author: JUSTICE BRESLIN

text:
    KENNETH JOHNSON, Plaintiff-Appellee, v. THE DEPARTMENT OF PUBLIC AID et al., Defendants-Appellants.
    Third District
    No. 3—93—0203
    Opinion filed October 6, 1993.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and John A. Morrissey, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Burt L. Dancey, of Elliff, Keyser, Oberle & Davies, P.C., of Pekin, for appellee.
   JUSTICE BRESLIN

delivered the opinion of the court:

The plaintiff, Kenneth Johnson, filed a complaint for administrative review from a final decision of the Director of the Illinois Department of Public Aid (the Department). The plaintiff failed to have summonses issued on the defendants until 177 days after the statutory deadline. The trial court denied the defendants’ motion to dismiss. The trial court certified the issue for appeal pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308), and this court subsequently granted leave to appeal. We find that the plaintiff’s failure to have summonses issued within the statutory period is grounds for dismissal and therefore we reverse.

The record shows that the Director of the Illinois Department of Public Aid, Phil Bradley, issued a final administrative decision ordering the plaintiff to pay the Department over $12,000 for delinquent child support payments. The plaintiff filed a timely complaint for administrative review of that decision in the circuit court of Tazewell County. He then served copies of the complaint on the defendants by certified mail. However, he failed to have summonses issued within the 35-day period as set forth in section 3 — 103 of the Administrative Review Law (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 103).

Thereafter, the defendants did not respond to the complaint until the plaintiff filed a motion for a default judgment. At that point, the defendants filed a special and limited appearance, objecting to the circuit court’s jurisdiction based on the plaintiff’s failure to have summonses issued. Shortly thereafter, but 177 days after the deadline for the issuance of summons under the Administrative Review Law, the plaintiff had summonses issued. The trial court denied the defendants’ objection to jurisdiction and ordered that they respond to the complaint. The defendants subsequently filed a motion to dismiss based on the plaintiff’s failure to issue summonses according to statute. That motion also was denied.

The first issue presented on appeal is whether the trial court should have dismissed the plaintiff’s complaint for failure to have summonses issued within the statutory period.

We note that section 3 — 103 of the Administrative Review Law provides that “[e]very action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 110, par. 3—103.) Section 3—105 of the Administrative Review Law provides that service of summons be made by the clerk of the court addressed to the agency at its main office in the State. (Ill. Rev. Stat. 1991, ch. 110, par. 3—105.) Both this court and the Illinois Supreme Court have recently held that complaints for administrative review were properly dismissed for failure to serve summons within the 35-day period and name a necessary party. (Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 549 N.E.2d 1266; Murray v. Board of Review (1992), 237 Ill. App. 3d 792, 604 N.E.2d 1040.) Both courts noted:

“The requirement that a complaint be filed within the 35-day limit is jurisdictional; if a complaint is not timely filed, no jurisdiction is conferred on the circuit court and judicial review of the administrative decision is barred. [Citation.] The 35-day period for the issuance of summons, on the other hand, is mandatory, not jurisdictional, and failure to comply with that requirement will not deprive the court of jurisdiction. [Citations.] However, as the 35-day period is intended to ‘hasten the procedure’ of administrative review and avoid undue delay, a litigant must show a good-faith effort to file the complaint and secure issuance of summons within the 35 days in order to avoid dismissal. [Citations.] In cases where the 35-day requirement has been relaxed, the plaintiffs had made a good-faith effort to issue summons within the statutory period. Nevertheless, due to some circumstance beyond their control, summons was not issued within the statutory period.” (Lockett, 133 Ill. 2d at 354-55, 549 N.E.2d at 1268.)

The plaintiff argues that Murray and Lockett are distinguishable on the basis that here the defendants had notice of the proceedings and caused the delay by failing to respond to the complaint.

We disagree. The principles enunciated in Murray and Lockett are not limited in the way the plaintiff suggests. The Lockett court specifically noted that the Administrative Review Law is a departure from the common law and parties seeking its application must adhere strictly to its procedures. (Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 549 N.E.2d 1266.) Although the 35-day period is not jurisdictional, it is mandatory, and in order to avoid dismissal, the plaintiff must demonstrate a good-faith effort to issue summons within the 35-day limit. Here, the plaintiff did not make a good-faith effort to issue summons. Instead, he sent notice by certified mail. The plaintiff should not be allowed to create his own service procedure. Thus, the plaintiff’s argument must be rejected.

Citing Blunier v. Board of Fire & Police Commissioners (1989), 190 Ill. App. 3d 92, the plaintiff further argues that the defendants waived their argument by filing a motion to dismiss and thereby making a general appearance in the matter.

We find that the plaintiff’s argument and his reliance on Blunier are without merit and should be rejected. First, we note that the defendants’ defense here is not a jurisdictional argument so the plaintiff cannot contend that the defendants waived the issue by filing a motion to dismiss. Since the time limit on the issuance of summons is a mandatory requirement and not a jurisdictional one, the defendants were not required to file a special and limited appearance and could raise the issue in a motion to dismiss at any time before responding to the merits of the complaint. Second, we note that Blunier is not on point. In Blunier, the plaintiff did not serve summons. Nevertheless, the defendant filed a response to the complaint on the merits and did not file a motion to dismiss the request for review as technically insufficient. The present case is different in that the instant defendants did not file a response on the merits, but instead filed a special and limited appearance challenging jurisdiction, and then when that was denied, they filed a motion to dismiss based on plaintiff's failure to comply with the mandatory requirements of the statute. Accordingly, we find that the defendants did not waive their argument.

For the foregoing reasons, the judgment of the circuit court of Tazewell County is reversed.

Reversed.

McCUSKEY, P.J., and LYTTON, J., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LYNN LOVELACE, Defendant-Appellant.
    Second District
    No. 2—91—1403
    Opinion filed October 26, 1993.

      G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Lynn Lovelace, was charged by indictment with three counts of aggravated battery. Subsequently, defendant was also charged, by information, with two counts of resisting a peace officer.

One of the aggravated battery counts charged that defendant, in committing a battery, without legal justification, knowingly caused great bodily harm to the victim in violation of section 12 — 4(a) of the aggravated battery statute. (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 4(a) (now codified, as amended, at 720 ILCS 5/12 — 4(a) (West 1992)).) The other two aggravated battery counts each charged that defendant, in committing a battery, knowingly, without legal justification, caused bodily harm to a peace officer engaged in the execution of his official duties in violation of section 12 — 4(b)(6) of the aggravated battery statute. Ill. Rev. Stat. 1991, ch. 38, par. 12 — 4(b)(6) (now codified, as amended, at 720 ILCS 5/12-4(b)(6) (West 1992)).

After a jury trial in the circuit court of Lake County, defendant was found guilty of one count of aggravated battery to a peace officer and one count of resisting a peace officer. The trial court imposed an 18-month term of conditional discharge, 75 hours of public service, and $900 in restitution.

Defendant appeals and contends that: (1) he was not proven guilty beyond a reasonable doubt; (2) the trial court erred when it refused to allow the jury to hear evidence concerning the complainant’s employment evaluation; (3) the trial court erred when it allowed the State to impeach a defense witness with pending charges; (4) the trial court erred when it improperly instructed the jury; and (5) the prosecutor made improper comments during closing argument which denied defendant a fair trial.

The following evidence was adduced at trial. On July 22, 1991, a melee involving hundreds of youths occurred in Zion, Illinois, near a dance center for teenagers called Neon City. The melee began after Neon City closed at midnight, an hour before its 500 to 600 patrons expected it to close.

Only seven Zion police department (ZPD) police officers were on duty that night. Two Lake County deputy sheriffs, who were on duty during the midnight shift patrolling an area including unincorporated Zion, were dispatched to assist the ZPD in controlling the melee. The two deputy sheriffs, Deputy Lawrence Oliver and Deputy Roger Barrette, were driving marked squad cars and wearing official Lake County sheriff’s department (LCSD) uniforms which included blue shirts, badges, and patches identifying them as Lake County sheriff’s police.

After parking their squad cars near Neon City, officers Oliver and Barrette worked together and went with some ZPD officers to the parking lot next to Neon City. There were several hundred people in the parking lot. Officer Oliver, a 12-year veteran of the LCSD, described the scene as one of “absolute mayhem” with numerous fights occurring and people throwing rocks and bottles. Some individuals in the crowd were chanting “Kill the police. Kill the police.” The police officers told individuals to get in their vehicles and leave.

After working to clear the Neon City parking lot, Officers Oliver and Barrette walked to a bank parking lot south of the Neon City parking lot. There, Officer Barrette encountered defendant and the encounter resulted in defendant’s arrest and injuries to Officer Barrette. Officer Barrette suffered a broken collar bone and a contusion to the left side of his head. A number of witnesses testified for both sides as to the encounter between Officer Barrette and defendant.

Officer Oliver testified as follows. As Oliver and Barrette walked toward the bank parking lot, they observed a confrontation between several ZPD officers and a group of subjects in the bank parking lot. Defendant, a member of the group confronting the ZPD officers, was engaged in an argument with the police and was yelling at the police.

Officer Oliver’s testimony continued as follows. The Zion police instructed defendant to either get in a nearby car and leave, or if defendant could not get in the car, to walk away from the area. Defendant responded “F— you. I don’t have to leave.” Zion police again told defendant to leave. Defendant again refused. At that point Officer Barrette advised defendant he was under arrest. Defendant responded “For what? F— you. I ain’t going anywhere.” Officer Barrette again advised defendant he was under arrest and that he should put his hands on the car. A crowd gathered and began yelling and defendant, who had been leaning against the car, started to turn away from Barrette. Barrette began to reach out to take hold of defendant and Barrette eventually got his arms around defendant, partially pinning defendant’s arms to his sides. Barrette and defendant were face-to-face. The other police were several feet away from defendant and Barrette. None of the other police officers at the scene were touching either defendant or Barrette. At that point, defendant turned and slammed Barrette to the ground yelling “I’ll kill you, motherf- — , I’ll kill you.” With Barrette on the ground and defendant on top of Barrette, Oliver and one of the Zion police officers tried unsuccessfully to pull defendant up. Another officer then sprayed defendant with Cap Stun, a defensive aid similar to mace, and defendant became noncombative. Oliver and one of the Zion police then were able to pull defendant from Barrette and secured defendant in handcuffs. The police carried Barrette, who was momentarily unconscious, to a nearby ambulance. Oliver transported defendant to a hospital for treatment for the substance sprayed in defendant’s eyes and for a bump on defendant’s head. Oliver then transported defendant to the sheriff’s department for booking. During the booking procedure, defendant stated he was 6 feet tall and weighed about 200 pounds. On cross-examination, Oliver testified that he did not hear anybody say anything about car keys.

Officer Barrette testified as follows. Upon observing the Zion police confrontation with defendant, Barrette intervened in an attempt to calmly settle things down. Barrette told defendant the police were telling him to leave, so he should leave. Defendant responded “F— you man. We don’t have to do anything.” Barrette told defendant he had to leave and if he did so he would not be arrested. Defendant responded “We can’t f — ing go anywhere because the car is locked.” After Barrette again told defendant he must leave, a female, Frances Perez, stepped up and unlocked the passenger door of the car. Barrette told defendant he could now get in the car and defendant began to move toward the open car door but stopped and said “F— you. We don’t have to do anything you guys tell us.” The female who had unlocked the car door told defendant to just leave, and Barrette again told defendant to leave. Defendant again stated he did not have to leave. Barrette then told defendant “If you do not leave, you will be placed under arrest.”

Barrette further testified:

“Then I look at Deputy Oliver. I says, ‘If he doesn’t go, I’m going to take him.’ Then I said to [defendant], T will tell you again to leave or be arrested.’ He again says, ‘F— you. I ain’t going nowhere.’ I said, ‘You got to the count of three to leave or you will be arrested.’
I then started counting to three. He continued his yelling. I said, ‘Okay, you’re under arrest.’ I then grabbed his left arm. At that time, he pulled his left arm up; and I let go of the grip then. I then reached up, grabbed around his neck, and brought him down into a head lock so he was bent over. When I did that, I then felt his arms come around the side of me and lift me up, and that was the last thing I remember.”

Corporal Gary Dayton, one of the Zion police officers in the bank parking lot, testified as follows. The small group around the car, including defendant, at first told police they were waiting for car keys. After a female opened the car, defendant moved toward the open door, but turned around and came back to the rear of the car and stated words to the effect he did not have to leave. Officer Barrette told defendant he was under arrest and moved toward defendant to turn defendant around and have defendant put his hands on the car. Defendant then “grabbed Officer Barrette around the chest in a bear hug, picked him up, and slammed him to the ground.” After two other police officers unsuccessfully attempted to pull defendant off Barrette, Dayton sprayed defendant with Cap Stun and defendant immediately released his hold. When defendant slammed Barrette to the ground, none of the other officers at the scene were touching either defendant or Barrette.

Zion police officer Terry Richards testified as follows. In the bank parking lot, Richards, along with Corporal Dayton and Officers Oliver and Barrette, advised a group of people standing around a car that the group would have to leave. At some point someone said that the group was waiting for car keys. When it was discovered that one of the females in the group had car keys, the police again told the members of the group to leave. Defendant started to get into the car, but then said he was not going to leave. Barrette told defendant he was going to be arrested. Barrette reached out to arrest defendant, and defendant put a “bear hug” on Barrette and “body slammed” Barrette to the ground. At that time, none of the other officers at the scene were touching either defendant or Barrette. Richards made an unsuccessful attempt to pull defendant off Barrette. At that point, Officer Dayton sprayed defendant in the face with Cap Stun and the officers were able to handcuff defendant. None of the officers struck defendant.

Defendant called Al Rogers, a truant officer and assistant dean of students for Waukegan public schools, who testified as follows. Rogers was in the vicinity of Neon City on the night in question, because he was concerned there would be a problem with teenagers there. After observing the disturbance in the Neon City parking lot, Rogers moved to the bank parking lot. Rogers saw five policemen, two in blue shirts and three Zion police, approach a group of three people including defendant and two females. The group was standing near a car.

Rogers further testified as follows. One of the police with a blue shirt told the people standing around the car to get in the car. Defendant responded that he could not get in the car because it was locked. The same officer told defendant to get in the car and leave. Defendant again said he could not get in the car because it was locked. One of the females explained to the blue-shirted officer that the car was locked and they were waiting for the owner to bring the keys. After the police officer repeated his order to get in the car several more times, the officer said to defendant “I told you to get in the f — ing car.” Defendant responded, “I told you I can’t get in the f — ing car.” The officer then lunged at defendant and said defendant was under arrest. The officer lunged with his flashlight and placed the flashlight under defendant’s throat and pushed defendant back to the car. The other officers then came to the aid of the first officer who was still standing. All the officers struggled with defendant and wrestled defendant to the ground. All the officers and defendant went to the ground together.

Rogers further testified as follows. At the point that the group of officers wrestled defendant to the ground, a crowd started to form. Rogers turned to the crowd and urged it not to get involved and make matters worse. Rogers succeeded in backing the crowd away. When Rogers turned back to the officers and defendant, he saw defendant being led away. The officer who had lunged at defendant was hurt, and Rogers picked the flashlight up and gave it to another officer. Rogers was familiar with defendant because Rogers had coached defendant in football. Rogers knew from discussions with others that defendant had a reputation for being a peaceful and law-abiding person.

Defendant testified as follows. At the time of the Neon City incident, defendant was 17 years old and a senior at Waukegan high school. Defendant had been working at a fast-food restaurant for about six months. On the night in question, defendant went to Neon City after getting off work at 10:30 p.m. and had arranged to get a ride home with a friend, Frances Perez. After Neon City closed, defendant found Perez and walked with her to the car in which he was to get a ride home. Two other females were already at the car waiting for the person who had the keys to arrive. At that point, five police officers and two security guards from Neon City came up to the car.

Defendant continued his testimony as follows. A Zion police officer told the group waiting by the car that they had to leave. The group told the officer they could not leave because they did not have the keys. The officer then told the group to get in the car or walk home. The group responded that they could not get in the car and that they lived in Waukegan (presumably too far to walk). Other police then began telling the group to get in the car, and the group responded that the car was locked. This went on for two to three minutes.

Defendant further testified as follows. One of the police officers, Officer Barrette, focused his attention on defendant, who attempted unsuccessfully to get in the car and told Officer Barrette that the doors were still locked. Shortly after that, Officer Barrette told defendant “I will give you three seconds to get into the f — ing car, or you’ll be under arrest.” Defendant tried the car door and Barrette said to defendant “Get in the f — ing car.” Defendant replied, “We can’t get in the f — ing car.” At that point, Officer Barrette came at defendant as if Officer Barrette was trying to wring defendant’s neck. Officer Barrette grabbed defendant by the head and put defendant in a headlock. Defendant broke the headlock, and Officer Barrette put a bear hug on defendant and defendant tried to get loose. At that point, other police piled on and they all ended up on the ground with defendant on top of Officer Barrette. Defendant was reluctant to get up because he was afraid of what the other officers might do to him, so defendant stayed on top of Officer Barrette and only let go when defendant was sprayed in the face. Defendant did not know how he got the lump on his head visible in a photograph taken of him at the police station that night.

On cross-examination, defendant reiterated that he and all the officers were struggling and fell to the ground together and all the officers were holding on to defendant when they hit the ground. However, after hitting the ground, defendant was alone on top of Officer Barrette. Defendant admitted he used a wrestling move, called a swim technique, to break out of Officer Barrette’s bear hug.

After defendant’s testimony, the defense rested. Over defendant’s objection, the State then called Zion police officer Duane Arrington as a rebuttal witness.

Officer Arrington testified as follows. He was present at the confrontation between the police and defendant in the bank parking lot. Upon being told by the police to leave, defendant said the group was waiting for the car’s driver and the car keys so they could leave. One of the females in the group, Frances Perez, had car keys in her hand and opened the driver’s side door and got into the car. The female did not say anything to defendant. Defendant turned around, started to move to the passenger side door of the car, reached for the door handle, then turned back and said “F— this. I ain’t going anywhere.” Officer Barrette then told defendant he was under arrest and reached for defendant’s arm. Defendant then grabbed Officer Barrette by the upper arms, threw Officer Barrette down on the ground and lay on top of Officer Barrette. Neither Arrington nor any of the other officers made physical contact with defendant prior to defendant throwing Officer Barrette to the ground. Only defendant and Officer Barrette were on the ground. Eventually, one of the police officers had to spray defendant with Cap Stun to get defendant off of Officer Barrette. None of the officers struck defendant with any objects. Upon seeing that Officer Barrette needed assistance, Arrington started to move to assist Officer Barrette, but Frances Perez, who had gotten out of the car, and another person pushed and shoved Arrington to prevent him from assisting Officer Barrette. Arrington subsequently arrested Frances Perez.

The defense called Frances Perez in surrebuttal. Perez testified as follows. On the night of July 21, 1991, she drove her car with friends to Neon City. She gave her car keys to a friend, Michelle, to hold because Michelle had a purse and Perez did not. When Neon City closed, Perez walked back to her car and joined defendant and two female friends who were sitting on the hood of the car. Perez and defendant were standing by the car waiting for Michelle to bring the car keys when Officer Barrette told them to get in the car. Perez and defendant responded that they could not get in the car because they did not have the keys. Officer Barrette kept telling them to get in the car. There were five officers around defendant. Perez did not open the car. After Officer Barrette told defendant he would be arrested on a count of three, Officer Barrette lunged at defendant. Perez then left the scene.

On cross-examination, Perez acknowledged that the police had arrested her that evening for mob action and obstructing a police officer and that this charge was still pending against her. Perez stated she was arrested for allegedly shoving and scratching a police officer near the car. Perez denied the allegations and admitted that her arrest made her angry at the police. She stated that defendant is a friend of hers, but denied she would lie for him. She admitted that she did not see any of the actual struggle between defendant and Officer Barrette.

The first issue defendant raises on appeal is whether the State proved defendant guilty of aggravated battery beyond a reasonable doubt. Defendant contends that there are inconsistencies and contradictions in the testimony of the State’s witnesses regarding the encounter between Officer Barrette and defendant. Defendant argues that these inconsistencies and contradictions are sufficient to raise a reasonable doubt of defendant’s guilt in the face of defendant’s testimony and the “entirely reasonable” testimony of defendant’s witnesses.

The State responds that the inconsistencies in the testimony of its witnesses are minor and therefore do not justify overturning the jury’s guilty verdict. The State argues that all of its witnesses testified that defendant caused Officer Barrette to go to the ground resulting in injuries to Officer Barrette and that none of the other officers had touched defendant at that point. The State maintains that this evidence was sufficient to prove defendant guilty of aggravated battery beyond a reasonable doubt.

Our supreme court recently set out the standards for review of questions regarding the sufficiency of the evidence. The court stated:

“It is the jury’s function to determine the accused’s guilt or innocence, and this court will not reverse a conviction unless the evidence is so improbable as to justify a reasonable doubt of defendant’s guilt. (People v. Eyler (1989), 133 Ill. 2d 173, 191.) ‘[T]he 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.’ (Emphasis in original.) (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; see also People v. Collins (1985), 106 Ill. 2d 237, 261.) In addition, it is for the jury to weigh the credibility of the witnesses and to resolve conflicts or inconsistencies in their testimony. (People v. Phillips (1989), 127 Ill. 2d 499, 514.)” People v. Frieberg (1992), 147 Ill. 2d 326, 359-60.

To sustain a charge of aggravated battery of a police officer, the State was required to prove that defendant committed a battery with knowledge that the individual harmed was a police officer engaged in the execution of his official duties, including an attempted arrest. (Ill. Rev. Stat. 1991, ch. 38, par. 12—4(b)(6) (now codified, as amended, at 720 ILCS 5/12 — 4(b)(6) (West 1992)).) Defendant’s own testimony established that he knew that Officer Barrette was a police officer who was attempting to arrest him. Thus, the only question before us in determining whether the State proved its charge of aggravated battery was whether defendant committed a battery on Officer Barrette while Officer Barrette was attempting to arrest defendant.

The testimony of the State’s witnesses, when viewed in the light most favorable to the State, was sufficient to prove defendant guilty beyond a reasonable doubt. Despite the inconsistencies in that testimony, a rational trier of fact could have found that defendant caused Officer Barrette to go to the ground by committing a battery on Officer Barrette. The inconsistencies in the testimony were not serious enough to create reasonable doubts about the testimony. See People v. Parsons (1991), 222 Ill. App. 3d 823, 831.

The conflicting testimony of defendant and defendant’s witnesses does not change our conclusion. Defendant and Rogers testified that Officer Barrette lunged at defendant and then all the police officers piled on and together wrestled defendant to the ground. The jury heard this conflicting testimony. It was within the province of the jury, as the trier of fact charged with resolving conflicts in testimony, to reject this testimony. We will not disturb the jury’s finding of guilt where, as here, the evidence is not so unreasonable, improbable or unsatisfactory that it raises a reasonable doubt of defendant’s guilt.

The next issue we will address is whether the trial court erred by improperly instructing the jury when it failed to provide the jury with both paragraphs of a pattern jury instruction defining the “knowingly” element of the aggravated battery charges. After arguments at the instructions conference, over defendant’s objection, the trial court gave the jury an instruction derived from the first paragraph, but not the second paragraph, of Illinois Pattern Jury Instructions, Criminal, No. 5.01B (2d ed. Supp. 1989) (hereinafter IPI Criminal). The instruction stated:

“A person acts knowingly with regard to the nature or attendant circumstances ofhis [sic] conduct when he is consciously aware that his conduct is of such nature or that such circumstances exist. Knowledge of a material fact includes awareness of the substantial probability that such facts exist.”

Defendant argued that the court should have given the jury an additional instruction defining “knowingly,” derived from the second paragraph of IPI Criminal 2d No. 5.01B (Supp. 1989). That instruction would have stated:

“A person acts knowingly with regard to the result of his conduct when he is consciously aware that such result is practically certain to be caused by his conduct.”

After the jury began its deliberations, it sent a note to the court which stated: “we need an interpretation of ‘knowingly or intentionally caused bodily harm.’ ” The trial court heard arguments by counsel for both sides. Defendant contended that the jury’s confusion indicated that the jury had been improperly instructed as to the “knowingly” element. Defendant argued that the court should try to salvage the situation by giving the second paragraph of IPI Criminal 2d No. 5.01B (Supp. 1989). The State contended that the jury had been properly instructed and argued that the court should respond by telling the jury to continue deliberating. The trial court agreed with the State and merely responded to the jury that it had its instructions and should follow them.

On appeal, defendant contends that the jury was improperly instructed resulting in reversible error. Defendant argues that the court erred in the first place because the committee comments to IPI Criminal 2d No. 5.01B (Supp. 1989) require the use of both paragraphs when both conduct and result are in issue and both were in issue here. Defendant also cites People v. Brouder (1988), 168 Ill. App. 3d 938, for the proposition that it is reversible error to fail to instruct a jury on the definition of “knowingly” when the jury specifically requested such an instruction.

The State replies that the term “knowingly” has an ordinary meaning within the common knowledge of the jury and therefore it is not necessary to instruct the jury on the meaning of the term. The State also contends that the trial court properly and fully instructed the jury by only giving the first paragraph of the pattern instruction because the jury had also been instructed as to the elements of the aggravated battery charges and the definition of “knowledge.” The State argues that giving the jury the second paragraph would only have confused the jury because it then might have erroneously believed it had to find that defendant knew what injuries he would cause. Finally, the State argues that Brouder is factually distinguishable from this case and that the controlling case should be People v. Waldron (1991), 219 Ill. App. 3d 1017, which held that it was not per se necessary to reinstruct a jury, upon the jury’s request, as to the definition of “intent.”

We conclude that the trial court erred in not giving the jury both paragraphs of IPI Criminal 2d No. 5.01B (Supp. 1989). We agree with defendant that the committee comments indicate that both paragraphs are required when conduct and result are in issue. (IPI Criminal 2d No. 5.01B, Committee Note, at 75 (Supp. 1989).) We find that both conduct and result were in issue here because the indictment charged defendant with both aggravated battery by knowingly causing great bodily harm and aggravated battery of a peace officer with the underlying battery based on knowingly causing bodily harm. Thus, to prove its case, the State was required to show that defendant knowingly caused great bodily harm or knowingly caused bodily harm to a peace officer. (Ill. Rev. Stat. 1991, ch. 38, pars. 12 — 4(a), (b)6) (now codified, as amended, at 720 ILCS 5/12 — 4(a), (b)(6) (West 1992)).) Under the battery and aggravated battery statutes, a defendant charged with knowingly causing great bodily harm or bodily harm must be consciously aware that his conduct is practically certain to cause great bodily harm or bodily harm, i.e., the result of his conduct is in issue. (See People v. Psichalinos (1992), 229 Ill. App. 3d 1058, 1067.) Accordingly, the trial court should have given both paragraphs of IPI Criminal 2d No. 5.01(B) (Supp. 1989).

The State’s contention that it was not necessary to instruct the jury on the meaning of “knowingly” is unpersuasive. We recognize that there is authority for the proposition that because the term “knowingly” has a plain meaning within the jury’s common knowledge, it is not necessary to instruct a jury as to the meaning of that term. (E.g., People v. Powell (1987), 159 Ill. App. 3d 1005, 1013.) However, a circuit court has a duty to instruct a jury where clarification is requested, the original instructions are incomplete, and the jurors are manifestly confused. People v. Reid (1990), 136 Ill. 2d 27, 39.

Here, as seen above, the original instructions were incomplete because the circuit court erred when it did not give the jury the second paragraph of the instruction defining “knowingly.” After receiving the incomplete instruction, the jury indicated that it was confused by requesting clarification of terms, including “knowingly.” Under these circumstances, where the court determined that it should instruct the jury as to the meaning of “knowingly” but gave the jury an incomplete instruction, the State’s argument that the court was not required to instruct the jury as to the meaning of “knowingly” is unavailing. Once the court determined that it should instruct the jury on the matter and gave the jury instructions on the matter, the court was required to give complete instructions on the matter. See Reid, 136 Ill. 2d at 39.

Waldron is distinguishable from this case. The primary distinction is that there the jury requested clarification on an instruction which was sufficient to explain the relevant law. Here, the given instruction was incomplete and did not explain the relevant law.

The State’s contention that the complete instruction would have confused the jurors because they might have erroneously been led to believe that they had to find that defendant knew what injuries he would cause is also unavailing. Battery by knowingly causing bodily harm (the underlying battery of the aggravated battery to a peace officer charge at issue here) does not require a showing that defendant knew exactly what injuries he would cause; rather, it only requires showing that defendant knew some sort of physical pain or damage to the body would be caused. (See People v. Mays (1982), 91 Ill. 2d 251, 256.) Whether a person acted knowingly with respect to bodily harm resulting from one’s act is, due to its very nature, often proven by circumstantial evidence, rather than by direct proof. (People v. Renteria (1992), 232 Ill. App. 3d 409, 417.) In view of these principles, an instruction defining “knowingly” in terms of the results of a person’s conduct would not have required the jury to find that defendant knew what injuries he would cause. Thus, an instruction based on the second paragraph of IPI Criminal 2d No. 5.01B (Supp. 1989) would not necessarily have confused the jury in that regard.

Having concluded that the trial court erred when it failed properly to instruct the jury as to the meaning of “knowingly,” we are left with the question of whether the error was harmless. An error in a jury instruction is harmless if the result of the trial would not have been different if a proper instruction had been given. People v. Markiewicz (1993), 246 Ill. App. 3d 31, 44.

We cannot say that the error was harmless. If the jury had been properly instructed, the jury might not have concluded that defendant knowingly caused bodily harm to Officer Barrette. When the jury requested “an interpretation of knowingly or intentionally caused bodily harm,” it also asked “is (caused) during or after the fact?” This shows that the jury was confused about the point of law that the additional instruction would have addressed, i.e., whether “knowingly” applied to defendant’s conduct or the result of defendant’s conduct. Given the conflicting accounts of the encounter between Officer Barrette and defendant, the jury, if it had been properly instructed, might have concluded that the circumstantial evidence did not support a finding that defendant “knowingly” caused bodily harm to Officer Barrette. Under the improper instruction,, the jury could have concluded that defendant acted knowingly as to his conduct, but not as to the result of his conduct, and still found defendant guilty. This would have been an erroneous conclusion.

For all these reasons, we find that the trial court’s error in instructing the jury on the meaning of “knowingly” requires the reversal of the trial court’s judgment and that this cause be remanded for a new trial.

Although the foregoing is dispositive of this case, we will address some of the remaining issues because they may recur on retrial. The next issue is whether the trial court erred when it denied defendant’s motion in limine seeking to question Officer Barrette about his reputation within the LCSD for being able to deal with the public in stressful situations. Defendant had three of Officer Barrette’s employment evaluations indicating that Officer Barrette needed improvement in “communicating with the public” and “controlling his emotions in stressful situations.” Defendant intended to impeach Officer Barrette with the employment evaluations if Officer Barrette did not testify on cross-examination that he had a negative reputation for dealing with stress.

On appeal, defendant contends that the trial court erred by excluding the evidence of Officer Barrette’s reputation because it was highly relevant and went to the “core issue” of who was the aggressor in the encounter between Officer Barrette and defendant. Defendant relies on cases holding that evidence of a homicide or aggravated battery victim’s violent character is admissible. Defendant also hypothesizes that the jury might have concluded from the reputation evidence that Officer Barrette overreacted and the other officers came to his aid, or tended to corroborate Officer Barrette’s testimony to protect Officer Barrette from “further disciplinary action.”

The State concedes that evidence of a victim’s propensity for violence is admissible when a question of self-defense is raised. However, the State contends that other traits of the victim are not admissible. The State argues that the trial court properly excluded the evidence in question here because it did not show a propensity for violence. The State also argues that defendant here did not defend on the basis of self-defense.

It is well settled in Illinois that when a defendant raises a theory of self-defense, evidence of the victim’s aggressive and violent character is relevant and admissible to show who was the aggressor. (People v. Lynch (1984), 104 Ill. 2d 194, 200.) However, the evidence of the victim’s character must be relevant, and a court should exclude evidence that does not make the proposition that the victim was the aggressor more probable. (People v. Huddleston (1988), 176 Ill. App. 3d 18, 29.) We will not disturb a trial court’s decision on the admissibility of such evidence absent a clear abuse of discretion resulting in manifest prejudice. People v. Davis (1990), 193 Ill. App. 3d 1001, 1005.

We find that the trial court did not abuse its discretion in excluding the evidence in question here. Defendant’s reliance on People v. Robinson (1977), 56 Ill. App. 3d 832, for the proposition that evidence of a victim’s violent character is admissible in cases where a defendant does not raise the issue of self-defense is unpersuasive because it does not change the requirement that the evidence must tend to show that the subject had a violent character. The evidence defendant proffered here simply did not tend to make the proposition that Officer Barrette was the aggressor more probable. Defendant did not show how employment evaluations indicating that Officer Barrette needed to improve in the areas of communicating with the public and controlling his emotions in stressful situations indicated that Officer Barrette had a violent character. If evidence does not tend to show that a victim has a violent character, it does not have probative value in determining who was the aggressor in an altercation. (People v. Fischer (1981), 100 Ill. App. 3d 195, 199.) Accordingly, we hold that the trial court did not abuse its discretion when it excluded the evidence in question here.

The final issue we will address is whether improper comments by the prosecutor in his closing argument denied defendant a fair trial. Defendant contends that there were two instances of improper comments: (1) misstatement of the evidence with respect to the testimony of A1 Rogers; and (2) inflaming the jury’s passions by implying that a not guilty verdict would amount to not supporting law enforcement officers.

After carefully reviewing the record, we conclude that the prosecutor did misstate the evidence with regard to Rogers’ testimony. The misstatement occurred when the prosecutor said in closing remarks that Rogers had appeared before the Zion city council “complaining of police brutality.” We caution the State against such misstatements upon retrial.

Defendant also alleges that he was substantially prejudiced by other comments made by the prosecutor during the State’s closing argument. Defendant characterizes the comments as improper calls to the jury to protect the police. After an exhortation by the prosecutor to the jury to follow the law rather than give defendant an extra break, when the prosecutor stated “[i]f you are not willing to protect those who protect us,” defense counsel interrupted the prosecutor’s closing argument and asked to approach the bench. Defense counsel advised the court that the prosecutor had exceeded his time limit. When the prosecutor resumed his closing argument and began to repeat the same statement, defense counsel objected on the ground of improper argument. The trial court simply told the prosecutor “Finish.” The prosecutor then stated “if you are not willing to give justice to those who administer justice to us when they deserve it, then the next time that you hear someone talk about the society we live in, how terrible things have gotten, ask for not [sic] whom the bell tolls. It tolls for thee.” Defendant then objected and requested that the entire last part of the prosecutor’s comments should be stricken. The trial court overruled defendant’s objection.

After the jury retired to deliberate the verdict, defendant motioned for a mistrial based on improper argument which defendant characterized as asking the jury to convict defendant in order to protect the police. The trial court denied defendant’s motion. In his post-trial motion, defendant again argued this issue and specifically relied on People v. Threadgill (1988), 166 Ill. App. 3d 643. The trial court denied defendant’s motion for a new trial.

On appeal, defendant again relies on Threadgill. The Threadgill court noted that the prosecutor made repeated statements in his closing argument suggesting that the decision of the jurors would show whether the jurors supported the police and would affect what the police felt as far as juror support, and that a not guilty verdict “was tantamount to not supporting law enforcement in the community.” (166 Ill. App. 3d at 651.) In Threadgill, the prosecutor made at least seven separate statements along those lines including the following: “[i]t is going to be your decision in this case and the decision you are going to make is going to have an effect on how people conduct themselves in your community and what the police feel as far as support from you.” (Emphasis omitted.) (166 Ill. App. 3d at 649.) The Threadgill court concluded that the prosecutor’s remarks exceeded the bounds of propriety because they were calculated to arouse the fears and prejudices of the jurors that if the jurors found defendant not guilty the police would feel that the jurors were turning their backs on the police. The court noted that the prosecutor’s remarks “attempted to play upon the personal circumstances and fears of the jurors.” 166 Ill. App. 3d at 651.

Here, defendant contends that the prosecutor’s closing remarks were similarly calculated to arouse the jurors’ passions. Moreover, defendant argues that the error was worse here because, unlike Threadgill, defendant here objected during the prosecutor’s argument and immediately motioned for a mistrial at the conclusion of defendant’s closing argument.

We find that the prosecutor’s comments here were distinguishable from those in Threadgill. In Threadgill, the prosecutor made repeated attempts to arouse the jury’s passions in a personalized way. The Threadgill court concluded that the prosecutor’s statements served no purpose except to inflame the jury. Here, the prosecutor made one comment which was in the nature of a call to duty. It is not improper for the prosecutor to comment on the evil results of crime and to urge the jury to fearlessly follow the law. (People v. Harris (1989), 129 Ill. 2d 123, 159-60.) Just prior to the statement in question, the prosecutor had urged the jury not to give defendant a break simply because he did not seem like a “bad guy.” The prosecutor had also urged the jury to follow the law and if the law proved defendant guilty, then not let sympathy for the defendant interfere with a guilty verdict. In this context, the prosecutor’s statement does not have the personalized threatening character of the repeated statements in Threadgill. For these reasons we cannot say that the prosecutor’s statement was calculated to inflame the jury. Accordingly, the statement in question here was not improper in view of the broad latitude given to a prosecutor in presenting his or her closing argument. See People v. Peeples (1993), 155 Ill. 2d 422, 482.

Because we are remanding for a retrial, we will not address the remaining issue. We note that we do not intend our finding that the evidence was sufficient to support a conclusion that defendant was guilty beyond a reasonable doubt to be in any way binding, upon retrial, as to defendant’s guilt or innocence. We only intend to protect defendant from the risk of double jeopardy. People v. Taylor (1979), 76 Ill. 2d 289, 309.

Based on the foregoing, the judgment of the circuit court of Lake County is reversed, and the cause is remanded.

Reversed and remanded.

GEIGER and QUETSCH, JJ., concur.


author: PRESIDING JUSTICE CHAPMAN

text:
    JOHN N. GILLESPIE, Plaintiff and Counterdefendant-Appellant, v. CARBONDALE AND MARION EYE CENTERS, LTD., Defendant and Counterplaintiff-Appellee.
    Fifth District
    No. 5—93—0031
    Opinion filed November 4, 1993.
    Michael F. Dahlen and Gary B. Nelson, both of Feirich/Schoen/Mager/ Green, of Carbondale, for appellant.
    John Womick and Gene A. Turk, Jr., both of Womick & Associates, Chartered, of Carbondale, for appellee.
   PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

The appellant, Dr. John N. Gillespie, appeals from the trial court’s order enforcing a restrictive covenant not to compete. We affirm.

On March 20, 1992, Dr. Gillespie entered into a two-year employment contract with Carbondale and Marion Eye Centers, Ltd. (Eye Center). The contract explicitly included a restrictive covenant prohibiting Dr. Gillespie from practicing ophthalmology within 50 miles of any office of the Eye Center for two years subsequent to the termination of his employment relationship with the Eye Center. However, at the end of his two-year contract term with the Eye Center, the appellant discontinued his employment with the Eye Center and opened his own medical offices in violation of the restrictive covenant.

On June 8, 1992, Gillespie filed a petition for declaratory relief and for an accounting. The Eye Center filed a counterclaim requesting injunctive relief to enforce the restrictive covenant. The trial judge granted Eye Center a modified injunction which prohibited Dr. Gillespie from practicing ophthalmology within a 50-mile radius of the appellee’s Carbondale, Marion, Harrisburg, Fairfield, and Carmi offices for a two-year period beginning December 16,1992.

In Illinois, the trial court has discretion in determining whether to grant an injunction to enforce a restrictive covenant in an employment contract; and the reviewing court shall uphold the order of the trial court unless it is contrary to the manifest weight of the evidence. Retina Services, Ltd. v. Garoon (1989), 182 Ill. App. 3d 851.

Because Illinois courts abhor restraints on trade and encourage fair competition, restrictive covenants in employment contracts are carefully scrutinized. (Callahan v. L.G. Balfour (1989), 179 Ill. App. 3d 372.) However, such covenants are generally enforced if the conditions of the restrictions are reasonable as to geographic and durational scope of the covenant. Cockerill v. Wilson (1972), 51 Ill. 2d 179; Canfield v. Spear (1969), 44 Ill. 2d 49; Total Health Physicians, S.C. v. Barrientos (1986), 151 Ill. App. 3d 726.

In determining the enforceability of covenants not to compete, Illinois courts have focused on numerous factors, including whether enforcement of the contract would be injurious to the public, whether the employer has a protectable business interest, and whether the durational and geographic scopes of the covenant are reasonable. Retina Services, Ltd. v. Garoon (1989), 182 Ill. App. 3d 851; Akhter v. Shah (1983), 119 Ill. App. 3d 131.

The appellant contends (1) that the covenant in question is unenforceable because the Eye Center failed to establish a protectable interest in its patients, (2) that the restrictive covenant is void and unenforceable because it is injurious to the public, and (3) that even if enforceable, the covenant is unreasonable in its durational and geographic scope.

We will first address the issue of whether the Eye Center established a protectable business interest which would justify enforcement of the restrictive covenant. The appellant contends that the Eye Center must prove that it had a near permanent relationship with its customers in order to establish a protectable business interest in support of the covenant not to compete.

However, in enforcing the covenant, the trial court found that the appellee had satisfied all requirements in Retina Services, Ltd. v. Garoon:

“The Illinois Supreme Court has repeatedly upheld covenants not to compete in medical practice cases without making a specific inquiry into whether the plaintiff has demonstrated a protectable business interest. Notwithstanding the appellate court decisions which have carefully scrutinized whether the plaintiff has shown a protectable interest in cases outside the medical practice area, the Illinois supreme court’s consistent enforcement of such covenants in the medical professional field, where the durational and geographic scope is reasonable, demonstrates its recognition that a professional’s medical practice is a protectable business interest.” Retina Services, Ltd. v. Garoon (1989), 182 Ill. App. 3d 851, 856.

Therefore, since the case at bar involves an employment contract between medical doctors with a restriction on the former employee physician’s practice of medicine, the appellant’s contention that the Eye Center’s medical practice is not a protectable business interest is without merit.

The second issue raised on appeal is whether the restrictive covenant was void and unenforceable because it was injurious to the public interest. In addressing this issue, we must first note that the southern Illinois region from which Dr. Gillespie was prohibited from practicing ophthalmology is generally a rural area with few ophthalmology specialists. Evidence presented at trial suggests that the employer, Dr. Ahmad, practiced almost exclusively with his offices and did not perform hospital consultations or answer emergency calls. Therefore, those hospitals that relied on the appellant to treat their patients with eye problems would face the possibility of being unable to provide adequate medical care at a reasonable cost. Enforcing the restrictive covenant could create a shortage of eye specialists in the restricted area and pose a threat of potential harm to the public health. Such a shortage of specialists could also result in a monopoly for the Eye Center in the restricted area.

However, despite these possible harmful results, the Illinois Supreme Court has held that such restrictive covenants between medical doctors are not detrimental to the public interest because the restricted doctor can be just as useful to the public in another location outside the restricted area; and the physician can always resume his practice in the restricted zone once the time duration of the covenant not to compete has expired. (Canfield v. Spear (1969), 44 Ill. 2d 49; see also Vascular & General Surgical Associates, Ltd. v. Loiterman (1992), 234 Ill. App. 3d 1.) Further, the Illinois Supreme Court has suggested that where there is a shortage of medical professionals, young doctors will migrate to that area to alleviate the shortage. (Canfield v. Spear (1969), 44 Ill. 2d 49.) Therefore, though this court recognizes the possible adverse effects that enforcement of this restrictive covenant could have on the public, we rely upon the earlier decision of our supreme court and conclude that the trial court did not abuse its discretion in finding that the restrictive covenant was not void or unenforceable as injurious to the public interest.

Finally, we look at the third issue raised on appeal, whether the durational and geographic scopes of the covenant were unreasonable. The restrictive covenant contained within the employment contract prohibited Dr. Gillespie from practicing ophthalmology within a 50-mile radius of any of the Eye Center clinics for a period of two years following the termination of his employment with the Eye Center. The trial court held that the covenant was valid and enforceable but found the territorial limitation to be overbroad. Therefore, the trial court enforced a modified covenant, which prohibited Dr. Gillespie from practicing within a 50-mile radius of the appellee’s Carbondale, Marion, Harrisburg, Fairfield, and Carmi offices (those locations where the appellant had actually practiced ophthalmology) for a two-year period commencing December 16, 1992.

Judicial modifications of covenants have previously been approved:

“It has long been recognized by the courts of Illinois that if the area covered by a restrictive covenant is found to be unreasonable as to area, it may be limited to an area which is reasonable in order to protect the proper interests of the employer and accomplish the purpose of the covenant.” (Total Health Physicians, S.C. v. Barrientos (1986), 151 Ill. App. 3d 726, 730.)

The appellant, however, argues that the covenant, as modified, is unreasonable as to time and territory limitations. We disagree.

The Illinois Supreme Court has found various geographic and time limitations to be reasonable in medical practice cases, including an unlimited time prohibition from practicing medicine in the entire City of Chicago. (Storer v. Brock (1933), 351 Ill. 643.) The only noncompetitive covenant in a medical practice case found by our supreme court to be unreasonable involved an unlimited time restriction from practicing medicine within 30 miles from any of plaintiff’s offices, which included a Highland Park office 23 miles north of Chicago and a Waukegan office 35 miles north of Chicago. House of Vision, Inc. v. Hiyane (1967), 37 Ill. 2d 32; see also Retina Services, Ltd. v. Garoon (1989), 182 Ill. App. 3d 851.

The case at bar differs from House of Vision in that the restricted area in this case is a rural region and thus may require a broader geographic limitation in order to give effect to the covenant. Furthermore, the covenant enforced against Dr. Gillespie is limited in duration to a two-year period. Therefore, following the reasoning of the supreme court in previous medical practice cases, we find that the defendant could practice elsewhere and could resume practice in the area after the restricted period has ended. See Bauer v. Sawyer (1956), 8 Ill. 2d 351; Canfield v. Spear (1969), 44 Ill. 2d 49.

Given previous case law and the specific facts involved in the case at bar, we conclude that the trial court did not abuse its discretion in finding that the modified covenant imposed against the appellant was reasonable in its geographic and durational scope and was valid and enforceable.

We, therefore, affirm the decision of the trial court, enjoining Dr. Gillespie from practicing ophthalmology within a 50-mile radius of the Eye Center’s Carbondale, Marion, Harrisburg, Fairfield, and Carmi offices for a two-year period, commencing on December 16,1992.

Affirmed.

LEWIS and MAAG, JJ., concur.


author: JUSTICE LEWIS

text:
    JAMES R. DEASON, Guardian of the Estate of Pauline Crider, a Disabled Adult, Plaintiff-Appellant, v. SHERRY GUTZLER et al., Defendants-Appellees.
    Fifth District
    No. 5—92—0542
    Opinion filed November 12, 1993.

      Law Office of Terry Sharp, P.C., of Mt. Vernon, for appellant.
    No brief filed for appellees.
   JUSTICE LEWIS

delivered the opinion of the court:

Plaintiff, James R. Deason (James), as guardian of the estate of Pauline Crider, a disabled adult (Pauline), appeals the trial court’s ruling that defendant, Sherry Gutzler (Sherry), has rebutted the presumption of fraud raised by James at a hearing on his complaint brought on behalf of Pauline. Sherry has not filed an answer brief, but because of the nature of the issues raised and the record provided, we can decide the issues without the benefit of an answer brief. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.) We reverse and remand for the reasons set forth below.

Before we address the merits of the appeal, we must first address plaintiff’s motion to supplement the record, which we had ordered to be taken with the case. Plaintiff asks in his motion that we allow him to supplement the record with a copy of the power of attorney executed by Pauline. The power of attorney was not admitted into evidence at any of the hearings held before the trial court; however, considerable testimony about the power of attorney was presented. Supreme Court Rule 329 (134 Ill. 2d R. 329) provides that a record may be supplemented on appeal to supply omissions, to correct errors, and to settle any controversy about whether the record accurately reflects what occurred at trial. (Nameoki Township v. Cruse (1987), 155 Ill. App. 3d 889, 508 N.E.2d 1080.) However, this rule has been construed to allow supplementation of the record only with documents which were actually before the trial court. (Nameoki Township, 155 Ill. App. 3d 889, 508 N.E.2d 1080.) In this case, the power of attorney was not filed in the trial court; therefore, this document will not be considered on review. The plaintiff’s motion to supplement the record on appeal is denied.

The facts necessary for our determination are as follows: James is a son of Pauline’s from a previous marriage. On April 1, 1950, Pauline married Robert E. Crider (Robert), and they subsequently had a child, Sherry. Robert also had a son from a previous marriage, Robert W. Crider. In 1986 Pauline executed a power of attorney, naming Robert and Sherry as coagents for her. In 1987 and 1988, Robert, acting under his power of attorney from Pauline, closed out several bank accounts belonging to Pauline, on which he was not a joint tenant, and transferred the funds from those accounts to accounts in his and Sherry’s names as joint tenants. On May 1, 1989, Sherry drafted a warranty deed for Robert and Pauline’s marital home, which was held in joint tenancy. This warranty deed transferred the marital property to Robert and Sherry as joint tenants. Sherry had the new deed recorded that same day. On June 6, 1990, pursuant to two petitions for guardianship, one by James and one by Sherry, Pauline was adjudicated a disabled adult. James was made guardian of the estate, and James and Sherry were made coguardians of the person of Pauline.

James, as guardian of the estate, brought a citation proceeding to discover Pauline’s assets, and hearings were conducted on the citation on October 9 and October 22, 1990. As a result of the citation proceedings, James filed the instant complaint, seeking to have the transactions done by Robert, under his power of attorney for Pauline, set aside as fraudulent and to have the assets which had been transferred out of Pauline’s estate returned. A hearing on the complaint was held on July 23, 1991. At that hearing, James asked that the court take judicial notice of the transcripts of the former guardianship and citation proceedings, which the court agreed to do.

James testified at the guardianship hearing that he is 53 years of age and in good health. Although he has a doctorate in chemistry, he currently is employed as a tax preparer by H & R Block during tax season, and he also taught tax courses in the fall of the year. He resides in Wilmette, Illinois. Sherry is his half-sister and is the daughter of his mother and his stepfather, Robert. His grandmother’s name was Ruby Britton (Ruby). Ruby was living with his mother and stepfather when she died in June 1988. Upon Ruby’s death, Pauline inherited all of Ruby’s estate, as Pauline was an only child. It was James’ estimate that Ruby’s estate, after the sale of Ruby’s farm in Benton, Illinois, was worth approximately $50,000. James did not think that his stepfather paid any of his grandmother’s bills, but that her bills were paid out of accounts held by himself and his mother as joint tenants. James did not know what happened to the money his mother inherited, but he did know that his mother tried to divide the money between himself and Sherry, as there were certificates of deposit (CDs) set up in his name, Pauline’s name and Ruby’s name; CDs in Sherry’s name, Pauline’s name, and Ruby’s name; and CDs in Pauline’s name and Ruby’s name. He was unaware of where the CDs had gone. He did not inherit anything from his grandmother when she died.

According to James, his mother’s illness (Alzheimer’s disease) started as long ago as 10 years, and in the past four years she has gotten progressively worse. Sherry had told James that she and Robert had obtained a power of attorney over Pauline. It was James’ opinion that Pauline needed to be in a nursing home, and he does not think that she will ever be able to leave the nursing home other than temporarily.

James stated that, before Pauline’s illness, i.e., over four years ago, Robert’s property consisted of the house owned by him and Pauline in joint tenancy and the furniture therein, one car, some tools, and a coin collection. After Pauline’s illness, within the past four years, Robert bought three vehicles, a wide-screen television, and a satellite television system, and Robert also bought a satellite television system and a swimming pool for Sherry. Since Robert’s death on April 19, 1990, Sherry had been driving one of the vehicles purchased by Robert, her brother Robert W., who lives in Florida, had been driving Robert’s truck, and the third vehicle was sitting in the garage of the marital home in Mt. Vernon, Illinois.

James admitted that he has not been home often in the last few years. He stated he came home for Robert’s funeral, and that he was home around Christmas time before that. He explained that he used to come home more often, but he was uncomfortable around Robert, as they did not get along in the last few years. James did not think that Robert was taking care of Pauline very well, and he objected to Robert’s mental abuse of his mother (he yelled at Pauline). James also did not call very often in the last few years because Pauline was unable to carry on an intelligent conversation.

James stated that he did not think that Sherry should be guardian of Pauline’s estate as he did not think she was fiscally responsible. He had no objection to Sherry being coguardian of Pauline’s person, but he did not want her to be the sole guardian of her person as he was afraid that Sherry would take Pauline out of the nursing home. James admitted that it was he who placed Pauline in the nursing home.

Sherry testified at the various hearings that she is 37 years of age, that James is her half-brother, that she was close to her parents, and that her father Robert died on April 19, 1990. Pauline was diagnosed with Alzheimer’s disease by her doctor, Dr. Hoffman, about three years ago. According to Sherry, Pauline has gotten progressively worse, and the disease is in its final stages now. At the beginning of Pauline’s illness, she became forgetful and had no short-term memory; however, Sherry testified that in early 1988, Pauline’s condition was good and she was able to participate in household decisions. The disease has now progressed to where her mother does not know anything or anybody, and her mental abilities are those of a one-year-old. Her mother had been at home until April 1990, and she and Robert had provided Pauline’s care, but Pauline has been in a nursing home since that time. It was James’ decision to place Pauline in the nursing home, and Sherry disagreed with this decision. Sherry testified that Robert hated the way James treated Pauline, because James did not call to see how Pauline was doing. Sherry admitted that her mother was unable to care for herself at the time of Robert’s death and that Pauline was unable to attend Robert’s funeral. According to Sherry, she has seen her parents daily for the past five years, and she had been on call constantly to help her father take care of Pauline.

In the last two months before Robert’s death, Sherry was doing everything for both of her parents. Her father was not in good health during that time as he had been suffering many heart attacks. Sherry had discussed putting Pauline in a nursing home with Robert in March 1990, as Pauline’s doctor, Dr. Hoffman, said that Pauline was going to become hard to handle and that they could not continue as they had been doing. Sherry had investigated getting Pauline on welfare and placing her in a nursing home. She had been advised that the only requirement to be met to get Pauline on Medicaid was that Pauline have prepaid burial arrangements.

Sherry testified that Robert obtained a power of attorney over Ruby at the same time that he obtained his power of attorney over Pauline. Sherry admitted she was named as a coagent on the power of attorney executed by Pauline. Ruby’s social security checks were mailed to her parents’ home, and these checks were used by Robert to take care of her. Sherry stated that her grandmother, Ruby, lived with her parents from November 1987 until her death in June 1988. Before coming to stay with her parents, Ruby had been in a nursing home for about six months. Ruby was brought to her parents’ home by Robert, as he decided that he could take care of Ruby. Robert told Sherry that Ruby’s funds were getting low, and that it had cost about $30,000 to keep Ruby in the nursing home. Ruby was not ill, but she was 96 years old. Sherry did not know what had become of her grandmother’s money.

Sherry testified that she was divorced in 1985, and that she has two sons, aged 10 and 12. After her divorce, she was on public aid. Pauline bought Sherry a new car when she got divorced. Then, in 1988, her parents bought her another new car. Robert bought Sherry a satellite dish in 1987 and had bought her a swimming pool in 1985.

Sherry admitted that in 1989, Robert gave her the deed to his and Pauline’s marital home. Robert asked her to transfer that property into his and Sherry’s name as joint tenants. Sherry had worked as a legal secretary so she filled out the warranty deed. Robert signed the deed both as an individual in his own right and in Pauline’s name under his power of attorney. Sherry had the deed recorded on May 1, 1989. Sherry stated that when Robert gave her the deed and requested the transfer of ownership, he said he wanted her to have the home and to use it to help provide for her mother. Sherry said that both Pauline and Robert wanted her to have the house, and that her mother had said so.

When Robert died in April 1990, he did not leave a will. At the time of Robert’s death, there were three vehicles in his name alone. Sherry knew that her father had bought the 1988 Mercury Cougar in December 1987 for $18,000 cash. Then, in March 1988, Robert bought a 1988 Plymouth Voyager for $17,000, for which he wrote a check. (The evidence presented showed that the original source of the $17,000 was an account of Pauline's that had been transferred to Robert’s and Sherry’s names in January 1988 but was closed by Robert in March 1988, at which time the $17,000 check was written.) Sherry testified that both of these vehicles were for her, even though they were titled in her father’s name, and that her father gave her $36,000 worth of cars in six months’ time. Sherry said her mother knew that Robert had bought the vehicles as she was with them when the vehicles were purchased. Sherry used the vehicles to take her parents shopping and to run errands for them. Her mother was unable to drive at that time. Robert bought the 1989 CMC truck as he wanted something to leave to his son in Florida; however, half of the truck’s cost was financed, and her stepbrother assumed the rest of the payments, about $100 per month.

After Robert’s death, Sherry and her stepbrother Robert went to the Secretary of State’s office and had the titles of these vehities transferred to her and her stepbrother, two of them to her and one to her stepbrother. In order to transfer title on the vehicles, she and her stepbrother had to sign an affidavit. On the affidavit, Pauline was not listed as Robert’s surviving spouse. Sherry explained that she did not intentionally omit Pauline’s name, as the document was prepared by a person named Michelle. Michelle was a friend of the family and was aware of Pauline’s illness. Sherry and her brother Robert signed the affidavit without reading it.

Robert also had four CDs in Sherry’s name and his name at the time of his death. Sherry was aware that Robert had transferred the CDs to his and her names, as Robert had told her about the transfers and she had to sign a signature card for the first one. When Robert was in the hospital before his death, he told her where the CDs were. Robert told her to cash the CDs out and to use them to help take care of Pauline. He told her not to let anyone take the CDs from her.

On April 25, 1990, Sherry cashed in all of the CDs, a total of $42,953.32. When she cashed the CDs, she sent $4,000 of the money, to her stepbrother in Florida. She also used approximately $11,000 to pay off her credit cards. She paid about $1,500 to Dr. Hoffman for medical bills for Pauline and Robert. She also took a vacation to Florida, which cost her about $5,000. According to Sherry, she paid about $5,000 for expenses on her parents’ marital home. Sherry testified that Pauline does not have any prepaid burial plan, and that her father’s funeral expenses of $7,000 were still unpaid. At the guardianship proceeding, Sherry testified that she had approximately $30,000 remaining from the CDs she had cashed at home. However, Sherry testified at the citation proceeding, about four months later, that she only had about $700 or $800 left of the funds from the CDs. When asked what happened to the $29,000 she had had earlier, she said: “Just spent it. Cost of living.” Sherry also admitted that, after her father’s death, she removed the 46-inch Zenith television from her parents’ home. At the time of Robert’s death, Sherry said she was still on public aid.

At the guardianship hearing, Sherry had three witnesses testify on her behalf. These three witnesses basically corroborated that Sherry helped to take care of her parents and that she was at their home often.

Nancy Sodders, a vice-president of King City Federal Savings Bank (King City), testified that Pauline had been a bank customer of King City for many years. Nancy traced the source of numerous funds transferred from accounts owned by Pauline which were ultimately transferred to Robert’s and Sherry’s names as joint tenants. Of the accounts transferred by Robert under his power of attorney, only one or two of the accounts transferred had been held originally in joint tenancy with Robert or Sherry.

The foregoing was the information before the court at the time of the hearing on the complaint filed by James for fraud against Sherry, Robert’s estate, and Robert’s son in Florida. The court stated at the hearing that James had presented sufficient evidence to raise the presumption of fraud as to the transactions regarding the real estate and the CDs transferred by Robert pursuant to his power of attorney. By implication, the presumption also applied to Sherry since she was a coagent on the power of attorney. However, in a docket order entered by the court on December 16, 1991, the court simply stated, “The court having heard the testimony & having considered the argument of counsel, relevant cases & previous transcripts filed in cause 90 — P—39 [guardianship and citation proceedings] finds that def. Sherry Gutzler has overcome any presumption of fraudulent transactions in her dealing with her mother’s property & therefore Judgment is entered in favor of defendant.” No further statement or explanation of the court’s holding was provided. James filed a motion to reconsider this ruling, but the court denied his motion. This appeal followed.

There is no issue raised in this appeal that James did not raise the presumption that the transactions performed by Robert with his power of attorney for Pauline were fraudulent. The law regarding this matter is that a power of attorney gives rise to a general fiduciary relationship between the principal and the agent, and if it is shown that the agent has entered into a transaction between the agent and the principal which benefits the agent, the transaction is presumptively fraudulent. (Pottinger v. Pottinger (1992), 238 Ill. App. 3d 908, 605 N.E.2d 1130; White v. Raines (1991), 215 Ill. App. 3d 49, 574 N.E.2d 272.) A power of attorney creates a fiduciary relationship as a matter of law. (Lemp v. Hauptmann (1988), 170 Ill. App. 3d 753, 525 N.E.2d 203.) Once the presumption of fraud is established, the burden shifts to the agent to show by clear and convincing evidence that the transaction was fair and equitable and did not result from undue influence. (White v. Raines (1991), 215 Ill. App. 3d 49, 574 N.E.2d 272.) Here, the court stated on the record that the presumption arose in the case sub judice, and in the court’s docket order, it states only that the presumption was rebutted, leading to the inference that the presumption had been raised. Therefore, the burden to show that the transactions were fair and did not result from undue influence shifted to Sherry.

To rebut the presumption, a fiduciary must establish that the transfer was a gift. (White v. Raines (1991), 215 Ill. App. 3d 49, 574 N.E.2d 272.) Where there is a fiduciary relationship, a gift is not presumed, regardless of the relationship of the parties involved. See Lemp v. Hauptmann (1988), 170 Ill. App. 3d 753, 525 N.E.2d 203.

At trial, Sherry appears to argue that the transactions done under the power of attorney were permissible either because of the marital relationship of Robert and Pauline and because they were impliedly intended as a gift to the marriage, or because the transfers were an outright gift to Robert and Sherry. Initially, we note that in the recent case of In re Estate of Glogovsek (1993), 248 Ill. App. 3d 784, decided by this court, we declined to find that there was undue influence simply because of a spousal relationship; however, we did not rule out the possibility that the presumption of undue influence could exist in such a relationship. Here, the marital relationship did not preclude a presumption of fraud and of undue influence, which must be rebutted by clear and convincing evidence since there was a power of attorney. The power of attorney granted herein gave Robert access to Pauline’s accounts on which he was not named as a co-owner and to which he otherwise would not have had access under the marital relationship unless Pauline had made a gift to him (since the funds were inherited by Pauline and were not marital property). Thus, the fact that Robert was Pauline’s husband does not defeat the presumption of undue influence. Additionally, a presumption of gift does not arise in a parent-child relationship where a fiduciary relationship exists, but the claim that a transaction was a gift still must be proved by clear and convincing evidence. Lemp v. Hauptmann (1988), 170 Ill. App. 3d 753, 525 N.E.2d 203.

The next question to be addressed is whether the evidence presented negated the presumption under the theory that the transactions were a gift to Robert and Sherry. The evidence revealed that Robert transferred the marital property to Sherry and himself in joint tenancy. While he still retained his portion of the marital property by this transaction, the transfer did nothing to benefit Pauline. There was no evidence, other than Sherry’s self-serving testimony, that Pauline ever intended to make Sherry a gift of her share of the marital property.

Similarly, Robert transferred monies in CDs from accounts in which he had no interest to accounts wherein he and Sherry had exclusive rights. Again, there is no evidence that Pauline intended to bestow a gift on Robert and on Sherry, other than Sherry’s self-serving statements. Thus, Sherry presented insufficient evidence, in fact none whatsoever, to prove that Pauline intended -the transactions done under the power of attorney to be a gift to Robert and her.

Moreover, Pauline received very little benefit from these transactions. The power of attorney stated that her agents were to handle her financial matters for her benefit, and the testimony of Sherry revealed that the money and the marital home were to be held and used to take care of Pauline. However, the evidence established that Sherry used the funds obtained from the transactions primarily to benefit herself. Thus, we find that the court’s determination that Sherry successfully rebutted the presumption of fraud by clear and convincing evidence to be against the manifest weight of the evidence. (White v. Raines (1991), 215 Ill. App. 3d 49, 574 N.E.2d 272.) Therefore, the transfer of the marital home to Robert and Sherry must be set aside, and the joint tenancy between Pauline and Robert must be reasserted. From the evidence presented at the hearings, Pauline would now be the sole owner of the marital property under rights of survivorship of the joint tenancy, and the property should be restored to Pauline’s estate. In addition, the transactions involving the bank accounts transferred to Robert and Sherry under the power of attorney must be invalidated and set aside. An order should be entered giving a judgment in favor of Pauline’s estate and against Sherry for the money transferred. Because the record is not absolutely clear as to the amount of the money actually transferred, this cause is remanded for a determination of the amount of damages owed to Pauline’s estate by Sherry in accordance with this opinion.

For the foregoing reasons, plaintiff’s motion to supplement the record is denied, the court’s judgment is reversed, and this matter is remanded for proceedings in accordance with this opinion.

Motion denied; reversed and remanded with directions.

WELCH and GOLDENHERSH, JJ., concur.