author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS J. RHODES, Defendant-Appellant.
    Fourth District
    No. 4—92—0090
    Opinion filed April 15, 1993.

      Thomas W. Burkart, of Burkart Law Offices, of Hamel, for appellant.
    Vince Moreth, State’s Attorney, of Carlinville (Norbert J. Goetten, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant Dennis J. Rhodes was convicted of unlawful delivery of alcohol to minors (Ill. Rev. Stat. 1989, ch. 43, par. 131) following a jury trial in Macoupin County, Illinois. He was placed on conditional discharge for a period of six months, fined $250 plus costs and sentenced to serve 10 weekends in the county jail. Defendant was also ordered to perform 100 hours of community service. He has appealed, contending (1) the State’s deliberate destruction of evidence deprived him of a fair trial and due process; (2) the trial court erred by giving certain jury instructions; (3) the trial court erred in allowing the State to present evidence that minors other than those named in the information were served alcohol; and (4) the trial court erred in denying his motion in limine to restrict the State’s use of an out-of-court statement by him where the State had filed formal discovery that there was no such statement in existence. We affirm.

The evidence presented at trial established that 13-year-old Carey Gan, 14-year-old Adrienne Spudich, and 15-year-old Alena Machuda attended a party at defendant’s house on July 19, 1991. Gan paid defendant between $2 and $4 and drank three beers and one mixed drink. Machuda drank two beers and one mixed drink although she did not pay defendant any money. Chris Best, a friend of defendant, gave her the beers. Spudich paid defendant $2 but only had a sip of Gan’s mixed drink.

All three girls were spending the night at Machuda’s house. Gan became sick and woke up Machuda’s mother, who realized the girls had been drinking. She had the other girls each phone their parents to come and get them. They all then went to the police station early that morning where each girl gave a written statement indicating they had been drinking alcohol at defendant’s house and listed the other minors present at that party.

Defendant testified that on July 19, 1991, he was supposed to go to another party with a friend, Darrin Bianco. As they were getting ready to go out, Best arrived, then left with Bianco and returned to defendant’s house with Machuda and two other high school students. Defendant explained that his refrigerator is equipped to hold a keg of beer which he keeps on tap at all times. The refrigerator has a spigot on the side of it to get beer directly from the keg. When Best, Bianco, Machuda and the others returned, the keg was nearly empty, so defendant filled a pitcher with the remaining beer and left with Bianco to buy a new keg. They did so and upon returning, defendant and Bianco drank the remaining beer in the pitcher. Defendant saw nobody under the age of 21 drinking beer.

Defendant left his house with Bianco but soon returned only to find several more people at his house, including Gan and Spudich. Defendant testified that two people present at the party were 21 years old and he provided them with beer and a mixed drink containing Malibu rum and pineapple juice. To the best of his knowledge, nobody else drank any alcohol while he was gone. The party ended at approximately midnight, and at 5:30 a.m. the police arrived at his house and placed him under arrest for unlawful delivery of alcohol to minors.

The original information charged defendant with committing the offense of:

“Unlawful delivery of alcohol to minors, in that said defendant, after purchasing or otherwise obtaining alcoholic liquor, gave or delivered said alcoholic liquor to Alena M. Machuda, Adrienne N. Spudich, and Carey A. Gan, a person under the age of 21 years.”

At the pretrial conference, the information was amended, over defendant’s objection, by interlineation to change it to read giving or delivering alcohol to “Alena M. Machuda, Adrienne N. Spudich or Carey A. Gan.” Following a jury trial, defendant was convicted and timely filed this appeal.

Defendant first contends the State’s deliberate destruction of evidence consisting of the original statements prepared by the witnesses deprived him of a fair trial and due process of law. Gan, Spudich and Machuda each testified they made two handwritten statements at the police station that morning. Machuda testified Officer Stipcak took her first statement away from her and told her to write another one including names of all the people at the party. She explained the only difference between the first and second statement she prepared was that the second one contained the names of the people at the party.

Spudich saw Officer Stipcak tear up her first written statement and throw it away. She also testified the only difference between the two statements was that the second one contained greater detail including names of the people present at the party. Gan also made two handwritten statements. She did not know what Officer Stipcak did with her first statement. Her second statement contained names of the people who were present at the party.

The United States Supreme Court has stated:

“Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality [citation], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (California v. Trombetta (1984), 467 U.S. 479, 488-89, 81 L. Ed. 2d 413, 422, 104 S. Ct. 2528, 2534.)

In addition, unless a defendant can show bad faith on the part of the police, a failure to preserve potentially useful evidence does not constitute a denial of due process. Arizona v. Youngblood (1988), 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333; People v. Young (1991), 220 Ill. App. 3d 488, 496, 581 N.E.2d 241, 246-47.

Defendant has failed to show bad faith on the part of Officer Stipcak. All three girls testified Officer Stipcak asked them to write the second statements only because the first ones did not include names of the other people present at the party. Defendant had an opportunity to cross-examine each witness about the differences between her statements and each girl testified the only difference between the statements was the inclusion of names of the people at the party. Defendant has thus failed to show that a violation of his constitutional rights occurred.

Defendant next alleges the trial court erred in giving two of the State’s jury instructions which addressed the theory of accountability. He asserts the jury was improperly instructed on a theory of accountability where the evidence was limited to an accusation made by three girls of his conduct as a principal only. Defendant also contends the statute under which he was convicted makes the giving of an instruction on a theory of accountability improper because the offense is so defined that his conduct was inevitably incident to its commission.

The State initially responds that defendant has waived this issue because no record of the jury instructions conference was provided and the notes on the instructions contained in the record on appeal are indecipherable. Alternatively, the State alleges that accountability instructions were properly given.

The State correctly notes the jury instruction conference was not transcribed nor did defendant prepare a proposed report of proceedings. (134 Ill. 2d R 323(c).) The jury instructions submitted by both the State and defendant are contained in the record on appeal. The two instructions at issue here, People’s Nos. 9 and 10, contained the notation “g over obj.” The record does not show the grounds for defendant’s objection, the issue is waived, and there is no substantial defect in the instructions given. People v. Waisvisz (1991), 221 Ill. App. 3d 667, 676, 582 N.E.2d 1383, 1389-90.

Defendant contends these instructions were improper because they allowed him to be convicted based upon a theory of accountability without proof of the essential elements of accountability. He alleges these instructions were improper because the charged offense is defined such that his conduct was inevitably incident to the commission of the offense.

People’s instruction No. 9, patterned after Illinois Pattern Jury Instructions, Criminal, No. 5.03 (2d ed. 1981) (hereinafter IPI Criminal 2d), stated:

“A person is legally responsible for the conduct of another person, when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of that offense, he knowingly solicits, aids, abets, agrees to aid or attempts to aid the other person in the planning or commission of the offense.”

People’s instruction No. 10, patterned after IPI Criminal 2d No. 5.06, provided:

“A person who is legally responsible for the conduct of another may be convicted for the offense committed by the other person even though the other person, who it is claimed committed the offense has not been prosecuted.”

A person is legally accountable for the conduct of another when either before or during the commission of the offense, and with the intent to promote or facilitate the commission of the offense, he solicits, aids, abets, agrees, or attempts to aid another person in the planning or commission of the offense. (People v. J.H. (1990), 136 Ill. 2d 1, 17, 554 N.E.2d 961, 968, cert, denied (1990), 498 U.S. 942, 112 L. Ed. 2d 315, Ill S. Ct. 351.) That a defendant may be guilty as a principal does riot preclude instructions on accountability; also, accountability instructions may be used even though the defendant is on trial alone. (People v. Wilkerson (1984), 123 Ill. App. 3d 527, 536, 463 N.E.2d 139, 147.) The Illinois Supreme Court has held that the fact that defendant might have been guilty of direct participation in the crime does not make an accountability instruction improper, as long as there was sufficient evidence that he aided another in the commission of the crime. People v. Whitlock (1988), 174 Ill. App. 3d 749, 781, 528 N.E.2d 1371, 1390; People v. Stark (1966), 33 Ill. 2d 616, 622, 213 N.E.2d 503, 506.

An accused may be convicted on a theory of accountability if the evidence supports such a conviction. (Whitlock, 174 Ill. App. 3d at 780-81, 528 N.E.2d at 1390.) Although submission of an instruction on accountability in the absence of supporting evidence is error, it is proper to instruct a jury on the principal action on accountability where the evidence supports both theories. Evidence, however slight, on accountability along with evidence of actions as a principal offender is sufficient to support both instructions regardless of whether both theories were advanced in the State’s case in chief. (People v. Batchelor (1990), 202 Ill. App. 3d 316, 331, 559 N.E.2d 948, 958.) Any error giving instructions on accountability would have been harmless because sufficient evidence existed to find defendant guilty as a principal. Batchelor, 202 Ill. App. 3d at 332, 559 N.E.2d at 959.

The trial court properly gave the accountability instructions. The State contends defendant aided and abetted Best in his efforts to provide alcohol to Machuda. Machuda testified Best gave her two beers which came from the spigot on defendant’s refrigerator and defendant gave her a mixed drink. Gan testified defendant gave her the alcohol she consumed. Spudich saw defendant provide alcohol to Gan and she had a taste of Gan’s mixed drink. Defendant allowed Best to remain in his house while he and Bianco left to go to another party. Best was in charge of the stereo and was to guard the house because he had invited people over to defendant’s house. Defendant also asked Best to remain at the house while they went to purchase a new keg of beer because Best had invited these people to the house, including Machuda. Defendant testified he made the mixed drinks and bought the keg of beer. Thus, the evidence established defendant provided the alcohol to Machuda and Gan. Best gave alcoholic drinks to Machuda, and defendant provided Best with the alcohol and a place to serve it.

Defendant also contends these instructions were improperly given because his conduct was inevitably incident to the commission of the charged offense. Section 5 — 2(c)(2) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 5 — 2(c)(2)) provides that a person is not legally accountable for the conduct of another, unless the statute defining the offense provides otherwise, if: “[t]he offense is so defined that his conduct was inevitably incident to its commission.” Defendant contends this exception prevents him from being held accountable for Best’s actions and thus, the accountability instructions were improper.

Defendant has failed to show how his conduct was inevitably incident to the commission of the crime. Defendant has failed to show any connection between the possible charge under section 6 — 16(c) of the Liquor Control Act of 1934 (Act) (Ill. Rev. Stat. 1989, ch. 43, par. 131(c)) and the exception to accountability under section 5 — 2(c)(2) of the Code. Thus, the accountability instructions were properly given.

Moreover, the committee comments to section 5 — 2(c) of the Code refute defendant’s argument. Those comments state in part:

“The Model Penal Code suggests such examples as these: Should a man accepting a prostitute’s solicitation be guilty of prostitution? Should a woman upon whom a miscarriage is produced be guilty of abortion? Should a bribe-taker be guilty of bribery? (Model Penal Code comment at 35 (Tent. Draft No. 1, 1953).) In many situations, the scope of criminal liability, if extended in this fashion, might make law enforcement more difficult. In any event, subsections (c)(1) and (c)(2) do not prevent the extension of liability to such persons by provision in the particular statutes if this is desired. Thus, if it be decided that a bribe-taker should be treated as guilty of bribery, this can be provided in the bribery section. All that is done in these provisions is to state the rule that persons falling under subsections (c)(1) and (c)(2) are not guilty if there is no specific provision to the contrary.” (Ill. Ann. Stat., ch. 38, par. 5 — 2, Committee Comments, at 236 (Smith-Hurd 1989).)

Defendant cannot rely on this exception to prove the jury instructions on accountability were improperly given. Defendant is not like the victim in a blackmail plot who pays over the money. Defendant directly participated in the crime and also assisted Best in committing this offense. This exception to accountability is inapplicable.

Defendant next alleges the trial court erred in giving certain of the State’s instructions because these instructions omitted a necessary element of the charged offense. He asserts the instructions which were given stated he failed to prove the beverages contained a lesser amount of alcohol than defined by statute and this placed upon him the burden of disproving an essential element of the charged offense.

Section 1 — 3.05 of the Act defines alcoholic liquor as including “alcohol, spirits, wine and beer, *** capable of being consumed as a beverage by a human being. The provisions of this Act shall not apply to *** any liquid or solid containing one-half of one percent, or less, of alcohol by volume.” Ill. Rev. Stat. 1989, ch. 43, par. 95.05.

Defendant’s tendered instructions, which were refused, stated: “A person commits the offense of gift of alcohol to a minor when he knowingly gives or delivers any beverage containing more than .5% of alcohol by volume to a person under 21 years of age.” People’s instruction No. 14 which was given, stated: “A person commits the offense of unlawful delivery of alcohol to a minor when he, after purchasing or otherwise obtaining alcoholic liquor, knowingly gives or delivers that alcoholic liquor to a person under the age of 21 years.” Defendant contends the instructions given failed to state an essential element of the crime, namely, that the alcoholic beverages given to the minors contained .5% alcohol by volume.

Where the alleged intoxicating liquor was shown to be one of the liquors mentioned in the statute, its intoxicating quality did not need to be shown by the evidence. (People v. Isonhart (1930), 259 Ill. App. 9, 12.) The statutory definition of alcoholic liquor includes beer. Defendant testified he provided a keg of Bud Light, and Gan and Machuda both testified they drank beer. They both testified they are under 21 years of age. Accordingly, because the minors testified they drank beer, a beverage mentioned in the statute, the State did not have to present evidence of the intoxicating quality of the alcohol. Furthermore, defendant’s defense in this case was not that the beverage provided was not alcoholic, but rather that nobody under the age of 21 was consuming any alcoholic beverages. Accordingly, the State’s instructions were properly given.

Defendant asserts the trial court erred by allowing evidence which established he gave alcoholic beverages to minors other than those named in the information. He contends that requiring him to defend against charges of giving alcohol to unknown minors caused him unfair surprise, undermined his presumption of innocence and denied him a fair trial.

Evidence of collateral crimes, crimes for which the defendant is not on trial, is inadmissible if relevant merely to establish a defendant’s propensity to commit crime. However, such evidence is admissible if offered as part of the narrative of the offense or to impart meaning to an otherwise unexplained appearance by the police. People v. Lindgren (1980), 79 Ill. 2d 129, 137, 402 N.E.2d 238, 242; People v. Waller (1990), 195 Ill. App. 3d 376, 379, 552 N.E.2d 351, 352.

Gan, Machuda, and Spudich testified there were other people present at the party and none of these people were over 21 years of age. Each girl testified that some of these minors were drinking; however, they also testified that some of these people were not drinking. This testimony cannot be said to have been offered to show defendant had a greater propensity to commit the crime charged. Rather, the testimony is part of an ongoing narrative of the circumstances and merely explains the place and manner in which the girls received the alcoholic beverages. As such, it was properly admitted.

Finally, defendant contends the trial court erred by denying his motion in limine to restrict the use of his statement. He alleges the State had filed formal discovery stating there was no such statement and thereafter did not supplement discovery with this statement. Defendant asserts he was deprived of a fair opportunity to investigate the accuracy of the statement or prepare for cross-examination.

A pretrial conference was held on December 2, 1991. At that time, defendant made a motion in limine to prevent the State from using a statement of his in which he allegedly telephoned Gan shortly after the incident and asked her to change her story. Defendant contends the State was prohibited from using the statement because its answer to discovery, filed on November 12, 1991, indicated it had no such statement.

At the pretrial conference, the State’s Attorney indicated that at the time the answer to discovery was filed, it had no such statement. The State’s Attorney further indicated he received this information regarding defendant’s statement over the prior weekend. The trial court first suggested the State provide defendant with the statement by noon on that date. However, when informed that there was no written statement, but rather there would be testimony from a witness regarding this statement, the court suggested defendant’s attorney could speak to the witness. Neither the State’s Attorney nor defendant’s attorney objected to this suggestion by the court.

The failure to comply with discovery requirements does not in all instances necessitate a new trial; a new trial should be granted only if defendant is prejudiced by the discovery violation and the trial court failed to eliminate the prejudice. (People v. Cisewski (1987), 118 Ill. 2d 163, 172, 514 N.E.2d 970, 974.) Courts have repeatedly found no prejudice occurred where the defendant had an opportunity to interview the witness and did not ask for a continuance but proceeded to trial. People v. Schutz (1990), 201 Ill. App. 3d 154, 158-59, 559 N.E.2d 289, 293.

Defendant has failed to show any prejudice by this discovery violation. He was allowed to interview Gan about this telephone call. Moreover, he was allowed to cross-examine her regarding the telephone call and he did not ask for a continuance but elected to proceed with trial. Accordingly, the trial court did not err in denying the motion in limine to exclude this statement.

For the foregoing reasons, the trial court is affirmed.

Affirmed.

STEIGMANN, P.J., and LUND, J., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH LUND, J., JUSTICE GREEN,

license: Public Domain

text:
    S. JOHN MULLER, Plaintiff-Appellee, v. DAVID JONES, Defendant-Appellant.
    Fourth District
    No. 4-92-0739
    Opinion filed April 15, 1993.
    Rehearing denied June 1, 1993.
    GREEN, J., specially concurring.
    Robert B. Goldman, of Springfield, for appellant.
    S. John Muller, of Charleston, appellee pro se.

   JUSTICE McCULLOUGH

delivered the opinion of the court:

This is an appeal by defendant David Jones from the judgment of the circuit court of Coles County awarding plaintiff S. John Muller a judgment in the amount of $2,500, plus $72.20 court costs. Plaintiff initiated this action by filing a small claims complaint seeking attorney fees. Plaintiff’s theory of recovery was either the enforcement of an attorney lien or to recover on the basis of quantum meruit. The claimed fees arose out of representation of defendant in (1) a judicial review of a workers’ compensation claim, and (2) an action to recover property damage and personal injury resulting from an automobile accident.

On appeal, defendant argues plaintiff was not entitled to the fees as a matter of law and, in any event, the evidence was insufficient to support the judgment. We reverse in part, modify the remainder of the judgment, and affirm the modified portion of the judgment.

It is evident from a review of the record that a portion of the judgment in this case related to plaintiff’s representation of defendant in the judicial review of a workers’ compensation case. (Jones v. Embarras River Basin Agency (Cir. Ct. Coles Co.), No. 90 — MR—25.) Plaintiff testified that when he filed his small claims complaint in this case, he was aware that defendant had not yet received an award on the workers’ compensation case. At the time of trial, he was unaware of the status of the workers’ compensation case. No inquiry was made of defendant at trial concerning the current status of the workers’ compensation claim.

Defendant argues that the circuit court had no jurisdiction- to award such fees and that quantum meruit cannot be utilized as a theory to recover such fees since quasi-contractual relief cannot be utilized as a theory of recovery where a clear and unambiguous express contract exists. (Spinak, Levinson & Associates v. Industrial Comm’n (1990), 209 Ill. App. 3d 120, 125, 568 N.E.2d 41, 44.) We agree that the circuit court had no jurisdiction to consider an award of fees for representation in the workers’ compensation judicial review proceeding. While it is clear the defendant did not raise the question of subject-matter jurisdiction in the trial court, lack of subject-matter jurisdiction may be raised at any time, even on appeal. (Campbell v. White (1989), 187 Ill. App. 3d 492, 504, 543 N.E.2d 607, 615.) If not settled, all questions arising under the Workers’ Compensation Act (Act) are to be determined by the Illinois Industrial Commission (Commission) unless the Act provides otherwise. (Ill. Rev. Stat. 1991, ch. 48, par. 138.18.) The role of the circuit court and reviewing courts in workers’ compensation proceedings is appellate only (Gunnels v. Industrial Comm’n (1964), 30 Ill. 2d 181, 185, 195 N.E.2d 609, 611) except where the Act provides a special statutory jurisdiction which, in order to be invoked, requires strict compliance with statutory provisions. Oak Park Hospital v. Smuda (1991), 214 Ill. App. 3d 1032, 1033, 574 N.E.2d 804, 805.

Judicial review of Commission awards is exclusively provided for in section 19(f) of the Act. (Ill. Rev. Stat. 1991, ch. 48, par. 138.19(f).) It is a statutory remedy, and there is no provision for an attorney to be paid for the representation of a claimant in a judicial review separate and apart from the general provisions for fees for attorneys representing claimant provided in section 16a of the Act. (Ill. Rev. Stat. 1991, ch. 48, par. 138.16a.) The statute requires that there be a contract between the attorney and the claimant and that the contract be filed with the Commission. (Ill. Rev. Stat. 1991, ch. 48, par. 138.16a(C).) The statute further provides as follows:

“(I) All attorneys’ fees for representation of an employee or his dependents shall be only recoverable from compensation actually paid to such employee or dependents.
(J) Any and all disputes regarding attorneys’ fees, whether such disputes relate to which one or more attorneys represents the claimant or claimants or is entitled to the attorneys’ fees, or a division of attorneys’ fees where the claimant or claimants are or have been represented by more than one attorney, or any other disputes concerning attorneys’ fees or contracts for attorneys’ fees, shall be heard and determined by the Commission after reasonable notice to all interested parties and attorneys.” Ill. Rev. Stat. 1991, ch. 48, pars. 138.16a(I), (J).

The rules of the Commission provide a procedure for raising a dispute as to attorney fees and provide for partial attorney fees based on the reasonable value of services rendered. (50 Ill. Adm. Code §7080.10 (1992).) In addition, the rules provide that the first payment of an award or settlement be delivered to the attorney of record of the claimant. 50 Ill. Adm. Code §7080.20 (1992).

Since payment of fees is limited by the Act and shall not exceed 20% of the actual award (Ill. Rev. Stat. 1991, ch. 48, par. 138.16a(B)) and judicial review is an integral part of establishing the propriety of the award, it would appear the legislature intended for the Commission to have exclusive jurisdiction to consider any dispute as to attorney fees arising out of the representation of defendant in the workers’ compensation case, including those relating to judicial review. Had the legislature intended a contrary result, it could have so provided. To the extent the circuit court’s judgment in the case at bar includes such fees, it must be overturned. Furthermore, any right to attorney fees is not technically a lien, as there can be no lien against a workers’ compensation award. Ill. Rev. Stat. 1991, ch. 48, par. 138.21; Lasley v. Tazewell Coal Co. (1921), 223 Ill. App. 462, 463-64.

The remaining questions to be addressed concern the award of attorney fees on a quantum meruit theory where (1) plaintiff represented defendant in a personal injury and property damage case, (2) plaintiff and defendant had entered into a contingent-fee agreement, and (3) defendant fired plaintiff as his attorney. The first question to address is whether quantum meruit may be utilized in this situation to provide a method of recovery for plaintiff.

On December 13, 1991, the defendant entered into a contingent-fee agreement with plaintiff for representation by plaintiff in a claim for injuries and damages arising out of an automobile accident on December 6, 1991. However, defendant subsequently discharged plaintiff.

“In Illinois, a client has the right to discharge his attorney at any time, with or without cause. (Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 399 N.E.2d 969.) A discharged attorney is entitled only to fees calculated on a quantum meruit basis. (Rhoades, 78 Ill. 2d at 227-29.) The term quantum meruit literally means ‘as much as he deserves.’ (Van C. Argiris & Co. v. FMC Corp. (1986), 144 Ill. App. 3d 750, 753, 494 N.E.2d 723.) The time and labor required in a given case is but one factor to be considered in assessing a reasonable attorney fee under the doctrine of quantum meruit. (Johns v. Klecan (1990), 198 Ill. App. 3d 1013, 1019, 556 N.E.2d 689.) Other factors to be considered include the attorney’s skill and standing, the nature of the cause and the novelty and difficulty of the subject matter, the degree of responsibility in managing the cause, the usual and customary charge in the community, and the benefits resulting to the client. (Neville v. Davinroy (1976), 41 Ill. App. 3d 706, 711, 355 N.E.2d 86.) The circuit court’s decision regarding whether to award attorney fees is a matter within its discretion and, upon review, will not be disturbed absent abuse of that discretion. Lurie v. Canadian Javelin Ltd. (1982), 93 Ill. 2d 231, 443 N.E.2d 592.” Lee v. Ingalls Memorial Hospital (1992), 232 Ill. App. 3d 475, 478-79, 597 N.E.2d 747, 749-50.

At the bench trial, defendant testified there had yet been no settlement or judgment in the action arising out of the automobile accident. Plaintiff testified that with regard to the automobile accident case, he did not have time sheets, but with the help of his secretary, he determined he spent a total of 12.6 hours on this case. Based on a rate of $100 per hour, he calculated a fee of $1,260 plus $8.45 for photocopying 57 pages at a rate of 15 cents per page. He further testified that $100 per hour is the usual and customary fee for attorneys with his experience in handling cases of this type in the Charleston, Illinois, area. While this evidence is sparse, defendant did not submit any evidence which challenged the reasonableness of the plaintiff’s calculation of the fee. Defendant did challenge the timeliness of the filing of the attorney’s lien, noting it was filed after plaintiff was terminated. Plaintiff made no argument on this point and conceded that he overlooked the requirement that, in order to perfect such a lien, it must be filed before the attorney is terminated. (Ill. Rev. Stat. 1991, ch. 13, par. 14; Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 227, 399 N.E.2d 969, 973-74.) As the Rhoades case points out, however, even though his lien was not perfected, plaintiff may yet recover on a quantum meruit theory. (Rhoades, 78 Ill. 2d at 227-30, 399 N.E.2d at 974-75.) Plaintiff’s fee summary does refer to the preparation of a notice of lien on December 12, 1991, prior to his termination as defendant’s attorney, but there is no proof this notice of lien was ever served on defendant.

On appeal, defendant relies on the argued insufficiency of the evidence presented by plaintiff. Plaintiff presented a single page with handwritten and abbreviated notations of dates, work performed on those dates, and the time expended by plaintiff in performing that work on those dates. Plaintiff admits, however, that the 6.9 hours he recorded for the time period of December 17, 1991, to January 20, 1992, was an estimate based on an average of 1.5 hours per week. He arrived at that estimate after conferring with his secretary, and he testified he thought the estimate was low.

“In all cases where an award of attorney fees is appropriate, only those fees which are reasonable will be allowed, the determination of which is left to the sound discretion of the trial court. The party seeking the fees, whether for himself or on behalf of a client, always bears the burden of presenting sufficient evidence from which the trial court can render a decision as to their reasonableness. An appropriate fee consists of reasonable charges for reasonable services; however, to justify a fee, more must be presented than a mere compilation of hours multiplied by a fixed hourly rate or bills issued to the client. The petition for fees must specify the services performed, by whom they were performed, the time expended thereon and the hourly rate charged therefor. It is incumbent upon petitioner to present detailed records maintained during the course of the litigation containing facts and computations upon which the charges are predicated. Kaiser v. M E P C American Properties, Inc. (1987), 164 Ill. App. 3d 978, 518 N.E.2d 424.” (Mars v. Priester (1990), 205 Ill. App. 3d 1060, 1064-65, 563 N.E.2d 977, 980.)

Kaiser v. MEP C American Properties, Inc. (1987), 164 Ill. App. 3d 978, 984, 518 N.E.2d 424, 428, further provided:

“Once presented with these facts, the trial court should consider a variety of additional factors such as the skill and standing of the attorneys, the nature of the case, the novelty and/or difficulty of the issues and work involved, the importance of the matter, the degree of responsibility required, the usual and customary charges for comparable services, the benefit to the client (Ashby v. Price (1983), 112 Ill. App. 3d 114, 445 N.E.2d 438), and whether there is a reasonable connection between the fees and the amount involved in the litigation (In re Estate of Healy (1985), 137 Ill. App. 3d 406, 484 N.E.2d 890; In re Marriage of Ransom (1981), 102 Ill. App. 3d 38, 429 N.E.2d 594).”

In addition to citing Kaiser and Mars, defendant has called our attention to In re Marriage of Ransom (1981), 102 Ill. App. 3d 38, 429 N.E.2d 594. After reviewing these cases, we do not find that these decisions require notations in a timekeeping system contemporaneous with -the work being performed as defendant seems to suggest. An attorney may construct an accurate record based on telephone bills and logs, correspondence and other file documents, and the recollection of the attorney and his employees, although greater accuracy is generally ensured by a contemporaneous record of events. However, the attorney seeking to recover fees must provide sufficient specificity of the nature of the work on any given date that the trial court can ascertain therefrom the necessity of the work to the client’s legal matter and the reasonableness of the time expended and the fee charged therefor. On a sheet of lined, yellow paper with the designation at the top of the defendant’s case arising out of the automobile accident, plaintiff’s handwritten statement provided as follows:

“12-6 [1991] P.C. w/cl. .2 hr.

12-9 C. w/cl. 1 hr.

12-10 C. w/cl. call to ins. co. .8 hr.

12-12 P.C. w/ins. co., letter, copy of accident rep. + notice of lien, conf. w/cl. 1.2 hrs.

12-13 Conf. w/P.P. claim adj.Settle P.D. .9 hr.

12-16 Conf. w/cl. re med. bills .4 hr.

12-17 to 1-20 [1992] P.Cs + conf. w/cl., ins. Co. + atty. 6.9 hrs.

2-18 [illegible] file + serve notice of atty lien 1.2 hrs.

100 hr. 12.6 hrs.

1260.00

Photocopies 57 @ .15 8.45

$1268.45

The preparation and service of an attorney lien after plaintiff was terminated as defendant’s attorney is not for the benefit of the client, and the client is not required to pay for it. (Ashby v. Price (1983), 112 Ill. App. 3d 114, 123, 445 N.E.2d 438, 445.) The notice of attorney lien dated February 18, 1992, makes it clear that at the time of its preparation, plaintiff had already been terminated as defendant’s attorney. The exhibits also indicate that on February 18, 1992, plaintiff filed a motion to withdraw as counsel for defendant in the workers’ compensation judicial review proceeding in the circuit court and served on defendant a copy of the motion, a notice of hearing on the motion to withdraw, and a certificate of service. The notice of hearing indicated that plaintiff obtained a court setting of March 6, 1992, for the hearing on the motion to withdraw. Plaintiff admitted to the trial judge that his withdrawal as attorney for defendant in the workers’ compensation case was his response to being fired in the action arising out of the automobile accident and defendant’s threatening to file a claim against plaintiff with the Attorney Registration and Disciplinary Commission. It does not appear from the record that anything plaintiff did on February 18, 1992, related to defendant’s action arising out of the automobile accident. Therefore, plaintiff should not have been allowed to recover any fee for the 1.2 hours expended on that date.

As to the “estimate” of time expended by plaintiff from December 15, 1991, to and including January 20, 1992, we agree with defendant that the explanations of plaintiff’s activities during that period of time are not sufficiently specific to justify awarding of fee for the 6.9 hours claimed. Although the remaining entries, for December 6 to 16, 1991, are filled with abbreviations which a client may not understand, once deciphered by a trial judge in light of the context in which the services were rendered, those entries are sufficiently specific to explain the nature of the work involved. On appeal, defendant does not specifically object to the inclusion of “notice of lien” on the December 12, 1991, entry and therefore we will not address the propriety of including any fee for the preparation thereof in this case. Defendant also does not challenge the reasonableness of the $100-per-hour rate.

Based on this analysis, we find the award in this case resulted from an abuse of discretion. Plaintiff was entitled to recover fees for only 4.5 hours from December 6 through December 16, 1991. At $100 per hour, that amounts to $450. After adding $8.45 for photocopying, the judgment in favor of plaintiff should have been only $458.45, plus costs.

Accordingly, to the extent that the judgment appealed is based on plaintiff’s representation of defendant in the workers’ compensation case, it is reversed. Insofar as the judgment is based on plaintiff’s representation of defendant in the automobile accident case, the judgment is affirmed but, pursuant to the authority vested in this court by Supreme Court Rule 366(a)(5) (134 Ill. 2d R. 366(a)(5)), the judgment is modified as follows: judgment is entered in favor of plaintiff S. John Muller and against defendant David Jones in the amount of $458.45, plus $72.20 court costs.

Reversed in part; affirmed in part as modified.

LUND, J.,

concurs.

JUSTICE GREEN,

specially concurring:

I concur in the decision of the majority to modify the award and, as modified, to affirm it.

I agree that a judgment of the circuit court for attorney fees cannot properly include sums for attorney fees in a workers’ compensation proceeding which has not been approved by the Commission. However, the circuit court has jurisdiction of proceedings for recovery of attorney fees in general. I do not agree that a part of a judgment in such a case is void for lack of jurisdiction because consideration was improperly given to work performed in a workers’ compensation proceeding in support of a portion of the award requested.

While the issue of the impropriety of consideration of the work in the workers’ compensation proceeding was not raised below, plaintiff does not argue here that such error was waived. I conclude we may properly consider the propriety of the portion of the award in question without holding that a portion of the judgment was void for lack of jurisdiction.


author: PRESIDING JUSTICE McCUSKEY SLATER, J., JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODNEY L. WENINGER, Defendant-Appellant.
    Third District
    No. 3—92—0346
    Opinion filed March 30, 1993.

      STOUDER, J., dissenting.
    John Malvik, of Williams, Buckrop, Malvik & Associates, of Rock Island, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

Following a bench trial, the defendant, Rodney L. Weninger, was convicted of two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 14(b)(1)) and one count of criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 13(a)(3)). The victim, T.W., was the defendant’s 10-year-old adopted daughter. The defendant was subsequently sentenced to concurrent terms of 15, 15 and 12 years’ imprisonment.

The defendant raises two issues on appeal: (1) whether the evidence presented was sufficient to prove him guilty of the offenses beyond a reasonable doubt; and (2) whether the trial court erred in allowing T.W. to testify by means of closed circuit television, out of the presence of the defendant, pursuant to section 106B — 1 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 106B — 1). We affirm.

Following several continuances, a bench trial was set for February 18, 1992. At a hearing five days prior to trial, the prosecutor orally informed the court and defense counsel that she would be filing a motion to present the testimony of T.W. by means of closed circuit television. Section 106B — 1 of the Code allows for this procedure in certain limited circumstances. Section 106B — 1 of the Code became effective on January 1, 1992. A written motion was subsequently filed by the State and a hearing regarding the motion was held on the trial date.

Butch Bos testified that he was an electronics technician. He said he could provide the necessary equipment to allow T.W. to testify by means of closed circuit television. Bos indicated that a television camera would be placed in the judge’s chambers. Also, he said a television monitor would be placed in the courtroom where it could be viewed by the defendant. The defendant and his counsel could communicate with each other during T.W.’s testimony by the use of an intercom system sensitive enough to pick up the slightest whisper.

Marcia Rexroat testified that she had a bachelor’s degree in nursing and a master’s degree in mental health nursing. Rexroat had been working for 13 years with the Sexual Abuse Treatment Program providing therapy for victims of sexual abuse and their families. She had provided T.W. with about 12 horn's of individual therapy. Rexroat stated that T.W. had a very sad facial appearance, cried easily, suffered from sleep disruption, had a decreased appetite, suffered from headaches, stomachaches, and was not performing well in school. Rexroat testified that T.W. continued to have an intense fear of the defendant. Rexroat said T.W. feared that the defendant would try to look at her or “get her.” Rexroat stated that T.W.’s family did not believe her accusations concerning the defendant and that T.W. had been removed from her home. Rexroat indicated that it was difficult to discern whether T.W.’s symptoms were caused by the sexual abuse or by the rejection and abandonment T.W. felt as a result of being removed from the family.

Rexroat indicated her fear was that T.W.’s symptoms would increase if T.W. testified in front of the defendant. Rexroat stated that “minimally those symptoms may increase.” She also testified that, while it may be therapeutic for a child of 12 or 13 to confront the offender, she thought that it would be a high risk for T.W. Rexroat stated that T.W. would be able to testify in the defendant’s presence, but the ultimate question was whether it would be good for her. Rexroat stated that it was the presence of the defendant, and not the courtroom, which would be traumatic for T.W. T.W. had previously testified in a juvenile court proceeding. However, that testimony was not given in the presence of the defendant. Rexroat indicated that T.W. had been slow to respond to treatment. Rexroat’s fear was that, if T.W. had to testify in the defendant’s presence, it would extend the period of rehabilitative treatment in response to the trauma suffered in connection with these events. Rexroat stated that she was concerned about the possibility of depression, which can lead to suicidal ideation and self-mutilation. However, Rexroat acknowledged that T.W. was not presently exhibiting those symptoms.

Following Rexroat’s testimony, the trial court found that the requirements of section 106B — -1 of the Code had been met. Therefore, the trial court ordered that T.W.’s testimony could be presented by means of closed circuit television. Pursuant to the trial court’s ruling, T.W. testified in the judge’s chambers during the bench trial.

T.W. was the 10-year-old niece of the defendant’s -wife. T.W.’s mother died when T.W. was four years old. T.W. was then adopted by the defendant and his wife. The defendant and his wife had three other children, two boys and a three-year-old girl. They had operated a day care in their home for about three years. The defendant’s wife also worked part time outside the home. In August 1991, their license to operate the day care was suspended after the Department of Children and Family Services (DCFS) received a report of possible sex abuse. The defendant then left the home and began living with his mother.

T.W. testified that her father began doing “sexual stuff” to her when she was about six or seven years old. He told her not to tell or he would “whip” her. On several occasions, T.W.’s father had her “suck on his private.” These incidents occurred in the basement laundry room or in her father’s bedroom. T.W. stated that her parents had separate bedrooms. The defendant also attempted several times to place his finger and his penis in T.W.’s vagina. T.W. said that the defendant’s acts hurt her. She testified that one incident occurred when she was watching television in the basement. T.W. said her father took her into the basement bathroom where he was doing remodeling work. The other children were upstairs, and her mother was at work. The defendant pulled down her pants and underpants, put “green jell stuff” on her front and her “bottom” and then placed his penis into her “butt.” T.W. testified the defendant continued doing that until “white stuff” came out of his penis which he then wiped on a towel.

After this incident, T.W. told her cousin, Roger Yarrington, that her father was doing sexual stuff to her. T.W. asked him to tell her mother. T.W. stated that she had also told her brother Shannon and her friend Sunshine about the abuse. T.W. told Roger that she was lying after her mother told her that such accusations would cause her father to go to jail and they would lose their house and the day care business. When her father found out what T.W. said, he “whipped” her. After T.W.’s mother took her to the doctor, she was removed from the home by DCFS. T.W. stated that once she had seen part of an X-rated movie in her home. T.W. admitted that she lied in the juvenile court proceeding when she testified that she had never watched an X-rated movie. T.W. explained that she was afraid she would get in trouble if she admitted watching the movie.

Dr. Eden Aurelio testified that he examined T.W. on August 5, 1991. Dr. Aurelio stated that her hymen was intact. However, he observed redness and swelling in the back area of her vagina. The doctor said that this condition was known as “vaginitis” and was not common for a child T.W.’s age. The doctor also testified that the redness could have been caused by sexual abuse. He further stated that there were other possible causes, including infection or allergies. Dr. Aurelio opined that sexual conduct with a child’s vagina, such as attempted sexual intercourse, can occur without causing injury to the hymen. The doctor called DCFS following T.W.’s examination.

The defendant denied having any sexual conduct with T.W. He admitted that he kept numerous sexually explicit videotapes in his home. He said they were kept in his bedroom so the children could not watch them. The defendant said that the bottle of green lotion, labeled “Body Liqueurs for Lovers” which was found in the basement bathroom, had been given many years ago as a gag gift to him and his wife. The defendant asserted he never used the lotion after he received it. The defendant admitted he “whipped” T.W. after she told his wife that he had been sexually abusing her. Both the defendant and his wife testified that T.W. had often been disciplined for lying. The defendant’s wife stated T.W. previously had problems with vaginitis after she ate or drank something acidic. However, she admitted T.W. was never medically treated for this condition.

The trial judge found the defendant guilty of two counts of aggravated criminal sexual assault and one count of criminal sexual assault. The trial judge stated that he found T.W. to be a credible witness. The trial judge noted that T.W.’s testimony was corroborated by: (1) the doctor finding redness in her vaginal area; (2) her reports to Roger, her brother and her friend; and (3) the presence of the green lotion in the basement bathroom. Additionally, the trial judge noted that T.W. recanted her story only once, after her mother warned her of the possible consequences. The trial judge additionally noted that T.W. had consistently maintained her original story following her mother’s warning. The trial judge also found that T.W. gave a reasonable explanation as to why she lied in juvenile court about viewing an X-rated movie. Finally, the trial judge specifically stated that he did not believe the defendant’s testimony.

On appeal, the defendant argues the evidence was not sufficient to find him guilty beyond a reasonable doubt because T.W.’s testimony was not clear and convincing and was not sufficiently corroborated. The defendant argues that T.W.’s credibility was impeached by the fact she recanted her accusation and by the fact she admitted lying under oath during the juvenile court proceedings. The defendant also argues there was no medical corroboration because the doctor testified that there could be many causes for T.W.’s vaginitis. We disagree with the defendant’s analysis and reasoning.

When the sufficiency of the evidence is questioned in a criminal case, including cases involving sex offenses, the test to be employed upon review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Schott (1991), 145 Ill. 2d 188, 202-03, 582 N.E.2d 690, 697; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) There is no longer a requirement that a sex-offense victim’s testimony be clear and convincing or substantially corroborated. (Schott, 145 Ill. 2d at 202, 582 N.E.2d at 696.) Also, it is the responsibility of the trier of fact to determine the credibility of the witnesses and the weight to be given to their testimony. People v. Steidl (1991), 142 Ill. 2d 204, 226, 568 N.E.2d 837, 845; People v. Hudson (1990), 198 Ill. App. 3d 915, 923, 556 N.E.2d 640, 646.

Based on the Collins standard of review, we conclude the evidence was sufficient to find the defendant guilty of the offenses beyond a reasonable doubt. T.W. described in some detail the sexual assaults committed by the defendant. The trial judge, as the trier of fact, found T.W. to be a credible witness. The trial judge specifically found there was a reasonable explanation for the fact T.W. initially recanted her accusation and for the fact that T.W. lied about seeing an X-rated movie during the juvenile court proceedings. The trial judge also determined T.W.’s testimony was corroborated by: (1) the medical testimony; (2) her reports to other people concerning the defendant’s conduct; and (3) the presence of the green lotion in the basement. In addition, the trial judge specifically found the defendant was not a credible witness. Consequently, the trial judge found the essential elements of the crime were proved beyond a reasonable doubt. We agree with the trial court’s findings.

The defendant additionally contends the trial court erred in allowing T.W. to testify by closed circuit television. The defendant, for the first time on appeal, contends that Rexroat was not adequately qualified as an expert witness. We conclude the defendant has waived any issue regarding Rexroat’s qualifications by failing to raise that issue in the trial court. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) We additionally note, however, that Rexroat was clearly qualified to give an opinion in this case. She had a master’s degree in mental health nursing and 13 years’ experience in providing therapy for victims of sexual abuse. Finally, she had personally spent 12 hours providing therapy to T.W.

The defendant also argues that Rexroat’s testimony was speculative. Therefore, the defendant alleges that it was not sufficient to support the trial court’s conclusion that T.W. would suffer severe emotional distress which is likely to cause her to suffer severe adverse effects if she testified in the presence of the defendant. We disagree with the defendant’s review of the record and his interpretation of the statute in question.

The Supreme Court has recently found that “a State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court” pursuant to the confrontation clause of the United States Constitution (U.S. Const., amend. VI). (Maryland v. Craig (1990), 497 U.S. 836, 853, 111 L. Ed. 2d 666, 683, 110 S. Ct. 3157, 3167.) The Supreme Court found constitutional a Maryland statute which allows the use of the closed circuit television procedure where a determination was made that the child witness will suffer “serious emotional distress such that the child cannot reasonably communicate.” (Emphasis added.) Craig, 497 U.S. at 856, 111 L. Ed. 2d at 685,110 S. Ct. at 3169.

Section 106B — 1 of the Code was enacted following the Craig decision and provides, in pertinent part:

“In a proceeding in the prosecution of an offense of criminal sexual assault, aggravated criminal sexual assault, criminal sexual abuse or aggravated criminal sexual abuse, a court may order that the testimony of a child victim under the age of 18 years be taken outside the courtroom and shown in the courtroom by means of a closed circuit television if:
(i) The testimony is taken during the proceeding; and
(ii) The judge determines that testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate or that the child will suffer severe emotional distress that is likely to cause the child to suffer severe adverse effects.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 38, par. 106B — 1(a)(1).

The trial court in the instant appeal determined that T.W.’s testimony could be presented by closed circuit television based upon that portion of the statute which we have emphasized. Our review of the record indicates that the trial court made no finding that T.W. could not reasonably communicate. However, instead, the trial court reached its ultimate decision based upon its finding that T.W. would suffer severe emotional distress that is likely to cause the child to suffer severe adverse effects.

Rexroat testified T.W. continued to have an intense fear of the defendant and that it was the presence of the defendant, and not the courtroom, which would be traumatic for T.W. Rexroat also stated that testifying in the presence of the defendant would be “high risk” for T.W. Rexroat was concerned that “minimally” T.W.’s symptoms would increase and her period of treatment would be even longer. Rexroat further testified she was concerned about the possibility of depression, which could lead T.W. to suicidal ideation and self-mutilation. We conclude that the obvious import of Rexroat’s testimony is that serious adverse effects were likely if T.W. testified in the presence of the defendant. Rexroat stated that, at a minimum, an increase in T.W.’s many symptoms could be expected and that more serious adverse effects were also possible.

The defendant asserts that Rexroat’s testimony was not sufficient because she did not testify that T.W. would suffer severe emotional distress. The defendant notes that Rexroat only testified concerning the possible harm that was likely to occur if T.W. testified at trial in the presence of the defendant.

We find that the portion of section 106B — 1 of the Code in question only requires testimony sufficient to support the trial court’s finding that the child will suffer severe emotional distress that is likely to cause the child to suffer severe adverse effects.

Our review of the record shows that expert testimony was presented which was sufficient to support the trial court’s determination. Rexroat’s testimony, including her statements that T.W. had an intense fear of the defendant and that testifying in the presence of the defendant would be traumatic for T.W., was sufficient to support the trial court’s finding. See State v. Crandall (1990), 120 N.J. 649, 656, 577 A.2d 483, 486 (testimony of the child and her mother that the child feared the defendant was sufficient for a finding that the closed circuit television procedure should be used).

The defendant also asserts, however, that section 106B — 1 of the Code is unconstitutional because it is overbroad and vague. The defendant does recognize that the Supreme Court in Craig approved a Maryland statute which provided for a closed circuit television procedure. The defendant points out, however, that Maryland’s statute requires a determination that the child witness will suffer serious emotional distress such that the child cannot reasonably communicate. While the Illinois statute has also included this language, it also provides an additional basis for allowing the use of closed circuit television testimony. The defendant contends that this additional basis, relied on by the trial court in this case, is unconstitutional because it provides no standard of measure for the required serious emotional distress. The defendant argues that the statute does not include a definition of the terms relating to severe emotional distress or any standards for determining what constitutes “severe adverse effects.”

We agree with the State that the defendant’s argument only challenges the statute on the grounds of unconstitutional vagueness. A “statute is unconstitutionally vague if its terms are so ill defined that their meaning will ultimately be determined by the opinions and whims of the trier of fact rather than any objective criteria.” (People v. La Pointe (1981), 88 Ill. 2d 482, 499, 431 N.E.2d 344, 352.) A court will assume, however, that the words used in a statute have their ordinary and popularly understood meanings, absent a contrary legislative intent. (People v. Fabing (1991), 143 Ill. 2d 48, 54, 570 N.E.2d 329, 332; La Pointe, 88 Ill. 2d at 499, 431 N.E.2d at 352.) Also, in addition to the language used, consideration must be given to the legislative objective and the evil the statute is designed to remedy. (Fabing, 143 Ill. 2d at 54, 570 N.E.2d at 332; La Pointe, 88 Ill. 2d at 499-500, 431 N.E.2d at 352.) We recognize that all statutes are presumed constitutional, and the burden of establishing constitutional infirmity is on the party challenging the statute. Fabing, 143 Ill. 2d at 54, 570 N.E.2d at 332.

Based upon these principles, we conclude that the statute in question is adequate to defeat the defendant’s challenge to its constitutionality. The legislative objective of the statute is to protect the physical and psychological well-being of child abuse victims. (See Craig, 497 U.S. at 852, Ill L. Ed. 2d at 683, 110 S. Ct. at 3167.) The descriptive words used in the challenged phrase of the statute are commonly used words with ordinary and popularly understood meanings. The words used provide sufficient direction for the trial court to determine whether the closed circuit television procedure is necessary to protect the child witness in a particular case. See La Pointe, 88 Ill. 2d at 500, 431 N.E.2d at 352.

Accordingly, we conclude the defendant has failed to meet his burden of establishing that the statute is unconstitutionally vague. We additionally note that courts in other jurisdictions have found similar statutes constitutional. See State v. Self (1990), 56 Ohio St. 3d 73, 79-80, 564 N.E.2d 446, 452-53; People v. Guce (1990), 164 A.D.2d 946, 948, 560 N.Y.S.2d 53, 56; State v. Crandall (1990), 120 N.J. 649, 661, 577 A.2d 483, 488.

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

Affirmed.

SLATER, J.,

concurs.

JUSTICE STOUDER,

dissenting:

I do not agree with the majority that the testimony of Marcia Rexroat was sufficient to support a finding that T.W. would suffer severe emotional distress that is likely to cause her to suffer severe adverse effects if she testified in front of the defendant. The only logical inference that can be gleaned from Rexroat’s testimony is that any possible effects on T.W. would be minimal. The majority characterizes Rexroat’s testimony as “Rexroat stated that, at a minimum, an increase in T.W.’s many symptoms could be expected and that more serious adverse effects were also possible.” (243 Ill. App. 3d at 726.) Rexroat’s testimony was actually as follows:

“Q. Can you anticipate at all the degree of injury that could occur?

* * *

A. I guess minimally an increase in the symptoms that I have listed, the symptoms that she’s already displaying. And, that everyone has worked hard at remedying without lots of success. I would say that minimally those symptoms may increase.”

I have been unable to locate in the record where Rexroat stated that more serious adverse effects were also possible. Also, it must be noted that Rexroat stated that her testimony would be the same for any victim of sexual abuse under the age of 12.

The statute in this case seeks to limit a defendant’s constitutional right of confrontation, and therefore I believe its terms should be strictly construed. The statute clearly requires a finding that the victim will suffer severe emotional distress that is likely to cause her to suffer severe adverse effects. I fail to understand how the majority equates the above testimony with the finding required by the statute.

The majority states that the “obvious import of Rexroat’s testimony is that serious adverse effects were likely if T.W. testified in the presence of the defendant.” (243 Ill. App. 3d at 726.) This assertion by the majority eviscerates the finding required by the statute. As the defendant correctly notes, the finding that the victim will suffer severe emotional distress is a prerequisite to finding that she is likely to suffer severe adverse effects. The majority’s response to this argument by the defendant is ineffectual at best because the majority only considers the latter part of the necessary finding. The majority is correct that the “severe adverse effects” need only be “likely,” but a finding that the victim will suffer severe emotional distress is necessary first.

Criminal statutes must be strictly construed in favor of the accused and nothing should be taken by intendment or implication beyond the obvious or literal meaning of the statute. (People v. Shinkle (1989), 128 Ill. 2d 480, 539 N.E.2d 1238.) The language of the statute must be given its plain and ordinary meaning (People v. Sangster (1982), 91 Ill. 2d 260, 437 N.E.2d 625), and the court may not, by subtle construction, alter the plain meaning of the words employed. (People v. Goldstein (1990), 204 Ill. App. 3d 1041, 562 N.E.2d 1183.) It is clearly improper for the majority to take the term “likely” from the latter part of the clause in question and apply it to the earlier part where the statute plainly uses the term “will.” The majority has, by subtle construction, altered the plain meaning of the statute. Rexroat’s testimony, when construed in the manner required by the statute, was insufficient for the court to find that T.W. would suffer severe emotional distress likely to cause severe adverse effects.

The majority also states that “Rexroat further testified she was concerned about the possibility of depression, which could lead T.W. to suicidal ideation and self-mutilation.” (243 Ill. App. 3d at 726.) What Rexroat actually said was that suicidal ideation and self-mutilation are symptoms that sometimes occur following childhood depression. Rexroat admitted that T.W. had not exhibited any such symptoms. The statute in question plainly requires a finding that the particular victim in a specific case will suffer severe emotional distress likely to cause severe adverse effects. It is clearly erroneous for the majority to suggest that testimony regarding the symptoms experienced by depressed children in general can be used to support the individualized finding required by section 106B — 1. In fact, if such testimony regarding depressed children in general could be used to supply the necessary finding, then the statute has been rendered meaningless because such testimony would justify the limitation on confrontation in any case.

Further, Rexroat’s testimony that T.W. feared the defendant was insufficient to supply the necessary findings. In any child sexual abuse case the victim would probably fear the defendant. That is not the proper inquiry. The proper inquiry concerns what effect testifying in the presence of the defendant will have on the victim. In response to that question, Rexroat testified that minimally T.W.’s symptoms may increase. The majority cites a New Jersey case, State v. Crandall (1990), 120 N.J. 649, 577 A.2d 483, for the proposition that testimony that the victim feared the defendant was sufficient for a finding that the closed circuit television procedure should be used. The majority’s reliance on this case in support of its position is misleading. First of all, the issue is whether the Illinois statute was correctly applied to the facts of this case. Clearly, any decision by the New Jersey Supreme Court cannot be relevant on this matter, particularly when the New Jersey statutory scheme is not even discussed. Further, the decision in Crandall was based on the testimony that, if forced to face the defendant in the courtroom, the victim would “clam up and say nothing.” (Crandall, 120 N.J. at 656, 577 A.2d at 486.) The discussion regarding the victim’s fear of the defendant concerned whether the requirements established by the Supreme Court’s decision in Craig had been met, and had nothing to do with a finding of severe emotional distress.

Because there was no evidence introduced in this case that the victim would suffer severe emotional distress likely to cause severe adverse effects if required to testify in the presence of the defendant, I would reverse and remand the cause for a new trial. Use of the closed-circuit television procedure under the facts of this case violated the defendant’s sixth amendment right to be confronted with the witnesses against him. The majority has seriously undercut the statute by holding that the necessary findings were supported by the speculative testimony in this case.

Accordingly, I dissent.


author: JUSTICE LYTTON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TODD PAARLBERG, Defendant-Appellee.
    Third District
    No. 3-92-0431
    Opinion filed April 9, 1993.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Lawrence Michael Kaschak, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Alan R. Bruggeman, of Kipnis, Kahn & Bruggeman, of New Lenox, for appellee.
   JUSTICE LYTTON

delivered the opinion of the court:

Defendant Todd A. Paarlberg was arrested for reckless driving, his automobile was impounded, and the defendant and his vehicle were searched. Thereafter, the defendant was charged with three counts of unlawful possession of a controlled substance. Defendant filed a motion to suppress evidence. At the hearing on the motion to suppress, defense counsel amended his motion to also request the suppression of statements made by the defendant. The trial judge granted defendant’s motion, and the State appealed. We affirm.

In his motion to suppress, the defendant alleged that he was arrested by the Wilmington police department without probable cause, the defendant and his car were subjected to a warrantless search, and the purported inventory search of the car was pretextual.

At the hearing on the motion to suppress, defendant Todd A. Paarlberg testified that at approximately 9:05 p.m. on August 22, 1991, he was driving on a two-lane road between his work as a pharmacist in Wilmington and his home in Manhattan, Illinois. Once he negotiated a curve, the road became a straightaway with a speed limit of 55 miles per hour. It was at this point that the defendant passed the car in front of him. Paarlberg testified that he was driving approximately 35 miles per hour before beginning his acceleration and passing maneuver.

The vehicle that Paarlberg passed was an unmarked police car. The police officer activated his lights and stopped the defendant’s car. The policeman approached the defendant and asked to see his license and insurance card. The officer then asked Paarlberg to step from his car and perform sobriety tests.

As Paarlberg was performing the field sobriety tests, another officer arrived. That officer entered the defendant’s vehicle, searched the car’s interior and glove compartment, and found a bottle of Parepectolin. Paarlberg was questioned about his place of employment and then handcuffed. The defendant was told that he had been driving in the lane of oncoming traffic, he was under arrest for reckless driving, and his car was being impounded.

The State’s only witness was Officer Michael Boyle. Boyle testified that he was on patrol on Route 53 in an unmarked police car. He saw the defendant’s car approach from behind, proceed into the left lane three times, and then return behind Boyle’s car. Boyle observed oncoming traffic prior to the defendant returning to the proper lane behind Boyle’s police car. The officer testified that the defendant’s car came “within feet of my vehicle.”

The defendant’s car stayed in its lane behind Boyle. This portion of the road was marked with two solid yellow no-passing lane markers.

Boyle testified that he pulled his car to the right portion of his lane, and the defendant passed him. In completing the passing maneuver and returning to its proper lane, the defendant’s vehicle contacted the gravel shoulder.

The officer then activated his lights and stopped the defendant’s car. Boyle asked the defendant for his driver’s license and proof of insurance. Although he could not smell alcohol, Boyle asked the defendant to perform field sobriety tests. The defendant passed these tests. During the field sobriety tests, an Officer Lewis arrived, viewed one of the tests, went into the defendant’s car, and returned with an object which he found in the glove compartment. The defendant was then searched and additional objects were found in the defendant’s pockets. Boyle testified that it was the procedure in his department to take reckless driving suspects into custody and for the suspect’s car to be inventoried and towed.

On cross-examination, Boyle testified that he had pulled the police car to the right near an intersecting road. The officer testified that it was possible that someone would believe that his car was turning off onto the intersecting road.

Officer Boyle also testified that his rearview mirrors, which had been used to observe the defendant’s car, distorted distances. However, Boyle could not testify as to the distortion factor of the mirror. The officer was also unsure of the distance between the end of the curve in the road and the point at which passing is permitted, though he did speculate that the distance might be 200 feet.

The officer also testified that his department has a policy requiring custodial arrests for reckless driving, but this policy was not in writing. He was also unsure if the department’s policy requiring an inventory search of all towed cars was in writing. Boyle did testify, however, that he was aware that Illinois Supreme Court rules permit an allegedly reckless driver to post either money or a driver’s license as bond. Nonetheless, Boyle did not give the defendant an opportunity to post either money or his license for bond.

Boyle testified that, after observing the defendant and conducting the field sobriety tests, he lacked probable cause to arrest the defendant for driving under the influence. It was then that he placed the defendant under arrest for reckless driving. While Boyle outranked Officer Lewis, he had never instructed Lewis to search the vehicle.

At the close of evidence, the trial judge allowed the defense to amend its motion to include a request for the suppression of statements made by the defendant. After hearing the arguments of counsel, the trial judge ordered the suppression of all materials seized and all statements made by the defendant after Officer Boyle informed the defendant that he was under arrest.

In light of the trial judge’s ruling, the State filed a notice of appeal and the requisite certificate of impairment. 134 Ill. 2d R. 604(a)(1); People v. Young (1980), 82 Ill. 2d 234, 247-49, 412 N.E.2d 501.

On appeal, the State asserts that the trial judge erred in suppressing evidence seized by the police during the inventory search of the defendant’s automobile. The State contends that the impounding of the defendant’s car, the search and the subsequent seizure of evidence were within the officer’s authority pursuant to the United States Supreme Court’s decisions in Colorado v. Bertine (1987), 479 U.S. 367, 93 L. Ed. 2d 739, 107 S. Ct. 738, and Florida v. Wells (1990), 495 U.S. 1, 109 L. Ed. 2d 1, 110 S. Ct. 1632, as well as the Illinois Vehicle Code (Ill. Rev. Stat. 1991, ch. 951/2, par. 11 — 1302(c)). The State also argues that suppression of the defendant’s statements was not required because the case involved a routine traffic stop.

The defendant contends that the facts do not support the State’s claim that the search in this case constituted an inventory search. The defendant argues that suppression was appropriate since the search commenced prior to impoundment. Additionally, the defense asserts that the police erred in making a custodial arrest in a reckless driving case.

We need not address the issues as presented, however, inasmuch as we decide to affirm the ruling of the circuit court on a basis other than those raised by the litigants.

On appeal, a trial judge’s findings on a motion to suppress will not be overturned unless they are manifestly erroneous. (People v. Mason (1991), 213 Ill. App. 3d 163, 166, 571 N.E.2d 1127.) The question before this court is the correctness of the trial court’s rulings rather than the validity of its rationale. (People v. Ortiz (1988), 170 Ill. App. 3d 1083, 1089, 524 N.E.2d 1050.) We may affirm the trial court when correct for any reason appearing in the record, even if that reason was not relied upon by the trial court. People v. Rodriguez (1989), 187 Ill. App. 3d 484, 489, 543 N.E.2d 324.

In determining whether an inventory search is reasonable, the threshold question is whether the impoundment was proper, since the need and justification for the inventory arises from the impoundment of the vehicle. (People v. Braaseh (1984), 122 Ill. App. 3d 747, 752, 461 N.E.2d 651.) Similarly, a search incident to arrest is lawful only if the arrest is valid; such a search is invalid if there exists no probable cause for the arrest. People v. Mendoza (1978), 62 Ill. App. 3d 609, 622, 378 N.E.2d 1318.

To ascertain whether probable cause exists, a court must determine whether a reasonable and prudent person, having the knowledge of the officer at the time of the arrest, would believe that the defendant committed the offense. (People v. Melgoza (1992), 231 Ill. App. 3d 510, 541, 595 N.E.2d 1261.) While the facts need not be sufficient to convict, something more than a hunch or mere suspicion is required. (People v. Scarpelli (1980), 82 Ill. App. 3d 689, 694, 402 N.E.2d 915.) Evidence obtained after the arrest cannot be considered in determining whether probable cause existed for the arrest. (People v. Alewelt (1991), 217 Ill. App. 3d 578, 580, 577 N.E.2d 809.) In light of the record in this case, we find that no probable cause existed to arrest the defendant for reckless driving. The impoundment of the defendant’s car and the search of the car and defendant were improper.

Here, the defendant was placed under arrest, and his car was impounded and inventoried, for the alleged offense of reckless driving. Section 11 — 503 of the Illinois Vehicle Code provides that “[a]ny person who drives any vehicle with a willful or wanton disregard for the safety of persons or property is guilty of reckless driving.” Ill. Rev. Stat. 1991, ch. 951/2, par. 11 — 503(a).

Section 11 — 503 does not specify any particular manner in which the offense may be committed. (People v. Pena (1988), 170 Ill. App. 3d 347, 353, 524 N.E.2d 671.) Nonetheless, the Illinois General Assembly may declare that certain driving maneuvers constitute per se reckless driving. Such a statute creates absolute liability for the driver. People v. Tumminaro (1984), 102 Ill. 2d 331, 334-35, 465 N.E.2d 90.

In the absence of a per se statute, reckless driving requires proof of a willful or wanton mental state. Even when a driver negligently causes serious injury or death, reckless conduct is not assumed. (See People v. Hawn (1981), 99 Ill. App. 3d 334, 338, 425 N.E.2d 1024; Stamat v. Merry (1979), 78 Ill. App. 3d 445, 449-50, 397 N.E.2d 141.) Reckless driving is not merely the commission of a single traffic offense plus the required mental state. Pena, 170 Ill. App. 3d at 353.

Reckless driving cases appear to fall into three general categories. The first category is the commission of multiple traffic offenses which together demonstrate the driver’s willful and wanton disregard for the safety of persons and property. People v. Pena (1988), 170 Ill. App. 3d 347, 524 N.E.2d 671 (speeding and weaving); People v. Brady (1974), 23 Ill. App. 3d 330, 318 N.E.2d 642 (speeding and weaving); McWethy v. Lee (1971), 1 Ill. App. 3d 80, 272 N.E.2d 663 (decedent driver’s recklessness included speeding, failure to stop at intersection, and failure to yield right-of-way); People v. Baier (1964), 54 Ill. App. 2d 74, 203 N.E.2d 633 (speeding and failure to stop at intersection).

The second category of cases involves a driver’s conscious disregard for the particular surroundings and circumstances that rises to the level of willfulness and wantonness. People v. Stropoli (1986), 146 Ill. App. 3d 667, 497 N.E.2d 194 (defendant backed up, squealed tires, made wide turn causing “fishtailing” and pointing car at nearby child); People v. Burton (1981), 100 Ill. App. 3d 1021, 427 N.E.2d 625 (while passing another car, driver repeatedly turned steering wheel sharply so that the two vehicles almost collided); People v. Tuell (1981), 97 Ill. App. 3d 849, 423 N.E.2d 954 (defendant drove out of lane and toward pedestrian in roadway, to force pedestrian to run out of the way); People v. Ziegler (1979), 78 Ill. App. 3d 490, 396 N.E.2d 1160 (excessive speed combined with dangerous lane changes, cutting off other cars, and failure to reduce speed while approaching standing vehicle which displayed brake lights and turn signal); People v. Griffith (1978), 56 Ill. App. 3d 747, 372 N.E.2d 404 (though familiar with speed limit and sharp curve, defendant drove twice the limit and lost control, causing accident); People v. Burch (1974), 19 Ill. App. 3d 360, 311 N.E.2d 410 (speeding, passing three cars at one time, forcing an oncoming car to leave the road, and the presence of small children on the roadside); People v. Prendergast (1968), 95 Ill. App. 2d 41, 238 N.E.2d 92 (speeding in area adjacent to shopping mall, at noon hour, causing fatal accident).

The third category is where willful and wanton conduct is based, in part, upon the driver’s intoxication or impaired state. People v. Bolar (1982), 109 Ill. App. 3d 384, 440 N.E.2d 639; People v. Davis (1982), 105 Ill. App. 3d 129, 434 N.E.2d 13; People v. Farris (1980), 82 Ill. App. 3d 147, 402 N.E.2d 629; People v. Miller (1979), 75 Ill. App. 3d 775, 394 N.E.2d 783; People v. Bonzi (1978), 65 Ill. App. 3d 927, 382 N.E.2d 1300; People v. Chambers (1972), 8 Ill. App. 3d 430, 289 N.E.2d 476; People v. Gray (1972), 7 Ill. App. 3d 526, 288 N.E.2d 26.

In specific cases a driver’s recklessness may satisfy the requirements of more than one of these categories; however, cases that do not fall into at least one of them have not survived appellate review. People v. Gosse (1983), 119 Ill. App. 3d 733, 457 N.E.2d 129 (accident but lack of evidence that defendant was intoxicated or aware of loose gravel on road); People v. Hawn (1981), 99 Ill. App. 3d 334, 425 N.E.2d 1024 (speeding but no evidence of intoxication); People v. Friesen (1978), 58 Ill. App. 3d 180, 374 N.E.2d 15 (driving without lights due to electrical system failure, resulting in fatal accident); People v. Johnson (1975), 30 Ill. App. 3d 974, 333 N.E.2d 258 (failure to stop at an intersection); People v. Potter (1955), 5 Ill. 2d 365, 125 N.E.2d 510 (speeding); People v. Anderson (1923), 310 Ill. 389, 141 N.E. 727 (speeding but lack of evidence that driver saw policeman’s signal to stop at intersection).

In this case, there was no probable cause to believe that the defendant committed the offense of reckless driving. First, the defendant did not commit multiple traffic offenses. At most, the record before us supports a charge of improper lane usage. Second, the defendant did not ignore the conditions or circumstances in the vicinity. As Officer Boyle testified, as another vehicle approached in the opposite lane, the defendant abandoned his passing maneuver and returned his car to its proper lane. Third, the defendant was not intoxicated or otherwise impaired. To the contrary, Officer Boyle testified that he smelled no alcohol on the defendant’s breath, and the defendant passed the field sobriety tests.

In the absence of probable cause of reckless driving, the impoundment of the defendant’s car, as well as the search of the car and defendant, were improper. The trial court’s decision was not against the manifest weight of the evidence.

The circuit court of Will County is hereby affirmed.

Affirmed.

. BARRY and STOUDER, JJ., concur.


author: PRESIDING JUSTICE McCUSKEY

text:
      In re ESTATE OF JANETTE JUSTUS, Deceased (Kathryn J. Hanks et al., Petitioners-Appellants, v. Janice L. Justus, Indiv. and as Ex’r of the purported Last Will and Testament of Janette Justus, et al., Respondents-Appellees (William H. Justus et al., Respondents)).
    Third District
    No. 3—91—0630
    Opinion filed April 6, 1993.

      Hartzell, Glidden, Tucker & Hartzell, of Carthage (Stanley L. Tucker, of counsel), for appellants.
    James L. Palmer, of Scholz, Staff & Palmer, of Quincy (Joseph A. Duesterhaus, of counsel), for appellees.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

The petitioners, Kathryn J. Hanks and James E. Justus, filed a probate action challenging the will prepared by their mother, Janette Justus (the decedent) and seeking to set aside certain certificates of deposit held in joint tenancy. The circuit court of Hancock County entered orders granting a motion in limine filed by the respondents, Janice L. Justus and Jerold L. Justus. The orders excluded the opinion testimony of a psychologist regarding the mental state of the decedent prior to her death. The trial court certified the issues raised for interlocutory appeal pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308), and we granted the petitioners’ application for leave to appeal.

The two issues certified by the trial court and raised in this appeal are: (1) whether the expert testimony of a psychologist as to the decedent’s mental condition is admissible pursuant to Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, when the psychologist’s opinion is exclusively based upon information provided by the petitioners about conversations with the decedent and events which took place in the presence of the decedent; and (2) whether this testimony may be admitted regarding a challenge to the ownership of certificates of deposit held in joint tenancy even if such testimony would not be admissible in a will contest.

We affirm because we conclude the trial court did not abuse its discretion in determining that the psychologist’s testimony was barred by the Dead Man’s Act (Act) (Ill. Rev. Stat. 1991, ch. 110, par. 8 — 201).

The petitioners and the respondents are the children of the decedent. The respondent Janice Justus is the executrix of the decedent’s will. She is also a legatee under the terms of the will and was the surviving joint tenant on certain certificates of deposit. The respondent Jerold Justus is a legatee under the terms of the will and allegedly received a benefit from and participated in the conversion of the certificates of deposit. The petitioners and two other children of the decedent were excluded from the decedent’s will. The two other children, William H. Justus and Eleanor Jean Sopp, were named as respondents by the petitioners. However, they are not parties to this appeal.

The petitioners alleged in count I of their petition that the decedent lacked the mental capacity to make a will. In counts II and III, the petitioners sought to set aside certain certificates of deposit held in joint tenancy. In all three counts, the petitioners alleged undue influence by the respondents.

The respondents filed a motion in limine which sought to exclude the testimony of the petitioners’ expert witness, Dr. Frank Froman. The motion stated that Dr. Froman’s opinions regarding.the mental state of the decedent were based solely upon interviews he had with the two petitioners, as well as forms and questionnaires they completed. The respondents pointed out that any statements made by the petitioners concerning their conversations with the decedent and the events which took place in the decedent’s life would be inadmissible under the Act (Ill. Rev. Stat. 1991, ch. 110, par. 8 — 201). The respondents therefore argued that an expert whose opinion was based solely upon information inadmissible under the Act should be barred from presenting expert testimony at trial. We agree with the respondents’ analysis.

An order was subsequently entered which stated that the testimony of Dr. Froman would be excluded as evidence at trial “to the extent that it is exclusively based upon matters related to him by [the petitioners].” This order, however, stated that it was applicable only to count I of the petition. After additional argument was presented by the parties, an order was later entered which stated that Dr. Fro-man’s testimony would also be excluded from a trial on counts II and III of the petition. This interlocutory appeal follows.

There is no real dispute that Dr. Froman’s opinion is based upon information which would not be admissible under the Act. The Act provides, in pertinent part, as follows:

“In the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability ***.” (Ill. Rev. Stat. 1991, ch. 110, par. 8 — 201.)

The purpose of the Act is to ensure a fair trial when one of the parties, the decedent, is unable to testify on his or her own behalf. (In re Estate of Gott (1991), 213 Ill. App. 3d 297, 300, 571 N.E.2d 1167, 1169.) The Act is not designed to disadvantage the living, but rather is designed to protect estates against fraudulent claims by putting the parties on equal footing. (Gott, 213 Ill. App. 3d at 300, 571 N.E.2d at 1169.) It “is recognized that the application of the Act is often harsh, applying to legitimate claims in order to ensure that other, fraudulent claims are not successfully prosecuted.” Gott, 213 Ill. App. 3d at 301, 571 N.E.2d at 1169-70.

Under the Act, an interested party cannot testify concerning a decedent’s competence or whether the decedent was under undue influence. (In re Estate of Jones (1987), 159 Ill. App. 3d 377, 384-85, 512 N.E.2d 1050, 1055.) Therefore, it is undisputed that the petitioners here would be prevented by the Act from testifying regarding: (1) conversations with the decedent; (2) events taking place in the presence of the decedent; (3) the decedent’s competence; or (4) whether the decedent was under any undue influence. Dr. Froman’s opinion is based upon information provided by the two petitioners which would not be allowed as testimony at trial. It has consistently been held that the Act will not allow parties to do by indirect means what they are prohibited from doing directly. (Gott, 213 Ill. App. 3d at 301, 571 N.E.2d at 1170; In re Estate of Konow (1987), 154 Ill. App. 3d 744, 750, 506 N.E.2d 450, 453; Manning v. Mock (1983), 119 Ill. App. 3d 788, 800-01, 457 N.E.2d 447, 454.) Therefore, based upon our interpretation of the legislative intent of the Act, we find the trial court properly disallowed Dr. Froman’s testimony. His testimony was clearly an attempt by the petitioners to introduce evidence indirectly which would otherwise be barred by the Act.

The petitioners argue, however, that Dr. Froman’s testimony is admissible because he is an expert witness and will be presenting expert testimony. They contend that his testimony should be allowed based upon the supreme court’s decision in Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322. In Wilson, the court adopted the trial procedures embodied in Federal Rules of Evidence 703 and 705. (Wilson, 84 Ill. 2d at 195-96, 417 N.E.2d at 1327.) Federal Rule 703 states:

“The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to [the expert] at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.” (Emphasis added.) Fed. R. Evid. 703.

The petitioners contend that Dr. Froman’s expert testimony should be allowed into evidence based upon his deposition testimony. In his deposition, Dr. Froman said that the information he relied on in forming his opinion was of a type reasonably relied on by experts in his field. The petitioners point out that Dr. Froman stated it was common and appropriate to speak with family members in order to properly diagnose paranoid or delusional disorders. Dr. Froman said he used several methods to test the reliability of the data. He concluded that the data provided by the petitioners were reliable.

It is important to note that Rule 703 does not guarantee the admissibility of all expert testimony that meets its criteria. See City of Chicago v. Anthony (1990), 136 Ill. 2d 169, 187, 554 N.E.2d 1381, 1389.

In the instant appeal, the trial court was faced with a situation where the expert testimony sought to be introduced was barred by the Act. However, there was also evidence that the information relied on by the expert was reliable and was of the type reasonably relied on by experts in that particular field. In such a situation, it is for the trial court, in the proper exercise of its discretion, to determine whether the evidence should be admitted. (Anthony, 136 Ill. 2d at 186, 554 N.E.2d at 1389.) The expert’s opinion that the facts or data are of a type reasonably relied upon by experts in the field is only one factor that the trial court should consider. (Anthony, 136 Ill. 2d at 186, 554 N.E.2d at 1389.) The trial court must also consider the reason for the substantive inadmissibility of the facts or data relied upon by the expert. Anthony, 136 Ill. 2d at 186, 554 N.E .2d at 1389.

Here, the trial court determined Dr. Froman’s opinion must be excluded because it was based upon incompetent evidence. Following our review of the record, we cannot say that the trial court’s determination was an abuse of discretion. Dr. Froman did testify during his deposition that information from family members would typically be relied upon by a clinical psychologist. However, Dr. Froman also stated there was other information which normally would be obtained and relied upon. He further stated that it would be better to talk to as many family members or significant others as possible. However, we note here that the only information Dr. Froman relied upon came from the two petitioners who clearly had an intense interest in the outcome of the case. Accordingly, we hold that the trial court did not abuse its discretion when it excluded Dr. Froman’s testimony.

Next, the petitioners argue that Dr. Froman’s testimony should be allowed as evidence in the trial of counts II and III of their complaint. Count II seeks a declaratory judgment that the joint tenancy interest in certain certificates of deposit held by the decedent and respondent Janice Justus was the result of undue influence. Count III asks the court to hold that the certificates of deposit should be held in a constructive trust. Also, the petitioners demand an accounting from the respondents.

The petitioners argue that the Act does not apply to joint tenancy claims because the claims are not based upon the decedent’s will. Also, the petitioners contend that the respondents are defending against these claims as individuals and not as representatives of the decedent. We disagree with the petitioners’ contention that the Act does not apply to the joint tenancy claims.

It is longstanding Illinois law that the Act is applicable in a suit to set aside a deed made by the decedent. (Lingle v. Bulfer (1926), 322 Ill. 606, 611-12, 153 N.E. 589; Carney v. Sheedy (1920), 295 Ill. 78, 84, 128 N.E. 810; Johnson v. Fulk (1918), 282 Ill. 328, 330-31, 118 N.E. 706.) Moreover, based on In re Estate of Abbot (1987), 157 Ill. App. 3d 289, 292, 510 N.E.2d 619, 621-22, heirs who have a direct pecuniary interest in the outcome of the litigation are considered to be persons directly interested in the action under the Act.

We previously have noted that the Act bars certain testimony from an adverse party or a person directly interested in “the trial of any action in which any party sues or defends as the representative of a deceased person.” (Ill. Rev. Stat. 1991, ch. 110, par. 8 — 201.) The Act defines “representative” as “an executor, administrator, heir or legatee of a deceased person.” Ill. Rev. Stat. 1991, ch. 110, par. 8 — 201(b).

Here, the petitioners’ standing to sue is based upon their status as heirs of the decedent. Moreover, any recovery from the petitioners’ claims concerning the certificates of deposit would increase their share of the estate in the event they are successful in having the will set aside. Therefore, even though the respondents are not defending against the petitioners’ claims as representatives of the decedent, the petitioners are suing as “heirs” or representatives of the decedent.

Based upon its plain language, it is apparent that the Act applies to the petitioners’ claims regarding the certificates of deposit and acts as a bar to their testimony concerning the decedent. See In re Estate of Abbot (1987), 157 Ill. App. 3d 289, 292, 510 N.E.2d 619, 621-22 (trial court erred in allowing the testimony of the petitioners regarding conversations about accounts held in joint tenancy).

The trial court did not abuse its discretion in determining that Dr. Froman’s testimony should also be excluded from a trial concerning the joint tenancy certificates of deposit.

Accordingly, the orders of the circuit court of Hancock County which granted the respondents’ motion in limine are affirmed.

Affirmed.

STOUDER and BARRY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT D. LINWOOD, Defendant-Appellant.
    Third District
    No. 3—92—0392
    Opinion filed April 13, 1993.
    Edwin J. Anderson, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LYTTON

delivered the opinion of the court:

The defendant, Robert D. Linwood, was convicted of armed violence, unlawful use of weapons by a felon, and unlawful possession of a controlled substance (720 ILCS 5/33A — 2, 24 — 1.1, 570/402 (West 1992)). The court found that the controlled substance conviction merged with the armed violence charge. The defendant was subsequently sentenced to 15 years’ imprisonment for armed violence and a concurrent extended 10-year term of imprisonment for unlawful use of weapons.

The sole issue on appeal is whether the court erred in imposing an extended term for unlawful use of weapons by a felon.

The record shows that the defendant did not object to the extended-term sentence at the sentencing hearing, nor did he raise the issue in a motion to reduce sentence. As a result, the State argues that the defendant has waived any objection to the sentence.

An extended-term sentence may only be imposed for the most serious class of offenses for which the defendant was convicted. (730 ILCS 5/5 — 8—2(a) (West 1992); People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569.) Moreover, when a sentence greater than that permitted by statute is imposed, the excess portion of that sentence is void. (People v. Mapps (1990), 198 Ill. App. 3d 521, 555 N.E.2d 1275.) A void judgment may be attacked at any time. People v. Perruquet (1989), 181 Ill. App. 3d 660, 537 N.E.2d 351.

In the instant case, the defendant was convicted of Class X armed violence and Class 3 unlawful use of weapons by a felon (720 ILCS 5/24 — 1.1(d), 33A — 3 (West 1992)). Since unlawful use of weapons is the less serious offense, he should not have received an extended term on that count. Moreover, since the excess part of the sentence is void, the error was not waived. Accordingly, we reduce the sentence for unlawful use of weapons to a concurrent term of five years’ imprisonment. See People v. Phillips (1987), 159 Ill. App. 3d 483, 511 N.E.2d 1193.

The judgment of the circuit court of Peoria County is reversed in part and otherwise affirmed.

Affirmed in part and reversed in part.

McCUSKEY, P.J., and STOUDER, J., concur.