author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY CARTER, Defendant-Appellant.
    Fourth District
    No. 4—88—0802
    Opinion filed January 18,1990.
    Rehearing denied February 23,1990.

      Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Following a jury trial in the circuit court of Sangamon County, defendant Timothy Carter was convicted of attempt (murder), aggravated battery, and reckless conduct (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 4(a), 9 — 1(a), 12 — 4(a), 12 — 5(a)). The court sentenced defendant to a term of 15 years’ imprisonment on the offense of attempt (murder) only. Defendant now appeals. We reverse and remand.

On May 6, 1988, defendant was charged by information with attempt (murder). The information alleged that on May 5, 1988, defendant knowingly shot J.G. in the stomach with the intent to commit the offense of first degree murder. The case proceeded to trial, where the following facts were established.

Defendant lived with his girlfriend, Ceenola Dunkirk, and her two children for three years until the couple separated in October 1987. Dunkirk has two minor children, a daughter approximately 14 years old at the time of the trial, and a son approximately 13 years old. Months before the incident that gave rise to this case, defendant learned of rumors circulating in the community that he had abused Dunkirk’s 14-year-old daughter. Defendant suspected that these rumors were started by Janet Hutchins, a woman defendant knew as a neighbor of Dunkirk at the John Hay Homes in Springfield. Defendant was also acquainted with the victim, J.G., who, although married to another woman, was known as Hutchins’ boyfriend and the father of two of her three children. During the spring of 1988, defendant learned that someone reported him to the Department of Children and Family Services (DCFS). He suspected that Hutchins was responsible for this report.

On May 5, 1988, defendant came into contact with Hutchins and J.G. on four separate occasions. During the first meeting, which occurred that morning, Hutchins, J.G. and the defendant met in her apartment. Hutchins told defendant that Ceenola Dunkirk was the source of the rumors and advised the defendant to settle the matter with her. Early that afternoon, defendant again encountered Hut-chins and J.G. During this meeting, defendant told J.G. that he did not believe Hutchins and directed threats toward the couple, the preelse nature of which was disputed at trial. J.G., who had a cast on his right arm from the palm to the forearm, told defendant he could settle the matter with him in four weeks when the cast would be removed. Defendant then drove away, promising J.G. that he would see him in four weeks. Later that afternoon, Hutchins and J.G. returned home and encountered the defendant outside their apartment helping Callie Jones, a neighbor, move furniture. Defendant and J.G. exchanged a few words and then J.G. and Hutchins went into Hut-chins’ apartment. A short time later, J.G. went outside to speak with Ceenola Dunkirk, who was sitting in the alley behind her apartment. Hutchins went outside and asked J.G. to return to the apartment. A loud argument ensued between Dunkirk and Hutchins. Defendant viewed this scene from the end of the alley where he was standing, drinking gin and talking to a friend. A crowd began to gather. As defendant approached Hutchins and Dunkirk, he exchanged words with J.G. Hutchins, J.G. and Callie Jones testified that defendant told Hutchins and J.G. he was going to shoot one of them. Defendant testified that he did not recall making such threats. J.G.’s response to defendant’s statements was undisputed. J.G. told defendant that if he was going to shoot someone, to shoot him rather than Hutchins because Hutchins had to raise his children. As J.G. turned toward Hutchins and told her to take the children and return to the apartment, defendant pulled a .22-caliber magnum revolver from his trousers and shot J.G. once through the abdomen. Defendant then handed his gun to a bystander and left the scene. The following day, defendant turned himself in to the Springfield police department.

No witness, including the defendant, testified that J.G. had directed any threatening gestures or remarks toward the defendant on the day of the shooting. Callie Jones suggested that J.G. was attempting to calm the defendant up until the moment he was shot.

The defendant testified that he and J.G. were friends and he knew J.G. to carry a gun because he had seen it several times over the course of their friendship. The defendant additionally stated that J.G. had advised him to carry a gun in the past. In his account of events which took place on the day of the shooting, defendant stated that as he approached the scene of the argument between Dunkirk and Hutchins and attempted to separate them, J.G. jumped in front of him. Defendant added, “when [J.G.] told me if I wanted to shoot somebody, shoot him, [J.G.] turned like he was trying to pull a gun because *** he turned this side to me like this and I snatched mine and shot him. I wasn’t trying to kill him but I was trying to keep him from shooting me.” Defendant did not state that he actually saw a weapon in J.G.’s possession.

Jeremy Dunkirk, Ceenola Dunkirk’s 13-year-old son, testified that he arrived home just after the shooting and saw Hutchins take a black revolver from behind J.G.’s back as he lay on the ground and hand it to a man named Mel. Hutchins denied recovering a weapon at the scene.

Hugh Bullock, also known as “Mel,” denied that he was handed a gun at the scene of the shooting. Bullock additionally stated that on the morning of the shooting defendant said that he ought to shoot either J.G. or Hutchins because they were spreading rumors.

During the instruction conference held following the presentation of the evidence, defendant tendered the following self-defense instruction:

“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.”

See Illinois Pattern Jury Instructions, Criminal, No. 24—25.06, at 554 (2d ed. 1981) (IPI Criminal 2d).

Upon the State’s objection, the court refused this instruction. The State then tendered its instruction on attempt (murder). Defendant objected, contending that the instructions should also include language relating to the included offenses of aggravated battery and reckless conduct. The trial court refused the State’s instruction on attempt (murder) and later accepted defendant’s instructions on aggravated battery, recklessness, and attempt (murder) over the State’s objection.

The trial court then instructed the jury on the offenses of attempt (murder), aggravated battery and reckless conduct. Neither the defendant nor the State tendered an instruction on inconsistent verdicts, and none was given to the jury. After brief deliberation, the jury returned its verdict, finding defendant guilty of all three offenses. The trial court accepted the verdicts without objection from either party and excused the jury. After denying defendant’s motion for a new trial, the court sentenced defendant to a term of 15 years’ imprisonment on the offense of attempt (murder) only.

Defendant raises two issues on appeal. Defendant first contends that the trial court erred in refusing to instruct the jury on self defense. We agree.

Illinois courts have consistently held that “[a] defendant is entitled to have a jury consider his claim of the justifiable use of force where that defense has some foundation in the evidence. This is true even where the evidence concerning that theory is very slight, inconsistent, or of doubtful credibility.” (Emphasis in original.) (People v. Dailey (1989), 188 Ill. App. 3d 683, 688, 544 N.E.2d 449, 453, citing People v. Rodriguez (1981), 96 Ill. App. 3d 431, 421 N.E.2d 323.) In this case, defendant testified that he knew J.G. to carry a gun and stated that he shot him because J.G. appeared to be reaching for a gun. J.G.’s testimony supported the defendant’s contention that he was turning his body as he was shot. Additionally, the testimony of Jeremy Dunkirk suggested that J.G. was armed at the time of the shooting. Admittedly, this evidence comes primarily from the defendant and his girlfriend’s son, a boy who stated that he loved the defendant and wanted to help him. However, the credibility of witnesses can only be resolved by the jury and not by the trial court. (People v. Brooks (1985), 130 Ill. App. 3d 747, 751, 474 N.E.2d 1287, 1290.) In sum, although the evidence in this case supporting a self-defense instruction is slight and of questionable credibility, it was sufficient to warrant giving the instruction tendered by defendant.

To assist the trial court in the event of a retrial, we will address the defendant’s second asserted error. Defendant contends that the verdicts finding him guilty of attempt (murder), aggravated battery, and reckless conduct are legally inconsistent and therefore cannot stand. The core of defendant’s argument is that the defendant could not act intentionally or knowingly and at the same time act recklessly. Accordingly, defendant argues, all convictions must be reversed and the cause must be remanded for a new trial. People v. Spears (1986), 112 Ill. 2d 396, 493 N.E.2d 1030, provides conclusive support for defendant’s contentions. In Spears the Illinois Supreme Court explained that legally inconsistent verdicts arise when, as in this case, a defendant is convicted of two or more crimes having mutually inconsistent mental states. The Spears court held that “where inconsistent guilty verdicts are returned, the defendant is entitled to a reversal of the judgment and a remand of the cause for a new trial on all counts.” Spears, 112 Ill. 2d at 407, 493 N.E.2d at 1035.

The State contends that because defendant failed to request an instruction on inconsistent verdicts at trial and made no objection when the verdicts were returned, he should not now be allowed to obtain reversal based upon his own failure to act.

Although it is generally the parties’ rather than the trial court’s duty to prepare and amend instructions (People v. Grant (1978), 71 Ill. 2d 551, 557, 377 N.E.2d 4, 7) and to object to improper verdicts at the time they are returned (People v. Neither (1988), 166 Ill. App. 3d 896, 902, 520 N.E.2d 1247, 1250), Spears places these duties squarely on the shoulders of the trial court when the potential for legally inconsistent verdicts arises:

“In the case at bar, the instructions on the reckless conduct counts were tendered, at the defendant’s request, to provide the jury with an alternative which would exonerate the defendant of the greater charges. As such, the trial judge had a duty to apprise the jury that it could find the defendant guilty of the lesser or greater offenses, but not both. When the jury returned with inconsistent guilty verdicts, the trial judge had a duty to send the jury back for further deliberations consistent with new instructions to resolve the inconsistency.” Spears, 112 Ill. 2d at 410, 493 N.E.2d at 1036.

As the foregoing language indicates, in the absence of such action by the defendant, it is the trial court’s duty to take the necessary steps to prevent or cure legally inconsistent verdicts.

Reversed and remanded.

KNECHT, P.J., and GREEN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUSSELL SMREKAR, Defendant-Appellant.
    Fourth District
    No. 4—88—0594
    Opinion filed January 11,1990.
    Rehearing denied February 23,1990.

      Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Kenneth R. Boyle, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of Springfield, for the People.
   JUSTICE LUND

delivered the opinion of the court:

On July 15, 1988, the circuit court of Logan County, pursuant to the State’s motion, dismissed the petition of defendant Russell Smrekar filed pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, pars. 122—1 through 122—8). Defendant appeals. We affirm.

On February 28, 1977, defendant was found guilty by a jury of committing two acts of murder. He was subsequently sentenced to 100 to 300 years for each offense with said sentences to run consecutively. This court affirmed the convictions and sentences in People v. Smrekar (1979), 68 Ill. App. 3d 379, 385 N.E.2d 848, finding overwhelming proof of defendant’s guilt.

Originally, in 1980 defendant filed a pro se petition for post-conviction relief which was eventually withdrawn without prejudice. A new petition was filed in 1987. Counsel was appointed and an amended petition was filed. The State filed a motion to dismiss which the court granted.

Defendant now raises two issues on appeal. The first is that the court improperly dismissed his allegation in his post-conviction petition that he received ineffective assistance of counsel. The second is that the recent Illinois Supreme Court case, People v. Zayas (1989), 131 Ill. 2d 284, 546 N.E.2d 513, which held that post-hypnotic evidence is inadmissible, requires reversal of this case.

While the underlying facts of this case are adequately set out in Smrekar, a brief review of them here will facilitate the present analysis.

On October 9, 1976, in Lincoln, Illinois, Ann Mardis observed her brother and sister-in-law return to their next-door trailer. Around 1 a.m. she heard a “roaring” noise come from her brother’s trailer. She looked out the window and observed a man standing next to the trailer who, acting as if he forgot something, turned around and entered the trailer. She attempted to telephone her brother and received no answer. When she returned to the window the man was gone. She observed him 30 to 40 seconds, and the area between the residences is very well lit. She went to the trailer and found her brother and sister-in-law shotgunned to death.

About 3:30 a.m. on that day defendant was stopped and ticketed on what was then U.S. Route 66 (now Interstate 55) south of Odell traveling 96 miles per hour. He was heading north toward Joliet. Route 66 was a direct route between Lincoln and Joliet, where defendant lived at that time.

The next day Mardis told the police she had a 50-50 chance of identifying the man she saw. She was shown some pictures. She picked out two as being possible. One she selected due to the hair length. The other she selected because the facial features looked right, but the hair was wrong. This was the picture of defendant.

She subsequently visited a physician who hypnotized her to enhance her memory. On October 18 she saw defendant in person for the first time and immediately identified him. Defendant was in a crowd of people at that time. She also identified him at trial.

The State’s evidence also established that defendant had been earlier charged with misdemeanor theft and that one of the murder victims and Ruth Martin were prosecution witnesses. That trial had been set for October 19, 1976. In June 1976, Martin disappeared and has not been found. Bloodstains were found in her garage, and her car was found in Bloomington with bloodstains in the trunk.

Two youths told the police that approximately three to four hours before the crime they observed a man driving his car slowly with the headlights off and acting suspiciously upon exiting it in the crime area. They could not see the person’s face, but, in a lineup, picked two people out as resembling the person in height and build. Again, one was defendant.

Defendant, upon his arrest, was held at the Macon County jail. While being booked he was told the charges were serious. The booking deputy testified defendant stated, under his breath, that he did it but the State would never prove it.

Finally, the State presented the testimony of two cellmates of defendant whom we referred to in Smrekar as Witness I and Witness II. Witness I testified defendant told him he killed the victims and Martin to keep them from testifying against him. Defendant also related some aspects of the shooting to Witness I which were corroborated by the medical testimony. Witness II testified similarly and in much greater detail. However, in Smrekar, defendant raised allegations of discovery errors concerning this witness and we indicated we would not consider this evidence then (Smrekar, 68 Ill. App. 3d at 390, 385 N.E.2d at 856), and we will not now.

Defendant raised an alibi defense. As we observed earlier, the testimony of defendant’s mother, father, cousin, and girlfriend was inconsistent and impeached by their biased and inconsistent statements. (Smrekar, 68 Ill. App. 3d at 384, 385 N.E.2d at 852.) Defendant’s testimony was inconsistent with some of theirs. His explanation for being south of Odell heading toward Joliet at 3 a.m. was highly implausible in and of itself. This implausibility was increased by conflicts between his testimony and that of the arresting officer concerning defendant’s statements at the traffic stop.

After reviewing all the relevant evidence, this court in Smrekar commented on the weight of that evidence as follows:

“The most that the withheld information could have accomplished was to completely nullify the probative value of the testimony of Witness II. Even without that testimony the totality of (1) the testimony of the confessions and admissions of the defendant to Witness I and Deputy McCammon, (2) the circumstances of defendant’s speeding arrest at Odell at a time when he would likely have been fleeing from the crime, (3) his motive to kill, and (4) the mysterious disappearance of Ruth Martin accompanied by evidence of his confession of killing her, together with whatever weight the jury might have given to the identification testimony of Ann Mardis, and all in the face of defendant’s unlikely and highly impeached alibi evidence, would present a picture of overwhelming proof of guilt.” Smrekar, 68 Ill. App. 3d at 390, 385 N.E.2d at 856.

In his post-conviction petition, defendant asserted he received ineffective assistance of counsel. He specifically argued that counsel should have procured an expert witness to testify to the shortcomings of hypnotically enhanced evidence. An affidavit of a psychiatry professor was attached. This affidavit stated it was the witness’ professional opinion, after reviewing the testimony concerning the hypnotic procedure, that “there is an above average probability that seeing a photograph of the defendant prior to hypnosis and then undergoing hypnosis may have strongly influenced the witness’ belief that defendant was the man she had seen.” The court, determining that an expert cannot testify as quoted, granted the State’s motion to dismiss the petition.

The Post-Conviction Hearing Act provides a remedy to criminal defendants who claim that substantial violations of constitutional rights occurred in their trial. (People v. Silagy (1987), 116 Ill. 2d 357, 365, 507 N.E.2d 830, 833, cert. denied (1987), 484 U.S. 873, 98 L. Ed. 2d 163, 108 S. Ct. 212.) Such a proceeding is not an appeal per se, but a collateral attack upon a final judgment. (People v. James (1986), 111 Ill. 2d 283, 290, 489 N.E.2d 1350, 1353.) The scope of review is limited to issues which have not been, and could not have been, previously adjudicated. People v. Owens (1989), 129 Ill. 2d 303, 308, 544 N.E.2d 276, 277; People v. Gaines (1984), 105 Ill. 2d 79, 87-88, 473 N.E.2d 868, 873.

Generally, the issue of a trial counsel’s competence is waived where the defendant’s appellate counsel fails to raise it on direct appeal. (Owens; 129 Ill. 2d at 308, 544 N.E.2d at 277; Gaines, 105 Ill. 2d at 91, 473 N.E.2d at 875.) However, the waiver rule is relaxed where the facts relating to the issue of incompetency do not appear on the face of the record (Owens, 129 Ill. 2d at 308, 544 N.E.2d at 277), or in the situation where the same attorney represents defendant at trial and on appeal. (See Gaines, 105 Ill. 2d at 91, 473 N.E.2d at 875.) In the present case defendant was represented by different counsel on appeal. While appellate counsel’s brief did not specifically raise the issue of trial counsel’s ineffectiveness, it did address what is referred to as trial counsel’s inactivity in his failure to preserve alleged errors. It is apparent then that this present allegation could have been raised and addressed on direct appeal, and defendant is therefore barred from raising this issue in his post-conviction petition.

However, even if we address defendant’s contention, the trial court’s ruling must stand. The United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, formulated a two-part test for evaluating whether a claim of ineffective assistance of counsel rises to the level of a constitutional deprivation. Defendant must first demonstrate that counsel’s performance was deficient. (Owens, 129 Ill. 2d at 309, 544 N.E.2d at 278.) Defendant must also prove that his counsel’s deficient performance substantially prejudiced his defense. (Owens, 129 Ill. 2d at 309, 544 N.E.2d at 278.) To meet this second test, a defendant must show a reasonable probability that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) It is upon this second prong that defendant’s case fails.

The purpose of the missing expert testimony is to discredit the positive identification of defendant by Mardis on October 18 and in court. However, even if we assume that these identifications were totally discredited, that still leaves her selection of defendant’s picture as one of two possibilities prior to her hypnosis. She selected defendant’s picture because it closely resembled the facial features of the man she saw. Her only reservations involved the length of the hair in the picture. As noted, in Smrekar this court found the evidence of defendant’s guilt overwhelming. (Smrekar, 68 Ill. App. 3d at 390, 385 N.E.2d at 856.) In reaching that conclusion we relied on all of the evidence and did not place great weight on Mardis’ post-hypnotic identification. We find that eliminating that identification, and limiting Mar-dis’ testimony to selection of the suspect pictures, when coupled with all the other evidence, does not affect in any great way the substantiality of the State’s case or suggest any reasonable probability that the outcome of defendant’s trial would have been different if the expert testimony had been offered. Accordingly, we find the court’s dismissal of defendant’s post-conviction petition was proper.

Next, defendant argues the recent supreme court case of People v. Zayas (1989), 131 Ill. 2d 284, 546 N.E.2d 513, in which the court held that all post-hypnotic evidence was inadmissible, requires his conviction be reversed. The specific language of Zayas resolves this argument. The court stated:

“We understand that other criminal cases in Illinois have involved the use of hypnosis. This ruling, however, will not affect those cases that have been finally determined on direct appeal.” (Zayas, 131 Ill. 2d at 298, 546 N.E.2d at 519.)

Defendant has previously exhausted his direct appeals. This present case is considered collateral (see James, 111 Ill. 2d at 290, 489 N.E.2d at 1353) and is thus not affected by Zayas.

Defendant asserts, at oral argument, that the Zayas court was not required to consider the effect post-hypnotic testimony has on the sixth amendment right to confrontation. He believes Mardis’ post-hypnotic testimony is violative of this right and this, coupled with the Zayas analysis, requires reversal.

However, even if we assume, arguendo, that Zayas applies and that Mardis’ questioned testimony violated defendant’s right to confrontation, no reversible error exists. The reason the court reversed in Zayas is that it found that without this improper evidence the jury could have reached a different verdict. (Zayas, 131 Ill. 2d at 298, 546 N.E.2d at 519.) There is no such difficulty with the present case. As earlier discussed, even if we disregard Mardis’ testimony concerning events during and after her hypnotism, which is the foundation of the alleged errors, and consider only the evidence we relied on in Smrekar, the evidence of defendant’s guilt is still overwhelming. Accordingly, since a different result would not occur even if defendant’s allegations of error were correct, any error is harmless. See People v. Tranowski (1960), 20 Ill. 2d 11, 17, 169 N.E.2d 347, 350.

Affirmed.

KNECHT, P.J., and GREEN, J., concur.


text:
    MARTHA MOORE, Plaintiff-Appellant, v. GREG ROBERTS et al., Defendants-Appellees (Lindel Ray Wells et al., Defendants).
    Fourth District
    No. 4—89—0150
    Opinion filed January 11,1990.
    Rehearing denied February 27,1990.

      Dale A. Cini, of Cini & Bennett, of Mattoon, for appellant.
    John P. Ewart and E Bartley Durham, both of Craig & Craig, of Mattoon, for appellee Greg Roberts.
    Randolph M. Rich, of Randolph M. Rich Law Office, of Marshall, for appellee Greenup Cumberland County Fair Association.
   JUSTICE LUND

delivered the opinion of the court:

On July 14, 1986, the plaintiff Martha Moore filed a seven-count complaint in the circuit court of Cumberland County. During a pretrial hearing, count I against defendant Greg Roberts and count IV against the Greenup Cumberland County Fair Association (Association) were dismissed with prejudice. Both counts were predicated on the Animal Control Act (Act) (Ill. Rev. Stat. 1987, ch. 8, par. 351 et seq.). The question before us is whether the Act is applicable to the facts alleged in the dismissed counts and whether those counts were sufficiently well pleaded to withstand a motion to dismiss.

We first address the issue of whether the Act is applicable to the facts here. Plaintiff alleges that she was present at the Cumberland County Fairgrounds on August 22, 1985. While she was standing at a lemonade stand, two horses in a race on the nearby racetrack broke through the racetrack enclosure and threw their jockeys. As the horses ran through the crowd, the plaintiff was injured.

Section 16 of the Act states:

“If a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained.” (Ill. Rev. Stat. 1987, ch. 8, par. 366.)

This statute has recently been considered by the supreme court in Harris v. Walker (1988), 119 Ill. 2d 542, 519 N.E.2d 917. There the court held the Act was intended to provide a cause of action to plaintiffs who, by virtue of their relationship to the owner of the animal or the lack of such relationship, may not have any way of knowing or avoiding the risk the animal poses to them. The court in Harris went on to hold that this protection could be altered by an exculpatory contract or other assumption of risk. The pleadings here indicate there was no relationship between the plaintiff and the horse owner which could have given notice to plaintiff of the risk or any assumption of risk by the plaintiff.

Defendants argue the Act does not apply here, but rather, the Illinois Domestic Animals Running at Large Act applies. (Ill. Rev. Stat. 1987, ch. 8, par. 1.) They contend that once the horses left the racetrack enclosure and threw their riders, they were “running at large.” Illinois courts have long held that the Illinois Domestic Animals Running at Large Act is designed to provide redress for injuries caused by animals grazing at pasture which are beyond the control and supervision of their owners. (Zears v. Davison (1987), 154 Ill. App. 3d 408, 506 N.E.2d 1041; Chittum v. Evanston Fuel & Material Co. (1980), 92 Ill. App. 3d 188, 416 N.E.2d 5; Blakley v. Glass (1950), 342 Ill. App. 90, 95 N.E.2d 128 (abstract of opinion).) Although defendants have attempted to show that the horses were beyond the supervision and control of their owners when the injury occurred, the horses were clearly not grazing at pasture. In addition, in McQueen v. Erickson (1978), 61 Ill. App. 3d 859, 378 N.E.2d 614, the appellate court held the Illinois Domestic Animals Running at Large Act created an exception to the Act and, where the running-at-large statute will not support a cause of action, the general rule, the Act, will apply. For this reason, the Act, not the running-at-large statute, is the applicable law here.

Since the Act will apply here, we turn to consider whether the two dismissed counts were sufficiently well pleaded to allow them to go forward to trial. A complaint may survive a motion to dismiss if the facts alleged state a cause of action and the complaint reasonably informs the opposite party of the nature of the claim which he or she is called upon to meet. (Glazewski v. Coronet Insurance Co. (1985), 108 Ill. 2d 243, 483 N.E.2d 1263.) Dismissal with prejudice should not be made unless it clearly appears that no set of facts could be established which would entitle the plaintiff to relief. Thomas v. Zamberletti (1985), 134 Ill. App. 3d 387, 480 N.E.2d 869.

The elements of a cause of action under the Act are (1) an injury caused by an animal owned by the defendant; (2) a lack of provocation; (3) the peaceable conduct of the injured person; and (4) the presence of the injured person in a place where he has a legal right to be. (Forsyth v. Dugger (1988), 169 Ill. App. 3d 362, 523 N.E.2d 704.) Our review of plaintiff’s count I shows that she has properly pleaded all but one of the four elements under the Act. She has not pleaded that she had a legal right to be at the fairgrounds on the day when her injury occurred. Given the facts alleged, this appears to be nothing more than a drafting problem easily remedied by amendment. We find that there is sufficient merit in the plaintiff’s count I that the trial court should not have dismissed it with prejudice.

Our review of plaintiff’s count IV shows the trial court erred in dismissing this count as well. It is an essential element of a cause of action under the Act that an injury must have been caused by an animal owned by the defendant. Section 2.16 of the Act provides for a broad definition of owner to include any person who harbors, cares for, acts as custodian for, or knowingly permits an animal to remain on a premises occupied by him. (Ill. Rev. Stat. 1987, ch. 8, par. 352.16.) Count IV names the Association as defendant. Clearly the Association was not the actual owner of the horse, but the injury to plaintiff took place on the Association’s property and plaintiff alleges the Association had custody of the horse or knowingly permitted it to remain on its property. As this count properly pleads the other elements of a cause of action under the Act and the remaining issue of the relationship between the horse owner and the Association is one which can only be decided on facts developed at trial, count IV should not have been dismissed. For this reason, and those stated above, we reverse the decision of the circuit court.

Reversed and remanded.

SPITZ and GREEN, JJ., concur.


author: JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TRACEY DURHAM, Defendant-Appellant.
    Third District
    No. 3—89—0201
    Opinion filed January 25, 1990.
    Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, State’s Attorney, of Joliet (Nancy Rink Carter, of . State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

After a bench trial, the defendant, Tracey Durham, was found guilty of possession and possession with intent to deliver cocaine. The possession conviction was vacated, and defendant was sentenced to a five-year term of imprisonment for possession with intent to deliver cocaine.

The sole issue raised in this appeal is whether the trial court abused its discretion by granting a motion of the State for a continuance based on a finding that the State had shown diligence in its attempt to obtain evidence necessary for trial.

In addressing this issue, it is necessary to set forth the following facts. The defendant was arrested on September 8, 1988. The defendant from the date of his arrest was at all times in custody and took no action to delay the proceedings against him. The State was required to bring the defendant to trial within 120 days or specifically on or before January 6, 1989.

On December 19, 1988, the State moved for a continuance on the grounds that it was not prepared for trial because a police crime-lab report had not been received. Over defendant’s objection the trial court granted the State’s motion and set a trial date for February 8, 1989.

Both the sixth amendment to the United States Constitution and article I, section 8, of the Illinois Constitution of 1970 provide that the defendant in every criminal offense is entitled to a speedy trial. U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8.

The constitutional right to a speedy trial is implemented by statutory provisions set forth in our criminal code. In substance, every person in custody for a criminal offense shall be tried within 120 days from the date he was taken into custody. The 120-day provision is tolled if the delay is occasioned by the defendant. The trial court may continue for not more than 60 days the trial of a defendant, if the court determines that the State has exercised without success due diligence to obtain material evidence. Our criminal code further provides that if a defendant is not tried in accordance with the foregoing rules, he shall be discharged from custody. See Ill. Rev. Stat. 1987, ch. 38, pars. 103 — 5(a), (c), (d).

The record in this case is barren of actions or efforts on the part of the State which would support a finding that due diligence was exercised on obtaining evidence from the police crime lab. The trial court granted the State’s motion for a continuance, when the prosecutor stated that generally there is a five-month delay between a defendant’s arrest and the preparation of the crime-lab report.

The record fails to show some effort or affirmative acts by the State were taken to obtain the desired evidence within the 120-day period for trial. Apparently, the State did not resort to phone calls, correspondence or perform any overt act in an effort to impress upon and explain to the crime lab that the report should be expedited. The State failed to articulate any attempts it made in an effort to expedite the crime lab report. The lack of effort of the State to prevail upon the crime lab to expedite the report is confirmed by comments of the prosecutor to the effect that he felt it useless to ask the crime lab to do additional work. This case is not unlike the cases of People v. Shannon (1975), 34 Ill. App. 3d 185, 340 N.E.2d 129, and People v. Toolate (1978), 62 Ill. App. 3d 895, 379 N.E.2d 927.

To hold that the prosecutor in the instant case exercised due diligence would, in fact, abrogate the requirement of diligence in cases where the speedy trial provision is a factor. The mere assertions of due diligence by a prosecutor do not per se establish due diligence.

We note that the trial judge was not unaware that a problem existed relating to the statutory 120-day rule, but decided in this case to ignore the rule because of the increase of drug cases. In such cases the trial judge felt that the interest of administration of justice was of such importance that a delay in the trial of such cases may well justify a delay.

Drug usage is an abhorrence in our State and nation, but that factor does not justify or dictate a departure from our constitution and mandates providing for a speedy trial.

For the reasons stated, the judgment of the circuit court of Will County is reversed and the defendant is ordered discharged.

Reversed and defendant discharged.

HEIPLE and STOUDER, JJ., concur.


author: JUSTICE WOMBACHER JUSTICE STOUDER,

text:
    THE PEOPLE ex rel. LARRY VANDERSNICK, State’s Attorney, Henry County, Illinois, Plaintiff-Appellant, v. ONE 1987 DODGE CHARGER AUTOMOBILE VEHICLE IDENTIFICATION NUMBER 1B3BZ44C5HD525894, Defendant-Appellee (John C. Bielunski, Interpleader-Appellee).
    Third District
    No. 3-88-0776
    Opinion filed January 26,1990.

      STOUDER, J., dissenting.
    Larry VanBerSnick, State’s Attorney, of Cambridge (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellant.
    Thomas W. Montgomery, of Cambridge, for appellee.
   JUSTICE WOMBACHER

delivered the opinion of the court:

The State appeals from a judgment denying forfeiture of a 1987 Dodge Charger automobile. The State contends that the automobile was used to facilitate the commission of the offense of unlawful possession of a controlled substance and therefore is subject to forfeiture under section 36 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 36 — 2).

The record reveals that on August 17, 1988, the State filed a complaint for forfeiture against a 1987 Dodge Charger automobile registered to David J. Bielunski (defendant). The complaint alleged that the automobile was used with the consent and knowledge of the defendant in the commission of the offense of unlawful possession of a controlled substance. (Ill. Rev. Stat. 1987, ch. 56x/2, par. 1402(b).) The defendant filed an answer, denying that the automobile had been used in the commission of a drug offense. Additionally, John C. Bielunski, defendant’s father, filed a motion and a petition to intervene as well as a petition to register judgment. John C. Bielunski (interpleader) also filed an answer to the complaint. The judge granted the inter-pleader’s motion to intervene, and a hearing on the State’s complaint was conducted.

At the hearing the following information was revealed. Defendant’s vehicle was observed proceeding through a stop sign without stopping by a Geneseo police officer and an Illinois State trooper. The two law enforcement officers gave pursuit and stopped the vehicle. The trooper approached the driver’s side of the vehicle while the police officer approached the passenger side. As the police officer approached, he observed a passenger in the front seat, William Meyers, glance back toward the trooper. Meyers then opened the glove compartment and placed an object into the glove compartment. He then closed the glove compartment and looked straight ahead as the police officer stood alongside the window.

The police officer observed an open bottle of alcohol on the right rear floor. The police officer ordered Meyers out of the vehicle. For his own safety, the police officer opened the glove compartment and discovered several items. These items included a Tupperware container, a clear bottle containing a white powdery residue, a grinder, a mirror, a razor blade and a straw. A field test subsequently revealed that the contents of the Tupperware container tested positive for cocaine.

The car was registered to the driver, defendant David Bielunski of Marshalltown, Iowa. The defendant was subsequently taken into custody, advised of his rights and questioned. The defendant admitted that he knew that cocaine was concealed in the glove compartment of the car. The defendant eventually pled guilty to the offense of unlawful possession of a controlled substance pursuant to a negotiated plea. His guilt was based upon a theory of constructive possession.

Although the automobile was registered in David Bielunski’s name, there was some confusion as to who actually owned the automobile. John Bielunski bought the automobile in 1986 and registered it in his name. John agreed to sell the automobile to his son, and David was to attempt to make monthly payments on the automobile. The car was to remain in John’s name. John had previously done this for other of his children.

However, in December 1986, David Bielunski was convicted of operating a motor vehicle while under the influence in Iowa. John Bielunski testified that the insurance on his automobiles would greatly increase unless he took his son off the policy. In January 1987, the registration of the automobile was placed in David’s name. David had possession and control of the automobile from January 1987 until his arrest in August of 1988. David had not paid anything toward the purchase price of the automobile, as he and his father had agreed to defer payment until David had completed his education. John testified that he had no knowledge that the car was being used for illegal purposes. John did not have a lien on the car when the complaint was filed. There was only an oral agreement between the two that David would repay him for the automobile.

The judge denied the complaint for forfeiture and ordered the automobile released to the interpleader. The judge based his decision on two findings. First, that the vehicle in question did not afford the passenger the exclusive means of privacy and the automobile in no way facilitated the commission of the offense. Second, John Bielunski had a sufficient interest in the automobile to be considered an “owner” under the statute. Since the interpleader, as an owner, neither knew nor consented to the criminal activity, the forfeiture statute should not be applied to him.

The issue on appeal is whether the trial court erred in refusing to order the forfeiture of the vehicle. The State contends that the trial judge’s findings that (1) the interpleader was an “owner” for purposes of section 36 — 2(a) (Ill. Rev. Stat. 1987, ch. 38, par. 36 — 2(a)), and (2) the State failed to establish that the vehicle was used in or otherwise facilitated the commission of the offense charged were against the manifest weight of the evidence. We agree and reverse the order of the trial court denying forfeiture of the vehicle.

On review an appellate court will not reverse a trial judge’s order regarding forfeiture unless the ruling is against the manifest weight of the evidence. (People v. Strong (1986), 151 Ill. App. 3d 28, 502 N.E.2d 744.) The forfeiture proceeding is civil in nature. As such, the State need only prove by a preponderance of the evidence its right to have the property forfeited. (People ex rel. Power v. One 1979 Chevrolet Camaro (1981), 96 Ill. App. 3d 109, 420 N.E.2d 770.) It is with this perspective that we turn to the case before us.

The trial court determined that the interpleader was an “owner” of the vehicle under section 36 — 2(a). The court concluded that the interpleader neither knew nor consented to the criminal activity of either the defendant or the defendant’s passenger. As a result, the court found the forfeiture to be inappropriate.

In regard to who is an “owner” for purposes of section 36— 2(a), the court in People v. Dugan (1984), 125 Ill. App. 3d 820, 830, 466 N.E.2d 687, stated: “The word ‘owner’ may be used to describe one who has dominion or control over a thing, the title to which is in another.”

Interpleader contends, and the trial court found, that although the automobile registration was in defendant’s name alone, interpleader was the true owner of the vehicle. We cannot agree. The interpleader bought the vehicle in November 1986 and had it titled in his own name. However, due to circumstances, the interpleader transferred title from his name to that of the defendant. Although defendant and interpleader had an oral agreement whereby defendant was to repay interpleader for the vehicle, the interpleader never recorded his interest in the vehicle and defendant never made any payments in relation to this agreement. Additionally, defendant had exclusive use of the vehicle from its purchase in November 1986 until his arrest in August 1988.

Therefore, it is apparent that interpleader had no legally recognizable interest in the vehicle and exerted no control or dominion over the vehicle, as it was in the exclusive possession of the defendant. For these reasons we believe the trial court’s determination that the inter-pleader was an “owner” for purposes of section 36 — 2(a) went against the manifest weight of the evidence, and, accordingly, he should not have been allowed to contest the forfeiture of the vehicle.

We next consider whether the vehicle facilitated the criminal offense. The trial court determined that the vehicle did not afford the passenger the exclusive means of privacy and that the vehicle in no way facilitated the commission of the offense. The court found forfeiture in this situation would be inappropriate. We disagree.

It should first be noted that the vehicle need not afford one with the exclusive means of privacy, it need only facilitate the commission of the possession offense. To the extent that the vehicle adds a dimension of privacy, it facilitates the possession offense. People ex rel. Mihm v. Miller (1980), 89 Ill. App. 3d 148, 411 N.E.2d 592.

The Illinois Supreme Court recently addressed a similar question of whether a vehicle was used in a manner which facilitated a possessory drug offense. The case, People v. 1946 Buick, VIN 34423520 (1989), 127 Ill. 2d 374, 377, 530 N.E.2d 748, held that the key word in a similar possessory drug offense statute was “facilitate,” and the court further defined “facilitate” as “to make easier or less difficult.”

In the instant case, defendant admitted that he knew that his passenger was in possession of cocaine. Defendant was aware of this fact for over one hour, yet failed to ask his passenger to exit the vehicle or dispose of the contraband. While the defendant and his passenger were in Geneseo prior to the traffic stop, defendant observed his passenger place the Tupperware container containing cocaine into the glove compartment. It is a reasonable inference that the defendant knew why his passenger was doing this, that being to decrease the possibility that someone would view the container or the drug paraphernalia through the windows of the vehicle.

It seems apparent that the passenger’s action after the traffic stop indicated that he again believed that the glove compartment would offer a measure of privacy to the contraband. Defendant did nothing to stop his passenger from taking this action. We conclude that the vehicle did facilitate the possessory drug offense as it did add a measure of privacy. Certainly the possession of the cocaine was made easier by its concealment in the glove compartment.

The defendant relies on People ex rel. Barra v. Lee (1984), 128 Ill. App. 3d 128, 470 N.E.2d 46, contending that here, as in Lee, the vehicle did not facilitate the commission of the possessory drug offense. Lee is distinguishable from the instant case. In Lee the controlled substance was contained within a purse that was inside the vehicle. Since the purse would not have attracted any attention, the court held that the vehicle did not facilitate the drug offense. In the instant case, the Tupperware container as well as a clear bottle containing white powdery residue, a grinder, a mirror, a razor blade and a straw were discovered inside the glove compartment. These items, viewed colleclively, are very different from a purse. If a law enforcement officer were to observe these items located within a vehicle, he or she would infer that the otherwise innocent-looking Tupperware container might contain contraband. Thus, in this case the glove compartment, as a part of the vehicle, served the purpose of adding a dimension of privacy to the possession of the contraband.

We are of the opinion that this ruling, as well as the decision allowing the interpleader to contest the forfeiture, went against the manifest weight of the evidence. For the reasons listed above, we reverse the circuit court of Henry County and order that the 1987 Dodge Charger automobile be forfeited to the State.

Reversed and remanded to the circuit court of Henry County for the entry of appropriate forfeiture orders in accordance with this opinion.

Reversed and remanded.

SCOTT, J., concurs.

JUSTICE STOUDER,

dissenting:

I respectfully disagree with that part of the majority’s opinion which reverses the judgment of the trial court holding that the defendant was not the owner of the motor vehicle. In my view of the record, the trial court’s decision the defendant was not the owner of the motor vehicle is not against the manifest weight of the evidence. In other words, I believe the majority’s holding that as a matter of law the defendant was the owner of the motor vehicle is in error.

As shown by the record, prior to the registration of the motor vehicle in the name of David J. Bielunski, the defendant, the vehicle was registered in the name of John C. Bielunski, the defendant’s father. According to the testimony of both the defendant and his father, the vehicle title was transferred to the son because the increase in insurance rates resulting from David’s driving record would have applied not only to the vehicle in question but to other vehicles owned by the father. This evidence is undisputed and uncontradicted. The credibility of the testimony was not questioned. In addition the assertion by the defendant and his father that no change in ownership occurred at the time the title to the car was transferred from the father to the son is unrefuted.

Under this state of the evidence, I believe there is ample evidence to support the conclusion of the trial court that John C. Bielunski was the owner of the vehicle. To hold otherwise, as does the majority, is to disregard entirely the evidence supporting the judgment of the trial com t. This is one of those cases where at best a factual dispute existed and its resolution was within the province of the trial court.

The majority appears to view the evidence as if the State were a creditor entitled to rely on the registration of the vehicle as irrefutable evidence of ownership. However, the State is not in the position of a creditor. It did not rely on the car registration to its detriment, and the arrangement between the parties at the time it occurred did not and could not have been a fraud against the State. In this connection it should be noted that an Iowa court in an action between the defendant and his father declared the father to be the owner of the vehicle. While this event took place after the arrest in this case and the State of Illinois was not a party to the proceeding, it is additional evidence supporting the trial court’s judgment.

In summary, I believe the trial court’s judgment denying forfeiture of the vehicle because of nonownership by the defendant is supported by sufficient evidence, and I would therefore affirm the judgment.


author: JUSTICE STOUDER

text:
      In re PETITION OF EDDIE PADIN (Eddie Padin, Petitioner-Appellant, v. Veronica Padin, a Minor, et al., Respondents-Appellees).
    Third District
    No. 3-89-0123
    Opinion filed January 26,1989.

      John L. Sullivan, of Chicago, for appellant.
    Lucas, Brown & McDonald, of Galesburg (Dawn A. Conolly, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The petitioner-appellant, Eddie Padin, (Eddie) filed a petition to establish the existence of a parent-child relationship between himself and Veronica Padin, a minor. In addition, Eddie requested reasonable visitation rights. Following a hearing, the trial court granted the respondent-appellee’s, Nilsa Maldonado’s, motion to dismiss. Eddie brought the instant appeal.

The record shows on February 21, 1978, Veronica Padin (Veronica) was born in Chicago, Illinois. According to her birth certificate, Veronica is the daughter of Eddie Padin and Nilsa Hernandez. Hernandez later married Jesus Maldonado. In September, 1984, Nilsa Maldonado and her husband filed a petition to adopt Veronica in the circuit court of Cook County. In the petition for adoption, Maldonado twice indicated that Eddie was Veronica’s father. Following a hearing, the court denied the adoption petition. Sometime thereafter the Maldonados and Veronica moved to Knox County.

On September 21, 1988, Eddie petitioned the circuit court of Knox County seeking to establish paternity and visitation rights with Veronica. Maldonado filed a motion to dismiss the action claiming, pursuant to section 8(a)(2) of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1987, ch. 40, par. 2508(a)(2)) (the Parentage Act), that the statute of limitations provision therein barred Eddie’s action. At the hearing on the motion to dismiss, Eddie orally moved for leave to amend his petition to omit the request to be declared Veronica’s father and requested the court to determine only the visitation rights. The court denied the motion and dismissed the entire action, finding the action was barred by the statute of limitations provision of the Parentage Act. The court also denied Eddie’s oral motion for leave to amend his petition. The issue on appeal is whether the trial court erred in granting Maldonado’s motion to dismiss and denying Eddie’s oral motion for leave to amend his petition.

Section 8(a)(2) provides “[a]n action brought on behalf of any person other than the child shall be barred if brought later than 2 years after the birth of the child. Failure to bring an action within 2 years shall not bar any party from asserting a defense in any action to declare the non-existence of the parent and child relationship.” Ill. Rev. Stat. 1987, ch. 40, par. 2508(a)(2).

Maldonado asserts that section 8(a)(2) applies to this case because Eddie instituted this action pursuant to both the Parentage Act and the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 101 et seq.) (IMDMA). Section 9(a) of the Parentage Act (Ill. Rev. Stat. 1987, ch. 40, par. 2509(a)) provides: “In any civil action not brought under this Act, the provisions of this Act shall apply if parentage is at issue.” Maldonado asserts that this section also applies in the instant case because both parentage and visitation are at issue. Maldonado asserts that Eddie is required to have filed an action to determine paternity within a reasonable time after the enactment of the Parentage Act in 1984. Maldonado argues that because a reasonable time for bringing an action cannot be greater than the two-year statute of limitations period, Eddie is barred from bringing this action, for over two years have elapsed from the date of the Parentage Act’s enactment. According to Maldonado, therefore, the section 8(a)(2) statute of limitations in the Parentage Act applies and the court properly dismissed the case. We disagree.

Eddie contends that because parentage is not at issue, the statute of limitations contained in the Parentage Act does not apply. Eddie is the acknowledged father of Veronica. Maldonado, in the earlier adoption proceeding, did not dispute that Eddie was Veronica’s father. In addition, Eddie is the named father on Veronica’s birth certificate.

Matters of custody and parentage are separate legal issues. (In re Marriage of Ingram (1988), 176 Ill. App. 3d 413, 531 N.E.2d 97.) In Ingram, the court determined that under the facts of that case a parent-child relationship was presumed. The court noted that the child’s birth certificate contained the alleged father’s name. Likewise, in the instant case, Veronica’s birth certificate, which Maldonado signed, lists Eddie as Veronica’s father. We also note Veronica’s last name is “Padin” and not Maldonado or Hernandez and that has never been disputed. Therefore, we do not believe parentage is an issue in this proceeding. Accordingly, the statute of limitations found in section 8(a)(2) of the Parentage Act does not apply in the instant case.

Maldonado also asserts that the court denied Eddie’s petition due to an alleged violation of a local practice rule. Maldonado claims the court denied Eddie’s oral motion for leave to amend his petition because he violated a local practice rule regarding proper notice. The record, however, does not support Maldonado’s contention. The record indicates that the court denied the oral motion for leave to amend the petition due to a statute of limitations problem. Accordingly, we conclude Maldonado’s contention that the trial court denied Eddie’s oral motion for leave to amend his petition due' to an alleged violation of a local practice rule is unsupported.

The second issue concerns the scope of the custody provisions set forth in section 602 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill. Rev. Stat. 1987, ch. 40, par. 602). Eddie contends that section 601(b)(l)(ii) of the IMDMA (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(l)(ii)) permits a petition for a parent seeking visitation rights. Eddie also asserts that section 602 of the IMDMA, which pertains to custody, has also been interpreted to apply to visitation rights. We agree.

The court addressed this issue in In re Custody of Myer (1981), 100 Ill. App. 3d 27, 426 N.E.2d 333. In Myer, the court stated that visitation is a form of custody subject to the custody rules set forth in the IMDMA. Likewise, in the instant case, Eddie’s visitation rights are to be determined by applying the custody rules set forth in section 602 of the IMDMA.

Maldonado claims that Eddie should be barred from allegedly going in and out of Veronica’s life and thereby allegedly causing her emotional harm. Eddie contests this assertion and notes that he is not seeking custody; rather, he is seeking the opportunity to visit his daughter, who has been moved from Cook County to Knox County. We note that this is not an appropriate issue to be raised or decided on a motion to dismiss. What is to be determined by the trial court is what is in the best interest of Veronica. (Ill. Rev. Stat. 1987, ch. 40, par. 602.) Under these circumstances, therefore, we believe this dispute may properly be resolved by a hearing to determine what is in Veronica’s best interest. A guardian ad litem should be appointed to represent Veronica in the future proceedings.

For these reasons the order of the circuit court of Knox County granting Maldonado’s motion to dismiss and denying Eddie’s oral motion for leave to amend his petition is reversed and the cause remanded for further proceedings consistent with the views set forth herein.

Reversed and remanded.

WOMBACHER and BARRY, JJ., concur.


author: JUSTICE CAMPBELL JUSTICE BUCKLEY,

text:
    MELVYN M. WEISBERG, Plaintiff-Appellant, v. KENNETH E. PICKENS, Defendant-Appellee.
    First District (1st Division)
    No. 1—88—3552
    Opinion filed December 29,1989.

      BUCKLEY, J., dissenting.
    Donald L. Johnson and Steven R. Hansen, both of Chicago, for appellant.
    Timothy J. Cassidy, of Peoria, for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

This action involves a complaint filed on December 18, 1984, in which plaintiff alleged that in October 1983, he and defendant entered into an oral contract in Illinois whereby, if plaintiff were to obtain an acceptable party to provide financing for defendant’s business project, defendant would pay plaintiff 4% of the amount of financing provided. Plaintiff further alleged that he was instrumental in procuring an individual who made a loan of approximately $300,000 to defendant’s project and arranged for an additional loan of approximately $4 million, thus entitling him to a fee of 4% of all monies obtained for defendant’s business project by and through this individual.

On October 3, 1988, this cause was assigned for trial to Judge E.C. Johnson, but defendant’s attorney was unaware that trial was to commence on that date, and the matter was continued to October 19, 1988. On that date defendant filed a motion for a continuance. The trial court granted defendant’s motion and continued the trial date until November 7, 1988. On October 31, 1988, defendant filed a motion for summary judgment and a motion for leave to file an affirmative defense; a hearing on these motions was set for November 4, 1988.

On November 4, 1988, defendant was prepared to argue his motion for summary judgment, but plaintiff objected, stating that he had not received notice of the motion. Plaintiff then offered a written motion for change of venue based on his fear of judicial prejudice. When asked to explain why he waited to file the motion until the trial date had been set, plaintiff stated that several days earlier defendant’s counsel told him that he had made a telephone call to Judge Johnson and intended to present a motion for summary judgment on November 4, 1988. The court set a hearing on plaintiff’s motion for November 7, 1988.

On November 7, 1988, the trial court expressed concern that the motion, filed so shortly before trial, was not genuinely based upon a belief that a fair trial was uncertain but was advanced for the purpose of delay. The court also noted that plaintiff had failed to provide defendant with any notice or any other communication to inform the opposing party that the motion for change of venue was to be presented. The trial court then denied plaintiff’s motion as untimely because it was not presented until the day before trial, although there had been ample opportunity to present it earlier, and it was presented without notice to the opposing party. When plaintiff, however, persisted in his motion for change of venue and would not participate in a trial, the trial court dismissed the action for failure to prosecute.

Plaintiff now contends that the trial court erred in denying his petition for change of venue where the petition was timely filed and complied with statutory requirements. Plaintiff also argues that the dismissal for want of prosecution was a void order in that it followed an improper denial of a petition for change of venue. Defendant counters that plaintiff’s petition was not timely filed and that plaintiff failed to comply with the statutory requirement that reasonable notice of the petition be given to the adverse party.

Section 2 — 1001 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 1001(a)(2), (c), (e)) provides, in pertinent part, that a change of venue in a civil action may be had:

“Where any party or his or her attorney fears that he or she will not receive a fair trial in the court in which the action is pending, because * * * the judge is prejudiced against him or her ***. In any such situation the venue shall not be changed except upon application, as provided herein, or by consent of the
parties.
* * *
(c) Every application for a change of venue by a party or his or her attorney shall be by petition *** [and] *** shall not be granted unless it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any
substantial issue in the case ***.
***
(e) The application may be made to the court in which the case is pending, reasonable notice thereof having been given to the adverse party or his or her attorney.”

Provisions of section 2 — 1001 are to be liberally construed in favor of granting a change of venue, particularly where judicial prejudice is charged. (Oberman v. Byrne (1982), 104 Ill. App. 3d 1046, 433 N.E.2d 1024.) Generally, a litigant has an absolute right to a change of venue where his motion alleging prejudice of the trial court meets statutory requirements. Intini v. Schwartz (1979), 78 Ill. App. 3d 575, 397 N.E.2d 84; Roherty v. Green (1965), 57 Ill. App. 2d 362, 206 N.E.2d 756.

However, it is well settled that a trial court may deny a motion for a change of venue if reasonable notice has not been given to the adverse party, and what constitutes reasonable notice depends on the circumstances in each case. (Anderson v. City of Wheaton (1975), 25 Ill. App. 3d 100, 323 N.E.2d 129.) Furthermore, the determination of whether reasonable notice has been given is left to the discretion of the trial court, and absent an abuse of that discretion, the trial court’s ruling on the sufficiency of notice will not be disturbed on appeal. Intini v. Schwartz, 78 Ill. App. 3d at 575.

In Buckingham Corp. v. Modern Liquors, Inc. (1973), 16 Ill. App. 3d 534, 306 N.E.2d 655, defendant’s attorney delivered a notice of motion and a petition for a change of venue to the plaintiff’s attorney on the day before trial was scheduled. At 10 a.m. the following day, the defendants presented the petition to the trial court, and the court denied the petition. On appeal, defendants argued that the trial court had erred in denying the petition because a party has an absolute right to a change of venue where his petition is duly made, verified and filed in accordance with statute. This court affirmed the trial court, finding that its determination that the notice was unreasonable was not an abuse of discretion. We noted that our supreme court reached a similar result in Hutson v. Wood (1914), 263 Ill. 376, 105 N.E. 343, where a plaintiff notified the defendant’s attorney at 4:20 p.m. on the day before the petition for a change of venue was presented to the trial court. See also Miller v. Pence (1890), 132 Ill. 149, 23 N.E. 1030 (denial of a petition for a change of venue was affirmed where no notice was given to the adverse party although the moving party knew of the alleged prejudice at least one day before presenting the petition).

In the instant case, plaintiff supposedly learned of the alleged prejudice several days prior to his application for a change of venue, yet no notice whatsoever was provided to defendant. Accordingly, we find that under the circumstances of this case the trial court’s denial of plaintiff’s petition for a change of venue was not an abuse of discretion.

In light of our decision, we need not address plaintiffs remaining contention.

Judgment affirmed.

O’CONNOR, J., concurs.

JUSTICE BUCKLEY,

dissenting:

I respectfully dissent.

When determining whether a litigant has complied with the statutory requirements which would entitle the litigant to an absolute right to change in venue without inquiry into the propriety of his petition asserting prejudice, the statutory requirements are to be liberally construed in order to effect rather than defeat a change of venue, particularly where judicial prejudice is charged. (Frede v. McDaniels (1976), 37 Ill. App. 3d 1053, 347 N.E.2d 259.) Defendant here has not disputed plaintiffs compliance with statutory requirements as to the form of the petition, and it is evident that plaintiff has also satisfied the statute’s timeliness requirement by filing the petition before the trial court had ruled on any “substantial issue” in the case. (See Ill. Rev. Stat. 1987, ch. 110, par. 2—1001(c).) The majority holds that the trial court here properly denied plaintiff’s petition under the statutory requirement of reasonable notice to the adverse party. See Ill. Rev. Stat. 1987, ch. 110, par. 2-1001(e).

While the determination of a party’s compliance with the reasonable notice requirement is dependent upon the circumstances in each particular case and should not be disturbed absent an abuse of discretion (Intini v. Schwartz (1979), 78 Ill. App. 3d 575, 397 N.E.2d 84; Anderson v. City of Wheaton (1975), 25 Ill. App. 3d 100, 323 N.E.2d 129), the instant circumstances indicate that the trial court abused its discretion in failing to liberally construe the notice provision to effect a change of venue. Unlike the cases cited by the majority, where notice was given within hours of the petition and scheduled hearing date (see Buckingham, 16 Ill. App. 3d 534, 306 N.E.2d 655; Hutson v. Wood (1914), 263 Ill. 376, 105 N.E. 343), plaintiff presented the motion to the trial court and to defendant’s counsel three days prior to the scheduled hearing date, having learned of the basis for the petition, the ex parte communication with the trial court, only a few days before presenting the petition. Furthermore, the record discloses that prior to filing his petition, plaintiff appeared ready for trial on two prior scheduled trial dates in which defendant failed to appear on one occasion and requested a continuance on the other. In my judgment, the trial court abused its discretion in finding under these circumstances that plaintiff had not satisfied the statutory notice requirement and therefore erred in denying plaintiff’s absolute right to a change of venue.

Because any order entered subsequent to an improper denial of a change of venue is void (Wheaton National Bank v. Aarvold (1973), 16 Ill. App. 3d 193, 305 N.E.2d 541), I would reverse the orders of the circuit court denying the petition for change of venue and dismissing the case for want of prosecution and would remand the cause for further proceedings.

      The trial court had entered only two rulings prior to the petition for change of venue, a denial of plaintiff’s motion for a default judgment and an allowance of defendant’s motion for a continuance as to the scheduled trial date. Neither of these rulings renders the motion untimely under the statute, as neither relates to issues concerning the merits of the case or afforded plaintiff an opportunity to form an opinion that the court might treat his cause unfavorably. See Stroller v. Paul Revere Life Insurance Co. (1987), 163 Ill. App. 3d 438, 517 N.E.2d 5; In re Custody of Peterson (1984), 129 Ill. App. 3d 887, 473 N.E.2d 412, rev’d on other grounds (1986), 112 Ill. 2d 48, 491 N.E.2d 1150.


author: JUSTICE WOMBACHER

text:
      In re PARENTAGE OF J.S., a Minor (Tami Stone, Petitioner-Appellee, v. David M. Williams, Respondent-Appellant).
    Third District
    No. 3—89—0239
    Opinion filed January 25,1990.

      David R. Akemann, of Elgin, and Phyllis J. Perko, of Harlovic & Perko, of West Dundee, for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Daniel N. Malato and Deborah L. Ahlstrand, Assistant Attorneys General, of Chicago, of counsel), for appellee.
   JUSTICE WOMBACHER

delivered the opinion of the court:

The respondent, David M. Williams, appeals from an order requiring him to pay child support for his illegitimate son. We affirm.

The record shows that on March 23, 1987, the Illinois Attorney General’s office filed a petition on behalf of the petitioner, Tami Stone, alleging that the respondent was the father of Stone’s minor son, J.S. Following a hearing, the trial court entered a judgment finding that the respondent was J.S.’s father.

On March 16, 1989, a hearing was held to determine the extent of the respondent’s financial responsibility to J.S. At the hearing, Tami Stone stated that her weekly income was $185 and that her monthly expenses were approximately $767. She also presented medical bills for J.S. in the amount of $684.16. The respondent testified that he is currently married and that his wife is pregnant. He stated that his weekly income is $90.93, and that even though his wife also works he is unable to meet his monthly expenses.

The trial court ordered the respondent to pay $18 a week for child support, $240 for the blood tests performed to determine paternity, and $684 for J.S.’s medical expenses. The respondent appeals this order, but does not contest the trial court’s paternity finding. This appears to be a case of first impression.

The respondent initially argues that he should not be required to support his child, because he was a 15-year-old minor when the child was conceived. He contends that Illinois public policy protects minors from the consequences of their improvident conduct.

We note that contrary to the respondent’s position, Illinois public policy has never offered blanket protection to reckless minors. (See Dawson v. Hoffmann (1963), 43 Ill. App. 2d 17, 192 N.E.2d 695 (when a minor engages in an adult activity he will be held to the same standard as all others who participate in that activity); Kennedy v. Kiss (1980), 89 Ill. App. 3d 890, 412 N.E.2d 624 (a minor is liable for necessities purchased by the minor under his own credit); Ill. Rev. Stat. 1987, ch. 37, par. 805 — 4(6)(a) (a 15-year-old minor can be tried as an adult for the crimes of first degree murder and armed robbery with a firearm).) At the same time, Illinois public policy has recognized the blanket right of every child to the physical, mental, emotional, and monetary support of his or her parents. (Ill. Rev. Stat. 1987, ch. 40, par. 2501.1.) The public has an interest in protecting children from becoming wards of the State. In re Petition of Sullivan (1985), 134 Ill. App. 3d 455, 480 N.E.2d 1283.

In the instant case, we find that the public policy mandating parental support of children overrides any policy of protecting a minor from improvident acts. We therefore hold that the trial court properly found that the respondent was financially responsible for his child.

The respondent also argues that the trial court erred in ordering him to pay child support and past expenses. Specifically, he contends that he is financially incapable of contributing to the support of his child.

Section 14 of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1987, ch. 40, par. 2514) provides that in determining the amount of any child support award, the court shall use the guidelines and standards set forth in section 505(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)). Section 505(a) provides that the relevant factors may include, but are not limited to, the financial resources and needs of the custodial parent, the financial resources and needs of the noncustodial parent, and the physical and emotional condition of the child. (Ill. Rev. Stat. 1987, ch. 40, par. 505(a).) The determination of the proper amount of support lies within the sound discretion of the trial court and will not be set aside unless it is contrary to the manifest weight of the evidence. In re Marriage of Leva (1983), 125 Ill. App. 3d 55, 460 N.E.2d 1179.

In the instant case, we find that the trial court did not abuse its discretion. The facts presented support the court’s determination that the respondent could afford $18 a week in child support. In addition, given the respondent’s failure to provide any child support in the past, the court did not abuse its discretion in ordering the respondent to pay J.S.’s medical expenses.

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

Affirmed.

HEIPLE, P.J., and SCOTT, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HORACE GALLAGHER, Defendant-Appellant.
    Third District
    Nos. 3—89—0174 through 3—89—0176 cons.
    Opinion filed January 25, 1990.

      Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (Gary E Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOMBACHER

delivered the opinion of the court:

A jury found the defendant, Horace Gallagher, guilty of unlawful possession of a controlled substance (Ill. Rev. Stat. 1987, ch. 56V2, par. 1402(b)). The trial court simultaneously conducted a probation revocation hearing, after which it revoked the defendant’s sentences of probation imposed following prior convictions for unlawful delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. SGbk, par. 1401(c)). He was subsequently sentenced to a one-year term of imprisonment for the unlawful possession conviction and concurrent terms of four years’ imprisonment for the prior unlawful delivery convictions. The defendant appeals his conviction for unlawful possession and the revocation of his probation in the two prior cases. The cases have been consolidated on appeal.

The record reveals that on October 28, 1986, the defendant was charged with two counts of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 5 6^2, par. 1401(c)). On that same day he was also charged in a separate case with three counts of unlawful delivery of a controlled substance. The defendant subsequently pled guilty to one count of unlawful delivery in the first case and two counts of unlawful delivery in the second. He was then sentenced to four-year terms of probation on each of the three convictions.

On August 12, 1988, the State charged the defendant with unlawful possession of a controlled substance (Ill. Rev. Stat. 1987, ch. 56V2, par. 1402(b)). The State then filed a petition to revoke the defendant’s probation in the prior cases, based upon the unlawful possession charge (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—4(a)).

At the defendant’s jury trial, the State’s uncontroverted evidence showed that on August 11, 1988, the Rock Island police department executed a search warrant at the defendant’s home. The officers knocked on the front door, and after receiving no response, forced the door open and entered the house. Inside, they found a woman in the kitchen and another woman in a spare room. The defendant was in the adjoining bathroom. In a bedroom, the police found a nightstand with a safe on top of it. Lying on top of the safe was a broken mirror with a small amount of cocaine and heroin on it. Also found on the safe were a plastic scale and an aluminum foil package containing a small amount of cocaine and heroin.

Inside the safe, the officers found two hypodermic needles and a vehicle registration card with the defendant’s name and address on it. Two additional hypodermic needles were found in a drawer of the nightstand. The woman in the spare room also had a needle. When the officers questioned the defendant at his house, he denied any knowledge of the drugs.

The defendant presented no witnesses, but did roll up his shirt sleeves and pants to show the jury that he had no “tracks” or needle marks on his body. The jury subsequently found the defendant guilty. The trial court found that the defendant had violated his probation.

At his sentencing hearing, the defendant testified that he did not know anything about the drugs. He explained that his girlfriend, who was one of the women in the house, was a drug user.

On appeal, the defendant argues that the State failed to prove that he possessed the drugs, since there were two other people in the house at the time the drugs were found and the evidence showed that one of them was a drug user.

To obtain a conviction for the unlawful possession of a controlled substance, the State must prove that the defendant had knowledge of the drug and that it was in his immediate and exclusive control. (People v. Nettles (1961), 23 Ill. 2d 306, 178 N.E.2d 361.) Possession may be established by evidence of actual physical possession or constructive possession. (People v. Scott (1987), 152 Ill. App. 3d 868, 505 N.E.2d 42.) Constructive possession exists where there is no actual personal present dominion over the narcotics, but there is an intent and a capability to maintain control and dominion over them. (People v. Morrison (1988), 178 Ill. App. 3d 76, 532 N.E.2d 1077.) Constructive possession may be proved by showing that the defendant controlled the premises where the narcotics were found. (Morrison, 178 Ill. App. 3d at 90, 532 N.E.2d at 1086-87.) Whether the defendant had knowledge and possession are questions of fact to be resolved by the jury. Its findings will not be disturbed on review unlfess the evidence is so palpably contrary to the verdict or so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt about the defendant’s guilt. Scott, 152 Ill. App. 3d at 871, 505 N.E.2d at 45.

In the instant case, the defendant’s vehicle registration, which was found inside the safe, listed his address as the house in which the drugs were found. Further, the safe was in the defendant’s bedroom. While we note that the defendant was in another room when the drugs were found and there were two other people in the house at the time, this alone does not create a reasonable doubt as to the defendant’s knowledge of the controlled substances and his control over the premises. Mere access by others to the area where drugs are found is insufficient to defeat a charge of constructive possession. (People v. David (1986), 141 Ill. App. 3d 243, 489 N.E.2d 1124.) Rather, these facts, along with the fact that one of the women was a drug user, created an issue for the jury to resolve.

Based upon the evidence, we find that the jury could reasonably conclude that the defendant had knowledge of the drugs and that they were within his immediate control. Similarly, the trial court could reasonably conclude that the defendant violated his sentences of probation. -

The judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

HEIPLE, P.J., and SCOTT, J., concur.