. at 6, 560 N.E.2d at 308.   When the indictment based upon a violation of that particular offense charges the defendant in the disjunctive with either the sale or the delivery of obscene material, the indictment in effect charges two separate and distinct offenses.  Capitol News, Inc., 137 Ill.2d at 174, 148 Ill.Dec. at 6, 560 N.E.2d at 308.   The result is that the confusing indictment is constitutionally void for not setting forth the nature and elements of the charge with certainty.  Heard, 47 Ill.2d at 505, 266 N.E.2d at 342-43;  Capitol News, 137 Ill.2d at 174, 148 Ill.Dec. at 6, 560 N.E.2d at 308.   However, if the commission of one of the acts phrased disjunctively would be insufficient alone to establish the defendant's guilt, then the indictment is valid.  Heard, 47 Ill.2d at 504, 266 N.E.2d at 342.

Because of the constitutional issues involved, the indictment can be attacked for the first time on appeal.  Heard, 47 Ill.2d at 505, 266 N.E.2d at 343.   In such cases, the defendant must be able to establish that the indictment failed to adequately apprise him of the precise offense charged with the specificity necessary to prepare his defense and to allow the resulting conviction to be pled as a bar to future prosecution arising out of the same conduct.  People v. Oaks, 169 Ill.2d 409, 445, 215 Ill.Dec. 188, 203, 662 N.E.2d 1328, 1343 (1996).

We now turn to the specific charges and wording of the indictments at issue-the counts alleging criminal drug conspiracy and calculated criminal drug conspiracy.   The disputed language in count I of the October 19, 1993, indictment alleging the offense of calculated criminal drug conspiracy is as follows:

“[Defendant and others] committed the offense of calculated criminal drug conspiracy * * * in violation of Chapter 720, Act 570, Section 405 of the Illinois Compiled Statutes, in that said defendants, as part of a conspiracy undertaken with two or more persons in violation of Illinois Compiled Statutes, Chapter 720, Act 570, Sections 401(a) or (c)[ ] or Section 402, they did knowingly deliver to one and other [sic ], and to others known and unknown to the Statewide Grand Jury, cocaine, a controlled substance, otherwise than as authorized in the Illinois Controlled Substances Act, and that as a result of said deliveries, one or more of the defendants, or persons whose conduct they are legally responsible for, either received more than $500.00 United States Currency from such conspiracy or violation;  [sic ] or that the defendants organized or directed each other or persons known and unknown [sic ] to the Statewide Grand Jury in the conspiracy.”

The disputed language of count II of the October 19, 1993, indictment alleging the offense of criminal drug conspiracy is as follows:

“[Defendant and others] committed the offense of criminal drug conspiracy * * * in violation of Chapter 720, Act 570, Section 405.1(a) of the Illinois Compiled Statutes of said State, in that said defendants, with the intent that the offense of Manufacture or Delivery Unauthorized by Act in violation of Illinois Compiled Statutes, Chapter 720, Act 570, Section[s] 401(c)1[,] (c)2[,] and (c)3 be committed, agreed to deliver cocaine to each other, to undercover law enforcement officers and to others known and unknown to the Statewide Grand Jury, and that the above named defendants obtained the cocaine so that the deliveries could be made.”

We will address each count of the indictment separately.

Regarding count I, defendant contends that the indictment's reference to the various statutory sections is the offensive disjunctive usage.   Part of the perceived confusion lies in the statutory wording of the offense.  Section 405 of the Illinois Controlled Substances Act (720 ILCS 570/405 (West 1992)) defines the offense of calculated criminal drug conspiracy using disjunctive language referring to the statutory sections that is identical to the language in the indictment.   Therefore, we must necessarily examine those statutory sections.

Section 401(a) of the Illinois Controlled Substances Act (720 ILCS 570/401(a) (West 1992)) makes it unlawful to knowingly manufacture or deliver or possess with intent to manufacture or deliver a controlled substance.   Reading the whole statute, it is clear that manufacturing, delivering, and possessing a controlled substance are separate criminal violations of this statute.   Section 401(c) simply involves different quantities of controlled substances.   Section 402 of the Illinois Controlled Substances Act (720 ILCS 570/402 (West 1992)) deals with the mere possession of controlled substances.

Defendant essentially argues that he was incapable of preparing his defense because he did not know which particular offense he was accused of committing.   From reviewing section 401, it is clear that a defendant can violate the statute by committing only one of the offenses-by possessing or by delivering or by manufacturing a controlled substance.   Therefore, we acknowledge that, given a cursory review, the wording of the first part of the indictment alone could be deemed confusing.   The drafter of the indictment could have easily chosen which portion of section 401 or section 402 that he or she believed defendant violated.   In fact, the uniform complaint book for calculated criminal drug conspiracy so proposes.

However, we cannot lose sight of the fact that if overall the indictment's allegations sufficiently apprised defendant of the charges he faced, then the indictment is valid.   The confusing portion of count I of the indictment amounts to one paragraph of an 11-page single-spaced indictment, the balance of which exclusively addresses the delivery of cocaine.   Count I extensively details the specific aspects of the drug conspiracy.   Furthermore, the jury instructions for the offense of calculated criminal drug conspiracy that were given at defendant's trial only address the offense of delivery of a controlled substance.   We find that there was adequate information contained within count I to apprise defendant that he was accused of delivering cocaine as a part of a calculated criminal drug conspiracy.

Defendant also contends that within count I several references to cannabis led to confusion over the specific charge involved.   We find this argument unpersuasive.   The defendants involved with the drug ring were accused of dealing both cannabis and cocaine.   As cannabis is not a controlled substance, and as the crime of calculated criminal drug conspiracy only involves controlled substances, the references to cannabis are largely irrelevant.   However, not all of the allegations referencing cannabis are irrelevant because it is clear that the drug-dealing scheme was interwoven.   The occasional use of the term cannabis does not invalidate the indictment and does not otherwise make it unduly confusing.   Additionally, the jury instructions only involve cocaine.

Regarding count II, defendant contends that references to the various statutory sections within the conspiracy statute and within the indictment itself constitute the offensive disjunctive usages.   Part of the perceived confusion lies in the statutory wording of the offense.   Similar to count I, section 405.1 of the Illinois Controlled Substances Act (720 ILCS 570/405.1 (West 1992)) defines the offense of criminal drug conspiracy using disjunctive language referring to the statutory sections that is identical to the language in the indictment.

Sections 401 and 402 are once again referenced.   Additionally, section 407 of the Illinois Controlled Substances Act (720 ILCS 570/407 (West 1992)) heightens the possible punishment for any controlled substances delivery to a person under 18 years of age or in the vicinity of truck stops, rest stops, or schools.   Reading the entirety of these statutes, it remains clear that several different offenses can be committed pursuant to each statutory section.   Count II of the indictment specifically focuses on section 401, failing to mention sections 402 and/or 407.   However, three separate subsections of section 401 are listed:  subsection 401(c)(1)-heroin, subsection 401(c)(2)-cocaine, and subsection 401(c)(3)-morphine.   With an initial reading, this too appears confusing, until the reader completes the sentence.   While three different drugs are mentioned in the subsections and while section 401 could involve the manufacture, delivery, or possession with intent relative to those three drugs, the sentence concludes that the conspiracy members “agreed to deliver cocaine to each other * * *.”   Furthermore, count II of the indictment continues for 11 pages with very specific cocaine-delivery and related allegations.   References to cannabis are no more confusing in count II as they were in count I.

Defendant next contends that the some of the prosecutor's remarks during closing argument amount to prosecutorial misconduct and denied him his right to a fair trial.   Specifically, defendant contends that the prosecutor improperly vouched for the credibility of certain prosecution witnesses, misstated evidence, made an unfair attack on defense counsel, and improperly appealed to the jurors' passion.   The State argues that defendant failed to object to the offensive remarks at trial and did not include the issue in his posttrial motion and that he has therefore waived his arguments on appeal.   Defendant urges us to review the matter on a plain error basis.   See People v. Whitlow, 89 Ill.2d 322, 342, 60 Ill.Dec. 587, 596, 433 N.E.2d 629, 638 (1982).

We need not review the matter on a plain error basis because, based upon our review of the statements at issue, we find nothing improper about the State's arguments in the context of the evidence presented, the bounds of closing argument, and defense counsel's invitation.   Additionally, the judge instructed the jury that closing arguments were not evidence.

Defendant contends that certain jury instructions given at his trial were defective.   The State argues that defendant waived his right to raise these issues on appeal because the errors raised on appeal are different than those included in his posttrial motion.   See People v. Enoch, 122 Ill.2d 176, 199, 119 Ill.Dec. 265, 277, 522 N.E.2d 1124, 1136 (1988).   Defendant urges us to consider the instructions issues on a plain error basis.   See Official Reports Advance Sheet No. 13 (June 18, 1997), R. 451 (effective July 1, 1997).

We review the issues instructions for some of the crimes with which several defendants were charged.   Defendant complains that he was denied a fair trial because all defendants charged with the same crime were included in the one issues instruction.   As we find nothing improper about these instructions, we do not need to address the instructions on a plain error basis.   All of the challenged instructions pertain to crimes established through either a conspiracy theory or an accountability theory.   The very nature of the crimes involved necessarily concerns more than one involved party.   Due to the sheer volume of defendants and crimes alleged, providing joint instructions on these selected issues undoubtedly helped to avoid juror confusion.   Furthermore, the trial court provided the jury with limiting instructions advising the jury to separately consider the crimes as to each defendant and explaining an individual's legal responsibility for the actions of another.

Defendant's next issue on appeal involves lesser-included offenses.   He seeks the vacation of the convictions as to four offenses.   Defendant's attorney did not raise this issue at sentencing or in his posttrial motion, and so defendant asks us to consider these matters pursuant to the plain error doctrine.   See People v. Barraza, 253 Ill.App.3d 850, 857, 193 Ill.Dec. 242, 247, 626 N.E.2d 275, 280 (1993).   The State concedes these points, and so we need not determine the applicability of the plain error doctrine.   Criminal drug conspiracy is a lesser-included offense to calculated criminal drug conspiracy.  People v. Vincent, 92 Ill.App.3d 446, 459-60, 47 Ill.Dec. 834, 844, 415 N.E.2d 1147, 1157 (1980).   Unlawful restraint is a lesser-included offense of residential burglary with the intent to commit unlawful restraint.   People v. Bratton, 178 Ill.App.3d 718, 727, 127 Ill.Dec. 700, 706-07, 533 N.E.2d 572, 578-79 (1989).   Possession of a controlled substance with intent to deliver and possession of cannabis with intent to deliver are both lesser-included offenses of narcotics racketeering.  People v. Callaway, 185 Ill.App.3d 136, 143-47, 133 Ill.Dec. 287, 291-92, 540 N.E.2d 1153, 1157-60 (1989).   Accordingly, we vacate defendant's convictions for criminal drug conspiracy, unlawful restraint, possession of a controlled substance with intent to deliver, and possession of cannabis with intent to deliver.

Defendant also requests that this case be remanded for resentencing on the remaining convictions.   He seeks resentencing under a couple of theories.   First, he asserts that a remand is necessary if the record fails to clearly show whether the judge was influenced during sentencing by one of the crimes which was subsequently reversed.   See People v. Alejos, 97 Ill.2d 502, 511-12, 74 Ill.Dec. 18, 23, 455 N.E.2d 48, 53 (1983).   Additionally, defendant argues that he should be resentenced because the judge improperly considered the potential serious harm of defendant's conduct as an aggravating factor.   Because we agree that defendant's fundamental liberty rights were compromised by the trial court's consideration of the possible harm resulting from defendant's conduct, we do not address the first contention defendant raises.

Initially, we note that defendant's trial counsel failed to object to this “harm factor” at trial or in a posttrial motion.   Because defendant's liberty rights are at stake, we will address the issue under the plain error doctrine.   See People v. James, 255 Ill.App.3d 516, 531, 193 Ill.Dec. 786, 797, 626 N.E.2d 1337, 1348 (1993).

The four presently remaining convictions involve some element of harm.   If a factor is improperly considered and it cannot be determined how much weight the fact was accorded, the cause must be remanded for resentencing.  People v. White, 114 Ill.2d 61, 67, 101 Ill.Dec. 879, 881, 499 N.E.2d 467, 469 (1986), citing People v. Bourke, 96 Ill.2d 327, 332, 70 Ill.Dec. 734, 736, 449 N.E.2d 1338, 1340 (1983);  People v. Embry, 179 Ill.App.3d 1059, 1060-61, 128 Ill.Dec. 873, 874, 535 N.E.2d 87, 88 (1989).   The State does not really dispute whether the trial judge considered the harm factor, but it argues that a vacatur is not required unless the court actually focuses on that factor above all others.  People v. Gross, 265 Ill.App.3d 74, 79, 202 Ill.Dec. 250, 254, 637 N.E.2d 789, 793 (1994).   The State goes on to argue that the record merely reflects the trial court's careful consideration of all relevant factors with no particular emphasis on the serious-harm factor.   The State further argues that the trial court's emphasis was on defendant's lack of respect for the law.

The transcript from the sentencing hearing is quite illuminating on this issue:

“THE COURT:  The Court has heard, of course, the evidence at trial and I have reviewed the presentence report and listened to the evidence today.

The factors in aggravation that are applicable here would be that the defendant's conduct caused or threatened serious harm-certainly threatened serious harm-the defendant has a history of prior delinquency and prior criminal activity, and that a sentence is necessary to deter others from committing the same crime.”

Contrary to the State's argument, the record does not reflect that the trial court predominantly emphasized defendant's lack of respect for the law.   The very first thing mentioned at sentencing was the serious-harm factor.   As the consideration of this factor was improper and as the trial court clearly focused on that factor, we are compelled to vacate the sentences on the four remaining convictions and remand this case for resentencing on those convictions:  calculated criminal drug conspiracy, narcotics racketeering, residential burglary with intent to commit an unlawful restraint, and unlawful harassment of a witness.

Finally, defendant requests that his mittimus be amended to reflect credit against his sentences and fines based upon the time he spent in the county jail prior to sentencing:  277 days and $1385.   The State concedes that, pursuant to statute, the mittimus should be so amended.   See 730 ILCS 5/5-8-7(b) (West 1992);  725 ILCS 5/110-14 (West 1992).   Because we remand this case for resentencing on four of the convictions, we direct the court to amend the mittimus accordingly at the time of resentencing.

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For the foregoing reasons, the judgment of the circuit court of Montgomery County is affirmed in part, reversed in part, and vacated in part, and the cause is remanded with directions.

Affirmed in part, reversed in part, and vacated in part;  cause remanded with directions.

Justice KUEHN delivered the opinion of the court: