author: JUSTICE WELCH

text:
      In re MARRIAGE OF DANIEL J. PARTNEY, Petitioner-Appellee, and BEVERLY K. PARTNEY, Respondent-Appellant.
    Fifth District
    No. 5—90—0001
    Opinion filed May 7, 1991.
    Storment & Read, of Belleville, for appellant.
    Leon G. Scroggins, of Granite City, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

The issue before this court involves the proper amount of child support for Daniel J. Partney II, the minor child of appellant, Beverly K. Partney, and appellee, Daniel J. Partney. Appellant brought a petition for modification of child support pursuant to section 510(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 510(b)) (hereinafter Act) in the circuit court of Madison County, seeking to raise the $500-per-month support award previously awarded by the court to an amount equal to 20% of the net income of appellee as provided by the guidelines set forth in section 505(a) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)). The court denied the petition after hearing on April 27, 1989, but retained jurisdiction of the cause until appellee complied with a discovery order to produce certain tax returns and financial statements for 1988. Appellant filed a motion to modify or correct this order based on the production of the 1988 tax returns. The court confirmed its April 27, 1989, order denying the petition to modify child support on November 30, 1989, after hearing to review the aforementioned discovery production, and it is from the order of April 27, 1989, and this later order that appellant brings the issue before this court.

A judgment of dissolution of the parties’ marriage was entered by the circuit court of St. Clair County on December 19, 1981. Pursuant to said order appellee was granted custody of Daniel J. Partney II. Appellant filed a petition for change of custody on May 19, 1987, with the Madison County circuit court and was granted custody of the minor child along with $500-per-month child support on August 13, 1987. In the instant proceeding appellant sought to modify that order and demanded appellee’s 1987 and 1988 tax returns in discovery.

We have not been provided with a transcript of the February 22, 1989, hearing on the petition to modify from which the April 27, 1989, order originated. However, in the April 27, 1989, order the court found that appellee had gross income in 1988 totalling $100,000, as shown on his W-2 forms, reduced by $46,000 in losses suffered by the Pamela Enterprises, and $27,000 in principal and interest payments during 1988 on a loan incurred to comply in part with the parties’ 1982 property settlement, leaving net taxable income of $27,000. The court further found that this net taxable amount should be reduced by $6,000, the amount estimated by the court to be appellee’s approximate obligation for Federal and State taxes and social security contributions.

The Pamela Enterprises, four rental properties owned by appellee and his present wife, was shown on respondent’s exhibit A to have had $112,486 in income but $158,701 in expenses. Those expenses were itemized by rental property in this exhibit. The court further found that the minor child, who was then 16 years old, had monthly expenses totalling $2,096 per month. These expenditures included $730 for his 1982 Trans-Am; $632 for recreation, miscellaneous activities, and allowance; and $425 for clothing and laundry. The court opined that the child’s needs, as opposed to his wants, were substantially less than the itemized $2,096 per month.

We have been provided with a transcript of the November 29, 1989, hearing to reconsider the April 27, 1989, order after filing of appellee’s 1988 tax return. The bulk of the testimony at this hearing concerned an issue not brought in this appeal. Appellant, however, testified that she earned $15,000 per year and that as part of the property settlement in the judgment of dissolution she received a $75,000 certificate of deposit. Appellee testified that he was paying off the mortgage on the property occupied by appellant and the minor child in the amount of $128.29 per month. Appellee’s 1988 Federal income tax return, which was admitted as petitioner’s exhibit 1, showed wages totalling $95,000 and Federal tax owed of $9,244. The tax return further showed a $42,707 net loss from the rental properties, as limited by Federal income tax passive activities loss regulations. The 1988 W-2 showed Federal withholding of $18,031, State income tax "withholding of $2,170 and social security (FICA) withholding of $3,379. Appellee was entitled to a $9,008 refund according to the 1988 tax return.

The court found at the November 29, 1989, hearing that the gross incomes for 1988 shown at the respective hearings were within $5,000 of each other. It further found that subsection (3) of section 505(a) of the Act, which defines “net income,” includes, as an allowable deduction from gross income, expenditures for the repayment of debts that represent reasonable and necessary expenses for the production of income. (Ill. Rev. Stat., 1988 Supp., ch. 40, par. 505(a)(3)(h).) The court again found that the $46,000 in losses suffered by Pamela Enterprises was an expense incurred in the attempted production of income and that the $27,000 in interest and principal for the loan incurred to comply with the property settlement was also a legitimate deduction from appellee’s net income. The court apparently concluded that appellee’s child support obligation should not be increased because his net income under this analysis was $1,750 per month.

The issue presented on review is whether the trial court abused its discretion in denying appellant’s motion to increase child support. We believe that there was such an abuse.

Section 510 of the Act provides for modification of child support provisions of prior orders for support. (Ill. Rev. Stat., 1988 Supp., ch. 40, par. 510.) Section 505 of the Act specifically makes its provisions regarding the calculation of child support applicable to proceedings to modify prior child support orders and provides as follows:

“(a) In *** a proceeding for modification of a previous order for child support under Section 510 of this Act, *** the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for his support, without regard to marital misconduct.
(1) The Court shall determine the minimum amount of support by using the following guidelines:
Number of Children Percent of Supporting
Party’s Net Income
1 20%
* * *
(2) The above guidelines shall be applied in each case unless the court, after considering evidence presented on all relevant factors, finds a reason for deviating from the guidelines. Relevant factors may include but are not limited to:
(a) the financial resources of the child;
(b) the financial resources and needs of the custodial parent;
(c) the standard of living the child would have enjoyed had the marriage not been dissolved;
(d) the physical and emotional condition of the child, and his educational needs; and
(e) the financial resources and needs of the non-custodial parent.
If the court orders a lower award, based on consideration of the factors in paragraphs (2)(a) through (2)(e) of subsection (a) of this Section, it shall make express findings as to its reason for doing so. The guidelines may be exceeded by the court without express findings, or by agreement of the parties.
(3) ‘Net income’ is defined as the total of all income from all sources, minus the following deductions:
(a) Federal income tax (properly calculated withholding or estimated payments);
(b) State income tax (properly calculated withholding or estimated payments);
(c) Social Security (FICA payments);
(d) Mandatory retirement contributions required by law or as a condition of employment;
(e) Union dues;
(f) Dependent and individual health/hospitalization insurance premiums;
(g) Prior obligations of support or maintenance actually paid pursuant to a court order;
(h) Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent, exclusive of gifts. The court shall reduce net income in determining the minimum amount of support to be ordered only for the period that such payments are due and shall enter an order containing provisions for its self-executing modification upon termination of such payment period.” (Ill. Rev. Stat., 1988 Supp., ch. 40, pars. 505(a)(1) through (a)(3).)

A determination of the proper amount of child support, and modification thereof, lies within the sound discretion of the trial court and will not be set aside absent an abuse of that discretion. (In re Marriage of McBride (1988), 166 Ill. App. 3d 504, 510, 519 N.E.2d 1095, 1099.) The factors to be considered in exercising that discretion are set forth in section 505(a)(2). (McBride, 166 Ill. App. 3d at 511, 519 N.E.2d at 1100.) Abuse of discretion occurs only where no reasonable man would take the view adopted by the trial court. In re Marriage of Bush (1989), 191 Ill. App. 3d 249, 260, 547 N.E.2d 590, 596.

Although we agree with appellant that the guidelines are in the nature of a mandate to the court (In re Marriage of Pitts (1988), 169 Ill. App. 3d 200, 206, 523 N.E.2d 664, 667), we note that an abuse of discretion can be found in awarding the guideline amount where it exceeds the child’s reasonable needs and where both parents have a large income. (Bush, 191 Ill. App. 3d at 260, 547 N.E.2d at 596.) In the instant case, however, the issue is not before this court because the trial court awarded an amount of child support below the guidelines, but because appellant has questioned whether a passive activity investment loss qualifies as a proper deduction in the calculation of net income under section 505(a)(3) of the Act.

We note that capital investments, such as the rental properties involved in the instant case, will not produce predictable profits or losses from year to year. Arguably, passive activity investment profits should be included in the calculation of “net income” under section 505(a)(3) of the Act, defined as the total of all income from all sources minus the deductions listed therein. Ill. Rev. Stat., 1988 Supp., ch. 40, par. 505(a)(3); cf. Ivanyi v. Granoff (1988), 171 Ill. App. 3d 411, 526 N.E.2d 189 (although reviewing court would not hold that interest, dividend, and capital gain income should never enter into the computation of net income under section 505(a)(3), it found that this type of income should not be included in the supporting party’s net income under the facts of this case because there was unrebutted testimony that the supporting party did not actually or constructively receive this income in spite of the fact that it was required to be reported on his Federal income tax return).

As noted above, the court may deduct from net income of the supporting parent such amount as fairly represents “reasonable and necessary expenses” for the production of income. (Ill. Rev. Stat., 1988 Supp. ch. 40, par. 505(a)(3)(h).) We have located no Illinois cases which have addressed the precise issue before this court. One recent case, however, has ruled that a supporting parent’s monthly installment payments on a real estate investment were not properly deductible under section 505(a)(3)(h) of the Act, at least where the record contained no indication that those payments were reasonable and necessary for the production of the parent’s income and the property was not producing income at this time. See In re Marriage of Cornale (1990), 199 Ill. App. 3d 134, 556 N.E.2d 806.

There have been more decisions which have addressed the issue of whether nonreimbursed business expenses are properly deductible from gross business income in the calculation of net income under section 505(a)(3) of the Act. In In re Marriage of McBride (1988), 166 Ill. App. 3d 504, 519 N.E.2d 1095, the appellant argued that his nonreimbursed business expenses should be excluded from his gross income in calculating his child support obligation because they were the equivalent of “expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income.” The reviewing court rejected this argument because the trial court specifically found that there was insufficient evidence that these expenses were necessary to generate income and because the parties themselves had defined “net income” in the original settlement agreement without including these expenses as proper deductions in the calculation of child support. (McBride, 166 Ill. App. 3d at 512, 519 N.E.2d at 1100.) Likewise in In re Marriage of Dwan (1982), 108 Ill. App. 3d 808, 439 N.E.2d 1005, the court on review agreed that unless there was proof that the business expenses were reasonable and necessary for the production of income they should not be deducted from gross income in calculating net income for child support purposes. Among the business expenses claimed as deductions on the supporting parent’s Federal income tax business profit/loss schedule were expenses for 11 business trips, depreciation, office space in the home, and wages paid to a woman with whom the parent was co-habitating. The court concluded that an award of combined maintenance and child support in the amount of 20% of the supporting parent’s $150,000 gross business receipts was not an abuse of discretion. Dwan, 108 Ill. App. 3d at 813, 439 N.E.2d at 1009; see also Stern v. Stern (1989), 179 Ill. App. 3d 313, 534 N.E.2d 533 (nonreimbursed business expenses disallowed as a deduction in the calculation of child support net income where there was insufficient evidence as to the extent of the expenses).

One court has recently held that the supporting parent’s nonreimbursed business expenses were deductible under section 505(a)(3)(h) since the expenses were shown to represent reasonable and necessary expenses for the production of income. (Rimkus v. Rimkus (1990), 199 Ill. App. 3d 903, 557 N.E.2d 638.) In Rimkus the reviewing court affirmed a deduction of these expenses in the calculation of net income for child support, noting that there was no challenge by the custodial spouse that the business expenses were not reasonable or necessary to the production of the supporting parent’s income; as in the instant case, the custodial spouse merely challenged their qualification as a deduction under section 505(a)(3)(h) in the computation of net income. Rimkus, 199 Ill. App. 3d at 910, 557 N.E.2d at 643.

However, one court has disallowed some business expenses as a deduction in the calculation of net income because the provision allowing for a business debt deduction contemplates a specified repayment schedule tracking the time “such payments are due” and the asserted tax lien and attorney fees owed by the supporting spouse’s business were not presented by way of such a specified repayment schedule. (In re Marriage of Leffler (1988), 185 Ill. App. 3d 677, 685, 542 N.E.2d 1, 5.) As in the Leffler case, such repayment schedule was not presented in the evidence or in the trial court’s order because the $46,000 was an end-of-the-year accounting of the net business loss on the investment properties. As noted earlier, the amount of profit or loss on investments such as the real estate rental properties is correspondent only to that particular year. We also note the observation of the Ivanyi court that while it may be appropriate to apply tax law principles in the determination of a supporting party’s net income, there is no authority for the “position that the Internal Revenue Code ‘Bible’ be used to determine the meaning of net income.” Ivanyi, 171 Ill. App. 3d at 421, 526 N.E.2d at 197.

Because the real estate investment losses were not shown to be reasonable or necessary to the production of any income to the supporting parent and because, as such, the losses could not be presented in a specified repayment schedule, we believe the trial court erred in allowing a $46,000 deduction from appellee’s gross income reported on his income taxes for 1988 when it calculated the child support obligation. Moreover, we find that the $27,000 in principal and income payments on the loan appellee incurred in order to comply with the parties’ 1982 property settlement did not qualify as a deduction from appellee’s net income under subsection (h) of 505(a)(3)(h) or any other section 505(a)(3) subsection. Accordingly, we find an abuse of discretion in the denial of appellant’s petition to modify and find that the record supports an increased child support award in the amount of $1,423.80 per month, calculated pursuant to the section 505(a) guidelines as follows:

Wages: $100,000
Federal tax: (9,023)
State tax: (2,170)
FICA: (3,379)
( $85,428 /12 ) X 20% = $1,423.80

However, as noted earlier, an award of the guideline amount which exceeds the reasonable needs of the child can also be an abuse of discretion. (See Bush, 191 Ill. App. 3d at 260, 547 N.E.2d at 596.) Because the court did not reach a determination of what the reasonable needs of the child actually were, we must remand this case for such a determination. We therefore reverse the circuit court of Madison County’s orders of April 27, 1989, and November 29, 1989, and remand the case for a determination of the reasonable needs of the minor child and the entry of an order awarding appellant monthly child support, based on that determination, retroactive to the date of the filing of the petition to modify on October 11, 1988.

Reversed and remanded.

HOWERTON and LEWIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID R. PURDLE, Defendant-Appellant.
    Third District
    No. 3—89—0824
    Opinion filed April 19, 1991.
    Rehearing denied May 30, 1991.

      Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

After a jury trial in the circuit court of Peoria County, defendant David Purdle was found guilty of the June 4, 1989, murder of Mark Cross. He was sentenced to serve 30 years in the Department of Corrections. Defendant appeals from his conviction on grounds that the State’s evidence was insufficient to prove him guilty of first degree murder beyond a reasonable doubt; that he was deprived of his constitutional right to a fair trial because of misstatements made by the prosecutor in closing argument; that he was denied his right to effective assistance of counsel; and that this court should exercise its discretionary power to reduce defendant’s conviction to second degree murder. We affirm.

Evidence admitted at trial established that defendant was residing in a drug treatment center on June 3, 1989. On that date, he left the center on a pass and went to visit JoAnne Smith, the mother of defendant’s infant son. Smith, her daughter and the baby were living in an apartment in the Harrison Homes complex in Peoria with Mark Cross. She was pregnant with Cross’ baby. Purdle spent the afternoon with Smith visiting relatives and taking photographs.

That evening, defendant, his aunt, his sister and Smith went out for drinks and to play pool. Later, a friend, Louis T. Henning, drove them to the Pack-Um Inn Tavern. Defendant and his sister got out of the car as Mark Cross came out of the tavern and approached the car. Cross asked about JoAnne, and defendant told him to stay away from the car. Henning moved the car and its passengers while defendant and Cross engaged in a fist fight in the parking lot. Witnesses who testified about the fight agreed that Cross had instigated the confrontation, that defendant won and that he released Cross when Cross agreed to give up.

After midnight, defendant proceeded with his friends to Smith’s apartment. Shortly after they arrived, Cross showed up "with a knife in his hand. This time, defendant refused to fight and retreated to his mother’s home, a short distance away. Smith called the police to report the incident. Defendant returned to Smith’s while the police were at the scene and asked them to arrest Cross for his provocations. The police told defendant to stay inside the apartment with Smith and to call the police if they had any more trouble from Cross.

A short time later, Cross returned to Smith’s apartment and demanded that defendant, Smith or both come outside or let him in. Cross continued yelling for several minutes, alternately at the front door and at the front window, calling names and/or threatening the occupants and demanding a further confrontation. The eye witnesses differed in their testimony as to whether Cross had a small knife in his hand on this occasion. In any event, defendant finally took a butcher knife from Smith’s kitchen and went outside.

The two men left the porch to Smith’s apartment and fought in the playground area adjacent to the apartment. The men swung at each other and then Cross went down on his knees. According to defendant, Cross got up and said that one of them was going to die and that he, Cross, was not afraid to die. Defendant testified that when he turned to leave Cross charged at him. Then, according to defendant, he turned around and the knife in his hand sank into Cross, and Cross fell. Defendant ran into Smith’s apartment and then left the area through her back door. By contrast, the State’s star witness, Giella Davis, who watched the confrontation from when Cross was yelling at Smith’s door until defendant left the playground, testified that the two men continued the fight until defendant thrust his knife into Cross’ midsection and he fell to the ground.

The police were summoned by a neighbor of Smith (Smith’s apartment did not have a telephone), and several onlookers, including Cross’ sister, approached Cross, who lay in a pool of blood. Cross was removed by ambulance and taken to the hospital where he died several hours later from loss of blood.

The police searched the scene, but were unable to locate any knives used by either Cross or defendant that night. Defendant testified that he had dropped his butcher knife after Cross fell the last time, but none of the witnesses could explain the disappearance of the knives. The arresting officer testified that defendant was picked up a few blocks from the crime scene. InitiaUy, he denied any connection to the incident, but later told the police about the earlier confrontation at the Pack-Um Inn and said that he had left Smith’s apartment by the back door when Cross appeared at the front and began yelling at them.

Photographs of defendant taken shortly after his arrest were admitted into evidence to show that defendant suffered only a few scrapes and abrasions to his left hand.

During the conference on jury instructions, the court suggested the second degree murder instruction, but defendant declined, preferring to rest on his theory of self-defense rather than offering the jury an opportunity to compromise with a guilty verdict on the lesser offense. The prosecutor then offered a second degree murder instruction of its own, but this was refused by the court based on defendant’s election. After closing arguments, the jury deliberated and returned its verdict finding defendant guilty of first degree murder as charged.

Defendant’s motion for a new trial was heard and denied, defendant was sentenced as aforesaid, and this appeal ensued.

For his first issue, defendant challenges the sufficiency of the State’s evidence to rebut the affirmative defense of self-defense. At trial, defendant presented the theory that the victim, Mark Cross, was the initial aggressor; that defendant had no duty to retreat when Cross provoked him from outside of Smith’s apartment; and that the fatal stab wound received by Cross was either accidental or self-defense in response to a surprise attack. On appeal defendant argues that he need only have subjectively believed that he was in danger of suffering great bodily injury or death in order to prevail on his self-defense theory.

WhHe defendant correctly states the law in general, it is not our role to reweigh the evidence received by the jury, but rather to determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) Based on that standard, we have no hesitation in affirming the jury’s determination that the State met its burden of proving that defendant was not legally justified in killing Cross. There was ample testimony that defendant was the aggressor- when he left Smith’s apartment with butcher knife in hand and throughout the confrontation outside.

The jury did not have to believe defendant’s account of the incident. When defendant left the apartment to confront Cross, the jury could reasonably conclude based on the evidence admitted at trial and reasonable inferences that defendant did not intend to discuss the matter and did not reasonably believe there was a need to defend himself or fend off an attack upon himself or Smith, but that he intended to cause great bodily harm or death to Cross. At best, Cross was bullying and offensive and armed with a small knife — one that merely scratched or scraped defendant, but neither punctured him nor threatened his life. By contrast, defendant armed himself with a weapon fully capable of killing a man with a single, well-placed thrust. Based on our review of the record on appeal, the jury’s determination of guilt was not unreasonable. Accordingly, we reject defendant’s challenge to the sufficiency of the State’s evidence.

Defendant next contends that misstatements of law made by the prosecutor during closing argument concerning the justifiable use of force deprived him of a fair trial. Defendant argues that the prosecutor improperly stated that defendant became the aggressor the moment he came out of the apartment and that he could just have gone out the back door and avoided any further confrontation with Cross. Significantly, there was no objection to the argument either at trial or in defendant’s post-trial motion; thus the error, if any, was waived.

Defendant presses the issue under the plain error doctrine. From our review of the record, however, we find that the prosecutor’s closing argument viewed in its entirety, even to the extent that it may have overstated the State’s case, was not so inflammatory as to deny defendant his right to a fair trial. Moreover, the jury was properly instructed by the court on the law of justifiable use of force (Illinois Pattern Jury Instructions, Criminal, No. 24—25.06 (2d ed. 1981) (hereinafter IPI Criminal 2d)) and further instructed that “[n]either opening statements nor closing arguments are evidence, and any statement or argument made by the attorneys which is not based on the evidence should be disregarded.” (IPI Criminal 2d No. 1.03.) The court’s instructions carry great weight with a jury and may cure a prosecutor’s misstatements of law, particularly where, as here, the alleged misstatements are not emphasized or repeated. Under these circumstances, we find no plain error in the prosecutor’s closing argument. See People v. Lawler (1991), 142 Ill. 2d 548, 564 (court ruled that prosecutor in closing argument had “clearly misstated the law”; however, reversible error not committed because of “curative effect” of jury instructions).

Defendant next contends that he was denied a fair trial because his attorney failed to subpoena witnesses who could have corroborated defendant’s theory of self-defense and because he failed to object to the prosecutor’s misstatements of law during closing arguments. The trial court held an exhaustive hearing with respect to defendant’s allegation that he was entitled to a new trial on the ground of new evidence, i.e., the witnesses who would have corroborated defendant’s version of the events of June 4 and 5, 1989. The court’s conclusion merits reciting:

“I don’t know why all of this material wasn’t brought forward at trial. Certainly there was no impropriety on the part of the State that led to this. Nor does it appear that the defense was inadequate in any way. Some people just didn’t seem to want to testify. But primarily, from what I’ve heard, there really isn’t anything on which to base a motion for new trial, even though some people have now come forward with additional evidence.
There’s a lot of confusion about this case because there were a lot of people involved, and recollections aren’t always identical and precise. But the basic case that even new witnesses have testified to is not word for word but the same case that I heard during the trial. Now, I’m not saying I would have excluded these people because they’re cumulative, but basically they don’t throw any new light on the trial. *** It may be new evidence in a general term, but it is not the type of new evidence that calls for granting a new trial. This case was thoroughly tried. The defendant’s theory was thoroughly presented to the jury, and the jury has rendered its verdict, and therefore, *** the motion for new trial as ultimately amended is hereby denied.”

Although not presented in the trial court as an issue of ineffective assistance of counsel, it is apparent from the foregoing that the trial court considered whether the additional testimony could have changed the outcome of the trial. We agree with the trial court that it could not. The additional witnesses were, for the most part, defendant’s relatives and family friends. Their testimonies in some respects corroborated that of defendant, but in other significant respects, they supported the State’s case. We cannot, under the circumstances, say that counsel was ineffective for failing to produce them at trial. And, for reasons stated above, the alleged misstatements of law made during the prosecutor’s closing argument could not have changed the outcome of defendant’s trial; thus, we do not find counsel’s representation ineffective for his failure to object during the prosecutor’s closing argument.

Lastly, we agree with the State that the current statutory scheme for homicide does not readily lend itself to reductions in degree by this court from murder in the first degree to murder in the second based on an imperfect self-defense (unreasonable belief that lethal force is justified). While there was certainly some evidence of defendant’s unreasonable belief, we do not find that such evidence clearly outweighed the State’s evidence indicating that no such mitigating factor existed at the time of the killing. Accordingly, we will not disturb the judgment of conviction as entered by the circuit court of Peoria County.

The judgment of the circuit court is affirmed.

Affirmed.

GORMAN and SLATER, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    MARY E. THIERRY, Plaintiff-Appellant, v. CARVER COMMUNITY ACTION AGENCY OF KNOX COUNTY, INC., Defendant-Appellee.
    Third District
    No. 3—90—0305
    Opinion filed April 23, 1991.

      Arthur J. Inman, of Peoria, for appellant.
    Barash, Stoerzbach & Henson, of Galesburg (Paul L. Mangieri, of counsel), for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The plaintiff, Mary Thierry, sued the defendant, Carver Community Action Agency, for reinstatement as executive director of the defendant, or for a hearing to discuss the grounds for her termination as executive director. The defendant moved to dismiss the action, claiming the plaintiff was exempt from the defendant’s personnel policy. The trial court granted the defendant’s motion to dismiss and the plaintiff appeals.

After serving as vice-president and president of the defendant’s board of directors, the plaintiff was appointed executive director. There was no written or oral agreement between the plaintiff and defendant concerning the duration of the plaintiff’s employment. The defendant, a not-for-profit organization, is governed by a board of directors which appoints the executive director.

The board of directors adopted a personnel policy in 1983. At that time, the plaintiff was a member of the board of directors. The personnel policy defined various categories of employees, including probationary employees (less than three months in defendant’s employ), part-time permanent employees (three months in defendant’s employ but working fewer than 40 hours per week), full-time permanent employees, temporary employees (a job assignment of not more than six months in a 12-month period), provisional employees (temporary appointments lasting longer than six months), and exempt employees. Section II, F, 6, of the personnel policy lists those employees exempted from its protective fold. Included among the list of exempt employees are individuals having special or unique qualifications, or individuals on whom the executive director relies, to develop or implement the broad philosophy of the agency.

The plaintiff was hired as executive director on June 1, 1984, and served in that capacity until July 24, 1989. On that date, she was informed by the chairman of the board of directors, Scott Swanson, that she had been terminated “for cause.” She later received a letter from Swanson identifying the causes as follows:

1. Unsatisfactory work.
2. Inability to carry out assigned duties of her job.
3. Poor attitude demonstrated by failure to improve production of work.
4. Inefficiency.
5. Other such problems.
Section VLB of the personnel policy reads in part:
“B. Termination for Cause
You are subject to termination from your job for such causes as will promote the efficiency of the agency. Unsatisfactory work performance, inability to carry out the assigned duties of your job, poor attitude demonstrated by failure to improve product of your work, inefficiency, and other such problems, shall be sufficient grounds for termination.
Part-time, temporary, provisional, or probationary employees, are subject to immediate termination at any time, with no rights to appeal their termination, and with no requirement that the Agency provide any warnings of any nature prior to such termination. Following a successful completion of the employee’s probationary period, a full-time employee of the Agency shall, upon termination for cause, have the right to appeal such termination for cause in the following manner:
a. The terminated employee shall, within ten (10) calendar days following said termination, present to the Agency, a written request for a hearing, before the Executive Director of the Agency or his designee ***.”

The plaintiff, invoking section VLB, demanded a hearing on her termination. The defendant responded that she had no right to a hearing but that it would review the decision to terminate her employment. The plaintiff was allowed the opportunity to present any information concerning her discharge at the board of director’s next regularly scheduled meeting.

At the board of director’s meeting of August 17, 1989, the plaintiff appeared in person and with counsel, and presented such information as she desired. Upon completion of the meeting, the board of directors went into executive session to discuss and review the plaintiff’s discharge. Upon returning to the open session, the board of directors found that the plaintiff and counsel had departed. The board of directors then voted to reaffirm the plaintiff’s termination.

Under Illinois law, a written or oral employment contract which does not specify a term of employment creates an employment relationship which lasts at the will of the parties. (Harrison v. Sears, Roebuck & Co. (1989), 189 Ill. App. 3d 980, 546 N.E.2d 248.) An employment relationship at will can be terminated for “a good reason, a bad reason, or no reason at all.” Hogge v. Champion Laboratories, Inc. (1989), 190 Ill. App. 3d 620, 628, 546 N.E.2d 1025.

Furthermore, statements found in an employee policy manual may create enforceable contract rights. (Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314.) In Duldulao, the court held that an employee handbook or policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present. First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe an offer had been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by continuing to work after learning of the policy statement. When these conditions are present, the employee’s continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed. (Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 490, 505 N.E.2d 314, 318.) All three conditions set forth in Duldulao must be present to create enforceable contract rights. (Koch v. Illinois Power Co. (1988), 175 Ill. App. 3d 248, 529 N.E.2d 281.) In the instant case, the first condition, or requirement, is not satisfied because the personnel policy does not contain a promise clear enough that the plaintiff would reasonably believe to be an offer.

In the instant case, the plaintiff asserts that since the position of executive director was not specifically excluded under section II, F, 6, of the personnel policy, the policy must be construed as to include that position within its protective fold. That section exempts from the personnel policy “individuals having special or unique qualifications, or individuals on whom the executive director relies, to develop or implement the broad philosophy of the agency.” The trial court ruled that pursuant to section II, F, 6, the plaintiff was not among those covered by the personnel policy. We agree. The executive director possesses those unique qualifications to implement policy as mentioned in section II, F, 6. We further note that the aforementioned section refers to two groups of employees, either those employees having special or unique qualifications, or those employees on whom the execufive director relies. It therefore follows that if those employees on whom the executive director relies for making and implementing policy are exempted from the personnel policy, then the individual ultimately responsible for making policy, the executive director, is also exempted.

According to the plaintiff’s argument, the appeal of the termination of the executive director would be to the executive director. Thus, the plaintiff’s appeal would be to herself or to her “designee” as provided by section YI.B.B. of the personnel policy. This argument, while it does give new meaning to the term job security, is meritless. The language in the personnel policy cannot be interpreted by a reasonable person to construe an offer to the executive director of the right to a hearing before herself upon her termination. Thus, the plaintiff is unable to show that the language of the personnel policy contains a clear promise such that she could have reasonably construed to be an offer.

The plaintiff’s complaint is deficient as a matter of law because it failed to meet even the first prong of the Duldulao test. We conclude therefore that the personnel policy did not create enforceable contractual rights with the plaintiff. The plaintiff failed to rebut the presumption that she was an employee, at will and consequently she was not subject to the personnel policy’s protection. We affirm the judgment of the circuit court of Knox County.

Affirmed.

GORMAN and HAASE, JJ., concur.'


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY BURNSIDE, Defendant-Appellant.
    Third District
    Nos. 3—90—0391, 3—90—0392 cons.
    Opinion filed April 23, 1991.
    Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

A jury convicted the defendant, Terry Burnside, of unlawful use of weapons by a felon (Ill. Rev. Stat. 1989, ch. 38, par. 24—1.1(a)). A second jury found the defendant guilty of unlawful possession of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2)). Thereafter, he was sentenced to prison terms of 5 and 15 years, respectively. He filed an appeal in both cases, and we subsequently consolidated the two appeals.

The defendant first argues that his conviction for unlawful use of weapons should be reversed and the cause remanded for a new trial. Specifically, he contends that statements made by the prosecutor during her rebuttal closing argument deprived him of a fair trial.

The record shows that pursuant to a search warrant, a number of police officers entered a residence in which the defendant and other family members resided. The search of an upstairs bedroom yielded such drug paraphernalia as cellophane packets, paper bags, plastic bags, a Seal-a-Meal packaging device, scales, and a notebook bearing names, monetary figures and slang terms for cocaine. The police also found cocaine, a handgun, and a shotgun in the bedroom.

During the course of the trial, the defendant’s stepmother testified that the defendant and his brother, Brian, shared the room that was searched. She further testified that Brian had a significant problem with drugs.

The defendant also testified that he and his brother shared the bedroom. He stated that all of the drug paraphernalia, as well as the cocaine, was Brian’s. He also stated that he had never seen the guns before.

Brian testified that he had put the cocaine, containers, packets, scale, and other drug paraphernalia in the bedroom while the defendant was sleeping there with a girlfriend. He also claimed that he placed the guns in the room. Brian acknowledged having a prior drug conviction.

During rebuttal closing argument, the prosecutor stated the following:

“[Ujnder the laws of Illinois, there are certain disqualifications that follow you when you become a convicted felon in the State of Illinois. And one of the disqualifications is the law says after that time, you can’t have any guns in your house, and you can’t have any bullets in your house. That’s the law. And that’s all we are required to prove to you beyond a reasonable doubt. It’s not because I don’t like Mr. Burnside. That’s the law. If you are a convicted felon, you can’t have guns and you can’t have bullets. And if you have got them in your house, it’s against the law.”

Defense counsel immediately objected to these remarks, but the trial court did not sustain the objection or make any curative remarks. It merely informed the jurors that they would be instructed on the law. The jury was properly instructed that the offense required the State to prove that the defendant knowingly possessed the weapon. See People v. Capsel (1986), 144 Ill. App. 3d 1057, 496 N.E.2d 10.

During its deliberations, the jury sent the following questions to the court: “Clarification of the law: a person commits the offense of unlawful use of weapons by a felon when he has been convicted of a felony under the laws of the State and knowingly has in his own abode firearms and ammunition? Further explain ‘he has.’ Does it mean possession? Does it mean access to it? Does it mean knowledge that it is present in the abode?” The court referred the jurors to their instructions.

On appeal, the defendant argues that the prosecutor’s comments were a clear misstatement of the law and that they severely prejudiced him. As such, he contends that he is entitled to a new trial.

A prosecutor’s improper remarks generally do not constitute reversible error unless they result in substantial prejudice to the accused. (People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174.) In determining whether the prosecutor’s comments constituted prejudicial error, the test employed is whether the jury would have reached a contrary verdict had the improper remark not been made. People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68.

We agree with the defendant that the prosecutor’s comments were misstatements of the law. In addition, we find that the comments amounted to prejudicial error since the jury could have reached a different result had the comments not been made. This is evidenced by the questions the jurors had regarding the concepts of knowledge and possession. Accordingly, the defendant is entitled to a new trial on the weapons charge.

The defendant next argues that his 15-year sentence for unlawful possession of a controlled substance with the intent to deliver should be vacated and the cause remanded for resentencing. Specifically, he contends that the trial court improperly relied upon the weapons conviction as a factor in aggravation.

An accused is entitled to reconsideration of his sentence where the court, in imposing the sentence, considered a prior conviction which was later reversed. People v. Reynolds (1982), 105 Ill. App. 3d 698, 434 N.E.2d 776.

Here, the record shows that the trial court did consider the defendant’s weapons conviction in sentencing him. We are of the opinion that the case should be remanded for reconsideration of the defendant’s sentence.

Accordingly, the judgment of the circuit court of Peoria County regarding the defendant’s conviction for unlawful use of a weapon is reversed and the cause is remanded for a new trial. The defendant’s conviction for unlawful possession of a controlled substance with the intent to deliver is affirmed, but the cause is remanded for resentencing.

Affirmed in part; reversed in part and remanded.

BARRY and GORMAN, JJ., concur.


text:
    EMIL L. ALOIA, Plaintiff-Appellee, v. JOHN ALLEN PARKER, Defendant-Appellant.
    Third District
    No. 3—90—0328
    Opinion filed April 25, 1991.

      Terrence E. Leonard, of Terrence E. Leonard, Chartered, of Chicago, for appellant.
    James B. Harvey, of McKeown Law Office, of Joliet, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The defendant, John Allen Parker, appeals from a judgment on the pleadings entered in favor of the plaintiff, Emil L. Aloia. The plaintiff brought an action against the defendant seeking the return of earnest money the plaintiff had paid to the defendant as part of a real estate transaction. This is the second appeal in this matter. This court dismissed the first appeal in Aloia v. Parker (3d Dist. 1990), No. 3—89—0032 (unpublished under Supreme Court Rule 23), finding that the judgment appealed from was not a final appealable judgment. The jurisdictional defect has since been cured. We now reach the merits and reverse.

A complete understanding of the issue presented necessitates a detailed rendition of the prior proceedings and the pleadings filed in the trial court. On November 25, 1986, the plaintiff filed a one-count complaint against the defendant. The plaintiff was later allowed to file instanter a first amended complaint which corrected the designation of the defendant. On the defendant’s motion, the first amended complaint was dismissed for failure to allege sufficient facts to state a cause of action.

On April 15, 1987, the plaintiff filed a second amended complaint. The complaint alleged in pertinent part: (1) that on April 29, 1978, the plaintiff had deposited with the defendant $20,000 in earnest money; (2) that the earnest money was paid in connection with real estate contracts for the purchase of four parcels of land; (3) that the real estate contracts provided (a) that the seller agreed to convey title to the properties by recordable trustee’s deed, and deliver a title commitment for an owner’s title insurance policy, (b) that the closing dates would be on or before June 30, 1978, for two of the parcels and March 1, 1979, for the other two parcels, and (c) that if the contract were terminated without the plaintiff’s fault, the earnest money would be returned to the plaintiff; however, if terminated by the plaintiff’s fault, the earnest money would be forfeited to the defendant; (4) that the plaintiff was ready and willing to accept deeds to the four parcels on the closing dates specified in the contracts and pay to the defendant the balance of the purchase money due; (5) that the plaintiff had performed all of the obligations and conditions required by the contracts; (6) that the defendant had not “conveyed” recordable trustee’s deeds or title insurance commitments; (7) that the defendant did not appear at the specified closing dates or at any time to close the sale; (8) that the contracts were terminated without plaintiff’s fault; and (9) that the plaintiff was entitled to the return of the earnest money plus interest and costs.

The defendant subsequently filed an answer to the plaintiff’s second amended complaint in which he admitted receiving $20,000 in earnest money from the plaintiff, subject to the conditions and stipulations of the earnest money receipts. The defendant denied that the earnest money was received pursuant to the real estate contracts. The defendant admitted the allegations concerning the provisions in the contracts. The defendant admitted that he did not convey the parcels and did not appear on June 30, 1978, March 1, 1979, or any other date to close the sales. However, the defendant affirmatively stated that no closing dates were actually ever agreed upon. The defendant neither admitted nor denied the allegation that he failed to deliver title commitments, stating that it was possible his attorney at the time provided them. The defendant denied all other allegations, including the allegation that the plaintiff had performed all obligations and conditions required under the terms of the contracts.

On April 21, 1988, the trial court, without written comment, denied the plaintiff’s motion for judgment on the pleadings. On July 12, 1988, the plaintiff was allowed to add count II to his second amended complaint. In count II, the plaintiff alleged the defendant received $20,000 in earnest money to be applied toward the purchase of four parcels of real estate. The plaintiff alleged that. on May 3, 1978, the plaintiff and the defendant executed four real estate contracts for the above-mentioned parcels. The plaintiff alleged that the defendant had never conveyed any of the property to the plaintiff, that the defendant was now unable to convey the property, that the defendant had never delivered or caused to be delivered a title commitment for an owner’s title insurance policy, and that the defendant had not appeared to close the sale. Count II requested return of the earnest money plus interest and cost.

In his answer, the defendant admitted receiving the $20,000 earnest money; however, he stated the transaction was subject to the conditions and stipulations of the earnest money receipts, and the terms and conditions of the real estate contracts. The defendant admitted entering into the real estate contracts. He also admitted that he had never conveyed any of the subject properties and that he was presently unable to convey the parcels. He admitted that he did not appear at any closing; however, he stated that no closing date had been agreed to by the parties. Regarding the title commitments, he neither admitted nor denied the plaintiff’s allegation, stating that his attorney at the time may have so provided.

On September 29, 1988, the trial court granted the plaintiff’s motion for judgment on the pleadings as to count II. The trial court ordered the defendant to return the earnest money plus the cost of suit to the plaintiff.

On October 27, 1988, the defendant filed a motion to reconsider and/or vacate the judgment. Among other things, the motion stated that if the judgment were vacated, the defendant would seek other counsel, who in turn would request leave to amend the pleadings and raise the issue of forfeiture as an equitable defense. On November 17, 1988, the defendant was given leave to file a substitution of attorneys and incorporate a proposed affirmative defense as part of the pending motion to vacate. In the affirmative defense, the defendant alleged that while he was ready, willing and able to convey the real estate from 1978 to 1985, the plaintiff had failed to tender the balance of the purchase price, procure financing and agree to a closing date for the sale.

On December 22, 1988, the trial court denied the defendant’s motion to reconsider and/or vacate judgment and denied leave to file an affirmative defense. On January 17, 1989, the defendant filed what was termed an “emergency” motion to reconsider. In the motion, the defendant attempted to present the affidavit of an employee of defendant’s former attorney, contending she had pertinent knowledge concerning the real estate transaction between the plaintiff and the defendant. The trial court denied the motion, and the defendant filed an appeal with this court.

As mentioned above, this court dismissed the appeal for lack of an appealable judgment because count I remained undisposed. On April 5, 1990, the trial court granted the plaintiff’s motion to dismiss count I, and the defendant again filed an appeal.

A motion for judgment on the pleadings admits the facts well pleaded by the opposite party and seeks judgment on the questions of law raised by the pleadings. (Whiteco Metrocom Division v. Village of Downers Grove (1990), 197 Ill. App. 3d 174, 553 N.E.2d 1145.) Judgments on the pleadings are appropriate only if the pleadings do not raise genuine issues of material fact. (Allcare, Inc. v. Bork (1988), 176 Ill. App. 3d 993, 531 N.E.2d 1033.) Section 2-616(a) of the Code of Civil Procedure allows amendments to the pleadings at any time before final judgment. Ill. Rev. Stat. 1989, ch. 110, par. 2—616(a).

In the instant case, the defendant filed his affirmative defense after the trial court granted judgment on the pleadings as to count II of the plaintiff’s amended complaint. However, this court held the judgment was not a final appealable judgment. Since the judgment was not final,, the defendant had the right pursuant to section 2 — 616 to amend the pleadings at any time prior to April 5, 1990. In light of this court’s dismissal for want of a final appealable judgment, the trial court should have considered the defendant’s amendments to the pleadings, and whether, as a result, there existed genuine issues of material fact.

For this reason, the judgment of the circuit court of Will County is reversed and the cause remanded for further proceedings.

Reversed and remanded.

BARRY and GORMAN, JJ., concur.


author: JUSTICE GORMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARIO S. GRAY, Defendant-Appellant.
    Third District
    No. 3—89—0811
    Opinion filed April 25, 1991.

      Thomas A. Karalis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

The defendant, Mario S. Gray, was convicted of armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18—2) and sentenced to an eight-year term of imprisonment. He appeals the denial of his motion to suppress and his sentence.

The record shows that prior to trial, the defendant moved to suppress his statements to the police. He alleged that he had told Joliet police officers that he did not want to be questioned, but that Bolingbrook police officers had violated his rights by later questioning him.

The court conducted, the hearing on the motion simultaneously with the bench trial. Officer Robert Briney of the Joliet police department testified that on April 18, 1989, he received a radio report that a Joliet officer was stopping a white van reportedly involved in a Bolingbrook armed robbery. When Briney approached the scene, he spotted the defendant, who matched a description of one of the robbery suspects. Briney arrested him and took him to the police station.

At the station, Briney obtained general booking information from the defendant. When he learned that the defendant was a minor, he contacted the defendant’s mother and told her that her son was in custody. The defendant also spoke with her.

Officer Joseph Seme of the Joliet police department testified that after he gave the defendant Miranda warnings, he asked about the-incident. The defendant replied, “There’s nothing to talk about.” Seme then asked if the defendant drove the van, and the defendant said, “I don’t know nothing about a van.” Seme concluded that the defendant did not want to talk and ended the questioning. However, he could not recall whether he told the officers who later picked up the defendant that the defendant did not want to answer questions.

Briney testified that within a half-hour of the defendant’s refusal to answer questions, Bolingbrook police officers Robert Steinke and Ernest Gorering arrived to take the defendant back to the Bolingbrook police station. Officer Gorering testified that they arrived at the Joliet station about 9:20 p.m. During the ride back to Bolingbrook, neither officer discussed the incident with the defendant. They did, however, have a friendly conversation with him. When they arrived at the Bolingbrook station about 10 p.m., Gorering gave the defendant Miranda warnings. The defendant then made a statement confessing to the offense, which he repeated on tape.

The trial court denied the suppression motion, finding that although the defendant had asserted his right to remain silent at the Joliet station, the Bolingbrook police did not violate his rights by reinitiating questioning.

The court then heard further evidence about the offense. For the purposes of this appeal, it is not necessary to recount the facts in detail. Of note was the testimony of the two victims, who stated that they had arranged to meet with the defendant and two other youths in order to sell them some stereo speakers. When the parties met, the defendant entered the victims’ van and brandished a sawed-off shotgun. After a brief struggle, the victims fled the scene. As they ran, they saw their van being driven away.

The defendant’s statement was also entered into evidence. In it, he admitted using a shotgun during the offense. He further admitted that after his accomplice took the shotgun from him, he urged the accomplice to shoot the victim. The parties also stipulated that a fingerprint on the weapon matched the defendant’s prints.

After the court found the defendant guilty, the cause proceeded to sentencing. The court stated that because of the defendant’s age and his lack of a prior criminal record, it would normally have considered imposing the minimum sentence of six years. However, since the defendant used a weapon that was more dangerous than a handgun, the court imposed an eight-year term.

On appeal, the defendant first argues that the court erred in denying his motion to suppress. He contends that the police violated his right to cut off questioning when they questioned him at the Bolingbrook station.

When a defendant asserts his right to cut off questioning, the interrogation must cease. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) However, the Miranda case did not establish a per se proscription on the renewal of questioning by the police after the defendant’s initial request to remain silent. Statements made by a suspect who earlier expressed a desire to remain silent are admissible if the police “scrupulously honored” the defendant’s right to cut off questioning. Michigan v. Mosley (1975), 423 U.S. 96, 104, 46 L. Ed. 2d 313, 321, 96 S. Ct. 321, 326.

The voluntariness of a later statement is determined by examining the totality of the circumstances. (People v. Reyes (1989), 181 Ill. App. 3d 246, 536 N.E.2d 990.) The relevant circumstances include the following: whether there was a significant lapse of time between interrogations; whether new Miranda warnings preceded the resumed questioning; whether different officers conducted the second interrogation; and whether there was an explanation for the defendant’s reconsideration of his decision to remain silent. (Reyes, 181 Ill. App. 3d at 255, 536 N.E.2d at 996; People v. Savory (1980), 82 Ill. App. 3d 767, 403 N.E.2d 118.) Lastly, the trial court’s decision on voluntariness will not be reversed unless it was against the manifest weight of the evidence. People v. Young (1983), 115 Ill. App. 3d 455, 450 N.E.2d 947.

We find that the record supports the trial court’s decision. The period of approximately one hour between interrogations was a significant lapse of time. (Reyes, 181 Ill. App. 3d at 256, 536 N.E.2d at 996.) Additionally, the second interrogation was preceded by new Miranda warnings and was conducted by different officers. The defendant also had engaged the Bolingbrook officer in a friendly discussion about unrelated matters during the ride to Bolingbrook. Based on the foregoing, we find that the trial court’s denial of the motion was not against the manifest weight of the evidence. See Young, 115 Ill. App. 3d at 463-64, 450 N.E.2d at 953-54.

The defendant further argues that the trial court erred in considering as an aggravating factor that he used a sawed-off shotgun during the robbery. He contends that the court should not have considered the threat of serious harm posed by the weapon, because such a factor is implicit in the offense of armed robbery. See, e.g., People v. Rhodes (1986), 141 Ill. App. 3d 362, 490 N.E.2d 169.

As a general rule, a sentencing court should not consider as an aggravating factor any factor that is inherent in the offense. (People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906.) However, the Conover rule is not meant to be applied rigidly, and sound public policy dictates that a defendant’s sentence be varied in accordance with the circumstances of the offense. (People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138.) Consequently, it has been held that the degree of threatened harm in an armed robbery is a proper sentencing consideration. People v. Griffin (1983), 117 Ill. App. 3d 177, 453 N.E.2d 55; People v. Carmack (1982), 103 Ill. App. 3d 1027, 432 N.E.2d 282.

Here, the court stated that it considered the defendant’s use of a shotgun as an aggravating factor because it is a more dangerous weapon than a handgun. A sawed-off shotgun has been considered among the most dangerous and threatening weapons, the use of which threatens serious harm greater than is inherent in all armed robberies. (People v. Smith (1982), 105 Ill. App. 3d 639, 433 N.E.2d 1169.) Since we agree with the case law which holds that a court may consider the degree of threatened harm in an armed robbery, we find no error.

The judgment of the circuit court of Will County is affirmed.

Affirmed.

McCUSKEY and SLATER, JJ., concur.


text:
    JACK FRAME, Petitioner and Plaintiff-Appellant, v. BOARD OF TRUSTEES OF SPOON RIVER COMMUNITY COLLEGE, Illinois Community College District No. 534, Respondent and Defendant-Appellee.
    Third District
    No. 3—90—0618
    Opinion filed May 2, 1991.

      Deffenbaugh, Loewenstein, Hagen, Oehlert & Smith, of Springfield (Ralph H. Loewenstein, of counsel), for appellant.
    Froehling, Taylor & Weber, of Canton (Ralph Froehling, of counsel), for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from a judgment in the circuit court of Fulton County entered in an action brought by the plaintiff, Jack Frame, a school counselor, who had his term of employment reduced by the defendant, the Board of Trustees of Spoon River Community College. The trial court ruled in favor of the defendant and the plaintiff appeals.

The plaintiff filed a petition for writ of mandamus and declaratory judgment against the defendant. The plaintiff alleged that from the school years 1978-1979 to 1988-1989, he was employed on an 11-month term of employment with the defendant. The plaintiff further alleges that his employment during the months of June, July, and August did not relate to summer school but, rather, to the regular school year. He referred to his working during those months as a summer assignment. The plaintiff has tenure because he is engaged in academic support services.

The 1988-1989 school year ended on or about May 31, 1989. The plaintiff claims that on May 23, 1989, he received notice from the defendant that his employment during the summer of 1989 would be reduced to 13 days. As a result, the plaintiff submits he lost salary by working approximately 29 to 37 less days. The plaintiff requested to be reinstated to his 11-month term of employment and to be awarded damages for lost wages.

The trial court granted the defendant’s motion to dismiss, finding that a significant distinction existed between the terms “school year” as defined by section 3B — 1 of the Illinois Public Community College Act (Ill. Rev. Stat. 1989, ch. 122, par. 103B—1) (the Act), which applies to tenured community college teachers, and “school term” as defined by section 24 — 11 of the Illinois School Code (Ill. Rev. Stat. 1989, ch. 122, par. 24—11) (the School Code), which applies to tenured elementary and high school teachers. Section 3B — 1 of the Act defines “School Year” as a regular academic year or its equivalent, excluding summer school. (Ill. Rev. Stat. 1989, ch. 122, par. 103B—1.) This definition differs markedly from the School Code’s definition of school term because under it, common school teachers have tenure whenever school is in actual session, including during summer school. (See Ill. Rev. Stat. 1989, ch. 122, par. 24—11.) The court, while noting that tenure laws are to be strictly construed, rejected the plaintiff’s claim that his summer work falls within the tenure provisions of the Act because summer school is specifically excluded from tenure protection.

The plaintiff contends that the defendant violated section 3B — 5 of the Act by not notifying him of the reduction in his summer duties 60 days before the end of the regular academic school year. Section 3B—5 of the Act (Ill. Rev. Stat. 1989, ch. 122, par. 103B—5) provides in relevant part:

“If a dismissal of a faculty member for the ensuing school year results from the decision of the Board to decrease the number of faculty members employed by the Board or to discontinue some particular type of teaching service or program, notice shall be given the affected faculty member not later than 60 days before the end of the preceding school year. *** In the event a tenured faculty member is not given notice within the time herein provided, he shall be deemed reemployed for the ensuing school year.”

The plaintiff further concludes that because section 3B — 5 is modeled after section 24 — 12 of the School Code, we should follow those cases interpreting section 24 — 12 for guidance. In essence, the plaintiff asserts that we should review the two statutes in pari materia.

The primary rule of statutory construction is to ascertain and effectuate the legislature’s intent. (Waste Management of Illinois, Inc. v. Environmental Protection Agency (1985), 137 Ill. App. 3d 619, 484 N.E.2d 1128.) In so doing, a court looks first to the statutory language itself, and if the language is clear, the court must give it effect and should not look to extrinsic aids for construction. (Biggiam v. Board of Trustees of Community College District No. 516 (1987), 154 Ill. App. 3d 627, 506 N.E.2d 1011.) In the instant case, there is no reason for not utilizing the plain ordinary meaning of the words “excluding summer school” found in section 3B—1 of the Act. See Ill. Rev. Stat. 1989, ch. 122, par. 103B—1.

In relying on the doctrine of in pari materia, the plaintiff conveniently glosses over a threshold question. That is, whether the statute to be construed is ambiguous. It is fundamental that before the rule of in pari materia is applied, the statute to be construed must be found to be ambiguous. (People v. 1946 Buick, VIN 34423520 (1989), 127 Ill. 2d 374, 537 N.E.2d 748.) We find no reason to apply the doctrine of in pari materia because the language found in sections 3B — 1 and 3B — 5 of the Act is unambiguous and clear.

In addition, the School Code has been found to be inapplicable to community college districts which operate under the authority of the Public Community College Act. (Steinmetz v. Board of Trustees of Community College District No. 529) (1978), 68 Ill. App. 3d 83, 385 N.E.2d 745.) Therefore, insofar as the plaintiff cites three cases in support of his argument, we note that each case dealt with section 24 — 12 of the School Code and did not involve the definition of school year under the Act and, accordingly, is not controlling.

We therefore hold that the Act’s tenure provisions do not apply to summer school or assignments performed during the summer months in conjunction with summer school. We also note that this applies to classroom teachers as well as those involved in academic support services. The plaintiff’s attempt to incorporate certain provisions of the School Code into the Act fails because the legislature carefully and explicitly excluded summer school from the community college tenure provisions.

For these reasons, we affirm the judgment of the circuit court of Fulton County.

Affirmed.

McCUSKEY and HAASE, JJ., concur.


text:
    CHARLES BRANDT et al., d/b/a Brandt Construction Company, Plaintiffs-Appellants, v. UPTOWN NATIONAL BANK OF MOLINE, Defendant-Appellee.
    Third District
    Nos. 3—90—0415, 3—90—0499 cons.
    Opinion filed May 9, 1991.

      Joan M. Scaia, of Bozeman, Neighbour, Patten & Noe, of Moline (Robert J. Noe, of counsel), for appellants.
    Thomas A. Skorepa, of Klockau, McCarthy, Ellison & Marquis, P.C., of Rock Island (G. Trent Marquis, of counsel), for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The plaintiffs, Charles Brandt (Brandt) and Henry Brandt, d/b/a Brandt Construction Co. (Brandt Construction), appeal from a judgment entered in favor of the defendant, Uptown National Bank of Moline (Uptown). On appeal, the plaintiffs raise various alleged errors on the part of the trial court. We find no reversible error and therefore affirm.

The instant case has had an extensive life, including two trials in Federal court. The facts are rather complex, and only those facts necessary for our disposition of the case will be presented.

In 1981, Brandt Construction was awarded two Federal contracts to renovate two buildings at the Rock Island Arsenal (the Arsenal). Roofing repairs on the buildings were to be undertaken by subcontractor DeVolder Brothers Roofing Contractors, Inc. (DeVolder Roofing). Mike DeVolder (DeVolder) was the president of DeVolder Roofing. DeVolder and his company had been banking with Uptown for a number of years. DeVolder Roofing maintained a business checking account at Uptown. All funds received from various projects were deposited in this one account. As of late 1981, DeVolder Roofing owed Uptown in excess of $200,000 on a commercial demand note. The note was secured by the assets, inventory and accounts receivable of DeVolder Roofing. Uptown also had access to DeVolder Roofing’s books and records. Brandt and Brandt Construction did not bank with Uptown.

The record shows that DeVolder Roofing did not have the cash flow necessary to finance its work at the Arsenal. Uptown agreed to lend up to $100,000 per month to DeVolder Roofing during the construction. The loan was to be repaid each month as DeVolder Roofing received payment from Brandt Construction. This extension of credit was in addition to the outstanding demand note. DeVolder had. told Uptown that he hoped the profit from the Arsenal project would reduce or even pay off the balance of the demand note.

On May 4, 1982, Charles Brandt, Mike DeVolder and Ralph Schaller, vice-president of Uptown, held a meeting at the bank. At the meeting, the parties discussed how the monetary aspects of the Arsenal project would operate. DeVolder Roofing, like the other subcontractors on the project, would submit bills to Brandt Construction, which in turn would submit those charges to the Federal government. The government would pay Brandt Construction, and the company would then pay the subcontractors. During the meeting, Schaller requested that Brandt Construction make the checks jointly payable to DeVolder Roofing and Uptown.

Brandt testified that when he asked why the bank wanted the checks made out to both DeVolder Roofing and Uptown, Schaller replied, so that “the material suppliers, the subcontractor and we are assured of being paid.” DeVolder also testified that such a statement was made by Schaller. Schaller denied making a promise that Uptown would make sure suppliers on the Arsenal job were paid. Schaller indicated that the reason for the joint checks was that they would serve as a form of collateral for the monthly extensions of credit.

The record also shows that a letter received by Brandt Construction on May 1, 1982, stated that as part of the collateral on a loan to DeVolder Roofing, DeVolder Roofing had assigned their accounts receivable on the project to the bank. The letter requested that'when payment on the project' was made,- the check be made payable to DeVolder Roofing and Uptown, and that the check be sent to the bank. The letter was signed as accepted by Charles Brandt on May 4, 1982. A similar letter was sent to Brandt Construction each month during the summer of 1982.

The financing and payment mechanism functioned with very few problems during the summer of 1982. DeVolder Roofing’s work on the project was completed in the fall. As is the general practice in the industry, Brandt Construction retained a percentage of the amount due DeVolder Roofing until the project was completed. This retainage was in excess of $67,000.

On October 22, 1982, DeVolder met with Brandt. Brandt asked DeVolder if DeVolder’s suppliers had been paid. DeVolder replied that they had been paid. Brandt then made out the check in the amount of the retainage to DeVolder Roofing and Uptown. DeVolder took the check to Uptown. He told Schaller that he needed the funds to pay suppliers on the Arsenal project, including Owens-Corning Fiberglas Corporation. It had been contemplated that the retainage would be used to reduce the amount owed on the outstanding demand note. Schaller indicated that he would have to discuss the matter with the executive committee of the bank.

Uptown exercised its right of setoff on DeVolder Roofing’s checking account to cover the debt owed to the bank on the demand note. DeVolder Roofing therefore could not pay Owens-Corning. Within a matter of days, Uptown instituted foreclosure proceedings on the property of DeVolder Roofing. Subsequently, DeVolder Roofing filed bankruptcy under chapter 11 of the Bankruptcy Code (11 U.S.C. §1101 et seq. (1988)). When the company’s attempts at reorganization failed, the firm was liquidated.

Because the Arsenal project involved Federal contracts, Brandt Construction was required to post payment bonds under the Miller Act (40 U.S.C. §270 (1988)). When Owens-Coming failed to receive payment from DeVolder, Owens-Corning brought an action under the Miller Act against Brandt Construction, the principal on the payment bonds. Owens-Corning obtained a judgment against Brandt Construction in the amount of $59,883.62.

The instant case arises out of the action brought by the Brandts against Uptown to recover the amount paid Owens-Coming plus punitive damages. Count I of the complaint alleged that Uptown wrongfully applied the retainage funds to an unrelated debt and that Uptown’s actions were contrary to law. Count II alleged promissory estoppel, and count III alleged a breach of a fiduciary duty. The case was tried before a jury. The trial court granted a directed verdict as to count I, finding the count failed to state a cause of action. The jury found for Uptown on counts II and III.

On appeal, the plaintiffs contend the trial court erred in directing a verdict on count I. The record shows that earlier in the proceedings Uptown’s motion to dismiss count I was denied. On the subsequent motion for a directed verdict, the trial judge stated, “I am going to allow the motion on Count I, whether it’s in the nature of a directed verdict or a reversal on a motion to dismiss, perhaps a technicality because I find for the record, that the original complaint and the evidence produced at trial, which would address, I presume, a request to amend to conform to the evidence, does not state a cause of action.”

Whether we review the trial court’s decision under the standard of review for directed verdicts or dismissals, we find no error. The plaintiffs argue that because Uptown knew that the funds were derived from the Arsenal project, Uptown was under an obligation to see that the funds were applied to the debts owed DeVolder Roofing’s suppliers before the funds could be applied to the non-Arsenal-related debt owed to the bank. There is no basis in law for this supposition.

In addition, the cases cited by the plaintiffs in support of their contention are readily distinguishable. (See United States ex rel. Hyland Electrical Supply Co. v. Franchi Brothers Construction Corp(2d Cir. 1967), 378 F.2d 134; United States ex rel. C.H. Benton, Inc. v. Roelof Construction Co. (9th Cir. 1969), 418 F.2d 1328; Central Blacktop Co. v. Town of Cicero (1988), 166 Ill. App. 3d 260, 519 N.E.2d 972.) These cases involve material suppliers who have supplied materials to a contractor on various jobs. In sum,' the cases hold that when the contractor makes a payment, and the supplier knows from which project the funds are derived, the supplier is obligated to apply those funds to the account connected with that project, and not other debts owed to the supplier by the contractor. In the case at bar, the bank is not a material supplier but rather a creditor with a specific right of setoff and thus the cases are inapposite.

In their reply brief, the plaintiffs cite Gluth Brothers Construction, Inc. v. Union National Bank (1988), 166 Ill. App. 3d 18, 518 N.E.2d 1345. In Gluth, the plaintiffs entered into a joint venture with Valley Engineering Company involving a public works project. Their agreement provided that funds contributed by the parties and all funds received as payment on the project were designated trust funds until such time as the project contract was completed and all obligations were paid. Afterwards, profits, if any, would be distributed to the members of the joint venture.

Subsequently, the joint venture wrote a check on an account held with the defendant bank and payable to Valley. Valley deposited the check in its checking account which was also at the defendant bank. Valley apparently owed the defendant $280,000. The defendant set off the funds in Valley’s checking account in satisfaction of the debt Valley owed to the defendant.

In the action brought by the plaintiffs to recover the funds set off by the defendant, the court held that the defendant’s right of setoff was limited by the fact that the plaintiffs, with the knowledge of the defendant bank, held an equitable interest in the funds deposited by Valley. The court affirmed the trial court’s finding that the defendant had wrongfully set off the funds from the Valley account. Citing established case law, the Gluth court stated in pertinent part: “The relation between the bank and a depositor is that of debtor and creditor. [Citation.] *** The bank may look to deposits on hand to satisfy any indebtedness on the part of the depositor. [Citation.] *** However, where the depositor holds funds in trust for another party and has deposited such funds in his own account, and the bank knows of the trust, the bank may not set off these funds to satisfy any indebtedness of the depositor.” Gluth Brothers Construction, Inc. v. Union National Bank (1988), 166 Ill. App. 3d 18, 23, 518 N.E.2d 1345, 1349.

In the instant case, the money deposited in the De Voider Roofing checking account was not held in trust, either actual or constructive. There was no written agreement stating that the funds deposited in the checking account were held in trust. Despite this seminal fact, the plaintiffs contend that Owens-Corning was the equitable owner of the funds because De Voider Roofing was indebted to Owens-Corning, and Uptown had knowledge of this fact. We find this contention to be without merit. Should the plaintiffs’ reasoning be carried to its logical conclusion, any debtor of a party who has a checking account would be deemed to have an equitable ownership in the funds in that account, thus limiting a bank’s right to setoff.

In sum, under the facts of this case as alleged in count I of plaintiffs’ complaint, Uptown was under no legal obligation to pay Owens-Corning or see that Owens-Corning was paid from the funds deposited by De Voider Roofing. Uptown was under no obligation to see that De Voider Roofing’s debts to third parties were satisfied before it applied the funds to cover the obligation under the demand note. Therefore, the trial court correctly granted Uptown’s motion on count I.

Next the plaintiffs contend the trial court erred in denying them the right to present relevant evidence, thus denying them a fair trial. Evidentiary rulings are within the discretion of the trial court, and absent an abuse of discretion resulting in prejudice to the party objecting, those rulings will not be disturbed. In re Estate of Weir (1983), 120 Ill. App. 3d 18, 458 N.E.2d 134.

In the instant case, the trial court granted Uptown’s motion to strike reference to the interest rate to be paid by DeVolder Roofing on the monthly $100,000 loans. In addition the trial court did not allow copies of the commercial notes between DeVolder Roofing and Uptown to go to the jury during their deliberations. The court was concerned with the fact that reference to the interest rate had been blocked out on the copies. We find that the trial court did not abuse its discretion. The interest rate paid by DeVolder Roofing was irrelevant to the action between Brandt Construction and Uptown. It was reasonable for the trial court to determine that this evidence had little or no probative value in the instant case.

The plaintiffs also contend that the trial court erred in refusing their offered instructions on fiduciary relationship.

The purpose of jury instructions is to advise the jury of the correct principles of law to be applied to the evidence admitted at trial. (La Salle National Bank v. City of Chicago (1985), 132 Ill. App. 3d 607, 478 N.E.2d 417.) While the trial court has considerable discretion in determining the form of the instruction to be given, the instructions given must be supported by some evidence in the record, they must correctly state the law, and they must not overemphasize any particular matter. (Ramos v. Pankaj (1990), 203 Ill. App. 3d 504, 561 N.E.2d 744.) Moreover, a reviewing court will not reverse a trial court for erroneously refusing an instruction unless prejudice has resulted. Malek v. Lederle Laboratories (1984), 125 Ill. App. 3d 870, 466 N.E.2d 1038.

The plaintiffs initially tendered the following proposed jury instruction: “When I use the term ‘fiduciary relationship’ in these instructions I mean a situation where trust and confidence are reposed by one person in another who, as a result, gains a superiority over the other as to the transaction in question. This includes situations where one party pays money to the other party, as collecting agent, on the promise that the second party will use the money in the manner promised.” The trial court refused to give this instruction, finding that a determination of whether a fiduciary relationship existed in this case was a question of fact. The trial court distinguished the situation in this case from one involving an attorney/client relationship in which the fiduciary relationship exists as a matter of law. The trial court stated that in that type of case the jury would simply be instructed that the attorney/client relationship is a fiduciary relationship.

Subsequently, the plaintiffs offered a revised instruction in which they altered the second sentence to read: “This could include situations where one party pays money to the other party, as collecting agent, on the promise that the second party will use the money in the manner promised.” This proposed instruction was also refused and the jury instructed: “When I use the term ‘fiduciary relationship’ in these instructions I mean a situation where trust and confidence are reposed by one person in another who, as a result, gains a dominance, influence and superiority over the other as to the transaction in question.”

We agree with the trial court that plaintiff’s proposed second sentence implies a fiduciary relationship as a matter of law. In this case, such a relationship was a question of fact for the jury to determine. The instruction given adequately defined fiduciary relationship. We therefore find no error and no prejudice to the plaintiffs in the trial court’s decision on this issue.

During deliberations the jury sent out a note indicating that the jury had a question concerning the meaning of the term “unambiguous” which was used in at least one of the instructions given to the jury. Over plaintiffs’ objection, the trial court wrote out and sent to the jury the following definition from the Random House Dictionary: “unambiguous — not open to various interpretations; not having several possible meanings or interpretations.” The plaintiffs maintain that they were prejudiced by this action.

In the instant case, we find that the plaintiffs in this case were not prejudiced by the court’s action. The trial court defined a common word and there is no contention that the definition given was incorrect or could have misled the jury. We find no merit to plaintiffs’ argument that because the alleged unambiguous promise of Schaller was an element of their promissory estoppel theory, the term “unambiguous” received undue attention and emphasis.

For the foregoing reasons, the judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

SLATER and HAASE, JJ., concur.