text:
      In re MARRIAGE OF DELORES J. JOHNSON, n/k/a Delores J. Mosley, Petitioner-Appellee, and KEVIN L. JOHNSON, Respondent-Appellant.
    Third District
    No. 3-90-0282
    Opinion filed March 6, 1991.

      Cathy Schumann Woollums, of Heninger & Heninger, P.C., of Davenport, Iowa (Thomas J. Pastrnak, of counsel), for appellant.
    Massie & Steele, of Calva (Michael E. Massie, of counsel), for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

The marriage of petitioner Delores Johnson and respondent Kevin Johnson was dissolved in 1985. The judgment of dissolution adopted the terms of a separation agreement between the parties which provided for joint custody of their daughter, Christine, with petitioner having physical custody of the child. Respondent was required to pay $75 per week for child support, an amount which, according to petitioner’s testimony at the 1985 dissolution proceedings, she believed approximated 20% of respondent’s net income.

In November of 1989 petitioner filed a petition for modification seeking an increase in child support. Following a hearing on March 8, 1990, the trial court found that a substantial change in circumstances had occurred based on the increased needs of the child, and the court increased the amount of support to $135 per week. The court also ordered the respondent to pay petitioner’s attorney fees of $712. On appeal, respondent contends that: (1) the trial court erred as a matter of law in applying the minimum support guidelines provided in section 505 of the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act) (Ill. Rev. Stat. 1989, ch. 40, par. 505); (2) the court abused its discretion in finding that a substantial change in circumstances had occurred and in granting the petition to modify child support; and (3) the court erred in ordering respondent to pay petitioner’s attorney fees. We affirm.

With respect to the first issue raised by respondent, it is clear that a court may consider the statutory guidelines set forth in section 505 of the Marriage Act when modifying child support (see In re Marriage of Stockton (1988), 169 Ill. App. 3d 318, 523 N.E.2d 573; In re Marriage of Boyden (1987), 164 Ill. App. 3d 385, 517 N.E.2d 1144) and respondent acknowledges as much in his brief. Apparently, respondent is claiming that the trial judge mechanically applied the 20% guideline without considering the actual needs of the child and the financial situation of the parties. Respondent contends that the trial judge’s comment at the start of the modification hearing that he was “pretty rigid about applying the 20% figure” demonstrates an improper “rigid adherence” to the statutory guidelines.

While we agree that a court should not blindly follow the guidelines and thereby “surrender the responsibilities of considering all relevant factors dictated by Illinois law in reaching an appropriate result” (In re Marriage of Blaisdell (1986), 142 Ill. App. 3d 1034, 1040, 492 N.E.2d 622, 626), our review of the record does not support a conclusion that the court abandoned its judicial function in favor of an unreasoned application of the 20% guideline. The court’s statement that it was “pretty rigid” about following the guidelines merely indicates that the court was following the statutory directive that the section 505 guidelines “shall be applied in each case unless the court, after considering evidence presented on all relevant factors, finds a reason for deviating from the guidelines.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(2).) Here the court stated, just prior to finding that the guidelines applied, that it had carefully listened to the testimony presented and had reviewed all the affidavits, tax returns, and pleadings in the case. We find no error.

Respondent next contends that the trial court abused its discretion in finding that there was a substantial change in circumstances and in granting the petition to modify child support. Specifically, respondent maintains that: (1) the court based its finding of increased need solely on the presumption that expenses increase as a child becomes older; (2) there was no evidence of a substantial increase in respondent’s income; (3) the court failed to consider that petitioner’s income had substantially increased; and (4) the reasonable needs of the child are met by a payment of $75 per week.

Modification of child support is warranted only upon a showing of a substantial change in circumstances. (Ill. Rev. Stat. 1989, ch. 40, par. 510(a).) Trial courts have wide latitude in determining whether a substantial change has occurred (In re Marriage of Loomis (1987), 153 Ill. App. 3d 404, 505 N.E.2d 766) and should consider not only the needs of the child and the financial status of the noncustodial parent, but also the needs and financial status of the custodial parent, the financial resources of the child, the standard of living the child would have enjoyed had the marriage not been dissolved, and the physical, emotional, and educational needs of the child (Ingwerson v. Woeckener (1986), 141 Ill. App. 3d 647, 490 N.E.2d 1008; In re Marriage of Daniels (1983), 115 Ill. App. 3d 173, 450 N.E.2d 361). “Only some change in circumstances of any nature which would justify equitable action by the court in the best interests of the children (with appropriate consideration of the rights and interests of the parents) is required.” Legan v. Legan (1979), 69 Ill. App. 3d 304, 309, 387 N.E.2d 413, 416.

Respondent’s contention that the trial court’s finding of increased need was based solely on a presumption that costs increase as a child grows older is apparently based on the court’s statement that “[w]hen you become a judge you don’t lose your common sense and your experience in life, it would seem obvious that a child at this age needs more than a child at the age of two.” Respondent acknowledges that a court may presume that the costs of raising a child increase as the child grows older (Loomis, 153 Ill. App. 3d 404, 505 N.E.2d 766), but argues that such a presumption, without more, is not sufficient to warrant an increase in child support. We need not consider this argument, however, because it is clear that the court in this case did not premise its finding of increased need solely on such a presumption. The court noted that the petitioner’s testimony indicated that the child eats more and her clothing expenses have increased. In addition, the court cited school expenses, the cost of child care, and transportation costs for medical treatment in support of its decision. We find no abuse of discretion.

Respondent also contends that there was no evidence of a substantial increase in his income. Respondent notes that his income tax return shows only a minimal increase, from $34,472 in 1985 to $35,163 in 1989. The trial court found, however, that the original child support figure of $75 per week was calculated on respondent’s base pay of $375 per week. The court based its conclusion on the petitioner’s testimony that she thought the $75 figure was 20% of her husband’s income and on the respondent’s testimony that his attorney for the 1985 proceedings asked him about his base rate of pay and that rate may have been $375 per week. Respondent also testified, however, that he was never paid at the base rate and that his attorney had been provided with copies of his W-2 forms.

We find the trial court’s conclusion that the original child support amount was based on the respondent’s base rate of pay of $375 per week was not against the manifest weight of the evidence. Therefore, given that it was undisputed that respondent’s net weekly income is now $674.51 per week, his income for the purposes of the modification proceeding had increased substantially. Even if respondent’s income had not increased, that is merely one factor which the court must consider and it does not preclude a modification of child support (see Loomis, 153 Ill. App. 3d 404, 505 N.E.2d 766 (affirming increased child support despite no substantial change in father’s income where standard of living of mother and children had decreased)).

Respondent also complains that the trial court failed to consider petitioner’s substantial increase in income. Petitioner was not employed when the marriage was dissolved in 1985. At the time of the modification hearing, petitioner was earning $557 per month. In addition, she was paid $150 per month in rent by her brother and she received $325 per month in child support from respondent. We agree that the increase in petitioner’s income from $0 to $1,032 per month was substantial. It is clear, however, that the trial judge was aware of petitioner’s earnings since he indicated that he had listened to the testimony and reviewed the affidavits filed by the parties. The essence of respondent’s argument seems to be that any increase in the child’s needs was offset by the increase in petitioner’s income. It is the province of the trial court, however, to determine which party is better able to meet the increased needs of the child. (Ingwerson, 141 Ill. App. 3d 647, 490 N.E.2d 1008.) The trial court’s decision to modify child support will not be disturbed on appeal absent an abuse of discretion. (In re Marriage of Bussey (1985), 108 Ill. 2d 286, 483 N.E.2d 1229.) We note that respondent’s net monthly income is approximately $2,700 and petitioner’s is $1,032. We find no abuse of discretion.

We are also not persuaded by respondent’s argument that no increase in child support was necessary because the reasonable needs of the child were met by the payment of $75 per week. Petitioner’s affidavit shows that the combined monthly expenses for her and the child total $1,321. Her net monthly income, even with the increased support, is less then $1,300. While respondent’s affidavit also indicates that his expenses exceed his income, the amounts spent on such items as clothing and entertainment reflect a standard of living far above that enjoyed by mother and child.

“The child should not suffer because the custodial parent has a limited income. We decline to accept petitioner’s argument that a child is only entitled to receive support for his ‘shown needs’ when the noncustodial parent is obviously ‘enjoying’ a standard of living far above that of the child.” (Bussey, 108 Ill. 2d at 297-98.)

We find no abuse of discretion.

Finally, respondent contends that the trial court erred in ordering him to pay petitioner’s attorney fees. An award of attorney fees lies within the sound discretion of the trial court. (Bussey, 108 Ill. 2d at 299, 483 N.E.2d at 1235.) The propriety of such an award depends upon a showing by one party of an inability to pay and a demonstration of the ability of the other party to do so. (Bussey, 108 Ill. 2d at 299-300.) Given the financial situation of the parties as revealed by the record, we find no abuse of discretion. The judgment of the circuit court is affirmed.

Affirmed.

STOUDER, P.J., and BARRY, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STOUDER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY NODINE, Defendant-Appellant.
    Third District
    No. 3-90-0185
    Opinion filed March 8, 1991.

      Joseph M. Gibson, of Peoria, for appellant.
    Donald D. Knuckey, State’s Attorney, of Lacón (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Following a bench trial, the defendant, Timothy Nodine, was found guilty of (1) failing to stop after having an accident involving personal injury or death (Ill. Rev. Stat. 1989, ch. 951/2, par. 11— 401(b)), (2) obstructing justice (Ill. Rev. Stat. 1989, ch. 38, par. 31— 4(a)) in that he knowingly concealed physical evidence by selling the vehicle involved in the accident, and (3) driving while his driver’s license was suspended (Ill. Rev. Stat. 1989, ch. 951/2, par. 6 — 303(a)). The defendant was sentenced to consecutive extended terms of six years in prison on both the failure to stop and obstructing justice offenses. The trial court held that the driving while license suspended offense merged into the other two offenses. The defendant appeals. We affirm.

On July 27, 1989, the defendant was driving a 1971 Chevrolet Impala on a rural road in Marshall County. At the time, the defendant’s license was suspended. The Impala collided with a mini-bike driven by 12-year-old Christopher Miller, who later died of injuries sustained in the collision. The record shows that the defendant left the scene and did not report the accident to authorities. Later that evening, the Impala was sold to the boyfriend of one of the defendant’s neighbors.

On August 2, 1989, Marshall County sheriff’s deputies Sheri Webster and James Sackfield questioned the defendant at his home. During the course of the interview, the defendant made incriminating statements and was arrested. The defendant later gave a written statement at the Marshall County jail.

On appeal, the defendant contends the oral statements made at his home were not voluntarily made and that the trial court erred in denying his motion to suppress his oral and written statements.

At the hearing on the motion to suppress, Officer Webster testified that he received information from the Woodford County sheriff’s department implicating the defendant in the accident that killed Miller. He and Officer Sackfield went to the defendant’s residence. The defendant invited the officers into his home. The officers asked the defendant if he had been driving an older model Chevrolet on the previous Thursday. The defendant denied that he was driving the car that day and stated that he had not used the car for a month. The defendant then asked his girl friend, Tammy Allen, who was present, how long it had been since they had had the car. She indicated the previous Thursday. At that point, the defendant admitted driving the car and being involved in the accident.

Webster testified that the interview was stopped at the point where the defendant admitted driving the car. Officer Sackfield then read defendant his rights pursuant to Miranda. Officer Sackfield’s testimony concerning the sequence of events differed in that he testified to administering Miranda warnings following the defendant’s initial denial. Officer Webster testified that neither officer threatened the defendant with possible criminal charges during the course of the interview.

The defendant testified that after he denied knowing anything about the accident, the officers told the defendant that they would “get” him for obstructing justice, if he did not tell them what happened. The defendant denied ever being read his Miranda warnings, even in previous arrests. Allen testified to hearing the officers ask the defendant whether he realized he could be charged with obstructing justice if he did not tell the truth.

In determining whether a confession is voluntary, it must be ascertained whether the defendant’s will was overborne when he confessed or whether the confession was made freely, voluntarily and without compulsion or inducement of any sort. (People v. Argo (1985), 133 Ill. App. 3d 421, 478 N.E.2d 873.) In making this determination, the trial court must consider the totality of the circumstances surrounding the making of the statement, including the existence of any threats, promises, or physical coercion, the length and intensity of the interrogation, and the age, intelligence, experience, and physical condition of the defendant. (People v. Green (1988), 179 Ill. App. 3d 1, 535 N.E.2d 413.) A confession is admissible if its voluntariness is proved by a preponderance of the evidence, and the finding of the trial court will not be reversed unless it is contrary to the manifest weight of the evidence. People v. Veal (1986), 149 Ill. App. 3d 619, 500 N.E.2d 1014.

In the instant case, the questioning took place in the defendant’s home after he invited the officers into his kitchen. The questioning lasted only 5 or 10 minutes. The defendant was 22 years old, was in good health, and had an eleventh-grade education. The record shows that the defendant had numerous previous arrests. The evidence was conflicting concerning whether the officers threatened the defendant with criminal charges. Determining the credibility of the witnesses when the evidence is conflicting is the province of the trier of fact. (People v. Woodburn (1979), 75 Ill. App. 3d 532, 393 N.E.2d 1332.) Under the circumstances, we cannot say the finding of the trial court was contrary to the manifest weight of the evidence.

The defendant also contends the trial court’s findings of guilt were against the manifest weight of the evidence. The defendant maintains that when he left the scene he did not know and/or did not have reason to know that Miller had been injured. In addition, the defendant asserts that his testimony at trial shows that he was not involved in the sale of the vehicle and that he had no intent to dispose of the car.

Initially, the People reply that the defendant cites the wrong standard of review. On appeal, when presented with a challenge to the weight of the evidence, 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, 478 N.E.2d 267.) Once a defendant has been found guilty of the crime charged, the fact finder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

At trial, the defendant testified that on the afternoon of July 27, 1989, he was driving home from work. At one point he came upon Miller on a mini-bike proceeding in the same direction. He honked four or five times and then attempted to pass the mini-bike on the left. As he was doing this, Miller turned toward the front fender of defendant’s car. The defendant testified that he was forced off the road and into the ditch on the left side of the road, where he hit a culvert. His car then crossed back across the road and came to rest in the ditch on the right side of the road.

The defendant testified that he glanced over his shoulder and looked back at Miller. He noticed that Miller was still wearing his helmet. He then saw Miller rise to his knees from a prone position. At that point, the defendant panicked and left the scene.

The State presented evidence that when Miller was discovered on the road, his helmet was some distance from his body and that his leg was broken. Expert testimony also showed that the mini-bike came in contact with the right fender of defendant’s car. The expert also believed that damage to the right side of the windshield on defendant’s vehicle was caused by Miller striking the windshield after he was thrown from the mini-bike.

The defendant is apparently arguing that he cannot be found guilty of failing to stop after having an accident involving death or personal injury, because when he left the scene, he believed Miller was not injured. This argument is completely without merit. In People v. Nunn (1979), 77 Ill. 2d 243, 396 N.E.2d 27, the supreme court held that, under section 11 — 401 (Ill. Rev. Stat. 1975, ch. 951/2, par. 11— 401), it was not necessary for the prosecution to show that the defendant knew that an injury or death resulted from the collision. In order to show a violation of the statute, the prosecution need only show that the defendant had knowledge that the vehicle he was driving was involved in a collision. See People v. McCracken (1989), 179 Ill. App. 3d 976, 535 N.E.2d 36.

The defendant testified he was involved in the collision and that he left the scene. He never reported the accident to the appropriate authorities. Miller died as a result of injuries sustained in the collision. Viewing the evidence in the light most favorable to the prosecution, we find the trial court could have found beyond a reasonable doubt that the defendant was guilty of failure to stop after having an accident involving personal injury or death.

The defendant maintains that he should not have been found guilty of obstructing justice because he testified that he had no intent to dispose of the vehicle and that he was not involved in the actual sale. He also asserts that one of the State’s witnesses gave contradictory testimony and, therefore, injected reasonable doubt into the State’s case.

In his oral and written statements given on August 2, 1989, the defendant stated that he sold the car to Howard Seelye. Allen and Seelye’s girl friend, Venessa Finney, testified that the actual sale was between them. The record indicates that the car was registered in Allen’s name. Seelye testified that he bought the car in a “round about way,” and that he did not actually buy the car from the defendant. Seelye testified that he and the defendant negotiated the transaction in Finney’s backyard: On cross-examination, Seelye stated that the actual sale was between Allen and Finney.

At best, the testimony was contradictory; however, it is for the trier of fact to weigh the credibility of witnesses and to resolve conflicts and inconsistencies in their testimony. (People v. Eyler (1989), 133 Ill. 2d 173, 549 N.E.2d 268.) Viewing the evidence in the light most favorable to the prosecution, we find the trial court could have found the defendant guilty beyond a reasonable doubt of obstructing justice.

The defendant also asserts that the sentence imposed was excessive and should be reduced by this court. Initially, we note the defendant does not contend the trial court was without authority to impose the consecutive extended terms.

The Illinois Supreme Court has stated that sentencing is a matter of discretion and that, absent an abuse of discretion, a sentence may not be altered on review. (People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E.2d 861.) A reviewing court will not substitute its judgment for that of the trial court merely because it would have balanced the appropriate sentencing factors differently. People v. Rixie (1989), 190 Ill. App. 3d 818, 546 N.E.2d 52.

The record showed that the defendant had numerous previous convictions, including at least five convictions for driving while his license was suspended. He had a 1985 conviction for burglary, a Class 2 felony, and a 1987 conviction for retail theft, a Class 4 felony. The defendant was observed buying beer and getting behind the wheel of a car two weeks before the trial in this case. At the time, the defendant was on probation. The trial court found that defendant’s actions revealed an obvious disrespect for the law and no intention whatsoever to obey the law.

In the instant case, the defendant was involved in a serious accident with a 12-year-old boy. He left the scene and made no attempt to render aid, or even ascertain whether the boy was injured. He then disposed of the vehicle that same evening. In sum, we find the trial court did not abuse its discretion in imposing sentence.

For the foregoing reasons, the judgement of the circuit court of Marshall County is affirmed.

Affirmed.

GORMAN and SLATER, JJ., concur.


author: JUSTICE McCUSKEY

text:
    DENNIS J. DOBRYDNIA et al., Plaintiffs-Appellants, v. INDIANA GROUP, INC., et al., Defendants-Appellees.
    Third District
    No. 3-90-0445
    Opinion filed March 12, 1991.
    Louis E. Olivero & Associates, of Peru (Louis E. Olivero, of counsel), for appellants.
    Westervelt, Johnson, Nicoll & Keller, of Peoria (Daniel L. Johns, of counsel), for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The plaintiffs, Dennis J. Dobrydnia and Linda M. Dobrydnia, appeal a determination by the trial court granting defendants’ motion to dismiss plaintiff Linda M. Dobrydnia’s loss of consortium claim because her recovery is barred by section 5(a) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(a)). We affirm.

Since this appeal was taken at the pleading stage of this case, the facts and circumstances surrounding plaintiff Dennis J. Dobrydnia’s accident are allegations of plaintiffs’ complaint rather than demonstrated evidentiary facts. Plaintiff Dennis J. Dobrydnia was injured during the course of his employment at Princeton Elementary School District 115. Plaintiff Dennis M. Dobrydnia brought an action to recover damages occasioned by the alleged negligence of defendants in their failure to adequately inspect a certain boiler, its appurtenances and accompanying equipment. Indiana Insurance Company (hereinafter defendant) is the insurer for the school district. Plaintiffs’ complaint requested damages for personal injuries, and count V, the subject of this appeal, sought damages for loss of consortium.

Defendant filed a section 2 — 619 motion to dismiss (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619) stating, inter alia, that the loss of consortium claim of Linda M. Dobrydnia (hereinafter plaintiff) was prohibited by section 5(a) of the Workers’ Compensation Act. The trial court held section 5(a) barred the plaintiff’s cause of action for loss of consortium.

Section 5(a) of the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(a)) states the following:

“No common law or statutory right to recover damages from the employer, his insurer *** for injury *** sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.”

Plaintiff argues the trial court’s dismissal of her loss of consortium claim was improper. She contends her cause of action is not an injured worker’s claim for bodily injuries but an entirely separate assertion based on loss of consortium of her husband. Plaintiff states that an existing common law right, such as loss of consortium, is not eradicated by statute unless it is explicitly enacted by the legislature. Plaintiff posits that under the Workers’ Compensation Act, there is no direct enactment barring a spouse’s right for loss of consortium. Plaintiff further contends the legislature did not intend to bar a spouse’s loss of consortium claim.

Plaintiff’s position, however, is not supported by statute or case law. The statute clearly reads that the immunity afforded by section 5(a) prohibits suits, not only by the injured employee but also by “any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.” (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(a).) It is obviously the intent of this section to bar any and all claims that arise out of the injury to the employee. While the spouse’s loss of consortium claim may be an independent claim for damages, it arises out of the employee’s injury.

It is plaintiff’s position that she is not a person “wholly or partially dependent” upon her spouse. Plaintiff states the essence of the Workers’ Compensation Act is a “quid pro quo” in which immunity from tort is granted to an employer in exchange for a no-fault proof on the part of the employee to obtain recovery. Plaintiff contends the spouse of the injured employee receives no “quid pro quo” for loss of her independent common law right to recover for loss of consortium.

Plaintiff’s argument sounds plausible in theory, but not in its application. A spouse, whether or not dependent, receives benefits directly or indirectly under the Act. For example, if an employee is killed during the course of his employment, a surviving spouse would be entitled to survivor’s benefits under section 7 (Ill. Rev. Stat. 1989, ch. 48, par. 138.7) of the Act. If the injury does not result in death, the employee receives the compensation and the spouse indirectly receives a benefit by the employer’s reimbursement of the family expenses and employee’s injuries. Likewise, the spouse may well receive a direct benefit by reason of having medical bills paid which might otherwise be his or her responsibility.

Finally and foremost, section 5(a) of the Workers’ Compensation Act, as construed by the Illinois Supreme Court, prohibits recovery for a loss of consortium claim against an employer. This very issue was decided in the case of Fregeau v. Gillespie (1983), 96 Ill. 2d 479, 451 N.E.2d 870, wherein the plaintiff-wife sought damages for loss of consortium under the Act. The court denied plaintiff’s claim. In construing the language of section 5(a) to prohibit loss of consortium claims, the court commented as follows:

“Too, we observe that the exclusivity provision in section 5(a) operates not only to prohibit an action by the employee, but also by ‘any one wholly or partially dependent upon him *** or any one otherwise entitled to recover damages for such injury.’ (Ill. Rev. Stat. 1979, ch. 48, par. 138.5.) With near unanimity courts interpreting exclusivity provisions with this or comparable language have held that the provisions preclude actions by a spouse of the employee for loss of consortium. 2A A. Larson, Workmen’s Compensation sec. 66.20 (1982).” 96 Ill. 2d at 486, 451 N.E.2d at 873.

The issue of the applicability of section 5(a) to a loss of consortium claim against an employer had been previously decided in Bloemer v. Square D Co. (1972), 8 Ill. App. 3d 371, 290 N.E.2d 699. In ruling that section 5(a) barred loss of consortium claims, the court stated:

“The Illinois Workmen’s Compensation Act was intended to provide a complete scheme for recovery from an employer for industrial injuries only and therefore, the trial court was correct in sustaining the defendant’s motion to dismiss.” (Emphasis added.) (8 Ill. App. 3d at 373, 290 N.E.2d at 700.)

The appellate court accordingly affirmed the trial court’s dismissal of the loss of consortium claim.

In the present case, plaintiff contends the provisions of section 5(a) are unconstitutional as they act to extinguish the common law and statutory rights of third parties who otherwise might be entitled to recover damages against an employer for an employee’s injuries. Plaintiff states that to bar her consortium claim under section 5(a) would violate her rights under the due process and equal protection clauses of both the State and Federal constitutions.

These constitutional arguments were discussed at great length in Block v. Pielet Brothers Scrap & Metal, Inc. (1983), 119 Ill. App. 3d 983, 457 N.E.2d 509, wherein the court explained the case law history which clearly supports the constitutionality of section 5(a).

“In Duley v. Caterpillar Tractor Co. (1969), 44 Ill. 2d 15, 253 N.E.2d 373, a woman was fatally injured in the course of her employment upon being struck by a forklift truck. Her husband, in his capacity as administrator of his wife’s estate, brought a wrongful death action against the defendant employer.
Our supreme court affirmed the trial court’s denial of this action. The plaintiff, as his wife’s sole surviving beneficiary, had previously proceeded against the defendant before the Industrial Commission, resulting in a $500 burial expense compensation award. The supreme court held that the plaintiff was barred by section 5(a) from any further relief under the Act.
The court further held that the prohibition of additional actions is consistent with the legislative purpose of the statute in that ‘ “[t]he act was designed as a substitute for previous rights of action of employees against employers and to cover the whole ground of the liabilities of the master ***.” ’ 44 Ill. 2d 15, 18, 253 N.E.2d 373.
Furthermore, the court concluded that while the Act fixes limits upon the amounts to be recovered, it is sustained as a legitimate exercise of the legislature’s police power for the general welfare in that it takes away existing rights of action of the employee while extending the liabilities of the employer. 44 Ill. 2d 15, 18, 253 N.E.2d 373. See also Matthiessen & Hegeler Zinc Co. v. Industrial Board (1918), 284 Ill. 378, 382-83, 120 N.E.249.” (119 Ill. App. 3d at 985-86.)

The Block court then examined the constitutionality of section 5(a):

“In considering the question of whether section 5(a) violated either the Constitution of the United States or the Illinois Constitution, the Duley court cited Moushon v. National Garages, Inc. (1956), 9 Ill. 2d 407, 137 N.E.2d 842, as previously determining this issue when it considered the constitutionality of section 5(a) where no remedy for permanent injury was provided in the Act. ‘By the Workmen’s Compensation Act, the legislature required the employer to give up certain defenses and required the employee to give up certain recoverable elements of damage of a common-law negligence action; and this we have held many times is a reasonable exercise of the legislature’s police power for the promotion of the general welfare. [Citations.] This court has never considered one to have such a vested right in the common-law rules governing negligence actions as to preclude the legislature from substituting a statutory remedy of this type for the common-law remedy.’ (9 Ill. 2d 407, 412, 137 N.E.2d 842.)” (119 Ill. App. 3d at 986.)

The Block court held that section 5(a) of the workers’ compensation statute, which bars a spouse’s loss of consortium claim, is not violative of due process or equal protection of the laws.

We find the aforementioned reasoning determining the constitutionality of section 5(a) to be dispositive of the constitutional issues raised by the plaintiff. The substitution of the workers’ compensation scheme for preexisting common-law remedies for injuries directly or indirectly resulting from injury to an employee do not violate due process or equal protection safeguards. The workers’ compensation statute involves not an eradication, but a substitution of remedies that is considered by the legislature to be in the public interest. We agree.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

STOUDER, P.J., and SLATER, J., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN DALE SMITH, Defendant-Appellant.
    Fourth District
    No. 4-90-0176
    Opinion filed March 7, 1991.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant was indicted on three counts of aggravated criminal sexual assault, one count of home invasion, and one count of armed robbery. (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 14(a), 12 — 11, 18 — 2(a).) The three counts of aggravated criminal sexual assault each charged a different type of sexual penetration; i.e., the first count alleged vaginal penetration, the second count alleged anal penetration, and the third alleged oral penetration. Following a jury trial, defendant was found guilty of all three counts of aggravated criminal sexual assault, and of home invasion and armed robbery. The trial court imposed a sentence of 30 years for each count of aggravated criminal sexual assault, to run concurrently but consecutive to the 20-year terms imposed for home invasion and armed robbery.

Defendant appeals his convictions and sentences for aggravated criminal sexual assault, arguing (1) during closing argument the prosecutor improperly stated (a) that either the victim or defendant was lying, and (b) his personal opinion of the case; (2) the trial court erred by giving a single issues instruction for the three counts of aggravated criminal sexual assault; and (3) the trial court failed to instruct the jury on the mental state required for aggravated criminal sexual assault.

We affirm.

Complainant was a 27-year-old graduate student at the University of Illinois when this incident occurred. She testified that around 1:30 a.m. on September 14, 1989, a man knocked at her apartment door, telling her that he was the apartment manager. She opened the door a little and the man pushed the door open and came in. Complainant identified this man as defendant, Defendant told her he was looking for someone named Tyrone who owed him money and had given him that address. Defendant looked through her apartment to make sure Tyrone was not there.

Complainant testified defendant told her to sit on the bed, and that they would wait until 2 a.m. when Tyrone should arrive. While waiting for Tyrone, defendant talked to complainant, and at some point produced a knife. Defendant also pulled a can of Budweiser from his jacket, took out a cigarette, and asked her to light it for him.

At 2 a.m., when Tyrone did not appear, defendant pointed the knife at complainant and told her to take her shirt off. Complainant testified she cried and told him to leave her alone. He told her to stop crying, not to shout, and he then removed her skirt. Defendant then undressed himself and told her to perform oral sex upon him. She testified he put his penis in her mouth. Complainant testified this lasted between 30 to 45 minutes and defendant was unable to get an erection. He then unsuccessfully attempted vaginal intercourse, and forced her to perform more oral sex. Complainant testified defendant then reached for some vegetable oil, which he used as a lubricant on both of them, lubricating her vagina and anus. After this, defendant successfully performed vaginal intercourse more than three times, and anal intercourse once.

Complainant testified defendant had his knife in his hand most of the time, and that once or twice he left it on the bed beside his hands. When defendant finished, he dressed and used a red flannel sheet to cover complainant. At this point, complainant could not see defendant, but testified she heard him going through her belongings. He found her Easy Answer card, asked her what her identification code was, and she told him. Defendant told her not to call the police, and she heard a sound like the receiver cord being ripped from the telephone. Defendant left with complainant’s Easy Answer card at approximately 4:50 a.m. After he left, complainant found her phone was not working and went next door to call the police.

Officer Steve Shipley heard the dispatch notifying police that a sexual assault had occurred. Upon hearing the suspect took the victim’s Easy Answer card, Officer Shipley went to the Easy Answer machine nearest to the victim’s apartment. Upon arrival, he saw a man answering the description complainant provided of her assailant. Officer Shipley stopped the man and questioned him. He identified this man as the defendant. Defendant gave Officer Shipley his name and address, and at no time attempted to flee.

Officer Steven Douglas testified he arrived at the scene and asked defendant to empty his pockets. Defendant removed $87, including four $20 bills. Lying on the ground near the Easy Answer machine, Officer Douglas found a $20 bill and some receipts from the Easy Answer machine. Officer Larry Kearns testified that he found a Budweiser beer can 10 feet from the Easy Answer machine. Police found defendant’s knife nearby.

Defendant’s testimony about the events of the night in question conflicted with complainant’s testimony. Defendant testified he was involved in a fight on that night and had a broken nose and swollen eyes. He then walked to his mother’s apartment, found she was not home, and began walking across town to his apartment. He testified he was walking along Green Street and met complainant, whom he did not know at that time. Defendant stated complainant began the conversation by asking, “Who won?” referring to the fact defendant had obviously been in a fight. She offered to clean up some of the blood on his face, and they went to her apartment.

Defendant stated complainant gave him a washrag to clean himself up with, and a can of Budweiser. Complainant then asked him if he had any marijuana or cocaine. Defendant did not have any of these drugs, but suggested that he possibly could get some from his old boss at a restaurant only a few blocks away. Defendant testified he went to the restaurant, his old boss was out, and he left him a note. Defendant then returned to complainant’s apartment and she let him back in. Defendant testified they talked, watched a movie, and later began having sexual contact. Defendant testified at this point complainant took the vegetable oil off the counter, went into the bathroom, and applied it to her genital area. At no time did he touch the bottle of vegetable oil.

While engaging in the sexual contact, defendant stated a man knocked on complainant’s door. She did not open the door, and an argument ensued between her and the visitor. Defendant admitted having oral sex and vaginal intercourse with complainant, but denied engaging in anal intercourse. After the visitor left, complainant began discussing drugs with defendant again. Defendant testified complainant gave him her Easy Answer card and they agreed he was to withdraw $100, and use it to possibly obtain some cocaine from other people he knew. He stated she gave him the personal identification number and instructions needed to use her card. After defendant ■withdrew the $100, he was to go back to her apartment and they were to go in complainant’s car to find some cocaine.

Defendant testified he used complainant’s Easy Answer card to withdraw $100 from the Easy Answer machine at Sixth and Green Streets. He stated he was heading for complainant’s apartment when a car, which he recognized as an unmarked police car, turned into a parking lot near the Easy Answer machine. An officer shined his spotlight on defendant, and he then turned and walked toward the police officer. Defendant testified when he saw the police car coming toward him he feared he had been set up by complainant, and that possibly she was an undercover police officer setting him up for a drug bust. Because of this fear, defendant threw down the Easy Answer card and the knife. After the officer had defendant empty his pockets, defendant agreed to participate in a showup. Complainant positively identified defendant, and police placed him under arrest.

Detective Donald Atkins testified he interviewed defendant at the police station on the morning of September 14, 1989. During this interview, defendant told Detective Atkins he did not know complainant, had never been at her apartment or had intercourse with her, and had not used the Easy Answer machine. He also told Detective Atkins that he slept in the hallway outside his mother’s apartment for a while on the night in question.

A waitress at the restaurant confirmed defendant did stop by on the night of the incident, and left a note for his old boss. Testimony about the physical condition of the apartment revealed that human hairs and synthetic fibers found at the apartment were consistent with defendant’s hair and clothing. Testimony also revealed some semen identified on complainant’s bed sheet could not have originated from defendant. However, other seminal material on the bedspread and pillowcase could have originated from defendant. Eric Young, a forensic scientist with the Illinois State Police, testified he found oil residue from a swabbing of defendant’s pubic hair and genital area. The emergency room nurse testified she observed oil residue on the genital area and pubic hairs of complainant. There was no evidence of oil residue in or about the anus of complainant.

Dr. Lisa Rodgers, the emergency physician who examined complainant the morning following the incident, testified she had no bruises or physical distress upon her body. She testified complainant did have mild tenderness around the anus. Dr. Rodgers also testified complainant was trembling, teary, and quite emotionally upset when she examined her.

Upon this evidence, the jury returned guilty verdicts on all charges. This appeal followed.

I. CLOSING ARGUMENT

Defendant first challenges comments the prosecutor made during closing argument that either complainant or defendant was lying. During his initial closing argument, the prosecutor stated:

“Well, today, you heard the Defendant’s version. Credibility of witnesses. And today, you have to decide who’s telling the truth and who’s lying. There’s no easy way. There’s no nice way, no discreet way to put this. Either [the complainant’s] lying, or the Defendant’s lying. You can’t say, well, she may have been mistaken, her perception may have been altered. No. Either [the complainant] got on this witness stand and told you the absolute truth about what happened to her on the 14th of September, or she lied. She completely and absolutely made it up.” (Emphasis added.)

In rebuttal closing argument, the prosecutor stated:

“He’s guilty. He’s guilty of Home Invasion. He’s guilty of Armed Robbery. He’s guilty of Aggravated Criminal Sexual Assault. Either [the complainant’s] telling the truth, or she’s lying. I don’t know what more she could have done. I don’t know what else you needed to have added to her testimony unless, of course, you’re going to require some injury. *** [The complainant’s] telling you the truth. This Defendant is guilty.” (Emphasis added.)

Defendant argues that in these comments the prosecutor misstated the law by telling the jury that in order to acquit, it had to find the State’s witnesses were lying. He argues this distorts the burden of proof by requiring the jury to find the State’s witnesses lied in order to acquit him.

It should initially be noted defendant failed to object to these remarks at trial and did not raise this issue in a post-trial motion. In order to preserve an alleged error for appeal, a defendant must both object to the error at trial and in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Defendant has done neither and has thus waived any consideration of this issue.

Despite this, defendant argues the remarks constitute plain error, an exception to the general rule of waiver. Defendant cites Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)), which states: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” The plain error rule is applied in instances of error when (1) the evidence is closely balanced or (2) when the error was of such magnitude that defendant was denied a fair trial. People v. Whitehead (1987), 116 Ill. 2d 425, 448, 508 N.E.2d 687, 695, cert. denied (1987), 484 U.S. 933, 98 L. Ed. 2d 266, 108 S. Ct. 307.

The evidence is not so closely balanced in this case as to warrant application of the plain error rule. Defendant’s story, when coupled with his suspicious behavior at the Easy Answer machine and his initial false statement to police, does not constitute strong evidence of his innocence in opposition to complainant’s testimony. Contrary to defendant’s denial of anal penetration, the medical testimony revealed some mild swelling around the complainant’s anus. Because of the complainant’s testimony and positive identification, defendant’s inconsistent stories of what happened, and the corroborating medical testimony, the evidence is not closely balanced.

Neither did the prosecutor’s comments deny defendant a fair trial; rather, the prosecutor simply commented on the significant amount of conflict in their testimony. The comments came at the end of his lengthy summary of the evidence and did not misstate the law because he never stated the jury must find the State’s witnesses lied in order to acquit defendant.

Moreover, the jury was instructed that closing arguments made by counsel are not evidence, and any argument or statement made by counsel not based on the evidence should be disregarded. (Illinois Pattern Jury Instructions, Criminal, No. 1.03 (2d ed. 1981).) Such instructions have been held to cure any prejudice to the defendant because of the prosecutor’s improper remarks. (People v. Lawler (1991), 142 Ill. 2d 548.) Thus, any error in the prosecutor’s remarks was cured by this instruction. Lawler, 142 Ill. 2d 548.

The prosecutor’s comments were proper. It is generally improper for a prosecutor to tell jurors that in order to acquit the defendant they must find all of the State’s witnesses are lying. (People v. Jones (1982), 108 Ill. App. 3d 880, 888-89, 439 N.E.2d 1011, 1018.) Courts hold these statements improper because they misstate the law by suggesting the jury must find the State’s witnesses are lying in order to acquit the defendant, when the jury may acquit simply because the State has not proved its case beyond a reasonable doubt. (People v. Cole (1980), 80 Ill. App. 3d 1105, 1108, 400 N.E.2d 931, 933-34.) In some cases, a jury may fully believe the testimony of some of the State’s witnesses, yet still acquit the defendant. Cole, 80 Ill. App. 3d at 1108, 400 N.E.2d at 933-34.

Despite this general rule, such argument may be deemed proper when it can be characterized as comment on, or discussion of, the credibility of the defendant and other witnesses, and when based on the evidence and reasonable inferences drawn therefrom. (Cole, 80 Ill. App. 3d at 1107-08, 400 N.E.2d at 933.) Such comment is proper argument, i.e., inferences based on the evidence, in cases where the defendant’s testimony contradicts the testimony of significant State’s witnesses. People v. Pegram (1987), 152 Ill. App. 3d 656, 504 N.E.2d 958 (prosecutor’s statement that either the defendant or the victim lied held not to be plain error); People v. Thomas (1988), 172 Ill. App. 3d 172, 179-80, 526 N.E.2d 467, 472 (prosecutor’s remarks that either defendant or the police officers had to be lying held proper argument because of direct conflict in the testimony of the police officers and that of the defendant).

Some courts distinguish when the contradiction could possibly be due to a witness’ mistake, as opposed to when the contradiction was almost certainly due to a witness lying. In Cole, the prosecutor told the jury in closing argument that in order to believe the defense witnesses, it must find each of the State’s witnesses lied. (Cole, 80 Ill. App. 3d at 1107, 400 N.E.2d at 932.) Identification was a contested issue. Since the witnesses may simply have been mistaken instead of lying, the jury could acquit defendant without finding the State’s witnesses lied. Because of this, the court held the prosecutor’s statement to be plain error. Cole, 80 Ill. App. 3d at 1108, 400 N.E.2d at 933.

In People v. Roman (1981), 98 Ill. App. 3d 703, 705-06, 424 N.E.2d 794, 797, defendant’s testimony contradicted the testimony of the victim, and in closing argument the prosecutor stated that in order to believe defendant the jury would have to find the State’s witnesses were lying. Roman distinguished these remarks from the remarks in Cole, since identification was not an issue in the case. The victim and defendant simply gave contradictory versions of the events in question, and unlike Cole, this was not a situation where the witnesses could easily be mistaken. Based on this distinction, the Roman court refused to find plain error as the comments were not lengthy and the prosecutor did not put his credibility behind the State’s witnesses. Roman, 98 Ill. App. 3d at 707, 424 N.E.2d at 798.

We likewise find Cole inapposite. First, contrary to defendant’s assertions, at no point did the prosecutor state that in order acquit defendant, the jury must conclude the State’s witnesses were lying. Instead, the main theme of the prosecutor’s remarks was that either complainant or defendant was lying. Thus, the prosecutor did not misstate the law.

Second, there was a significant amount of contradiction between complainant’s testimony and that of defendant, in a case largely resting on credibility. Indeed, defense counsel acknowledged in closing argument “you’ve heard two diametrically different stories.” While defendant admitted some sexual contact occurred between him and complainant, their versions of what happened that night directly conflicted.

When reviewing the evidence, it seems a reasonable inference, if not the only logical one, that either the complainant or the defendant was lying. The two versions of what occurred that night simply cannot be reconciled. Furthermore, unlike Cole, these are not matters about which a witness may easily be mistaken. Accordingly, the remarks were proper argument.

Defendant next contends the prosecutor improperly stated his personal opinion about the quality of the case against defendant, stating in closing argument:

“Pretty good ease. Not bad. Got a positive I.D. Got him identified to a ‘T’ right down to his greasy crotch, [got] pubic hairs consistent with his all over the apartment, got him using [the complainant’s] card at the easy answer machine[,] pretty good case. And his total and complete denial of anything.” (Emphasis added.)

The prosecutor further stated in rebuttal: “So see, we have to prove it beyond a reasonable doubt. As I indicated earlier, not a bad case.” (Emphasis added.)

Defendant contends the prosecutor went beyond arguing acceptable inferences from the evidence, thereby usurping the jury’s fact-finding function. The State argues defendant has waived this issue by failing to object at trial or by post-trial motion. On the merits, the State responds these remarks were proper because they were based on facts in evidence as, when the prosecutor first commented he had a “pretty good case,” the remark was preceded by a recitation of the facts and evidence, and followed by a summary of these facts. The prosecutor’s rebuttal comment was likewise after he reviewed the facts in evidence.

Defendant waived any right to challenge the prosecutor’s remarks because he did not object to them at trial and did not file a post-trial motion. (Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130.) As with our earlier discussion, these remarks similarly do not rise to the level of plain error.

Moreover, on the merits, we find the prosecutor’s comments were within the range of proper argument. It is generally improper for a prosecutor to express his or her personal opinion of the case (People v. Emerson (1987), 122 Ill. 2d 411, 434, 522 N.E.2d 1109, 1118, cert. denied (1988), 488 U.S. 900, 102 L. Ed. 2d 235, 109 S. Ct. 246) because, e.g., the jury may rely on the prosecutor’s evaluation of the evidence and abdicate its fact-finding responsibility.

However, comments on the strength of the case, based on the evidence, are permissible. (Emerson, 122 Ill. 2d at 434, 522 N.E.2d at 1118; People v. Yates (1983), 98 Ill. 2d 502, 532, 456 N.E.2d 1369, 1384.) In Emerson, the prosecutor commented “ \d\nd we know Robert Ray was telling you the truth. We could tell. You tell by the way the man told you what happened that he was telling you the truth.’ ” (Emphasis in original.) (Emerson, 122 Ill. 2d at 434, 522 N.E.2d at 1118.) The court held this was fair comment on the evidence, noting the prosecutor simply emphasized the favorable impression created by the witness’ demeanor. Emerson, 122 Ill. 2d at 434-35, 522 N.E.2d at 1118.

The prosecutor’s remarks were proper comments on the strength of the case because they were based on the evidence.

II. CHALLENGES TO GIVING A SINGLE ISSUES INSTRUCTION ON AGGRAVATED CRIMINAL SEXUAL ASSAULT WHERE DEFENDANT IS CHARGED

WITH THREE COUNTS OF THE OFFENSE

Defendant next alleges error because the jury instructions included only one “general” issues instruction for the three charges of aggravated criminal sexual assault, rather than three separate issues instructions, each modified to specify the act of sexual penetration charged in the three counts of aggravated criminal sexual assault.

The jury instructions given included the definitional instruction for aggravated criminal sexual assault:

“A person commits the offense of aggravated criminal sexual assault when he commits criminal sexual assault and displays a dangerous weapon.”

(See Illinois Pattern Jury Instructions, Criminal, No. 11.33, at 171 (2d ed. Supp. 1989) (hereinafter IPI Criminal 2d).) Also given was the following definitional instruction for criminal sexual assault:

“A person commits the offense of criminal sexual assault when he commits an act of sexual penetration upon the victim by the use of force or threat of force.”

(See IPI Criminal 2d No. 11.31, at 168 (Supp. 1989).) The court gave the following definitional instruction for sexual penetration:

“The term ‘Sexual penetration’ means any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio, or anal penetration. Evidence of the emission of semen is not required to prove sexual penetration.” See IPI Criminal 2d No. 11.65, at 192 (Supp. 1989).

These were followed by a single issues instruction on aggravated criminal sexual assault:

“To sustain the charge of aggravated criminal sexual assault, the State must prove the following propositions:
First. That the defendant committed acts of sexual penetration upon [the complainant]; and
Second: That the acts were committed by the use of force or threat of force; and
Third: That the defendant displayed a dangerous weapon; and
Fourth: That [the complainant] did not consent to the acts of sexual penetration.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

See IPI Criminal 2d No. 11.34, at 172-74 (Supp. 1989).

In giving the concluding instruction, the court then distinguished the different ways in which the sexual penetration was alleged, stating:

“The defendant is also charged in different ways with the offense of aggravated criminal sexual assault. You will receive two (2) forms of verdict pertaining to each particular way that the offense of aggravated criminal sexual assault is charged. As to each particular way the offense of aggravated criminal sexual assault is charged you will be provided with both a ‘not guilty’ and ‘guilty’ form of verdict. From these two verdict forms as to each particular way that the offense of aggravated criminal sexual assault is charged, you should select the one verdict form that reflects your verdict and sign it as I have stated.”

See IPI Criminal 2d No. 26.01, at 320-21 (Supp. 1989).

The court provided the jury six separate verdict forms for the aggravated criminal sexual assault charges, a “guilty” and “not guilty” form for each charge specifying an act of oral, or vaginal, or anal sexual penetration.

Initially, defendant has waived any argument on this issue because he failed to object to these jury instructions at trial, tender alternate instructions, and raise the issue in a post-trial motion. (Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130; People v. Huckstead (1982), 91 Ill. 2d 536, 543, 440 N.E.2d 1248, 1251.) The purpose of requiring a defendant not only to object to a particular instruction, but also to tender proper instructions, is to afford the trial court the opportunity to correct any errors in the instructions before they are actually given. (People v. Burns (1986), 144 Ill. App. 3d 345, 355, 494 N.E.2d 872, 880.) Here, the circuit court never had the opportunity to consider the argument now advanced by defendant.

Nevertheless, fundamental fairness requires that certain basic instructions be given. (People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861.) Instructions on the essential elements of the offense are among these basic instructions, and the trial court must see that they are given. (People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331.) Accordingly; we address each of defendant’s contentions in turn.

A. ALLEGED WINSHIP ERROR: WHETHER THE JURY FOUND DEFENDANT GUILTY OF EACH ELEMENT OF EACH CHARGE BEYOND A REASONABLE DOUBT

Defendant alleges the instructions did not require the jury to find each element of each charge of aggravated criminal sexual assault beyond a reasonable doubt, in violation of In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068. He contends three issues instructions for aggravated criminal sexual assault — each modified to specify the type of sexual penetration charged, just as the verdict forms were modified — were necessary to satisfy the requirements of Winship. This appears to be an issue of first impression.

Examining the jury instructions as a whole, it is clear they complied with Winship, and three separate issues instructions were not required to inform the jury it must find each element of each charge of aggravated criminal sexual assault beyond a reasonable doubt. The court instructed the jury on the elements of the offense, and that it must find each of these elements beyond a reasonable doubt in order to find defendant guilty. The court explained that defendant was charged with different ways of committing aggravated criminal sexual assault, and that the jury would be provided verdict forms “pertaining to each particular way that the offense *** is charged.” The verdict forms in fact specified the act of sexual penetration alleged in each count. It is unclear how a single issues instruction for three counts of aggravated criminal sexual assault violated Winship, or how three separate issues instructions would have added to the jury’s understanding.

It is also important to note that the type of sexual penetration has been held not to be an element of the offense of aggravated criminal sexual assault by the Third District Appellate Court in People v. Tanner (1986), 142 Ill. App. 3d 165, 168-69, 491 N.E.2d 776, 778 (State not required to prove the type of sexual penetration alleged in the indictment), and by the First District Appellate Court in People v. Webster (1988), 175 Ill. App. 3d 119, 131, 529 N.E.2d 741, appeal denied (1989), 124 Ill. 2d 561, 535 N.E.2d 920, and People v. Jimenez (1989), 191 Ill. App. 3d 13, 547 N.E.2d 616, appeal denied (1990), 131 Ill. 2d 563, 553 N.E.2d 399.

We agree with Tanner and Webster. The type of sexual penetration alleged is not an element of the offense of aggravated criminal sexual assault, and defendant is not entitled to separate issues instructions distinguishing the type of sexual penetration alleged in the indictment.

B. ALLEGED VIOLATION OF THE UNANIMITY REQUIREMENT

Defendant also alleges the issues instruction violated the unanimity requirement of Illinois lavs', because it failed to require unanimous agreement beyond a reasonable doubt as to which specific act the defendant performed under each charge of aggravated criminal sexual assault. Whether the single issues instruction in this case adequately informed the jury it must be unanimous as to each count of aggravated criminal sexual assault also appears to be an issue of first impression. In People v. Regains (1989), 187 Ill. App. 3d 713, 543 N.E.2d 1090, appeal denied (1989), 128 Ill. 2d 670, 548 N.E.2d 1076, the appellate court addressed a somewhat similar issue raised with respect to lack of specificity in the verdict forms. There, defendant was charged with two counts of aggravated indecent liberties with a child and two counts of aggravated criminal sexual assault. (Regains, 187 Ill. App. 3d at 714, 543 N.E.2d at 1091.) The counts of aggravated criminal sexual assault were distinguished by the type of sexual penetration, oral and vaginal. The jury returned general verdicts finding defendant guilty of aggravated indecent liberties with a child and aggravated criminal sexual assault. Defendant argued the verdict forms failed to distinguish between the charges of oral and vaginal penetration. (Regains, 187 Ill. App. 3d at 715, 543 N.E.2d at 523.) He claimed this deprived him of his right to a unanimous verdict because it did not require the jury to unanimously agree on which specific act it found the defendant committed. The Regains court found defendant waived any argument on the general nature of the verdict forms by adopting the character of the forms he tendered on the individual offense of aggravated criminal sexual abuse. Hence, such lack of specificity in the verdict forms did not amount to reversible error.

Unlike Regains, the verdict forms here specified the type of penetration alleged in each count. The concluding instruction also informed the jury that defendant was charged with different ways in which the offense was committed. As stated, the trial court did not err.

C. ALLEGED NONCOMPLIANCE WITH IPI COMMITTEE RECOMMENDATIONS

Defendant next argues the instructions did not comport with the committee recommendations of IPI Criminal 2d No. 26.01 (Supp. 1989), the “concluding” instruction. The committee note to IPI Criminal 2d No. 26.01 (Supp. 1989) recommends that when multiple counts of a single offense that can be charged with different elements are so charged, the court may use paragraph three of the concluding instruction and may also expand the issues instruction to specify the way in which the particular offense was committed:

“When a defendant is charged in multiple counts with an offense that can be charged with different elements, paragraph [3] may be used if the court believes its use will assist the jury in deciding the issues. An example would be a defendant charged in three separate counts with aggravated battery (Ch. 38, Section 12 — 4) based upon his alleged (1) causing great bodily harm, (2) causing bodily harm to a police officer, and (3) committing a battery upon a public way. Each of these charges is called aggravated battery, but each contains an element that must be proved beyond a reasonable doubt that neither of the other charges contains. Accordingly, a court may choose to distinguish on the verdict forms between the ways in which aggravated battery can be committed. If the court so chooses, then the opening sentence of the issues instructions as well as the guilty and not guilty verdict forms should be expanded to distinguish among the different ways a particular charge is before the injury. [Emphasis added.] Examples are the following:
(1) ‘To sustain the charge of aggravated battery causing great bodily harm, ...’ (opening clause of an issues instruction); * * *
(2) ‘To sustain the charge of aggravated battery upon a police officer, ...’ (opening clause of an issues instruction); ***
(3) ‘To sustain the charge of aggravated battery upon a public way, ...’ (opening clause of an issues instruction) ***.” (Emphasis in original unless otherwise noted.) (IPI Criminal 2d No. 26.01, Committee Note, at 321-22 (Supp. 1989).)

Paragraph three provides:

“[3] The defendants] [(is) (are)] charged in different ways with the offense of__You will receive two forms of verdict pertaining to each particular way that the offense of _is charged. As to each particular way the offense of _is charged [and as to each defendant], you will be provided with both a ‘not guilty’ and ‘guilty’ form of verdict. From these two verdict forms as to each particular way that the offense of_is charged, you should select the one verdict form that reflects your verdict [as to each defendant] and sign it as I have stated. Do not write on the other verdict form [as to that defendant]. Sign only one verdict form as to each particular way that the offense of_is charged [as to each defendant].” (IPI Criminal 2d No. 26.01, at 321 (Supp. 1989).)

As noted above, the jurors were given paragraph three, informing them defendant was charged with committing aggravated criminal sexual assault three different ways.

Defendant argues that because the trial court distinguished the different charges of aggravated criminal assault by giving paragraph three of the concluding instruction and by specifying the acts of penetration in verdict forms — but failed to expand the opening sentence of three separate issues instructions to specify the type of sexual penetration — the issues instruction did not comport with the committee’s recommendation.

This argument has no merit. It is clear from the committee note that the suggestion for an expanded issues instruction has no application here. First, IPI Criminal 2d No. 26.01 (Supp. 1989) is the pattern concluding instruction, not an instruction specific to this offense. The committee note’s suggestion of expanding the opening sentence of the issues instruction addresses itself to circumstances where “a defendant is charged in multiple counts with an offense that can be charged with different elements.” (IPI Criminal 2d No. 26.01, Committee Note, at 321 (Supp. 1989).) Defendant, by contrast, was not charged in multiple counts with an offense with different elements. He was charged with multiple counts of aggravated criminal sexual assault, all with identical elements, one being “sexual penetration.” That the charges distinguished between separate acts of sexual penetration is of no moment to this issue since any act within the statutory definition of sexual penetration fulfills that element of the charge.

Second, the committee emphasized in the same note that “distinguishing among the various ways in which a given charge is brought is not required by law.” (IPI Criminal 2d No. 26.01, Committee Note, at 322 (Supp. 1989).) The note cited People v. Travis (1988), 170 Ill. App. 3d 873, 525 N.E.2d 1137, cert. denied (1989), 489 U.S. 1024, 103 L. Ed. 2d 209, 109 S. Ct. 1149, for the proposition that the jury need only be unanimous with respect to the defendant’s guilt or innocence, and need not be unanimous as to the alternate ways in which the crime could have been committed. The committee note concludes that while distinguishing among the ways a given charge was committed, i.e., giving paragraph three of the concluding instruction, is not required by law, a court has the discretion to do so when it believes this would assist the jury. (IPI Criminal 2d No. 26.01, Committee Note, at 323 (Supp. 1989).) Here, expansion of the opening sentence of separate issues instructions was not required because the court clearly instructed the jury that the counts of aggravated criminal sexual assault were distinguished by the type of sexual penetration alleged, and that the verdict forms similarly distinguished the charges. Furthermore, the committee note on the issues instruction for this offense, IPI Criminal 2d No. 11.34 (Supp. 1989), says nothing about the need to modify or expand the issues instruction in a case such as this. IPI Criminal 2d No. 11.34, Committee Note, at 174 (Supp. 1989).

III. FAILURE TO SPECIFY A MENTAL STATE IN JURY INSTRUCTIONS ON AGGRAVATED CRIMINAL SEXUAL ASSAULT

Defendant finally argues the trial court erred because the instructions omitted a mental state for the charges of aggravated criminal sexual assault. He maintains this omission violates State and Federal constitutional requirements that the State is required to prove every fact necessary to the offense beyond a reasonable doubt, thereby violating the due process clause of the fourteenth amendment to the United States Constitution, citing Sandstrom v. Montana (1979), 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450, and Francis v. Franklin (1985), 471 U.S. 307, 85 L. Ed. 2d 344, 105 S. Ct. 1965. He asks this court to overrule the majority’s holding in People v. Burton (1990), 201 Ill. App. 3d 116, 558 N.E.2d 1369 (Steigmann, J., concurring in part and dissenting in part), appeal denied (1990), 135 Ill. 2d 560.

We initially find defendant has waived this issue for appellate review. Defendant failed to object to the instruction or tender alternate instructions, and failed to raise this issue in a post-trial motion. (Enoch, 122 Ill. 2d at 187-88, 522 N.E.2d at 1130.) We further find the instructions given did not constitute plain error. Huckstead, 91 Ill. 2d at 543-44, 440 N.E.2d at 1252.

Moreover, we conclude the instructions given, which followed the pattern IPI Criminal 2d instructions, were proper.

Burton involved a charge of aggravated criminal sexual assault, and the defendant there objected that the jury instructions defining aggravated criminal sexual assault and sexual penetration and the issues instruction on aggravated criminal sexual assault (IPI Criminal 2d Nos. 11.33, 11.65, 11.35 (Supp. 1989)) did not specify the mental state the State was required to prove. (Burton, 201 Ill. App. 3d at 117, 558 N.E.2d at 1370.) Although the aggravated criminal sexual assault statute does not specify the mental state, one is implied, based on section 4 — 3 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 4 — 3). People v. Terrell (1989), 132 Ill. 2d 178, 209-10, 547 N.E.2d 145, 158, cert. denied (1990), 495 U.S. 959, 109 L. Ed. 2d 749, 110 S. Ct. 2567.

Burton clearly holds a defendant charged with aggravated criminal sexual assault is not entitled to jury instructions specifying a mental state. (Burton, 201 Ill. App. 3d at 122, 558 N.E.2d at 1374.) Accordingly, we affirm Burton’s holding that the jury need not be instructed on the mental state implied to be an element of the offense of aggravated criminal sexual assault.

The jury instructions at issue here were proper.

The circuit court of Champaign County is affirmed.

Affirmed.

LUND, P.J., and GREEN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WARREN R. WOZNICK, Defendant-Appellant.
    Fourth District
    No. 4-90-0493
    Opinion filed February 26, 1991.

      Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender's Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On June 22, 1990, the circuit court of Champaign County, pursuant to a revocation of the defendant's probation, sentenced the defendant to four years in the Department of Corrections. The defendant was given credit for time served, 149 days, which was ordered as a part of his original probation, and also was given credit for time served for the period of time from the filing of the petition to revoke probation, April 30, 1990, to and including June 22, 1990, the date that he was sentenced on the probation revocation. The defendant appeals, asserting that he was entitled to credit for time served from January 24, 1990, to and through April 29, 1990, the day preceding the day the petition to revoke probation was filed. We affirm.

The defendant had been originally sentenced in this case, Champaign County case No. 88 — CF—1160, to two years’ probation on January 4, 1989, and, as part of the probation order, he was to be incarcerated for 149 days and was given credit for the 149 days served. On January 24, 1990, the defendant was arrested for the charges of unlawful use of weapons, unlawful possession of weapons by a felon, and unlawful possession of cannabis, docketed Champaign County case No. 90 — CF—144. A petition to revoke probation filed by the State on April 30, 1990, alleged the unlawful possession of cannabis on two different occasions and the unlawful use of a weapon. The defendant admitted to the charges of unlawful possession of cannabis as alleged in the petition to revoke, and the State dismissed Champaign County case Nos. 90 — CM—69 and 90 — CF—144.

The defendant argues that he is entitled to credit from January 24, 1990, to April 29, 1990, for time spent in custody in the Champaign County case No. 90 — CF—144. The trial court denied the defendant credit against the sentence on the revocation of probation for the time January 24,1990, to April 29, 1990.

The defendant is not entitled to credit for time served in custody on an unrelated charge. The defendant in this case was sentenced for aggravated battery, not for the charges which were filed as a result of the arrest on January 24, 1990. Section 5 — 8—7(b) of the Unified Code of Corrections (Code) provides in part: “The offender shall be given credit on the determinate sentence *** for time spent in custody as a result of the offense for which the sentence was imposed ***.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—7(b).

The defendant was sentenced on the probation revocation for the offense of aggravated battery. The charges which were filed as a result of the arrest on January 24, 1990, were for unrelated charges of possession of cannabis and the unlawful use of a weapon.

As stated in People v. Leggans (1986), 140 Ill. App. 3d 268, 271, 488 N.E.2d 614, 616:

“Defendant contends that he should also receive credit for September 22, the date of his arrest, and September 23. However, he was arrested on a battery charge that was an allegation in the amended petition to revoke probation. The initial arrest on the battery charge was unrelated to the aggravated battery proceeding that is the subject of this appeal, and defendant should not receive credit on the offense upon his conviction in the case at bar for September 22 and 23.”

The appellate court in People v. Kane (1985), 136 Ill. App. 3d 1030, 1036, 484 N.E.2d 296, 300, said:

“In applying the above statutory provisions to the case at bar, we conclude that the defendant is not entitled to credit for the time which she spent in custody on the unrelated offense (unlawful possession of a controlled substance with intent to deliver). Subsection (b) of the statute only requires the granting of credit for time spent in custody as a result of ‘the offense for which the sentence was imposed.’ ”

As in the instant case, the Kane court found that the defendant “should not receive credit for the two days she spent in jail for unlawful possession of a controlled substance with intent to deliver” in a separate case. Kane, 136 Ill. App. 3d at 1036, 484 N.E.2d at 300.

Section 5 — 8—7(c) of the Code states:

“(c) An offender arrested on one charge and prosecuted on another charge for conduct which occurred prior to his arrest shall be given credit on the determinate sentence or maximum term and the minimum term of imprisonment for time spent in custody under the former charge not credited against another sentence.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—7(c).

With respect to the argument as to the applicability of section 5— 8 — 7(c), the Kane court stated:

“We find defendant’s contention to be without merit, inasmuch as the revocation of defendant’s probation was merely an incident of her 1983 sentence. The error in the defendant’s logic is her characterization of the revocation of her probation as a ‘prosecution’ — a mistake which allows her to begin with the second offense instead of the first. Her ‘prosecution,’ however, had already taken place. It began with the filing of the information on September 21, 1983, and concluded with the acceptance of her plea of guilty on October 3, 1983.” Kane, 136 Ill. App. 3d at 1036-37, 484 N.E.2d at 301.

Further reason to reject the defendant’s argument that subsection (c) applies is the council commentary in Smith-Hurd (Ill. Ann. Stat., ch. 38, par. 1005 — 8—7, Council Commentary, at 224 (Smith-Hurd 1982)), which states section 5 — 8—7(c) applies when the offender is arrested on one charge and the “charge is dropped in favor of a new charge which results in conviction and imprisonment.” The petition to revoke probation was not a new charge which resulted in conviction and imprisonment.

The defendant is not entitled to credit for the time served from January 24 to April 29, 1990; the circuit court of Champaign County correctly computed the credit for time served.

Affirmed.

GREEN and SPITZ, JJ., concur.


author: PRESIDING JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REGINALD D. SORRELLS, Defendant-Appellant.
    Fourth District
    No. 4-90-0038
    Opinion filed March 7, 1991.

      Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Charles F. Mansfield, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Following a bench trial in the circuit court of McLean County, defendant Reginald Sorrells was found guilty of unlawful possession of cocaine (Ill. Rev. Stat. 1987, ch. 561/2, par. 1402(b)), and was sentenced to a term of 45 days’ periodic imprisonment and 24 months’ probation. Defendant appeals, contending that the trial court’s denial of his motion to suppress physical evidence and incriminating statements was manifestly erroneous. We affirm.

On April 25, 1989, police stopped a car in which the defendant was traveling as a passenger and subsequently recovered a plastic bag containing less than 15 grams of cocaine. Prior to trial, defendant filed a motion to suppress, alleging that there was no probable cause to support the police stop of the car in which he was a passenger. The cause proceeded to a suppression hearing, where the witnesses explained the circumstances surrounding defendant’s arrest.

Officer Brendan Heffner of the Normal police department is assigned to a narcotics unit headed by the Illinois State Police. He testified that on April 10, 1989, he received information from a confidential informant that the defendant had twice traveled to Chicago, Illinois, to purchase cocaine and then returned to the Illinois State University campus in Normal, Illinois, where he distributed it. The informant stated that defendant traveled to and from Chicago in a silver 1983 Chevrolet Camaro, license No. MK2832, which belonged to Mark Bauer. The informant told Heffner that the defendant would travel to Chicago and return to Normal on the same day.

On April 20, 1989, the informant told Heffner that the defendant, Bauer, and two other named individuals were going to Chicago in Bauer’s car to purchase cocaine. The informant explained that they would leave at approximately 5:30 p.m. and return at approximately 11 p.m. Although Heffner observed the described automobile leaving the Bloomington-Normal area on Interstate 55, he did not see the Camaro return to the area. Later that evening, the informant contacted Heffner and told him that the defendant had returned. The informant also told Heffner where the Camaro was parked. Heffner proceeded to the described location and found a silver Camaro matching the informant’s description. The car’s hood was warm to the touch. Heffner contacted the Secretary of State and learned that the Camaro was, in fact, registered to Mark Bauer.

In the early afternoon of April 25, 1989, the informant advised Heffner by telephone that the defendant and Bauer were going to Chicago that day to obtain some cocaine. The informant advised Heffner that the defendant and Bauer would be traveling on Interstate 55 in Bauer’s car and, on their return, might use the Veterans’ Parkway exit and enter Normal on Pine Street rather than taking Interstate 55 to Route 51. The informant explained that the former route was more secluded and there was less possibility of police being present. Sometime later, the informant called Heffner and advised him that Bauer did not leave for Chicago and that the defendant was accompanied by a black man named Mike and a white man named James Kimnetz. After receiving this tip, Heffner and other task force agents “tried to devise a way to set up a stop on the vehicle as it was returning from Chicago.”

Heffner testified that he initially contacted the informant when he learned the informant might be involved in, or have information pertaining to, illegal drug activities in the Bloomington-Normal area. Heffner stated that the informant had not been arrested for any drug-related offense and was not in the employ of any law enforcement agency. Heffner also explained that the informant was neither threatened nor promised any favors by any officer of the Normal police department. After Heffner’s initial contact, the informant came to his office for an interview. The informant told Heffner that the information was obtained by hearing the defendant discuss his plans in the informant’s presence.

Paul Lehman is a patrol sergeant for the Normal police department. At approximately 11 p.m. on April 25, Lehman received instructions from the Illinois State Police Department of Criminal Investigation (DCI) that a gray Camaro with a white male and a black male occupant would be coming into Normal in the southbound lanes of Interstate 55, and “that they would want us to stop it if we could develop some type of probable cause.” Lehman and Officer Kerry Lonbom proceeded to Interstate 55 and parked their squad car approximately one mile north of the Veterans’ Parkway exit, with their radar unit set on the southbound lanes. They were advised of the suspects’ approach by State Police officers stationed further north on Interstate 55. As the Camaro passed, the radar unit displayed a reading of 73 miles per hour. The posted speed limit in that area is 65 miles per hour.

As Lehman and Lonbom followed the Camaro, the Illinois State Police advised them where and how the traffic stop was to be conducted. Shortly after the Camaro turned into the Veterans’ Parkway exit, Lehman and Lonbom activated the red lights and stopped the Camaro. As Lehman approached the passenger side of the Camaro, he noticed that the black male in' the backseat of the car appeared to be “stuffing something under a gym bag or underneath some clothing that was under there.” Lehman also observed that the black male in the front passenger seat “either appeared to be loosening his clothing or putting something down his pants or something in the belt area.” While Lonbom asked the driver, James Kimnetz, for identification, Lehman asked the defendant and the backseat passenger, Michael Stewart, to exit the car and go back to his squad car. After additional units from the Illinois State Police and Normal police departments arrived, Kimnetz, the defendant, and Stewart were instructed to line up with their hands on the hood of Lehman and Lonbom’s squad car. Lehman explained that the suspects were asked to do so for the protection of the officers and to ensure that evidence was not destroyed. As the suspects stood against the squad car, Lehman observed a plastic bag drop from waist height to the ground between the feet of the defendant. After Lehman recovered the plastic bag and observed that it contained a white powdery substance, all three suspects were searched, handcuffed, and placed in separate squad cars. No citations were issued to the driver of the Camaro for violation of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 1 — 101 et seq.).

Officer Michael Bernadini, a special agent for DCI, testified that on April 25, 1989, he supervised a special detail of officers who met in the Chenoa, Illinois, area to await the return of Mark Bauer’s Camaro from Chicago. The Camaro passed Bernadini’s unmarked unit at an excessive rate of speed. Bernadini followed the Camaro until Officers Lonbom and Lehman initiated a traffic stop. Bernadini explained that the defendant and Stewart were not asked to leave the vehicle until Kimnetz, the driver, consented to a search of the car.

On cross-examination, Bernadini admitted his report stated that Lehman and Lonbom received a radar reading of 63 miles per hour on the suspect car. He stated that he was not really concerned with the car’s speed and did not recall who gave him the information. Bernadini also admitted that he intended to have the suspect car stopped regardless of whether a radar unit verified it was exceeding the speed limit.

The trial court denied defendant’s motion to suppress, reasoning there was uncontroverted evidence that the car was traveling in excess of the speed limit. The court also concluded that regardless of the legitimacy of the traffic stop for speeding, the police had probable cause to stop the car on the basis of the information provided by the informant. Defendant’s sole contention on appeal is that the police lacked probable cause to stop the car in which he was traveling.

A reviewing court will not disturb a trial court’s ruling on a motion to suppress unless it is manifestly erroneous. If the trial court had a substantial basis for concluding that probable cause existed, the ruling will be undisturbed. (People v. Adams (1989), 131 Ill. 2d 387, 400, 546 N.E.2d 561, 567; People v. Tisler (1984), 103 Ill. 2d 226, 248, 469 N.E.2d 147, 158.) We conclude that the evidence indicating the car exceeded the posted speed limit provided a substantial basis for the trial court’s finding that the stop of the car was supported by probable cause.

A traffic violation provides more than a reasonable basis for stopping a vehicle. (People v. Guerrieri (1990), 194 Ill. App. 3d 497, 501, 551 N.E.2d 767, 769; People v. Manikowski (1989), 186 Ill. App. 3d 1007, 1010-11, 542 N.E.2d 1148, 1151.) We recognize that it was not a mere coincidence that the Camaro encountered a radar unit as it entered the Bloomington-Normal area, and that the car may have been stopped even if it was not exceeding the speed limit. However, an objectively reasonable stop or other seizure is not invalid simply because the officer acted out of an improper or dual motivation. (Guerrieri, 194 Ill. App. 3d at 502, 551 N.E.2d at 770; United States v. Smith (11th Cir. 1986), 799 F.2d 704, 708.) Whether a fourth amendment violation has occurred turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time and not on the officer’s actual state of mind at the time the challenged action was taken. Maryland v. Macon (1985), 472 U.S. 463, 470-71, 86 L. Ed. 2d 370, 378, 105 S. Ct. 2778, 2783; Guerrieri, 194 Ill. App. 3d at 502, 551 N.E.2d at 770.

In this case, Officers Lehman and Lonbom acted reasonably in stopping the Camaro since it is their duty to enforce the Illinois Vehicle Code. The fact that the driver was not charged with a traffic offense has no effect on the trial court’s determination that there was probable cause to stop the car. Probable cause will not be invalidated by a later determination not to charge a person with the offense for which he was originally stopped. An officer may always warn of a traffic violation or reprimand the driver without citing him, and the officer need not charge a minor violation when, after a stop, a more serious violation is discovered. People v. Assenato (1989), 186 Ill. App. 3d 331, 337, 542 N.E.2d 457, 460, cert. denied (1990), 493 U.S. 1027, 107 L. Ed. 2d 754, 110 S. Ct. 736.

We acknowledge that there was conflicting testimony regarding the speed of the car in which the defendant was traveling. Officer Lehman testified that the radar displayed a reading of 73 miles per hour as the Camaro traveled through a 65-mile-per-hour zone. Officer Bemadini, who was not present in the radar unit, filed a report stating that Lehman and Lonbom received a radar reading of 63 miles per hour. Bernadini may have been told that the suspect vehicle was exceeding the speed limit by eight miles per hour and mistakenly assumed that it was clocked in a 55-miIe-per-hour zone, or he may have simply forgotten what he was told. In any case, it is not for the reviewing court to determine the weight and credibility of evidence. It is the province of the court hearing the motion to suppress to determine the witnesses’ credibility and the weight to be given their testimony, since it had the advantage of observing their demeanor while testifying. (Guerrieri, 194 Ill. App. 3d at 503, 551 N.E.2d at 771.) We cannot say, on the basis of the record, that the trial court’s conclusion that the suspect car was exceeding the speed limit was manifestly erroneous.

Because we find the stop to be reasonable based upon the speeding violation, we need not address the reliability of the anonymous informant’s tip.

Affirmed.

SPITZ and KNECHT, JJ., concur.