text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS D. HERRON, Defendant-Appellant.
    Second District
    No. 2-89-0204
    Opinion filed September 11, 1991.

      G. Joseph Weller and Ingrid L. Moller, both of State Appellate Defender’s Office, of Elgin, for appellant.

      Charles R. Hartman, State’s Attorney, of Freeport (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

The defendant, Thomas Herron, was charged by information with unlawful possession with intent to deliver a controlled substance (cocaine) (Ill. Rev. Stat. 1987, ch. 56V2, par. 1401(b)(2)) and unlawful possession of cannabis (Ill. Rev. Stat. 1987, ch. 56V2, par. 704(a)). The jury in the case was instructed that, in addition to the above offenses, defendant was also charged with unlawful possession of a controlled substance (cocaine) (Ill. Rev. Stat. 1987, ch. 56V2, par. 1402(b)). The jury then found defendant guilty of all three offenses. The finding of guilty for the offense of unlawful possession of a controlled substance was subsequently set aside as a lesser included offense of unlawful possession with intent to deliver. The trial court sentenced defendant to a four-year term of imprisonment, plus a $500 fine and a $135 street-value fine (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 9—1.1) for unlawful possession with intent to deliver, and a $50 fine and a $7 street-value fine for unlawful possession of cannabis.

On appeal, defendant raises the following issues: (1) whether constructive possession of a controlled substance was established beyond a reasonable doubt; (2) whether the trial court erred when it denied defendant’s motion to compel the State to disclose a confidential informant; (3) whether the trial court erred when it denied defendant’s motion for an evidentiary suppression hearing pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674; (4) whether the trial court erred when it allowed certain exhibits to go to the jury; (5) whether defendant was denied a fair trial due to the improper admission of evidence of other crimes; and (6) whether defendant’s conviction of unlawful possession of cannabis should be reversed because the State’s expert on cannabis lacked the necessary qualifications to give his opinion. We affirm.

The information by which defendant was charged was based on evidence obtained as the result of a search of the residence at 725 South Kenwood in Freeport, Illinois, which was made pursuant to a search warrant dated December 19, 1987. Initially, defendant and his wife, Shirley Herron, who was charged with the same crimes in case No. 88 — CF— 30, were represented by the same privately retained counsel. Subsequently, however, a public defender was appointed to represent defendant. On October 7, 1988, the court heard motions by both defendants for an evidentiary suppression hearing pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674. In support of the motion, several affidavits obtained from both defendants, as well as from Shirley Herron’s children, were presented, stating in pertinent part that on the day when a purchase of cocaine had allegedly taken place, no member of the household admitted anyone to the home who then purchased cocaine. The court denied the Franks motion with regard to both defendants. The trial court then granted the State’s motion for a joinder of the trials.

Prior to jury selection, defendant moved to have the identity of the informant disclosed, said informant having provided probable cause for a search warrant to search the premises at 725 South Ken-wood. In support of his motion, defendant asserted that the informant’s identity would be crucial to his defense since the informant’s testimony would establish that defendant was not present during the transaction on which the search warrant was based. The trial judge denied defendant’s motion. At trial, Officer Michael Hannan of the Freeport police department testified for the State. During the course of his testimony, reference was made to statements which both defendants had made to him during the search of the residence and afterwards at the police station and which had not been disclosed by the State during discovery. After a hearing on that discovery violation, the trial court declared a mistrial.

On January 10, 1989, the State moved to sever the trials of the defendants, and the court proceeded to jury selection for the trial of defendant, Thomas Herron. The first witness to testify on behalf of the State was again Officer Hannan, who was the evidence officer on the evening of December 19, 1987. Hannan testified that Shirley Her-ron opened the door to let the police in. After the police commenced their search of the premises, they found defendant asleep in an upstairs bedroom. Hannan found a “Fashion Bug” shopping bag in the kitchen, which contained a small shaving bag. Inside the shaving bag, Hannan found two butter tubs. One of the butter tubs contained wire ties, and the other contained corners cut from plastic sandwich bags. There was also a box of sandwich bags within the shopping bag as well as a small scale, a small grinder, and a toothbrush. In the living room Hannan found a makeup bag containing two 35-millimeter film canisters and a small tube of lipstick. One of the film canisters held 14 small plastic baggies cut from sandwich bags, each filled with a small amount of white powder substance and tied with a wire tie. The other canister contained four slightly larger plastic bags with a white powder substance. All were later shown to contain cocaine.

Officer Hannan also collected items located by other officers from the second floor of the house. Items found in the bedroom in which defendant was found sleeping included two small packages, one plastic and one paper, containing a small amount of plant-type substance, which were found atop the headboard of the water bed. Hannan also picked up a small plastic bag, identified as exhibit No. 6, which was closed with a wire tie and contained a small amount of a white powder substance. On top of the headboard, Hannan also found a water glass containing a larger plastic baggie with a white powder substance, a wooden pipe, a small metal pipe, a money clip, cigarette lighter flints and some razor blades. Other items found within the headboard included two revolvers and personal papers belonging to defendant and Shirley Herron. The papers confiscated by police included several utility bills in Shirley Herron’s name, one loan application and one car registration in defendant’s name, as well as some cigarette rolling papers and a note pad. The two revolvers, however, were not taken by the police until January 27, 1988, pursuant to a second search warrant. Defendant’s car keys were also located on top of the headboard. Police also located various smoking devices on a television stand in the bedroom as well as $600 inside of a pillow case on the bed. Some currency was also found in Shirley Herron’s purse.

During cross-examination, defense counsel attempted to bring out the background involved in obtaining the search warrant. The State objected to this line of questioning since it was not explored on direct examination. After Officer Hannan testified on redirect as to his belief that the residence he was searching was that of both defendant and Shirley Herron, defense counsel again sought to inquire into the background of the search warrant and the name and address shown therein. The trial court again sustained the State’s objection, holding that the inquiry went beyond the scope of the redirect examination.

Next, Officer Thomas Dyra testified that, immediately entering the residence, he went to the second floor, where he found defendant asleep in the master bedroom. Dyra noticed the several items within the bookcase headboard such as a gun and a number of small plastic bags, which he pointed out to Officer Hannan. Officer Dyra also went to the Herron residence on January 27, 1988, to execute the second search warrant. Later that day, Dyra took defendant’s fingerprints as part of the arrest procedure and also elicited information regarding defendant’s address and other personal data as part of the booking information. Defense counsel’s objection to this line of questioning was overruled, and Dyra testified that defendant had told him his address was 725 South Kenwood.

Officer Ron Kramer testified that, in his capacity as an evidence officer for the Freeport police department, he transported all of the evidence obtained from the residence to the crime lab in Rockford and back in December 1987. Kramer stated that exhibit No. 6 was transported a second time in November 1988, which is the first time it was analyzed.

Officer Robert Smith testified as to the fingerprints which he took from the water glass found in the headboard during the December 19 search. Smith compared those prints to the prints taken from defendant at the time of his arrest and found 11 matching points of identification. Smith also collected some of the items of evidence found in the master bedroom and transported them to the police department. He inspected both walk-in closets in the master bedroom and stated that one contained women’s clothing while the other held clothing items belonging to an adult male. Officer Smith further testified that the only evidence of illegality found inside of the water glass, exhibit No. 5, was the smoking devices. The State then asked Smith to enumerate the items found inside of exhibit No. 5. Defense counsel objected to this line of questioning, stating that it would reveal other crimes than those with which the defendant was charged and would therefore be prejudicial. The trial court overruled the objection, finding that the matter of smoking devices was relevant to the possession of cannabis charge. Finally, James O’Connor, a forensic scientist with the Illinois State Police, testified. O’Connor tested and analyzed the evidence he received from Officer Kramer. O’Connor described the chemical tests which he performed and the results which he obtained as to the different exhibits. O’Connor identified the plant material in exhibit Nos. 1 and 2 as cannabis. Exhibit No. 3 was shown to contain 1.1 grams of cocaine. Exhibit No. 4 contained 3.0 grams of cocaine. The scale which constituted exhibit No. 7 had traces of cocaine on it, and exhibit No. 6 contained less than 0.1 grams of cocaine. Exhibit No. 8, which was the larger plastic bag containing a white powder substance, did not contain any controlled substance; it consisted entirely of sodium bicarbonate (baking soda).

Defendant called the State’s informant, John Doe, as his first witness. The informant did not appear. Defense counsel then made an offer of proof that if the informant were to testify, he would corroborate the information set forth in the complaint which led to the search warrant and further testify that defendant was not present during that transaction.

Edmond Ellis, a brother of the defendant, stated that, at some time during 1987, defendant often spent three or four days at his (Edmond’s) house and that Shirley Herron and defendant were not getting along during that time. Grant Harlan Harrell, a half-brother of defendant, testified that during November and December 1987 defendant lived with him three to four days a week because of personal problems between defendant and his wife.

Charles Ellis, another brother of defendant, testified that at 11 p.m. on December 18, 1987, he, his girlfriend, his cousin and his cousin’s girlfriend had come to Freeport from Chicago. They met defendant and his wife at Harrell’s Tap and had a few drinks together. From there everybody, including defendant, went to a bar called the Silver Knight until roughly 1:30 a.m. on December 19, and from there they went to Grant Harlan Harrell’s house to play cards. At about 2 a.m. Charles asked Shirley Herron if the four of them could spend the night at her house, and, after receiving permission, they went there. Defendant and Shirley Herron stayed behind. Charles and his girlfriend stayed in the guest bedroom on the second floor, while his cousin and his girlfriend stayed in the master bedroom. Charles stated that he smelled “reefer smoke” coming from the room in which his cousin was staying. Charles opened the door and saw the couple smoking marijuana and also observed a small mirror with some substance which he thought to be cocaine. Charles informed the couple that Shirley did not allow drug use in her house. The foursome got up about noon that day, December 19, and left to return to Chicago at 2 p.m. Neither defendant nor Shirley Herron had returned to the house by then. Charles Ellis had not seen any of the items in evidence in the residence at 725 South Kenwood that day.

Defendant testified on his own behalf. Defendant stated that he did not possess either cocaine or marijuana on December 19, 1987. During the summer of 1987, he had been under an order of protection not to live at the residence of his wife, and therefore he had lived with his brothers, Edmond and Grant. Defendant characterized the relationship between Shirley and himself as “very bad.” On December 18 defendant and Shirley met at his father’s tavern, and they left there in the company of his brother Charles and his cousin with their respective girlfriends at about 12:30 a.m. the next morning to go to the Silver Knight. The whole group left the Silver Knight at approximately 1:30 a.m. and went to Grant’s house to play cards. After Charles, his cousin, and their girlfriends left to go to the residence at 725 South Kenwood for the night, defendant and Shirley remained behind until noon on December 19. From there, defendant, his wife and his brother William went back to his father’s tavern. At about 4 p.m. on December 19, defendant and Shirley arrived back at the residence, whereupon defendant went straight to bed.

Defendant denied ownership of any of the drug-related items introduced into evidence. He further testified that some of the smoking devices may have belonged to his wife, as she collected pipes. Defendant stated that the $600 found in the pillow case were the proceeds of a loan which he had obtained to purchase Christmas presents and, as was his custom, he had put the money in his pillow case before he went to sleep. Defendant admitted to owning the guns found on the premises. Defendant stated that he had signed the affidavit submitted in support of the Franks motion stating that he resided at 725 South Kenwood at the behest of his previous attorney, who initially represented both defendant and his wife, in the belief that he would be helping his wife, but that he had used his wife’s address as a mailing address since he did not know where he would be staying from day to day. The State then questioned defendant with regard to a pad of paper found in the bedroom. The paper contained some numbers as well as a list of names with corresponding dollar amounts. Defendant denied all knowledge of these names and numbers. With regard to the protection order, the State established that the one introduced by defendant had expired in June 1987. The State next introduced evidence that defendant was in violation of another, more recently entered, order of protection.

Officer James Teasdale testified as a rebuttal witness for the State. Teasdale testified that in April 1988 he was called to 725 South Kenwood, as he was on other occasions during 1988, in order to settle domestic disputes. On November 14, 1988, he went there to help defendant remove his belongings.

The jury was instructed that defendant was charged with one count each of unlawful possession with intent to deliver a controlled substance (Ill. Rev. Stat. 1987, ch. 56%:, par. 1401(b)(2)), unlawful possession of a controlled substance (Ill. Rev. Stat. 1987, ch. 56%, par. 1402(b)), and unlawful possession of cannabis (Ill. Rev. Stat. 1987, ch. 56%, par. 704(a)). The jury returned guilty verdicts on all three counts. The finding of guilty for the offense of unlawful possession of a controlled substance was subsequently vacated as a lesser included offense. Defendant’s motion for a new trial was denied by the trial court.

During the sentencing hearing, the State presented the testimony of Officer Kramer with regard to the street value of the substances involved. Kramer testified that the street value of the cannabis was approximately $7 or $8 and that the street value of the cocaine was approximately $135. The court subsequently sentenced defendant to a term of four years’ imprisonment for the possession with intent to deliver a controlled substance, plus a fine of $500 and a street-value fine of $135. As to possession of cannabis, the court assessed a fine of $50 plus a street-value fine of $7. Defendant filed his timely notice of appeal.

We first address defendant’s contention that the State failed to establish constructive possession of a controlled substance beyond a reasonable doubt. Specifically, defendant argues that the evidence established that, at the time of the execution of the search warrant, defendant did not permanently reside with his wife due to marital strife, but, rather, had been staying at the homes of several relatives. Defendant maintains that it is therefore more likely that his wife, Shirley Herron, from whom the purchase which led to the search warrant had been made, had exclusive and immediate control over the cocaine. We note at the outset that defendant concedes in his brief that the evidence could support a finding by the jury that the 0.1 grams of cocaine and 2.5 grams of cannabis found in the master bedroom were within an area over which he could have exercised control. It is in regard to the 18 baggies of cocaine found in the living room that defendant raises the constructive possession issue.

Illinois law on unlawful possession and the doctrine of constructive possession is well settled. The court in People v. Scott (1987), 152 Ill. App. 3d 868, stated the guiding principles as follows:

“To support a conviction for the unlawful possession of a controlled substance, the State must prove beyond a reasonable doubt that defendant had knowledge of the controlled substance and that it was in his immediate and exclusive control. (E.g., People v. Burke (1985), 136 Ill. App. 3d 593, 599, 483 N.E.2d 674, 679; People v. Jones (1982), 105 Ill. App. 3d 1143, 1148, 435 N.E.2d 823, 826.) Possession may be established by evidence of actual physical possession or constructive possession. (E.g., People v. Jones (1982), 105 Ill. App. 3d 1143, 1148, 435 N.E.2d 823, 826.) Actual possession is proved by testimony which shows defendant exercised some form of dominion over the unlawful substance, such as trying to conceal it or throwing it away. (People v. Howard (1975), 29 Ill. App. 3d 387, 389, 330 N.E.2d 262, 264.) Constructive possession exists without actual personal present dominion over the controlled substance but with an intent and capability to maintain control and dominion over it. (People v. Valentin (1985), 135 Ill. App. 3d 22, 31, 480 N.E.2d 1351, 1358.) As a result, narcotics being found on the premises under the control of defendant gives rise to an inference of knowledge and possession by him which alone may be sufficient to sustain a conviction for unlawful possession of controlled substances. (People v. Nettles (1961), 23 Ill. 2d 306, 308-09, 178 N.E.2d 361, 363, cert. denied (1962), 369 U.S. 853, 8 L. Ed. 2d 12, 82 S. Ct. 939; People v. Jones (1982), 105 Ill. App. 3d 1143, 1148, 435 N.E.2d 823, 826.) Mere access by other persons to the area where drugs are found is insufficient to defeat a charge of constructive possession. (People v. Rush-Bey (1987), 152 Ill. App. 3d 17, 23.) Moreover, exclusive possession does not mean that possession may not be joint. (People v. Embry (1960), 20 Ill. 2d 331, 335-36, 169 N.E.2d 767, 769; People v. Burke (1985), 136 Ill. App. 3d 593, 599, 483 N.E.2d 674, 679.) If two or more people share immediate and exclusive control or share the intention and power to exercise control, then each has possession. People v. Valentin (1985), 135 Ill. App. 3d 22, 32, 480 N.E.2d 1351, 1358.” People v. Scott (1987), 152 Ill. App. 3d 868, 870-71.

With these principles in mind, we conclude that defendant’s constructive possession of cocaine was in fact proved beyond a reasonable doubt. As to defendant’s contention that he did not reside at 725 South Kenwood at the time of the search, we agree with the State that much of defendant’s evidence in this regard was discredited. First, defendant was present at that address when the search warrant was executed on December 19 and on a later date when a second warrant was executed. Moreover, defendant gave the subject premises as his address at the time he was arrested and was also later impeached by his own affidavit (exhibit No. 27) in which he asserted, contrary to his trial testimony, that he lived at 725 South Kenwood. Additionally, mailings sent to defendant were shown to have been forwarded to 725 South Kenwood. There were also two closets in the upstairs master bedroom at 725 South Kenwood; one of them contained clothing and accessories for an adult male.

The State also correctly points out that the testimony of defendant’s witnesses was of limited value to establish that he did not reside at 725 South Kenwood. Edmond Ellis could not state with any certainty exactly when defendant had stayed with him. Although Grant Harrell testified that defendant stayed with him three or four days a week, he admitted on cross-examination that he had no way of knowing whether defendant lived with his wife on the other nights of the week. Even if we were to conclude that defendant did not permanently reside at 725 South Kenwood, such a finding would not necessarily be cause for reversal. Both the Illinois Supreme Court and this court have on more than one occasion stated that a person may be found to be in possession of drugs discovered in homes in which he or she lived only part time and the mere fact that a person may have periodically lived elsewhere does not critically impeach the evidence of possession. People v. Galloway (1963), 28 Ill. 2d 355, 358-60; People v. Romero (1989), 189 Ill. App. 3d 749, 755; People v. Birge (1985), 137 Ill. App. 3d 781, 791.

Defendant also attempts to support his constructive possession argument by asserting that the State failed to connect him to the drugs. Defendant notes that the packets of cocaine found on the first floor were stored in a makeup bag with a tube of lipstick, which defendant states is an item that he is unlikely to use. We note, however, that contained in a “Fashion Bug” shopping bag found in the kitchen was a shaving kit, an item defendant would in fact be more likely to use. Inside of the shaving kit police found butter tubs containing wire ties and corners cut from plastic sandwich bags, along with a scale and a grinder. In addition, when police executed the search warrant, they found defendant nude and asleep in the upstairs master bedroom. In the headboard of the bed police found two guns, a small bag containing cocaine, a glass containing razors, smoking pipes, flints, and a clip that could have been a “roach” clip, two small packages containing cannabis, a set of defendant’s car keys, and a wallet containing defendant’s identification. On a television stand within the room, police found paraphernalia for smoking marijuana. The fact that drugs and related paraphernalia are located in places where a defendant could or should have been aware of their presence and existence is farther evidence of knowledge and control. People v. Scott (1987), 152 Ill. App. 3d 868, 872.

In cases such as this, possession and knowledge are questions of fact to be resolved by the jury, and a criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Rentsch (1988), 167 Ill. App. 3d 368, 371.) In reviewing the sufficiency of the evidence, the relevant inquiry is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. (Rentsch, 167 Ill. App. 3d at 371.) Based on all of the above, we conclude that the jury could have found beyond a reasonable doubt that defendant unlawfully possessed, albeit constructively, a controlled substance containing cocaine with the intent to deliver it.

Defendant next contends that the trial court erred when it denied defendant’s motion to compel the State to disclose the identity of the confidential informant. Defendant argues that the informant would have been a material witness with knowledge of the location of the controlled substances as well as with regard to the fact that defendant was not a party to the previous controlled drug purchase. The State responds that the informant was not a material witness because he was present only at the previous controlled drug buy and was not present or involved in the search and arrest of defendant on December 19, 1987.

The circumstances whereby disclosure of an unidentified informant is required are noted in Supreme Court Rule 412(j)(ii), which provides:

“Informants. Disclosure of an informant’s identity shall not be required where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused. Disclosure shall not be denied hereunder of the identity of witnesses to be produced at a hearing or trial.” (134 Ill. 2d R. 412(j)(ii).)

Our supreme court, in People v. Lewis (1974), 57 Ill. 2d 232, 235, has adopted a standard whereby disclosure would be required when an informant acted in the dual role of an informant-participant. (Roviaro v. United States (1957), 353 U.S. 53, 64-65, 1 L. Ed. 2d 639, 647, 77 S. Ct. 623, 630.) Where an informant’s knowledge is potentially significant on the issue of the defendant’s guilt or innocence, the defendant is prejudiced by the State’s denial of production. (See People v. Perez (1974), 25 Ill. App. 3d 371, 377.) On the other hand, where the unnamed informant was neither a participant nor a material witness to the essential elements of the offense, the informant is not a crucial witness and his identity can be withheld. (See People v. Chaney (1976), 63 Ill. 2d 216, 223-26.) In deciding whether to require disclosure, a court must balance the public’s interest in protecting the flow of information against the defendant’s right to prepare his defense. (People v. Gaytan (1989), 186 Ill. App. 3d 919, 923.) In Illinois, the factors considered by courts under this balancing test are whether the requests for disclosure related to the fundamental question of guilt or innocence rather than to the preliminary issue of probable cause; whether the informant played an active role in the criminal occurrence as opposed to being a mere tipster; and whether it has been shown that the informant’s life or safety would likely be jeopardized by disclosure of his identity. See People v. Raess (1986), 146 Ill. App. 3d 384, 390-91 (and cases cited therein).

The instant case involves an informant who participated in the purchase of a controlled substance and whose statements thereafter provided probable cause for a warrant to search the premises on which the purchase occurred. Defendant is charged only with offenses related to evidence revealed in that search and faces no charges with respect to the original drug purchase. The informant was not present during the search or during the arrest of defendant. The informant thus played no material role as a participant in defendant’s possession of any controlled substance, and we do not believe that he could have provided any testimony concerning the charged offenses.

The circumstances of this case are thus similar to People v. Stewart (1978), 67 Ill. App. 3d 443. In Stewart, police were able to obtain a search warrant, based upon information supplied by an informant, for an apartment in Peoria County, Illinois. A search of the apartment revealed a substance containing heroin, and defendants Hoskin and Stewart were subsequently indicted for unlawful possession of a controlled substance. One of the defendants thereafter filed a motion to compel disclosure of the confidential informant, alleging that there was no allegation by the informant that the defendant was present at the premises during the informant’s visit and that the informant’s testimony was therefore relevant and material to the issue of constructive possession by the defendant. The trial court found that, because the issue of the guilt of defendant Stewart at trial would depend upon construction possession, the informant might be able to give evidence concerning whose possession the substance was in when he did the observing or at some other time when he had an opportunity to observe. The court therefore ordered the State to produce the informant. When the State refused, the court dismissed the case. The appellate court in Stewart reversed, finding the factual situation similar to that in People v. Mack (1957), 12 Ill. 2d 151, wherein the Illinois Supreme Court held that disclosure was not required. The court noted that in Mack the informer took no part in serving the search warrant or in the defendant’s arrest; the record did not show that the informant either participated in the crime or helped set up its commission; and no part of the informant’s communications to police was used as evidence in the case. The court then stated that its decision was controlled by Mack and concluded that the trial court erred in requiring the State to reveal its informant. Stewart, 67 Ill. App. 3d at 446.

We conclude that the informant in the present case was not a material witness to anything that transpired on December 19, 1987. The informant merely provided information regarding an illegal incident occurring within 48 hours prior to the date of the search, for which defendant has not been charged. Although that information formed the basis for the search warrant executed on December 19, that fact does not make the informant a material witness to the crimes committed on that date. (See People v. Deveaux (1990), 204 Ill. App. 3d 392, 399.) The burden was on defendant to show that disclosure of the informant’s identity was necessary to prepare his defense. (People v. Hodges (1987), 159 Ill. App. 3d 38, 41.) As there was no evidence that the informant participated in the crime for which defendant was charged and was not present when defendant was arrested, we conclude that no such showing was made. We find further support for this conclusion by noting that exclusive possession does not mean that possession may not be joint (People v. Scott, 152 Ill. App. 3d at 871), thus negating defendant’s argument that his credibility would have “greatly been underscored” on the constructive possession issue.

Next, defendant contends that the case must be remanded for an evidentiary suppression hearing pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, because defendant made a substantial preliminary showing that the affidavits signed by Officer Michael Hannan and the informant, John Doe, in support of the search warrant were made in reckless disregard for the truth. In his reply brief, however, defendant states that, upon further consideration, he withdraws this argument. Since one may expressly withdraw or eliminate an argument on appeal even after briefs are filed or the case has been argued (In re Marriage of Spomer (1984), 123 Ill. App. 3d 31, 33), we need not further address this issue.

Defendant also contends that the trial court erred when it allowed certain exhibits to go to the jury room during deliberations. Specifically, defendant argues that it was error to allow State’s exhibit Nos. 26 and 27 to go to the jury. Exhibit No. 26 is the arrest/face sheet that includes such information as defendant’s name, age and home address, which defendant listed as 725 South Kenwood. Exhibit No. 26 also contains defendant’s signature. Exhibit No. 27 is an affidavit prepared by defendant’s original attorney and signed by defendant, wherein defendant states, inter alia, that he resides at 725 South Kenwood and that he resided there on December 17, 1987, through December 19,1987.

As to exhibit No. 27, defendant asserts that it was improper to let the prior inconsistent statement go to the jury for deliberations and cites People v. Carr (1977), 53 Ill. App. 3d 492, in support of his argument. In Carr, it was found that the trial court committed reversible error by allowing certain statements to go to the jury room. The statements objected to in Carr were prior inconsistent statements of two State witnesses which may not have been admitted into evidence and which were sent to the jury without adequate instructions that they were not to be considered as substantive evidence. (Carr, 53 Ill. App. 3d at 497-99; see People v. Johnson (1986), 150 Ill. App. 3d 1075, 1091; see also People v. Clearlee (1981), 101 Ill. App. 3d 16, 19.) Here, defendant’s affidavit was in fact admitted into evidence, and the jury was given the requisite pattern jury instruction, both orally and in writing, concerning limitations on the use of prior inconsistent statements. (Illinois Pattern Jury Instructions, Criminal, No. 3.11 (2d ed. 1981).) We also note that defendant did not tender a more specific instruction, nor did he request that the jury be specifically admonished as to the limitation when the affidavit was introduced.

As to exhibit No. 26, defendant’s primary contention is that when the trial court allowed the exhibit to go to the jury, after initially ruling to the contrary, the court was not properly exercising its discretion. As the State points out, defendant does not contend that the document contained any objectionable matter, but rather contends that the document would be “over emphasized” by the jury. Defendant cites no authority in support of this argument, however, and we find it to be without merit.

The decision to submit exhibits to the jury is within the sound discretion of the trial court, whose decision will not be reversed absent an abuse of discretion. (People v. Robinson (1984), 125 Ill. App. 3d 1077, 1079.) Based on the facts of this case, including the fact that both exhibits were testified to at trial and the fact that other evidence tending to show that defendant resided at 725 South Kenwood was presented, we conclude that the trial court did not abuse its discretion in allowing exhibit Nos. 26 and 27 to go to the jury during deliberations. In addition, we note that the exhibits may also be considered admissions by defendant and therefore admissible. An admission is a statement from which guilt may be inferred, when taken in connection with other facts, but from which guilt does not necessarily follow. (People v. Rogers (1989), 178 Ill. App. 3d 650, 657.) Stated another way, exhibit Nos. 26 and 27 are admissions from which defendant’s actual residence, a factual issue in this case, could be inferred. In any event, we find no trial court error in the submission of these exhibits to the jury.

Defendant’s final contentions on appeal are that he was denied a fair trial due to the improper admission of other crimes and that his conviction of unlawful possession of cannabis should be reversed because the State’s purported expert was not qualified to give his opinion. Specifically, defendant asserts that he was prejudiced by the prosecutor’s cross-examination of defendant which suggested that he was a large-scale drug dealer; by the testimony of Officer Smith that the possession of smoking devices was an offense; and by the rebuttal testimony of Officer Teasdale and statements of the prosecutor that defendant had violated court orders of protection. Furthermore, defendant asserts that James O’Connor, a forensic scientist specializing in drug chemistry with the Illinois State Police, was not qualified to render expert testimony on cannabis because his specialty was chemistry and not botany. Upon reviewing the record, we find that defendant has waived review of these alleged errors by his failure to raise them with specificity in his post-trial motion. Both an objection at trial and a written post-trial motion raising the issues are required for alleged errors that could have been raised during trial. (People v. Enoch (1988), 122 Ill. 2d 176, 186; People v. Surles (1984), 126 Ill. App. 3d 216, 225.) Since we further conclude that the plain error doctrine, which may be invoked in cases where the evidence is closely balanced or where the error was of such magnitude that the accused was denied a fair trial, is inapplicable under the facts of this case (Enoch, 122 Ill. 2d at 199; Surles, 126 Ill. App. 3d at 225), we need not depart from the general waiver rule.

For all the foregoing reasons, the judgment of the circuit court of Stephenson County finding defendant guilty of unlawful possession with intent to deliver cocaine and unlawful possession of cannabis and imposing a term of imprisonment plus various fines is affirmed.

Affirmed.

GEIGER and INGLIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
      In re C.A.H., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. C.H., Respondent-Appellant).
    Second District
    No. 2-89-0559
    Opinion filed September 11, 1991.

      G. Joseph Weller, Paul J. Glaser, Robert C. Cooper, and Thomas A. Li-lien, all of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan, and William Brand-strader, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Respondent, C.A.H., a minor, appeals from the order adjudicating him a delinquent (Ill. Rev. Stat. 1989, ch. 37, par. 805 — 3) after finding he had committed the offense of criminal damage to property (Ill. Rev. Stat. 1989, ch. 38, par. 21 — 1(a)). Respondent contends that he was not proved guilty beyond a reasonable doubt because his teacher testified he was in the classroom at the time of the commission of the offense. He also contends that the trial court abused its discretion by imposing seven additional days of detention in the event respondent failed to obtain employment. We affirm as modified.

At the trial, Robin Wisner testified that on January 24, 1989, she left her house at 8:15 a.m. for school, and the door was locked. She returned around 11:30 a.m. and found the door unlocked. Water was leaking from the garage. Inside the house, eggs were on the kitchen floor, fruit cocktail was in the living room, there were holes in the drywall, her water bed was slashed, her sister’s bed was slashed, and the sofa was slashed. The night before, respondent had telephoned her, talked about her friends and asked her for a date, but she refused. Edward Wisner, her father and owner of the townhouse, testified regarding other damage to the house.

Doreen Eversole testified she lived two doors down from the house. On January 24, she was walking nearby when she passed two youths walking by the Wisners’ garage in the alleyway. They were wearing overcoats. She identified respondent in court as one of the two youths. A couple hours later, she noticed water streaming from the upstairs bedroom through the garage. She had seen the youths there between 11 a.m. and 11:30 a.m. She thought that was the time because that is the time when she meets the baby-sitter, but she was not quite sure.

Sharon Henson identified respondent in court. She saw him and another youth outside the premises between 10:30 and 11:30 a.m. As she went to the baby-sitter to retrieve her children, she saw them standing about the house. When one youth saw her, both youths quickly turned their backs to her. On her return from the baby-sitter, she saw the youths enter the house through the back door. Later that afternoon she saw the water damage.

On cross-examination, Henson said she thought she saw the youths at approximately 10:30 to 11:30 a.m. At 11:30 she usually walked her son to the bus stop. She had also seen the youths that morning sometime after 9 o’clock, after she left work and after a 15-to 30-minute drive. Thus, she estimated she saw them the first time at 9:30 a.m., and then again when returning between 10:30 and 11:30. She was sure the two youths were the same as the ones she saw earlier. Upon further questioning, she denied that she hated blacks. She told respondent’s investigator that she was not prejudiced but did not care for them; she had black friends. She had said that blacks were worthless people, but that by the remark she referred only to those who break into peoples’ houses and cause trouble, whether they be white, black or Mexican.

Respondent called Margaret Prichard as a witness. On January 24, respondent called her at 8:40 a.m. to say he had missed the bus. She told him to arrive in class by 9:30. He arrived at 9:15, and she noted that he had arrived before 9:30. She specifically remembered the times. He stayed in her classroom until 11:30 a.m. She was his teacher for the entire period, and he never left the room or her sight. It was a half-hour walk or about three miles from respondent’s neighborhood to the classroom. Most students leave on foot. She did not see him after he walked out the door.

Respondent also called David Asma, the investigator. Sharon Henson had told him she hated blacks. She did not qualify her remarks regarding their worthlessness by referring only to those who robbed houses no matter what their race. She did not refer to any other race robbing houses or being worthless.

Respondent, testifying on his own behalf, denied entering the house and denied calling Robin Wisner on the telephone the night before the incident; he had stopped talking to her a week before the incident. He lived 30 minutes from the school. He lived only a minute from the Wisner house in the next building. On January 24, he walked home after class and arrived at 12:10 p.m.

The trial court found the time frame for the occurrence of the offense very tight. It had no reason to disbelieve the testimony of Miss Prichard, but also did not find that the testimony of the Wisners, Henson or Eversole had been impeached. Henson was candid regarding her attitude regarding black people. Her testimony was otherwise very credible, as she took pains to answer every question regarding time references. She was clear and unwavering in her identification. Eversole was also credible and not impeached. Both witnesses had the opportunity to observe the perpetrators. The court did not know when the crime occurred and stated it could not rule out the period between 8:15 a.m. and 9:30 a.m. To believe respondent, the court would have to believe that all the State’s witnesses were lying. The court found no reason to believe Robin lied about receiving a telephone call from respondent in contradiction to respondent’s testimony. The court concluded that the State had proved respondent guilty beyond a reasonable doubt.

At the dispositional hearing May 30, 1989, the court adjudicated respondent a delinquent. It placed him on probation until March 13, 1990. The court placed him under intensive juvenile supervision and ordered him to cooperate with that program and abide with a 7 p.m. to 7 a.m. curfew. Respondent had to attend school regularly with no unexcused absences. He and his mother were to participate in a family assessment program. The court ordered that he continue to meet with, and be available for all dates with, his advocate. The court ordered that he complete 25 additional hours of public service work. The court ordered 21 days’ detention to be served instanter, additionally, the court gave the minor 30 days to obtain a summer job, and if he was not employed 30 days following his release from secure detention, then the minor was to serve seven additional days detention starting July 14, 1989. Respondent filed a notice of appeal pursuant to Supreme Court Rule 660 (134 Ill. 2d R. 660). In re W.D. (1990), 194 Ill. App. 3d 686, 700-01.

Respondent first contends that he was not proved guilty beyond a reasonable doubt. The two witnesses placed the perpetrator at the scene between 10:30 and 11:30 a.m. Eversole and Henson were credible regarding their recall of the times they were at the scene, because they could remember events occurring before and after the event and because they roughly corroborated each other. However, respondent argues they gave no indicia of reliability in their ability to recognize respondent. Eversole saw the perpetrators only in passing. The perpetrators turned away from Henson; she also said that “I don’t pay no mind [sic] to people more or less. And I’m new in the area to Illinois so I don’t know anybody.” The opportunity to view an alleged offender is the most important factor in assessing identification. (People v. Johnson (1980), 94 Ill. App. 3d 200, 206.) Respondent also contests Henson’s ability to make a cross-racial identification. Thus, while the two witnesses’ testimony regarding the time of the incident was accurate, respondent contends their identification of respondent was not. Additionally, respondent claims he had an iron-clad alibi because he was in class from 9:15 to 11:30 a.m. The court stated there was no reason to disbelieve the testimony of Miss Prichard. Therefore respondent argues for the court to find that the offense occurred prior to 9:15 would be implicitly holding that Eversole and Henson were wrong concerning the time, which was the very facet of their testimony the trial court used to uphold their credibility.

Respondent cites People v. Gardner (1966), 35 Ill. 2d 564, for the proposition that a conviction must be reversed if it rests upon identification which is doubtful, vague, and uncertain; evidence of an alibi cannot be disregarded if the only evidence contradicting it rests upon the identification of the accused as the man who committed the crime. (35 Ill. 2d at 571.) In Gardner, the supreme court noted that of all the factors that account for the conviction of the innocent, the fallibility of eyewitness identification ranks at the top, far above any of the others. 35 Ill. 2d at 572.

The weight given to alibi evidence is a question of credibility for the trier of fact, who has no obligation to accept the alibi testimony over positive identifications. (People v. Howard (1991), 209 Ill. App. 3d 159, 177.) The trier of fact may accept the identification testimony over the alibi testimony or determine that the two strands of testimony are not incompatible, as, for example, when the alibi testimony includes a gap in time for which the accused has not accounted. (209 Ill. App. 3d at 177.) It was not unreasonable for the trial court to determine that the offense could have been committed between 8:15 and 9:15, before respondent arrived at school. (See 209 Ill. App. 3d at 177.) Alternately, the identifications were not shown to be weak. (209 Ill. App. 3d at 177.) Eversole passed right by the youths in the alley, and she thought their presence there was unusual. Henson had the opportunity to see the youths twice, and her attention was drawn to them when they tried to turn away from her.

In a criminal proceeding, an accused must be found guilty beyond a reasonable doubt. (In re A.J.H. (1991), 210 Ill. App. 3d 65, 71.) In reviewing the sufficiency of the evidence on appeal, the relevant question 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. Collins (1985), 106 Ill. 2d 237, 261; A.J.H, 210 Ill. App. 3d at 71.) The trial court has the best opportunity to observe the witnesses and evaluate their credibility. (In re R.D. (1991), 212 Ill. App. 3d 691, 693.) The reviewing court will not substitute its judgment for that of the trial judge on questions involving the credibility of the witnesses unless the evidence is so improbable as to raise a reasonable doubt of the accused’s guilt. (212 Ill. App. 3d at 693.) We cannot say that the trial court’s determination that their identifications were credible was an unsatisfactory finding. Thus, we must affirm the adjudication of delinquency based on the commission of the offense of criminal damage to property.

Respondent also contends the trial court abused its discretion in ordering respondent to serve an additional seven days’ detention if he was not able to obtain a job to pay the restitution. The State contends the matter is moot because the deadline for finding the job has passed and respondent did not obtain a stay pending appeal. (See In re D.G. (1988), 176 Ill. App. 3d 658.) However, even where the issue is moot, it should nevertheless be reviewed by this court when it involves issues of substantial public interest, is capable of repetition, and would otherwise evade review. (In re R.D., 212 Ill. App. 3d at 694.) Therefore, we will review this issue.

Section 5 — 23 of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1989, ch. 37, par. 805 — 23) states that a court may order any minor found to be delinquent to make restitution as provided under the terms and conditions of section 5 — 5—6 of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—6). Section 5 — 5—6(h) provides that no sentence to make restitution shall be revoked unless the court shall find that the offender has the financial ability to make restitution and has wilfully refused to do so. If the court shall find that the defendant has failed to make restitution but the failure is not wilful, the court may impose an additional period of time within which to make restitution. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—6(h).) The court shall take into consideration the ability of the offender to pay, determine whether restitution shall be paid in a single payment or in installments, and fix a period of time within which the restitution shall be paid in full. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5— 6(f).) These provisions are based on the constitutional prohibitions against imprisonment for debt and against imprisonment for failure to pay a fine unless the person is afforded adequate time to perform and has wilfully failed to pay. Ill. Const. 1970, art. I, §14.

Respondent contends the order is improper because it finds him in contempt in advance of a hearing to determine if he wilfully failed to get a job and pay restitution. Respondent argues, given a 14-year-old boy’s inherent difficulty in obtaining a job, especially when he lacks skills, has a record, and has other duties under the dispositional order, that the trial court abused its discretion.

We agree that the trial court abused its discretion. The order does not comply with section 5 — 5—6 of the Unified Code of Corree-tions because it assesses a penalty without a prior determination that respondent’s inability to make restitution or to obtain a job was wilful. The State argues, based on the trial court’s statements in the transcript, that the provision should be read as a condition subsequent rather than a condition precedent: that the seven-day sentence would be released if respondent obtained a job. The trial court stated that, regarding the detention, 14 days should be served pursuant to a previous dispositional order and 14 days should be served for the instant offense, but seven days would be conditional upon his unemployment. However the provision is read, the effect remains the same. Without any consideration of his efforts, respondent will serve seven days’ detention if he fails to obtain a job. Thus, the trial court abused its discretion, and we must vacate that part of the dispositional order giving respondent seven additional days’ detention.

For the above reasons, the order of the circuit court of Lake County is affirmed as modified by this opinion.

Affirmed as modified.

DUNN and UNVERZAGT, JJ., concur.


text:
      In re B.H., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. David Hansen et al., Respondents-Appellants).
    Second District
    No. 2-90-1169
    Opinion filed September 9, 1991.

      Lisa M. Rove, of Gallagher, Klein & Brady, of De Kalb, for appellants.
    Michael P. Coghlan, State’s Attorney, of Sycamore (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Respondents, David and Danette Hansen, appeal from the trial court’s order which refused to vacate an adjudicatory order which found their daughter neglected. The trial court refused to consider respondents’ motion to vacate on the basis that the motion was filed more than 30 days after the oral order of adjudication had been entered. Respondents claim the court was in error pursuant to Supreme Court Rule 272 (134 Ill. 2d R. 272) because respondents did file their motion to vacate within 30 days of the written order of adjudication. We vacate, reverse and remand to the trial court.

On April 11, 1990, the State filed a petition for adjudication which alleged four counts of neglect and two counts of abuse against the minor, B.H. Respondents are the parents of B.H. On June 20, 1990, a hearing was held during which respondents appeared in court and admitted to count B of the petition. Count B stated that the “minor was neglected based upon parental failure to provide proper and necessary support or care, in that minor was diagnosed for failure to thrive.”

On the State’s motion the remaining counts were dismissed. A docket sheet entry for June 20, 1990, states, among other things, that the court accepted respondents’ admission, the cause was continued until August 15, 1990, for a dispositional hearing, the minor was to stay in foster care, and the Department of Children and Family Services (DCFS) was to investigate whether the minor should be placed with the grandparents or respondents. A written order was entered on June 20, 1990, ordering DCFS to investigate where the minor should be placed. Also on June 20, 1990, Danette Hansen’s attorney was allowed to withdraw, and a new attorney was appointed for her according to the docket sheet and in a separate written order. However, the docket sheet also contained the separate entry, dated June 20,1990, that “ORD TO BE FILED.”

On July 25, 1990, the trial court entered a written order of adjudication which found that the minor was neglected and continued the matter for a dispositional hearing on August 15, 1990. On August 3, 1990, the court on its own motion continued the cause until September 19,1990.

On August 22, 1990, respondents filed a motion for a substitute attorney. This motion was signed by respondents, by their previous attorney, and their new attorney. The new attorney entered his appearance on August 22, 1990. Also, on August 22, 1990, a motion to vacate the adjudicatory order - was filed by respondents. In it, they alleged that their child had been misdiagnosed with failure to thrive syndrome by Dr. Mark Drendel. Respondents now had newly acquired medical evidence which contradicted the original diagnosis. Specifically, Dr. Bruce Mer of the Rockford Clinic informed the foster parents that there was no evidence of failure to thrive, and after B.H.’s adenoids were removed and tubes were inserted, her condition greatly improved. Respondents also claimed that they would not have admitted neglect if they had know that Dr. Drendel’s diagnosis had been inaccurate or that, by admitting to neglect, they would not have been given immediate custody of B.H.

On September 19, 1990, the trial court denied respondents’ motion to vacate on the basis that it was filed more than 30 days after the adjudicatory hearing which was held on June 20, 1990. A disposi-tional hearing was apparently also held on September 19, 1990, and the minor was placed with her father. On September 21, 1990, the written dispositional order was entered which made B.H. a ward of the court and gave legal custody and guardianship to David Hansen.

Respondents appeal, claiming that the trial court erred in refusing to consider their motion to vacate because it was filed more than 30 days after the adjudicatory hearing. Respondents contend that pursuant to Supreme Court Rule 272 the order of adjudication was not a final order until the written order was filed on July 25, 1990; thus, their motion to vacate the adjudicatory order was timely as it was filed on August 22,1990.

We first note that respondents have not included a report of proceedings, a bystander’s report, or an agreed statement of facts pursuant to Supreme Court Rules 321, 323(c), and 323(d) (134 Ill. 2d Rules 321, 323(c), 323(d)). Respondents, as appellants, have the burden of presenting a sufficiently complete record of the proceedings to support their claim of error; therefore, if there is any doubt arising from the incompleteness of the record, that doubt will be resolved against respondents. (Capsonic Group v. Swick (1989), 181 Ill. App. 3d 988, 992.) However, because our review of the issue presented by respondents involves solely a question of law and does not involve evi-dentiary issues, the lack of a complete record does not bar our review of the issue. McNames v. Rockford, Park District (1989), 185 Ill. App. 3d 291, 293.

Pursuant to Supreme Court Rule 660(b) (134 Ill. 2d R. 660(b)), all juvenile proceedings not involving delinquency petitions are governed by the rules applicable to civil cases. An adjudicatory order is generally (see 134 Ill. 2d R. 662(a)) not considered a final order to any claim or party. (In re T.B. (1990), 195 Ill. App. 3d 919, 924; In re Winks (1986), 150 Ill. App. 3d 657, 659.) A final order in a juvenile proceeding is the dispositional order. (In re Winks, 150 Ill. App. 3d at 659-60; see also In re J.N. (1982), 91 Ill. 2d 122, 127.) Thus, Supreme Court Rule 272, which applies to timeliness determinations concerning final orders for purposes of appeals, cannot be applied in the present cause because the order of adjudication was not the final order. In re T.B., 195 Ill. App. 3d at 924.

Pursuant to section 2 — 1203(a) of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1203), a party may file within 30 days of a judgment “a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief.” This section applies to final orders. (See Ill. Ann. Stat., ch. 110, par. 2 — 1203, Historical & Practice Notes, at 367 (Smith-Hurd 1983).) “Under the general rale relating to final judgments, a circuit court is divested of jurisdiction to grant post-trial relief after 30 days ***.” (American Institute of Real Estate Appraisers of the National Association of Realtors v. National Real Estate Association, Inc. (1989), 191 Ill. App. 3d 867, 869.) However, an interlocutory order may be vacated or modified any time before final judgment is entered. In re Johnson (1981), 102 Ill. App. 3d 1005, 1014-15.

Here, the adjudicatory order was not the final order in the cause below. The trial court lost jurisdiction 30 days after the disposi-tional order, not the adjudicatory order, was entered. Until the dispo-sitional order was entered, the trial court continued to have jurisdiction to hear respondents’ motion to vacate. Therefore, the trial court erred when it determined it must deny respondents’ motion on the basis that it was filed more than 30 days after the adjudicatory hearing had been held and the oral order had been entered.

Finally, we note that the State argues that because respondents’ motion was not factually supported by an affidavit (see Ralston v. Casanova (1984), 129 Ill. App. 3d 1050), the trial court could have denied respondents’ motion on that basis. The State argues that it is not the correctness of the reasoning below but the correctness of the result that we must determine. However, because the trial court never ruled on the merits of respondents’ motion and respondents did not have a chance to amend their motion, we determine the State’s argument is without merit. There is no basis in the record which would allow us to make such a determination.

Therefore, because the trial court erroneously concluded it did not have jurisdiction to consider respondents’ motion, the dispositional order of September 21, 1990, is vacated. The order of the circuit court of De Kalb County denying respondents’ motion to vacate the order of adjudication is reversed, and the cause is remanded so that a hearing may be held on respondents’ motion.

Vacated; reversed and remanded.

DUNN and UNVERZAGT, JJ., concur.


author: JUSTICE INGLIS JUSTICE GEIGER,

text:
    DENNIS HARRIS, Plaintiff-Appellant, v. WILLIAM C. “BUD” JOHNSON, Defendant-Appellee.
    Second District
    No. 2-90-1326
    Opinion filed September 11, 1991.

      Michael S. Baird and Anna C. Stotis, both of Stotis, Chionis, Craven & Baird, of Chicago, for appellant.
    Norma J. Guess, of Moss & Bloomberg, Ltd., of Bolingbrook, for appel-lee.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Dennis Harris, appeals the order of the circuit court dismissing his amended complaint against defendant, William C. “Bud” Johnson, the mayor of the City of Plano. The issues on appeal are whether the complaint adequately states a cause of action for defendant’s alleged breach of a promise to appoint plaintiff as the chief of police for the City of Plano and whether enforcing the promise would violate public policy. We affirm.

Plaintiff filed a two-count complaint on March 2, 1990. Defendant moved to dismiss both counts, and the court granted the motion but granted plaintiff 21 days to file an amended complaint. Plaintiff then filed an amended complaint which was based upon a breach of contract. In the complaint, plaintiff alleged that he had been appointed police chief in 1982. As a condition of his employment, plaintiff relocated his residence to Plano. No charge of improper conduct had been raised against him. When defendant was elected mayor of Plano, plaintiff met with him to determine if plaintiff would be appointed by defendant to serve as police chief under defendant. Plaintiff alleged the following:

“8. That during the course of said meeting, the Plaintiff informed the Defendant that the Plaintiff had other job opportunities available to him at that time, but that he would rather remain as the Chief of Police.
9. That the Defendant told the Plaintiff that he was not prepared to appoint the Plaintiff as Chief of Police at the present time, but did wish to appoint the Plaintiff to the position of Chief of Police in the near future.
10. That the Defendant then offered to the Plaintiff that he would appoint the Plaintiff to the position of Chief of Police within the next three months if the Plaintiff would agree to stay on the job as Plano Police Chief and not seek employment elsewhere during said time period.
11. That the Plaintiff accepted the offer of the Defendant and agreed that he would stay on as the Police Chief of Plano and not seek employment elsewhere in exchange for the Defendant’s promise to appoint the Plaintiff as Police Chief within the next three months.
12. That the Plaintiff kept his part of the agreement by remaining on the job and not seeking employment elsewhere.
13. That the Defendant on October 6, 1989, breached his oral contact with the Plaintiff by terminating his employment with the City of Plano and by failing to appoint the Plaintiff as Police Chief.”

Plaintiff sought damages against defendant alleging that, as a result of the breach, plaintiff lost his employment and salary as chief of police and was forced to accept other employment at a substantially reduced pay.

Defendant moved to dismiss the complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615). Defendant alleged that the complaint failed to state a claim for which relief could be granted because defendant had no power to appoint plaintiff. Defendant as the mayor could appoint plaintiff as the chief of the police department only with the advice and consent of the city council of Plano. (See Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—4; Plano, Ill., Ordinance 2 — 3—4 (Ord. 1976 — 1; amd. Ord. 1981 — 16, November 23, 1981).) Defendant alleged that the complaint was deficient because defendant could not enter into a binding employment contract with plaintiff. Plaintiff responded by arguing that defendant’s ultra vires defense could not be brought in a motion under section 2 — 615; rather, section 2 — 619 of the Code is the appropriate section (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619). Plaintiff also noted that the complaint did not allege that defendant breached an employment contract but only that defendant failed to appoint plaintiff.

The trial court agreed with plaintiff’s argument that the defendant’s motion could not be granted on the ground that defendant had no power to enter into an employment contract; the complaint referred only to defendant’s agreement to make an appointment. Nevertheless, the court ruled that defendant’s motion was also in the nature of a section 2 — 619 motion and the amended complaint filed by plaintiff failed to state a cause of action. The court ruled that the allegation that plaintiff had “job opportunities” was conclu-sional and not a well-pleaded fact. Further, plaintiff failed to state a claim for breach of contract, because, inter alia, he failed to identify a definite contractual obligation and the terms of the agreement; defendant’s alleged statements were of an informal nature and expressed only continuing good will. The court also ruled that paragraphs 13 and 14 of the complaint made an unreasonable inference that the board would have approved plaintiff’s nomination. Paragraph 13 improperly concluded that defendant breached the contract.

The trial court granted plaintiff 21 days to amend the complaint. When plaintiff declined to do so, the trial court entered an order dismissing the cause with prejudice. Plaintiff appeals.

On appeal, plaintiff contends that the trial court erred by applying the wrong standards for a motion to dismiss; that the complaint adequately states a cause of action for breach of contract; and that the trial court erred in dismissing the complaint under section 2— 615 when the motion alleged a section 2 — 619 defense.

The purpose of pleadings is to present, define, and narrow the issues, to limit the proof needed at trial, and to inform the defendant and the court of the conduct for which the defendant is called upon to answer and the relief which the plaintiff desires. (People ex rel. Hartigan v. Candy Club (1986), 149 Ill. App. 3d 498, 500.) To state a cause of action properly, a complaint must contain facts and not merely conclusions. (Gray v. City of Plano (1986), 141 Ill. App. 3d 575, 578.) Although pleadings are to be construed liberally with the aim of doing substantial justice between the parties, a plaintiff is not relieved from the duty of including sufficient factual averments in his complaint. (Ill. Rev. Stat. 1989, ch. 110, par. 2— 603(c); Gray, 141 Ill. App. 3d at 578.) A complaint will be deemed sufficient if the allegations contained therein reasonably inform the defendant by factually setting forth the elements necessary to state a cause of action. (People ex rel. Scott v. College Hills Corp. (1982), 91 Ill. 2d 138, 145; Gray, 141 Ill. App. 3d at 578-79.) A cause of action will be dismissed if the complaint contains mere conclusions unsupported by facts.

We first address plaintiff’s concern that he was denied his day in court because the court dismissed the cause based on the insufficiency of the complaint rather than on the ground stated in defendant’s motion to dismiss. Ordinarily, when a defendant raises an affirmative defense such as ultra vires, the motion should be brought under section 2 — 619, and the motion will admit all well-pleaded facts. (Magnuson v. Schaider (1989), 183 Ill. App. 3d 344, 352.) The motion should not be combined with other grounds for dismissal. (See Bloomingdale State Bank v. Woodland Sales Co. (1989), 186 Ill. App. 3d 227, 233; Magnuson, 183 Ill. App. 3d at 355; Premier Electrical Construction Co. v. La Salle National Bank (1983), 115 Ill. App. 3d 638, 642.) Nevertheless, in the interest of judicial economy, trial courts have reviewed motions to dismiss based on combined section 2 — 615 and section 2 — 619 reasons. (Magnuson, 183 Ill. App. 3d at 355.) While plaintiff did object to the combination of the motion before the trial court, the trial court gave plaintiff 21 days to amend his complaint to comply with the section 2 — 615 reasons. Plaintiff declined to use this opportunity. In this situation, we do not find that plaintiff was prejudiced by the combination of the two procedures for dismissal. Mohr v. Arachnid, Inc. (1990), 201 Ill. App. 3d 984, 989.

The trial court noted the essential requirements which must be found to hold a contract exists. These requirements are: competent parties, valid subject matter, legal consideration, mutuality of obligation and mutuality of agreement. (Steinberg v. Chicago Medical School (1976), 41 Ill. App. 3d 804, 807, aff’d in part & rev’d in part (1977), 69 Ill. 2d 320, 329.) Generally, parties may contract in any situation where there is no legal prohibition, since the law acts by restraint and not by conferring rights. (Steinberg, 41 Ill. App. 3d at 807.) Consideration is a basic element for the existence of a contract; any act or promise which is of benefit to one party or disadvantage to the other constitutes sufficient consideration to support a contract. (Steinberg, 69 Ill. 2d at 330.) Plaintiff’s action in the case at bar must fail because of the lack of consideration and the invalidity of the subject matter.

The complaint states that defendant made a promise to appoint plaintiff as police chief. This is a promise which cannot be supported by consideration. Making such appointments is an official act, and a private party cannot give an official any property or advantage with the intent to influence the performance of the act. (See Ill. Rev. Stat. 1989, ch. 38, par. 33 — 1.) Plaintiff, of course, never contended that he could provide such a benefit to defendant; rather, plaintiff contends the consideration element was met by his detriment of remaining on the job and of not seeking other employment. In short, he trusted defendant’s promise. However, even if we were to accept plaintiff’s vague reference to “other job opportunities” as a specific factual allegation rather than a conclusion, the foregoing of another employment position is not deemed adequate consideration. Koch v. Illinois Power Co. (1988), 175 Ill. App. 3d 248, 252-53; Titchener v. Avery Coonley School (1976), 39 Ill. App. 3d 871, 875.

We are mindful that, in some instances, an employee’s continued work after an offer constitutes consideration for the promises included in the statements made to induce such continuing work and, under traditional principles, a contract is formed. (Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 490; Mohr, 201 Ill. App. 3d at 990.) In Mohr, a specific offer was made to an employee, who accepted it by continuing at work; her continued work constituted consideration. (Mohr, 201 Ill. App. 3d at 990.) In the cause before the court, plaintiff was not working for defendant but for the City of Plano. Plaintiff was already police chief, and he was already obligated to fulfill his duties. In addition, Mohr involved private parties whereas the case at bar involves a public official.

Promises by elected officials are generally not enforced by the courts for public policy reasons. First, the policy against agreements concerning appointments is represented in several of this State’s statutes. A public officer may not be given consideration to influence the performance of his duties. (Ill. Rev. Stat. 1989, ch. 38, par. 33 — 1.) No person may influence another’s vote by promising the appointment of any person to public office. (Ill. Rev. Stat. 1989, ch. 46, par. 29 — 2.) It is the public policy of this State that the actions of our public commissions be taken openly. (Ill. Rev. Stat. 1989, ch. 102, par. 41.) While none of these statutes bears directly on the plaintiff’s situation as he did not pay for but detrimentally relied upon the promise of an appointment, the statutes do show the State’s interest in promoting the unfettered discretion of the executive in making decisions concerning the administration of the government.

Second, the nominating power of an executive is a political power, to be exercised by the executive according to his own discretion. (Marbury v. Madison (1803), 5 U.S. (1 Cranch) 137, 167, 2 L. Ed. 60, 70.) Public policy prevents us from enforcing a contract restricting defendant’s executive discretion, and this court will not interfere with the executive’s discretion in making appointments. (City of Aurora v. Schoeberlein (1907), 230 Ill. 496, 504.) Under the separation of powers doctrine, the judicial branch shall not exercise powers belonging to another branch. (Ill. Const. 1970, art. II, §1.) Plaintiff alleges no violation of the civil service law (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 1—1 et seq.) or any other law by which a governmental unit loses discretion over appointment or promotion. As the appointment of chief of police was not a ministerial act but a discretionary act of the executive branch, we will not enforce the agreement and interfere with the administration of the City of Plano.

A public office is a public trust. (63A Am. Jur. 2d Public Officers & Employees §87 (1984).) Executory agreements for the appointment into an office cannot be made the basis for a recovery. (63A Am. Jur. 2d Public Officers & Employees §90 (1984).) The law does not recognize that any legally enforceable right can arise from such agreements, even though they are executed in part or in full. The court must decline to aid either party and will generally leave them where it finds them. If they have performed the services contemplated, advanced money or are otherwise out of pocket because of the contract, they can obtain no redress at law. (63A Am. Jur. 2d §90, at 735-36 (1984); see Liness v. Hesing (1867), 44 Ill. 140, 143.) Plaintiff could not obtain any rights to his office until the last act required of the appointing authority had been performed. (See Spicer v. City of Chicago (1986), 149 Ill. App. 3d 68, 73; Molnar v. City of Aurora (1976), 38 Ill. App. 3d 580, 583.) As plaintiff was neither appointed by the mayor nor approved by the city council, he had no enforceable right to the office of the chief of the police department.

While the record reflects that neither party to the agreement had an improper motive in entering into the alleged agreement, it is not an agreement that a court can enforce, and the court cannot grant damages to plaintiff for defendant’s failure to keep his promise to make the appointment. Although plaintiff is not seeking an action for an injunction, specific performance, certiorari, mandamus (Ill. Rev. Stat. 1989, ch. 110, par. 14 — 101 et seq.) or quo warranto (Ill. Rev. Stat. 1989, ch. 110, par. 18 — 101 et seq.), our decision should not be different because he is seeking damages. The threat of damages can be just as coercive as the threat of an order enforceable by the powers of contempt. We will not impair the decisions of executives in making appointments. The appointing authority must be allowed to make appointment without fear of personal liability.

Accordingly, plaintiffs complaint fails to state any claim for which this court can grant relief.

For the above reasons, the order of the circuit court dismissing the plaintiff’s cause is affirmed.

Affirmed.

BOWMAN, J., concurs.

JUSTICE GEIGER,

specially concurring:

I concur in the result reached in the majority’s decision. I also concur in the majority’s conclusion that the plaintiff’s action must fail because of the lack of sufficient allegations of consideration to support an action in contract. I do not, however, join the court’s further discussion of “the invalidity of the subject matter” of the alleged contract.

Here, when the trial court first ruled on the defendant’s motion in the nature of a section 2 — 615 motion, it provided the plaintiff the opportunity to amend his complaint. The plaintiff made no amendment. I would affirm the trial court’s dismissal with prejudice because it clearly appears that the plaintiff cannot prove any set of facts which would entitle him to relief. Russell H. Lankton Construction Co. v. LaHood (1986), 143 Ill. App. 3d 806, 808.