author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID ROSE, Defendant-Appellant.
    Second District
    No. 2—88—0646
    Opinion filed May 23, 1990.

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

delivered the opinion of the court:

Defendant, David Rose, was indicted on two counts of aggravated battery under sections 12—4(a) and 12—4(b)(10) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, pars. 12—4(a), (b)(10)) and found guilty of both counts. Defendant appeals his convictions on the ground that he was denied a fair trial when the trial court admitted into evidence facts relating to a prior offense. The issue is whether the prior offense established a common design or modus operandi relevant to the offenses with which defendant was charged.

The basis of the charges arose from the discovery of the body of Emma Kennedy, defendant’s grandmother, in their apartment on July 27, 1987. She was over the age of 60 and suffered great bodily harm. Mrs. Kennedy, however, had no recollection of who beat her or how or when she was beaten. The State sought to introduce evidence, which defendant sought to prevent by a motion in limine, that defendant had slapped her about 10 days previous to July 27, 1987, then continued to eat his supper while she blindly crawled on the floor searching for her glasses. On July 27, 1987, with his grandmother’s bloody body lying on the couch, defendant ate a bologna sandwich. The trial court denied the motion in limine and post-trial relief on the ground that defendant’s actions indicated a remarkable indifference to the plight of the victim. Defendant was charged with battery for the slapping incident under a separate indictment.

At trial, defendant maintained that robbers had broken into his apartment and had beaten his grandmother. The State’s first witness was Cynthia Gorman, who was defendant’s sister and Mrs. Kennedy’s granddaughter. She testified that defendant and Mrs. Kennedy had lived together for two to three years. On July 17, 1987, Gorman and Mrs. Kennedy went shopping together. Mrs. Kennedy had a bruise on her face and a red eye and had trouble walking. After receiving a telephone call on July 27, 1987, Gorman summoned the police and went with them to defendant’s apartment. Defendant opened the door for her and she entered. Gorman saw Mrs. Kennedy lying on the sofa covered with blood, and although she appeared to be dead, Mrs. Kennedy heard Gorman and called for her. The blood had dried and was caked to her body and clothes. Her head rested on her purse, and she was lying on her cane. Before the paramedics took her to the hospital, Mrs. Kennedy had Gorman take over $400 from her brassiere and over $100 cash and checks from her purse. Gorman testified there were bloodstains on the carpet, kitchen walls and kitchen floor and that defendant said he tried to clean up the blood.

Emma Kennedy was the next witness. She testified as follows:

“Q. [Assistant State’s Attorney]: Do you remember an incident that happened in your home about a week or two prior to July 27th?
A. Yes, I had prepared supper for my grandson, and he was eating, and he was a little sassy to me. I was correcting him, and it made him madder. He got up and slapped me across the face.
Q. Did he slap you across both sides of the face?
A. Yes.
Q. And he did that with the open hand?
A. With the open hand.
Q. What happened when he did that?
A. Well, I fell to the floor and lost my glasses, and I had to look for them.
* * *
Q. Now, when your glasses were knocked off, what did you do?
A. I bent down on the floor and looked for them.
Q. Were you on your hands and knees?
A. Yes.
Q. About how long did it take before you found your glasses?
A. Not long. Just a few minutes.
Q. And when you put your glasses back on, do you remember what David was doing?
A. He finished eating his meal.
Q. He was sitting back at the table then?
A. Yes.”

No other details of the slapping incident were elicited. She also testified that she had no idea of what happened to her on July 27, 1987.

Dirk Phillip, an officer of the City of North Chicago police department, testified that he was called to the scene of defendant’s apartment around 4:45 p.m. on July 27, 1987. He noticed defendant had a bruised and swollen right hand. Defendant told him it had been caught in a door. Phillip later took defendant to a hospital where defendant told a nurse he had dropped a piece of wallboard on his hand.

Sergeant Pedrin of the City of North Chicago police department arrived at the apartment at approximately 4:45 p.m. Defendant told him that when defendant came into the apartment Mrs. Kennedy was already lying on the floor, so he proceeded to clean the apartment and then put her on the couch. Defendant said that he had arrived at approximately 3:30 p.m. and had cleaned for two hours, then sat down and ate a bologna sandwich. Defendant stated when he had left the apartment at 8:30 that morning, Mrs. Kennedy was fine. He had gone to the food store to buy cigarettes, then walked through the park for a few hours. Sergeant Pedrin further testified that the ground-floor security door was in good order and that the upstairs apartment door was not broken and did not show signs of forced entry. Because defendant claimed the apartment had been burglarized and a check stolen, the sergeant searched the rooms along with a police photographer who took photographs which were admitted into evidence. Coins, bills and blank checks were on the kitchen counter and table. All the dresser drawers were closed. There were bankbooks and a passport within easy access. The sergeant noticed defendant’s bruised hand, and defendant told him he had hurt it while cleaning brushes.

The State and defendant then stipulated that X-ray photographs of Mrs. Kennedy revealed a fracture of her left forearm, the fifth finger of her right hand, several facial bones, and four ribs.

Dr. Steinwald testified that he treated Mrs. Kennedy on July 27, 1987, for a laceration on her head. The gash was eight inches long and so deep that it divided part of the lining of the bone and divided the muscles of the forehead. The blood was dry and caked, indicating the wound was a day old or possibly two days old.

After the State rested, defendant presented a stipulation that the Northern Illinois Police Crime Laboratory had examined Mrs. Kennedy’s cane for fingerprints and the fingerprint that appeared on it did not match those of defendant. Defendant presented no other evidence. The jury was instructed on the elements of aggravated battery and the use of circumstantial evidence. They were also given a limiting instruction regarding the prior offense.

The jury found defendant guilty of both counts, and the court sentenced him to 10 years’ imprisonment. Defendant appeals and contends that the evidence concerning the slap was inadmissible.

Evidence of other crimes of wrongful conduct is not admissible to show the defendant’s character or propensity to commit crimes or wrongful acts. Where evidence has no value beyond the inference that a defendant has a propensity for the crime charged, the evidence is excluded. The underlying rationale is that such evidence is objectionable not because it has no appreciable probative value, but because it has too much value. “The law distrusts the inference that because a man has committed other crimes, he is more likely to have committed the crime charged.” (People v. Kimbrough (1985), 138 Ill. App. 3d 481, 484.) However, evidence of other crimes is admissible if it is relevant to proving any other material issue. (People v. Bean (March Term 1990), No. 65062, slip op. at 26.) Thus, evidence of the commission of other crimes is admissible if it proves modus operandi, knowledge, intent, absence of mistake, a defendant’s state of mind, placement of a defendant in proximity to time and place of the crime, identification of a weapon, consciousness of guilt, or that the crime charged was part of a common design, scheme or plan of the defendant. Kimbrough, 138 Ill. App. 3d at 484-85.

The State contends the evidence was properly admitted because it revealed the modus operandi of the alleged attacker. Modus operandi refers to a pattern of criminal behavior so distinct that separate crimes are recognized as the work of the same person. If evidence of other crimes is offered to prove modus operandi, there must be some clear connection between the other crime and the crime charged which creates a logical inference that if the defendant committed those acts, he may have committed the act at issue. The inference is created when both crimes share peculiar and distinctive common features so as to earmark both crimes as the handiwork of the defendant. Kimbrough, 138 Ill. App. 3d at 486-87.

The State offers the fact that defendant ate while his grandmother was in distress as proof of a modus operandi. While this evidence may prove defendant’s callous indifference to his grandmother’s plight, it does not prove that he hit his grandmother every time he ate a meal. The State cannot reasonably maintain that defendant had beaten his grandmother every time he ate a bologna sandwich. Moreover, the most this evidence may prove is that he would have been indifferent to her plight whether burglars had beaten her or whether he had beaten her. Therefore, the evidence cannot be admitted on the ground of modus operandi.

The modus operandi exception is often confused with the exception of common design. (People v. Barbour (1982), 106 Ill. App. 3d 993, 999.) Common design refers to a criminal scheme of which the crime charged is only a part. (106 Ill. App. 3d at 999-1000.) The several crimes must have some degree of identity between the facts of the crime charged and those of the other offense in which the defendant was involved. (People v. McKibbins (1983), 96 Ill. 2d 176, 185.) For example, other offenses may be admitted to prove a defendant had a scheme to harass a victim in order to prove who instigated the crime being prosecuted. (People v. Kissinger (1983), 116 Ill. App. 3d 826, 831.) However, the State did not present any evidence that the defendant had a common scheme of beating, harassing or dominating his grandmother. Only the single episode of the slap was presented. As such, the only probative value of the evidence wás to show defendant’s possible willingness to hit his grandmother. Although common design is frequently relevant to show the motive for the crime charged (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §404.5, at 163 (4th ed. 1984)), the State never made an argument regarding defendant’s motives. We do not decide that such evidence could never be admitted, for prior acts of domestic violence are very important for proving a pattern of harassment, intimidation or domination of a family member. (People v. Holland (1973), 11 Ill. App. 3d 591, 595-96.) However, the State could not prove any such common design by presenting what, based only on the evidence in the record, was an isolated incident. Also, the evidence was not relevant to prove recklessness or other element of the crime. (See People v. Milner (1984), 123 Ill. App. 3d 656, 662; People v. Platter (1980), 89 Ill. App. 3d 803, 822.) Moreover, the fact that defendant was callously indifferent to his grandmother’s plight had already been dramatically proved when he sat, cleaned and ate while his grandmother lay bleeding from injuries caused by the crime with which he was charged. Thus it was error to admit the evidence because it was unduly prejudicial to defendant while not probative of any common design or modus operandi.

However, we do not believe the error was sufficient to reverse the judgment. The court gave a limiting instruction, reiterated in the State’s closing argument, which restricted the purpose for which the jury could consider the evidence. Thus the possible prejudice was reduced. The evidence concerning the slap was only a slight portion of the trial, and the evidence was concentrated on the offense at issue rather than on the previous incident. (Compare People v. Barbour (1982), 106 Ill. App. 3d 993, 1001.) Also, the evidence adduced regarding the slap was not overly detailed or embellished so as to inflame the jurors’ sympathy.

Moreover, it does not appear that justice was denied or that the verdict resulted from such error because there was no reasonable theory of innocence consistent with the evidence presented. (People v. Garcia (1981), 95 Ill. App. 3d 792, 799.) Defendant contended that burglars had beaten his grandmother, but there was no evidence that any valuables, her purse, the cash therein, the blank checks, bankbooks, coins or passports were taken. Also, the security door worked, and there was no sign of forced entry or sign of burglars searching through the drawers. Although defendant admitted that he had lost a key to the apartment, there was no evidence that anyone else had access to enter the apartment. The jury properly rejected the burglary hypothesis as unreasonable. Holland, 11 Ill. App. 3d at 595.

No other element of defendant’s admissions bore any credibility. He stated that his grandmother was fine at 8:30 that morning, but all the witnesses testified the blood was dry that afternoon, a fact which led the treating physician to conclude the injury was one or two days old. The blood was dry, but defendant’s efforts to clean the apartment were fresh. He made three implausible stories to explain his swollen and bruised hand. A defendant’s false exculpatory statements are admissible to establish his consciousness of guilt. (People v. McQueen (1983), 115 Ill. App. 3d 833, 837.) The defendant did not seek help for his grandmother, which would have drawn attention to the crime, but instead attempted to conceal it. Such conduct is not indicative of an innocent bystander to a crime. Thus, there was abundant evidence of guilt, and having considered the totality of the evidence presented, we conclude that a trial without the evidence of the slap would produce no different result. (People v. Warmack (1980), 83 Ill. 2d 112, 128-29.) Thus the admission of the evidence of a prior offense was not reversible error.

For the above reasons, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

INGLIS and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE UNVERZAGT

license: Public Domain

text:
    SHORR PAPER PRODUCTS, INC., Plaintiff-Appellant, v. AURORA ELEVATOR, INC., Defendant-Appellee (Reliance Elevator Company, Defendant).
    Second District
    No. 2—89—1025
    Opinion filed May 30, 1990.

      Bruce A. Brown and Fred T. Myers, both of Goldsmith, Thelin, Schiller & Dickson, of Aurora, for appellant.
    David P. Peskind, Steven N. Peskind, and James J. Pacione, all of Peskind & Peskind, Ltd., of Aurora, for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiff, Shorr Paper Products, Inc., filed a three-count complaint in the circuit court of Kane County seeking to recover for damages sustained by a freight elevator in its building. Counts I and II sought recovery from defendant Reliance Elevator Company (Reliance), the company which originally installed and maintained the elevator. Count III named as a defendant Aurora Elevator, Inc. (Aurora), the company which contracted to maintain the elevator after Reliance’s maintenance contract had expired. The trial court granted Aurora’s motion for summary judgment on count III, and, after the trial court entered a finding that there was no just reason to delay enforcement or appeal of its ruling, the plaintiff filed this appeal pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

At issue on appeal is whether the trial court correctly determined that the maintenance contract validly exculpated Aurora from any liability for the damages sustained by the plaintiff’s elevator.

The elevator, which is the subject of this dispute, was installed in the plaintiff’s building by Reliance in 1979. The elevator was to be of a class “Cl” rating, meaning that it should have been able to lift a loaded forklift truck. After the elevator was installed, Reliance entered into an agreement with the plaintiff to maintain the elevator.

When this maintenance agreement expired, the plaintiff entered into a new maintenance agreement (the agreement) with Aurora. The agreement, which is entitled “MAINTENANCE CONTRACT” with a subtitle reading “OIL/GREASE,” was executed on November 11, 1984, and was to commence in December 1984.

The agreement provided that Aurora would service and maintain the plaintiff’s elevator on a monthly basis. The agreement stated that the monthly service would “consist of a regular examination of the elevator apparatus.” The agreement specified that such service would include:

“OILING AND CLEANING MACHINE, MOTOR AND CONTROLLER; GREASING OR OILING BEARINGS AND GUIDES; ALSO MAKING NECESSARY ADJUSTMENTS AT THE TIME OF EXAMINATION. AURORA ELEVATOR, INC. TO FURNISH OIL AND GREASE. ALSO TO INCLUDE 24 HOUR MINOR CALL-BACK SERVICE.”

The agreement also contained the following provision:

“AURORA ELEVATOR, INC. shall not under any circumstances be liable under or by reason of this agreement directly or indirectly for any accident, injury, breakage or damage to the elevator(s) or any machinery, appliances or property connected therewith — nor shall it under any circumstances be liable under or by any reason of this agreement directly or indirectly for any accident, injury, or damage to any person or persons whomsoever while riding upon or being in or about said elevator^) however caused — nor shall it in any way be liable for any damage caused directly or indirectly by strikes, lockouts, accidents, or other causes beyond its control.”

Aurora admits that the agreement required it to perform its services thereunder in a “good, workmanlike manner.”

On July 2, 1987, a forklift truck drove onto the elevator. The plaintiff alleges that, although the elevator should have been capable of bearing this load, the elevator failed and sustained damage. The plaintiff alleges that it incurred damages of $19,850 to repair the elevator; $700 to inspect the elevator; $2,800 to rent storage space while the elevator was out of commission; and $2,684 in carrying costs for duplicative inventory. The plaintiff sought a total of $26,092 in damages.

The plaintiff filed the instant action against Reliance on May 6, 1988, and subsequently filed an amended complaint on June 16, 1988. Aurora was not named as a defendant in the action until the filing of the plaintiff’s second amended complaint on December 16, 1988. Count I of the amended complaint alleged that Reliance breached the contract for installation of the elevator, and count II alleged that Reliance breached its service contract. Count III alleged that Aurora breached the subsequent maintenance agreement. Specifically, count III alleged that Aurora failed to: (1) inspect the elevator and its components in a good, workmanlike manner; (2) repair or replace the safeties on the elevator, which were of an improper size; (3) replace the gibs or shoes on the elevator when they became worn; (4) conduct maintenance tests or to conduct such tests in a workmanlike manner; (5) bring to the plaintiff’s attention the need to correct any of the above problems; and (6) otherwise properly maintain the elevator and its components.

On May 19, 1989, Aurora filed a motion for summary judgment on count III of the plaintiff’s complaint. Aurora argued that the agreement specifically provided that Aurora would not be liable for any accident, injury, breakage or damage to the elevator or its component parts. The plaintiff contended that the exculpatory provision in the agreement did not exempt Aurora from liability for damages caused by its breach of the agreement. Alternatively, the plaintiff contended that the exculpatory provision in the contract, if interpreted to bar the plaintiff’s claim, should be declared void because it conflicts with public policy and with the statutory prohibition against indemnification for one’s own negligence (Ill. Rev. Stat. 1987, ch. 29, par. 61). The trial court granted Aurora’s motion for summary judgment on count III, and the court subsequently entered a finding pursuant to Supreme Court Rule 304(a) that there was no just reason to delay enforcement or appeal of its order.

On appeal, the plaintiff advances the same arguments it presented at trial in opposition to the motion for summary judgment and contends that summary judgment in favor of Aurora was improper. A trial court may grant summary judgment where the “pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c).) In ruling on a motion for summary judgment, the trial court must consider all of the evidence before it and construe it strictly against the movant and liberally in favor of the party against whom judgment is sought. Summary judgment is a drastic means of disposing of litigation and should be granted only when the right of the moving party is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) We note that, where, as here, the facts are not in dispute, the interpretation of a contract is a question of law which can be decided on a motion for summary judgment. (Bohnen International, Inc. v. Liberty Mutual Insurance Co. (1983), 120 Ill. App. 3d 657, 662.) However, as a question of law, the interpretation of the agreement can be made on review independently of the trial court’s judgment. Bohnen, 120 Ill. App. 3d at 662-63.

The plaintiff’s first contention is that Aurora’s broad interpretation of the agreement’s exculpatory provision, which was apparently accepted by the trial court, effectively renders the agreement meaningless. The plaintiff argues that the exculpatory provision should not be read so broadly that it negates Aurora’s duties under the agreement. Aurora, on the other hand, contends that the trial court’s interpretation of the exculpatory provision does not negate Aurora’s duties. Aurora argues that if it had failed to oil, grease or inspect the elevator, then it would have been liable to the plaintiff.

Our task here is to interpret the scope of the exculpatory provision in the context of the entire agreement. In interpreting a contract, it is presumed that all provisions were intended for a purpose, and conflicting provisions will be reconciled if possible so as to give effect to all of the contract’s provisions. (Bruno Benedetti & Sons, Inc. v. O’Malley (1984), 124 Ill. App. 3d 500, 506.) We believe that Aurora’s interpretation of the agreement is untenable because it focuses only on the exculpatory provision to the effective exclusion of Aurora’s specifically articulated obligations under the agreement.

The agreement specifies what duties Aurora owed under the contract, including the inspection, oiling and greasing of the elevator. Aurora concedes that, if it had failed to perform any of its duties, it would be liable for a breach of the agreement. Merely failing to show up at the jobsite is not, however, the only manner in which Aurora could have breached the agreement. As we noted above, Aurora was obligated to perform its articulated duties in a good and workmanlike manner; failure to perform to this level of competence would also have constituted a breach (see Eichberger v. Folliard (1988), 169 Ill. App. 3d 145, 150). Thus, the plaintiff would be entitled to recover for the damages, if any, caused by such a breach. This would include structural damages to the extent they were caused by the breach.

We believe that the language of the exculpatory provision does not alter Aurora’s basic performance obligations in this regard. The exculpatory provision merely indicates that Aurora is not a general guarantor of the elevator’s reliability. Its service agreement, in other words, did not place the ultimate burden of maintaining the elevator, whatever the cause of a breakdown might be, on Aurora instead of the plaintiff. Aurora’s obligation under the agreement was merely to perform the services specified, namely, to inspect, oil and grease the elevator. While the agreement insulates Aurora from general responsibility for structural damage to the elevator, we do not belleve that the exculpatory clause protects Aurora from liability for any damages directly caused by its failure to perform its specified service obligations sufficiently.

We believe that this interpretation of the agreement is in accord with established rules of contract construction. We resort to the rules of construction in order to arrive at an interpretation of the agreement which gives meaning to all of its provisions. The interpretation accepted here gives meaning to both the exculpatory provision and the provision setting out Aurora’s responsibilities under the agreement. (See O’Malley, 124 Ill. App. 3d at 506.) Furthermore, we have endeavored to prevent Aurora’s duties under the agreement from becoming illusory and meaningless, a result which would be occasioned if Aurora were not liable for failing to perform its obligations sufficiently. (See Contact Lenses Unlimited, Inc. v. Johnson (1988), 176 Ill. App. 3d 875, 879-80.) Finally, we note that our interpretation is consistent with the notion that contractual language which is ambiguous or uncertain is to be construed against the party who drafted the contract. (Berutti v. Dierks Foods, Inc. (1986), 145 Ill. App. 3d 931, 934.) This consideration is particularly important when a party seeks to take advantage of a purported exception to an agreement. See Parker v. Arthur Murray, Inc. (1973), 10 Ill. App. 3d 1000, 1003.

We conclude, therefore, that the agreement does not protect Aurora from liability for damages caused by its breach thereof. This conclusion makes it unnecessary for us to address the other contentions raised and argued on appeal. Unger v. Nunda Township Rural Fire Protection District (1985), 135 Ill. App. 3d 758, 764.

The judgment of the circuit court of Kane County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

DUNN and INGLIS, JJ., concur.


author: JUSTICE GEIGER

text:
      In re MARRIAGE OF NASIR J. AHMAD, Petitioner-Appellant and Cross-Appellee, and CAROLYN A. AHMAD, Respondent-Appellee and Cross-Appellant.
    Second District
    No. 2—89—0621
    Opinion filed May 25, 1990.

      Law Office of Robert A. Chapski, Ltd., of Elgin (Randy K. Johnson, of counsel), for appellant.
    Harry S chaff ner and Colette Anderson, both of S chaff ner & Anderson, Chartered, of West Dundee (Thomas Byrne, of counsel), for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The petitioner husband, Nasir Ahmad, appeals from the trial court’s order granting the petition for attorney fees of the respondent wife, Carolyn Ahmad, pursuant to section 508(a)(3) of the Illinois Marriage and Dissolution Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 508(a)(3)). He further appeals from the trial court’s order denying his request for attorney fees pursuant to section 2—611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611). The wife cross-appeals, contending that the trial court erred by disallowing her claim for paralegal services in defense of the husband’s appeal. We affirm in part and reverse in part and remand.

On October 29, 1982, the trial court entered its order dissolving the parties’ marriage and awarded them joint custody of their son. The husband appealed. This court affirmed in an unpublished order pursuant to Supreme Court Rule 23 (107 Ill. 2d R. 23) in case No. 2—86—0329. In re Marriage of Ahmad (1987), 153 Ill. App. 3d 1161.

After this court issued its order, the wife filed a verified “Petition for Attorney’s Fees in Defense of Appeal” pursuant to section 508. The wife petitioned for attorney fees incurred in both the trial and the appeal. In her petition, she included a breakdown of the fees sought.

The petition sought to recover fees for work done by both her attorney, Harry Schaffner, and his associate, Colette Anderson. A hearing was held in the trial court in which Mr. Schaffner testified that the fees requested in the wife’s petition were accurate and fair. He submitted written time records for all work done on behalf of the wife. He testified that Colette Anderson performed a portion of the work and further stated that Ms. Anderson was an associate with his firm. However, it was later revealed that Ms. Anderson was not licensed to practice law during the time period in which a majority of the hours claimed in the petition accrued.

The trial court found that the hourly base rates and the time expended were reasonable. It ordered the husband to pay $9,547 towards the wife’s attorney fees.

The husband timely filed his motion for reconsideration, arguing that the trial court did not have jurisdiction to grant the wife’s petition for fees unrelated to the defense of the appeal. He later amended his motion, adding that Ms. Anderson did not become licensed to practice law until after she completed 33.2 of the billable hours sought in the wife’s fee petition.

The trial court vacated its prior order and ordered that the wife amend her petition for attorney fees. In her amendment, the wife changed her demand for fees for work done by Ms. Anderson before she was licensed from $90 an hour as an attorney to $45 an hour as a paralegal.

The husband moved to strike and dismiss the wife’s petition for attorney fees. He asserted that there was no precedent in Illinois to award attorney fees to a person not licensed to practice law in this State. He also sought to recover his attorney fees and costs pursuant to section 2—611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611). Regarding his section 2—611 petition, he argued that Mr. Schaffner filed an untrue pleading when he claimed that Ms. Anderson was an attorney. He further argued that sanctions were warranted since Mr. Schaffner did not investigate the law before he petitioned for paralegal fees.

On November 3, 1988, the trial court granted the husband’s motion to strike all claims for paralegal services. It further denied the husband’s motion for sanctions. Lastly, it entered a $6,817 judgment for the wife, the amount of the prior award less the amount claimed for paralegal services.

The husband moved to reconsider the trial court’s November 3, 1988, order. He sought a new hearing both on the wife’s attorney fees and on his petition for sanctions. The trial court granted the husband’s motion regarding sanctions but denied it regarding the wife’s attorney fees.

After a hearing, the trial court found that Mr. Schaffner was negligent in failing to discover that the fee petition regarding Ms. Anderson was improper since she was not a licensed attorney during a portion of the time she worked on the wife’s case. However, the trial court noted that Mr. Schaffner promptly offered to remedy his mistake after opposing counsel brought the error to the court’s attention. It granted the husband’s motion for sanctions and ruled that the appropriate sanction was a public reprimand; however, it denied the husband’s motion to recover attorney fees. Further, the trial court found that although the current law prohibited recovering fees for paralegal work, the wife’s argument for such fees was made in good faith in an attempt to change the existing law; therefore, it denied sanctions.

On this appeal, the husband first itemizes the individual attorney fee entries for which he argues that the court’s fee award was improper. As to objections based upon entries of March 12, 1986, the wife has conceded impropriety. We agree and reverse the award thereupon.

The wife opposes the husband’s other challenges to the entries on her fees petition. Those challenges first allege that the instant fee requests were untimely as not demonstrably related to representation for the prior appeal. We first look at the largest group of challenged fee entries. They were for the following dates in 1986: March 21; April 10 and 24; May 19; June 4, 6, 9, 11, 13, and 23; November 29; and December 2, 4, 5, 9, 15, and 19; also January 6 and 9, and March 26, 1987.

Section 508 of the Act provides circumstances under which the trial court may award necessary attorney fees to a party to marital dissolution; those circumstances include for defense of an appeal under the Act. (Ill. Rev. Stat. 1987, ch. 40, par. 508.) The court’s authority to make such awards is strictly limited to those which are statutorily permissible. (In re Marriage of Justema (1981), 95 Ill. App. 3d 483, 486.) Further, the court’s jurisdiction to order fees continues only 30 days after entry of the underlying judgment order. In re Marriage of Birt (1987), 159 Ill. App. 3d 281, 284.

The party seeking fees has the burden in the trial court to present sufficiently specific evidence of his entitlement. (Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 983-86.) On appeal we will disturb the court’s judgment on fees only if it were an abuse of discretion. 164 Ill. App. 3d at 984.

The wife’s instant fees petition was filed on June 6, 1987. It was, therefore, within 30 days and, thus, timely insofar as it sought fees related to the parties’ prior appeal; the appeal was decided on May 11, 1987. On the other hand, as no other relevant order was entered in the 30 days preceding filing of the instant petition, in considering the petition the court had no jurisdiction to award attorney fees which were not directly related to defense of the appeal.

The husband argues, and we agree, that none of the entries in the group to which we have just referred supported a fees award under section 508. The record shows that each of those entries was related to some matter other than the appeal, i.e., child visitation or collection on earlier fees judgments, matters decided more than 30 days prior to filing of the instant fees petition. We find the awards based thereupon were an abuse of discretion.

The second group of challenges which we address is for the 1986 fee entries dated June 12, September 19, November 10, and December 22, and the 1987 entries dated February 18, and March 4 and 16. The husband argues that these entries were too vague to support the court’s fee award.

Our review of the record reveals either (1) evidence upon which the trial court could have based its conclusion that each entry was timely and appropriate as directly related to the prior appeal; or (2) no basis upon which to disturb the court’s award. We find no abuse of discretion regarding this second group of fee awards. Cf. Kaiser, 164 Ill. App. 3d at 983-86.

To define the next two fee groupings which we will address, we note that in his brief the husband presents a point-by-point argument challenging the fee awards. Following that extended argument, the husband presents a recapitulation listing the fees entries to which he objects. The husband’s recapitulation includes a number of entries to which his extended argument does not refer.

Among those entries not covered in the extended argument are four which clearly were improperly included in the fees award. Even without extended argument by the husband, we find that the March 31, 1986, entry based on visitation and the April 3, 9, and 11, 1986, entries based upon collection proceedings clearly did not support a fee award. With reference to our analysis above, we find that these entries were untimely as based upon final orders entered more than 30 days prior to the filing of the petition. Consequently, we reverse the court’s fees award based upon them.

The other entries listed in the husband’s recapitulation, but not covered by specific argument, are for 1986: March 17 and April 1, and 7. Unlike the former entries, the descriptive labels on these entries do not reveal that a fees award thereupon was improper. Consequently, in the absence of effective argument to the contrary, we presume the correctness of the trial court’s discretionary judgment to award fees based upon them. See Rosenblatt v. Michigan Avenue National Bank (1979), 70 Ill. App. 3d 1039, 1042.

Two fees entries remain among the husband’s challenges. Those entries are both for March 1, 1988. Our review of the record reveals that, contrary to the husband’s assertions, those entries were directly related to the appeal. Consequently, we find that the court acted within its authority and discretion in awarding fees thereupon.

The husband’s remaining argument is that the trial court abused its discretion by not awarding him attorney fees and costs. He first contends that the trial court improperly used a subjective standard to evaluate attorney Schaffner’s conduct and improperly relied on its finding of no bad faith or improper motives. The husband argues that after finding that Mr. Schaffner “technically violated” section 2—611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611) by petitioning for $90 hourly attorney fees for work done by Ms. Anderson at a time when she was not licensed to practice law, the trial court should not have imposed only the sanction of a reprimand, but it should have awarded him attorney fees for defending the false petition. Moreover, the husband contends that Mr. Schaffner should be sanctioned for amending his petition for attorney fees to include a request for $45 hourly fees for Ms. Anderson’s work as a paralegal. According to the husband, that amended pleading had no basis in law.

The husband relies on the case of Gluth Brothers Construction, Inc. v. Union National Bank (1988), 166 Ill. App. 3d 18, which interpreted the former section 2—611. It mandated fee awards whenever the moving party showed that the opposing party had presented an untrue pleading of fact which it knew or reasonably should have known was untrue. Gluth Brothers, 166 Ill. App. 3d at 29.

The amended section 2—611, which became effective on November 25, 1986, provides in pertinent part:

“Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name ***. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. *** If a pleading, motion, or other pleading is signed in violation of this Section, the court, upon motion or upon its own initiative, shall impose upon the person who signed it *** an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 110, par. 2—611.

However, as is clear from its language, under the current statute, the trial court may sanction a section 2—611 violator in a manner other than ordering him to pay his opponent’s attorney fees. The husband’s reliance on the Gluth Brothers analysis of the former section 2—611 is misplaced.

Also misplaced is the husband’s reliance on the court’s standard for evaluation of attorney Schaffner’s conduct. Whether an attorney’s inquiry into the facts underlying a pleading is reasonable must be determined by an objective standard based upon the circumstances existing at the time he filed the pleading. (Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 623.) Nevertheless, we find no reversible error.

Although the court found that Mr. Schaffner should have known whether Ms. Anderson was licensed to practice law during the time originally claimed, it noted that Mr. Schaffner, once his error was disclosed, quickly offered to remedy it. We also note that, in choosing the sanction of a public reprimand, the court emphasized that the sanction would deter future conduct and would have the effect of serving “as a warning to all counsel that they must not rely solely on computer printouts *** but they must in fact read all papers before they are filed with the Court.” The sanction was carefully considered.

Although the trial court here erroneously applied a subjective standard, it found that wife’s attorney did not make a reasonable inquiry into the facts of her petition for fees. The husband’s disagreement is not with the court’s finding of unreasonable conduct, but with the sanction imposed. We do not find that the trial court, by ordering that Mr. Schaffner be sanctioned by public reprimand and by refusing to grant the husband his fees, abused its discretion. See In re Estate of Wernick (1989), 127 Ill. 2d 61, 77-78.

The husband also claims that Mr. Schaffner should be sanctioned for petitioning for fees for paralegal services. Although the trial court found that Illinois does not recognize recovery for paralegal fees, it further found that the wife was attempting to reverse the existing law. We find that the trial court did not abuse its discretion when it found that the paralegal fee argument was made in good faith and, thus, denied the husband’s motion for sanctions.

The wife cross-appeals, contending that the trial court erred by refusing to award her section 508 legal fees for services rendered by a paralegal. The trial court held that a party cannot recover fees incurred by his attorney’s paralegal; however, it noted that a paralegal’s services can be invaluable to a modern law office and that a paralegal can provide many out-of-court services to a client at a lower hourly rate than an attorney.

The husband argues that the wife should not be allowed to recover fees incurred through the use of a paralegal. He asserts that section 508 provides recovery solely for attorneys’ work and contends that if this court allows a recovery for paralegal services, it would be allowing the wife to recover fees for the unauthorized practice of law. Neither party presents case authority answering whether section 508 covers paralegal services.

Only persons licensed to practice law can receive compensation for legal services. (Ill. Rev. Stat. 1987, ch. 13, par. 1.) However, although one cannot collect attorney fees for the unauthorized practice of law (see Lozoff v. Shore Heights, Ltd. (1977), 66 Ill. 2d 398, 402), it should be noted that all of the paralegal time for which the wife sought fees was based upon Ms. Anderson’s administrative or research duties, and not for court appearances or signatures on any legal pleadings. There is no suggestion of her unauthorized practice of law. We must merely examine whether the legislature intended that section 508 cover paralegal fees.

Section 508 of the Act allows a spouse to recover “a reasonable amount for his own costs and attorney’s fees.” (Ill. Rev. Stat. 1987, ch. 40, par. 508.) To interpret the legislature’s intended coverage with this unclear phrase, we consider several sources. See Eck man v. Board of Trustees for the Police Pension Fund (1986), 143 Ill. App. 3d 757, 762.

We look primarily to an analogous provision in the criminal statutes. Like section 508, section 113—3(c) of the Code of Criminal Procedure of 1963 also allows recovery of attorney fees; in its case, those fees are for court-appointed counsel. Section 113—3(c) provides, “[u]pon the filing with the court of a verified statement of services rendered the court shall order the county treasurer of the county of trial to pay counsel other than the Public Defender a reasonable fee.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, par. 113—3(c).

Although the legislature referred only to “counsel” and “a reasonable fee,” the supreme court has held that section 113—3(c) covers recovery of overhead costs and trial expenses. (People v. Johnson (1981), 87 Ill. 2d 98, 105-06.) In listing the fee components available under section 113—3(c), the Johnson court specifically included paralegal services; the court instructed an attorney who may seek section 113—3(c) fees to keep service logs “and indicate which services were performed by himself, his associates, law clerks, or paralegals.” 87 Ill. 2d at 106. See also In re Petition for Fees (1983), 117 Ill. App. 3d 744, 747.

We find that section 508 similarly allows a party to recover paralegal fees. Although the particular statutory language differs, the language of section 508, as it specifically covers “costs,” is at least as broad as the language in section 113—3(c). We find that the apparent purpose underlying these two statutes is identical: to cover broadly the costs of necessary legal services rendered. In that regard, we agree with the trial court’s notation that paralegals are a valuable resource in the practice of law and find that their services, provided under the direction and control of a licensed attorney, should be recoverable under section 508.

Our finding that section 508 covers paralegal fees is consistent with prior cases which acknowledged that clients derive benefits from work by law clerks. (See Fiorito v. Jones (1978), 72 Ill. 2d 73, 89.) It is also consistent with the decision in In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078.

In Thornton, the wife filed a petition for fees under section 508 of the Act. The trial court granted part of the wife’s petition, but denied the part praying for fees for work done by several associates and by one paralegal, finding their work to be unnecessary. The appellate court endorsed the availability of paralegal fees when it reversed, holding that the trial court improperly determined that the associate and paralegal work was unnecessary. 89 Ill. App. 3d at 1095.

The judgment of the circuit court of Kane County is affirmed insofar as it denied the husband’s motion for sanctions and granted the wife’s petition for attorney fees demonstrably related to defending the former appeal. We reverse those portions of the judgment granting the wife’s untimely requests for attorney fees and denying paralegal fees. We remand the cause for entry of an appropriate, amended order consistent with this opinion.

Affirmed in part; reversed in part and remanded with instructions.

INGLES and REINHARD, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY BERRY, Defendant-Appellant.
    Second District
    No. 2—89—0148
    Opinion filed May 25, 1990.

      E. Duke McNeil, of E. Duke McNeil & Associates, of Chicago, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Larry Berry, was found guilty by a jury in the circuit court of Kane County of unlawful possession of a controlled substance with intent to deliver (cocaine), unlawful possession of a controlled substance (cocaine), and unlawful possession of cannabis. (Ill. Rev. Stat. 1987, ch. 56½, pars. 1401(b)(2), 1402(b), 704(b).) The court merged the three convictions and sentenced the defendant for the intent to deliver conviction to six months’ imprisonment in the Kane County jail and 48 months’ probation, the first 12 months to be served as intensive probation.

Defendant appeals, contending he was not proved guilty beyond a reasonable doubt where the amount of cocaine found on his person, which was stipulated to be 3.9 grams, was so small as to negate any intent to deliver. We affirm.

On December 9, 1987, between the hours of 9 and 11 p.m., Elgin police officers executed search warrants issued for the persons of the defendant, James Gatlin and two cars, a blue Datsun and a silver-blue Cadillac. The defendant and Gatlin were observed sitting in a maroon-colored car parked behind the blue Datsun in the area of Ann and Gifford streets in Elgin, an area where drug trafficking was known to the police to occur. The Cadillac was not in the area.

The defendant, who had been seated in the driver’s seat of the maroon car, was searched. In his left coat pocket, police discovered two sealed envelopes, each containing $1,000 in various denominations of United States currency. In his left rear pocket, police found a plastic bag containing a green leafy substance, stipulated to be marijuana, and $135 in United States currency. In his right rear pocket, police found $1,016 in United States currency. A hand-rolled cigarette was also recovered from the car.

The defendant was arrested and was strip searched at the Elgin police department. A small amount of marijuana in a plastic bag was recovered from the crotch area of his pants, and a plastic bag containing a white powdery substance was found in the crotch area of his underwear. It was stipulated that this white powdery substance was 3.9 grams of cocaine. No user paraphernalia was found on the defendant’s person, and no contraband was recovered in the search of James Gatlin.

At trial, Officer T.J. Strickland and Detective Sergeant David Gopher of the Elgin police department were qualified as experts in the area of narcotics. In Strickland’s opinion, the defendant was selling narcotics and not using them at the time he was arrested. Strickland based his opinion on the fact that the defendant had in excess of $3,100 in different locations on his person, the amount of cocaine the defendant possessed, and the lack of user paraphernalia such as a small straw, mirror, razor blade, small pipe or tube. Strickland testified cocaine is usually packaged for sale in quantities of one and three grams, one-quarter ounce, one-half ounce and ounces; the cost is about $100 a gram. The packages are usually fastened, but Strickland had also seen it for sale just loose in an open bag such as the one recovered from the defendant.

Detective Sergeant Gopher was also of the opinion that the defendant was selling drugs. His opinion was based on the fact that the defendant was carrying a large amount of currency, possessed a quantity of cocaine in excess of what the user in that area would have and did not have any user paraphernalia in his possession. Gopher testified the usual cocaine user would have anywhere from one-quarter to one-half to a gram of cocaine on his person. Gopher testified that when he approached the maroon car, he observed the defendant place a hand-rolled cigarette between the car seats and that Gatlin did not make any kind of a move. An additional quantity of cannabis was seized from the blue Datsun. It was stipulated that all the cannabis seized on December 9 was in fact cannabis with a total weight between 2.5 and 10 grams.

The defendant testified that when the police arrived, Gatlin shoved the later-recovered package of cocaine down the defendant’s pants. He further testified that he borrowed $2,000 from Gatlin and $1,000 from another friend, whom he did not identify, to assist his mother in getting her house out of foreclosure. She needed $4,500 or $4,600 to keep the house. He stated the police laughed when he told them the money was for his mother’s mortgage. He did not sign an IOU for the loan from Gatlin because he grew up with Gatlin and Gatlin trusted the defendant to pay him back. The defendant stated his mother lost the house and moved back down south to Parkin, Arkansas, because the police wouldn’t give him back the money and he did not meet the deadline.

The defendant, who in 1987 was employed as a patrolman in Parkin, Arkansas, admitted having the marijuana which was found in his back pocket for his personal use, but he denied having cannabis in the crotch area of his pants at the police station or seeing the cannabis recovered from the other car or having ever sold cocaine or other drugs. He testified he did not tell anyone until trial that James Gatlin shoved the cocaine down his pants because he knew of Gatlin’s violent character, was afraid of Gatlin, and Gatlin got out on bond before he did. He did not know Gatlin’s whereabouts at the time of trial. When Gatlin stuck the cocaine down his pants, the defendant did not move because the police might have thought he was going for a gun and shot him. As noted, the jury found the defendant guilty on all charges.

Defendant concedes he was found in actual possession of the drugs but argues there was insufficient circumstantial evidence to create an inference of intent to deliver. Defendant acknowledges that, in determining whether there was an intent to deliver, the threshold question is whether the amount of contraband is in excess of any amount that could be viewed as being for personal use. He further acknowledges that factors other than the amount of contraband possessed may support the inference that there was an intent to deliver. He argues, however, that the jury could not reasonably have inferred an intent to deliver from his possession of 3.9 grams of cocaine where a larger amount, 4.55 grams, was specifically described as “small” in People v. Kline (1976), 41 Ill. App. 3d 261, 264. Further, he discredits Officer Strickland’s opinion that he had the intent to deliver because it was based on a nonspecific amount of cocaine (i.e., “[B]ased on the amount of cocaine you [Officer Strickland] observed”), and Detective Sergeant Gopher’s opinion was based on 5.5 grams, which was the weight of the cocaine as measured by the police department scale, rather than the stipulated amount, 3.9 grams. He argues there was nothing to tie him to the area where he was arrested and that the possession of 5.5 grams of cocaine might have been typical of users in other areas. Assuming, arguendo, that Detective Sergeant Gopher’s estimate of how much the typical cocaine user would have on his person was correct (between one-quarter and one gram) defendant points out he was not found to be in possession of any packaging materials and, thus, no inference of an intent to deliver arises. Moreover, he asserts, the absence of drug paraphernalia in his possession should weaken, not strengthen, the intent to deliver inference against him. Finally, he submits the amount of money found in his possession “is irrelevant”; its possession was explained, and there was no evidence that drug sales were taking place from the auto immediately prior to the arrests as in People v. Hunter (1984), 124 Ill. App. 3d 516.

We agree with the State that the evidence supports the conclusion that the defendant was guilty beyond a reasonable doubt of the possession of cocaine with the intent to deliver. When the sufficiency of the evidence is challenged on appeal, the reasonable doubt test set forth in People v. Collins (1985), 106 Ill. 2d 237, is to be applied in all criminal cases whether the evidence is direct or circumstantial. (People v. Pintos (1989), 133 Ill. 2d 286, 291.) That reasonable doubt test is:

“ ‘[W]hether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) Collins, 106 Ill. 2d at 261, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

Intent to deliver is necessarily proved by circumstantial evidence. (People v. Friend (1988), 177 Ill. App. 3d 1002, 1021.) As the defendant concedes, a reasonable inference of intent to deliver narcotics arises where the amount of controlled substance possessed could not be viewed as designed for personal consumption. (People v. Chrisos (1986), 151 Ill. App. 3d 142, 147; People v. Schaefer (1985), 133 Ill. App. 3d 697, 702.) The inference to be drawn from the amount of a controlled substance possessed must be judged on a case-to-case basis. (People v. Kline (1976), 41 Ill. App. 3d 261, 266.) The inference of intent to deliver may be enhanced by the combination of drugs and the manner in which they are kept (Friend, 177 Ill. App. 3d at 1021; People v. Knight (1985), 133 Ill. App. 3d 248, 254); by the presence of drug paraphernalia (Friend, 177 Ill. App. 3d at 1021 (a scale); Kline, 41 Ill. App. 3d at 264 (reefer rollers, scales, pipes, pans and tweezers)); and by large amounts of cash and weapons (People v. Atencia (1983), 113 Ill. App. 3d 247 (loaded gun and $26,900 in cash)).

We find unpersuasive the defendant’s attempt to negate the inference of intent to deliver which was drawn by the jury by comparing the 3.9 grams of controlled substance he possessed with the amounts of contraband possessed in People v. Birge (1985), 137 Ill. App. 3d 781 (51 pounds of cannabis); People v. Schaefer (1985), 133 Ill. App. 3d 697 (21.9 grams of cocaine and 578.8 grams of cannabis); People v. Knight (1985), 133 Ill. App. 3d 248 (364 grams of cannabis and 638 grams of PCP); People v. Munoz (1982), 103 Ill. App. 3d 1080 (250 grams of cocaine), and People v. Kline (1976), 41 Ill. App. 3d 261 (6,443.33 grams of marijuana, 4.55 grams of cocaine, 13.74 grams of LSD). Those amounts certainly are larger by comparison, but each case is to be decided on its own facts (Kline, 41 Ill. App. 3d at 266), and the statute under which the defendant was charged clearly prohibits possession of even lesser amounts with the intent to deliver, i.e., “more than 1 gram but not more than 15 grams of any substance containing cocaine” (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(b)(2)).

The defendant in People v. LeCour (1988), 172 Ill. App. 3d 878, appealing his conviction for one count of unlawful possession with intent to deliver less than 10 grams of a substance containing cocaine, advanced virtually the same argument the defendant does here, focusing on the “small” amount of cocaine he possessed, 3.3 grams. Interestingly, the cocaine found on the defendant in LeCour was also recovered from the crotch of the defendant’s underwear. No amount of large currency, weapons or drug paraphernalia was recovered from the defendant. We found in LeCour, however, that such factors do not comprise the exclusive indicia of intent and that intent to deliver may be inferred from any number of various circumstances. (LeCour, 172 Ill. App. 3d at 886.) We upheld the defendant’s conviction there in light of the direct testimony of the defendant’s intended purchaser, who testified he purchased one gram of cocaine from the defendant the day before the defendant’s arrest by contacting him on the defendant’s telephone pager. The purchaser, in cooperation with the police, contacted the defendant again the next day and requested 3.3 grams, the amount found on the defendant’s person after his arrest at the agreed-upon delivery location.

The “small” amount of cocaine in Kline, cited in support by the defendant, was small in relation to the 6,443.33 grams of marijuana and 13.74 grams of LSD also possessed by the defendant. Here, Detective Sergeant Gopher, testifying as an expert in the field of narcotics, stated the usual cocaine user in that area — which the jury reasonably could have construed to mean the Elgin area — would be in possession of between one-quarter to one-half to a gram of cocaine. At the least, defendant’s possession of 3.9 grams of cocaine represented an amount almost four times more than reasonably could be viewed as being for his own personal consumption. The combination of the circumstances of the lack of “user” drug paraphernalia, the three separate, large amounts of United States currency, and the defendant’s apparently not-so-unique underwear cache for the cocaine could reasonably have led the jury to conclude the defendant intended to deliver the cocaine, not use it. As suggested in LeCour, the lack of any drug paraphernalia is not an exclusive indicium of the intent to deliver. In LeCour, for instance, the amount of drugs to be delivered was prearranged, and no seller or user paraphernalia was found in the defendant’s possession.

We note the defendant here denied the ownership of the cannabis package recovered from the crotch area of his pants but did not deny ownership of the cannabis found in his pocket. The jury reasonably could have believed that if Gatlin did shove anything down the defendant’s pants, it may have been the cannabis and not the cocaine found in the crotch of the defendant’s underwear, particularly since no contraband was recovered in the search of Gatlin’s person.

When a defendant elects to testify in his own behalf, it is incumbent upon him to tell a reasonable story or be judged by its improbabilities. (People v. Gross (1988), 166 Ill. App. 3d 413.) We believe any rational trier of fact could have found it improbable that the defendant did not mention until trial that Gatlin shoved the package of cocaine down into the defendant’s underwear because he was afraid of Gatlin in light of the defendant’s other testimony that he grew up with Gatlin and that Gatlin loaned him $2,000 without so much as an IOU because Gatlin trusted the defendant to pay him back. The money found on the defendant may indeed have been earmarked for payment of the defendant’s mother’s mortgage. However, the jury reasonably could have found the money was drug-delivery related due to the improbability that Gatlin’s loan of $2,000 would have been divided into two separate, sealed envelopes of $1,000 each and that the defendant never endeavored to identify the “friend” who loaned him the other $1,000.

In sum, viewing the evidence in the light most favorable to the prosecution, we conclude any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the unlawful possession of a controlled substance with the intent to deliver.

For these reasons, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

WOODWARD and GEIGER, JJ., concur.


author: JUSTICE REINHARD

text:
    LAKE COUNTY CONTRACTORS DEVELOPMENT ASSOCIATION, INC., et al., Plaintiffs-Appellees, v. NORTH SHORE SANITARY DISTRICT OF LAKE COUNTY, ILLINOIS, Defendant-Appellant.-LAKE COUNTY CONTRACTORS DEVELOPMENT ASSOCIATION, INC., et al., Plaintiffs-Appellees, v. THE COUNTY OF LAKE et al., Defendants-Appellants.
    Second District
    Nos. 2—89—0753, 2—89—0764 cons.
    Opinion filed May 30, 1990.

      Neil F. Hartigan, Attorney General, of Springfield, Murray R. Conzelman, of Conzelman, Schultz, Snarski & Mullen, of Waukegan, and Robert T. Isham, Jr., of McDermott, Will & Emery, of Chicago (Robert J. Ruiz, Solicitor General, and Jerald S. Post and Jan E. Hughes, Assistant Attorneys General, of Chicago, and Karl W. Grabemann, of counsel), for appellant.
    Fred L. Foreman, State’s Attorney, and Alan M. Kaplan, of Brydges, Riseborough, Morris, Franke & Miller, both of Waukegan, and Thompson & Thompson, of Libertyville (Mimi E. Brin, Assistant State’s Attorney, Paul E. Thompson, and Louis W. Brydges, Jr., of counsel), for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiffs, Lake County Contractors Development Association (Association) and Lake County Grading Company of Libertyville (Grading), brought actions in the circuit court of Lake County seeking administrative review of determinations by defendants, the North Shore Sanitary District of Lake County (Sanitary District) and Gwen R. Martin, Director of the Department of Labor (Department), on behalf of the Lake County Public Building Commission (Commission) and the County Board of Lake County (County), as to prevailing wages for various trades in Lake County. The actions were consolidated in the trial court, and the trial court entered summary judgment in favor of plaintiffs. The Sanitary District and the Department filed these appeals, which have been consolidated.

The record on appeal establishes the following facts. The Commission enacted an ordinance on June 8, 1988, specifying the prevailing rate of wages for various categories of trade workers on public works projects in Lake County. The Commission conducted no independent investigation of prevailing wages, but, rather, adopted the schedule enacted by the Department. The County enacted a similar ordinance without independent investigation on June 13, 1988, as did the Sanitary District on June 23, 1988. Plaintiffs filed objections to the Sanitary District’s ordinance on July 13, 1988, contending that the ordinance contained incorrect wage rates for 18 categories of trade workers and contained incorrect overtime rates for laborers, teamsters, plumbers and cement masons. Plaintiffs also contended that the Sanitary District exceeded its authority by specifying when overtime must be paid, as opposed merely to specifying the rate. Plaintiffs filed similar objections to the County’s ordinance. Apparently plaintiffs had previously on July 5, 1988, filed objections to the Commission’s ordinance objecting only to the overtime rates for laborers, teamsters, plumbers and cement masons and that the Commission had no authority to determine when overtime must be paid. These objections are missing from the record on appeal but are recited in the hearing officer’s findings.

On August 2, 1988, the Sanitary District conducted a hearing on the objection to its ordinance. At the hearing, Robert Macgruder, executive vice-president of the Association, testified that the Association represents approximately 170 contractors. He testified that he participated in the negotiations of collective bargaining agreements with bricklayers, carpenters, cement masons, laborers, operating engineers, plasterers, plumbers, and teamsters.

Macgruder testified that the Association annually prepares a listing of wage rates and fringe benefits of 23 different building trade unions. According to Macgruder, the list is cross-checked with union offices and other contractor associations for accuracy.

The Association entered into evidence a table prepared by Macgruder listing wage and fringe benefits for various trades based upon his survey. Macgruder also testified that overtime practices vary among trades. He testified that, for example, laborers allow work on Saturday at straight time if a weekday is lost to weather and that if a holiday falls during the week, laborers may work 10 hours a day at straight time the other four days of the week. The Association introduced into evidence a portion of a laborers’ union collective bargaining agreement for 1988, which included provisions for overtime practices as described by Macgruder. The Association also introduced into evidence overtime provisions in collective bargaining agreements for teamsters and for carpenters which differ in some respects from the practices specified in the ordinance for these trades.

Macgruder testified that the vast majority of public works projects in Lake County are performed by contractors whose employees are working under collective bargaining agreements. Macgruder was unaware of any public works projects in the preceding year which were not performed in large part by union trades. Macgruder further testified that many of the rates specified in the Sanitary District ordinance appeared to be rates from earlier collective bargaining agreements which had expired.

Paul Thompson, an attorney for Grading, testified that he was familiar with the wages paid workers on public works projects in Lake County. He testified that at least 95% of the work on public works is performed by contractors who employ labor under the terms of collective bargaining agreements. According to Thompson, the ordinance appeared to utilize wage rates from collective bargaining agreements from prior years. Thompson testified that the wage rates specified by Macgruder during his testimony were the current rates being paid by union contractors in Lake County.

Several union representatives and a contractor testified that the rates in the ordinance for various trades were incorrect and reflected rates from prior collective bargaining agreements. Robert Barnes, secretary-treasurer of Teamsters’ Local 101, testified that the overtime provision of the ordinance for truck drivers did not reflect practices in the Teamsters’ current collective bargaining agreement.

David Hayes, manager of the conciliation mediation division of the Department, testified that in determining prevailing wages, collective bargaining agreements were the overwhelming factor considered, although the Department could consider other factors. Hayes testified that the Department would not certify overtime practices allowing work weeks of four 10-hour days, or Saturday makeup days.

The hearing officer found that “there is a disparity between the District’s determination of the prevailing rate of wages and those found in several of the collective bargaining agreements that were effective in Lake County, Illinois on June 1 and thereafter. However, this disparity, in my opinion, is not sufficient by itself to warrant a redetermination by the District of the prevailing rate of wages that was earlier determined by it.” The trustees of the Sanitary District adopted the hearing officer’s report and recommendation.

On August 18, 1988, the Department held a hearing on behalf of the County and the Commission with respect to the objections to their determinations. At this hearing, plaintiffs moved to amend their objections to the Commission’s wage determinations so that they would duplicate the objections raised against the County’s determinations. The hearing officer denied this motion based on the statutory requirement that objections be filed within 15 days of publication of the ordinance.

At the hearing, the parties agreed to the introduction into evidence of the transcript and portions of the exhibits from the Sanitary District’s hearing. Robert Macgruder also testified at this hearing and presented a schedule of Wages which contained a few pension rates different from those listed in the schedule submitted at the Sanitary District’s hearing. The parties stipulated that the schedule reflected the rates of wages and benefits for workers in Lake County. The hearing officer found that the County erred with respect to its wage determination for truck drivers and its wage and fringe benefit determination for electricians. In all other respects, the. hearing officer overruled the remaining objections.

Upon administrative review before the circuit court of Lake County, the court granted plaintiffs’ motion for summary judgment against the Sanitary District, the Commission, and the County. The court found, inter alia, that over 90% of the public works performed in Lake County for the Sanitary District, the County, and the Commission were done by union labor, that the evidence established that on June 1, 1988, the prevailing wage rates were established by the objectors’ evidence of union contracts then in existence, and that the Department had no authority to set the times and instances when overtime payments shall be made.

The issues raised on appeal by the Department and the Sanitary District are as follows: (1) whether the circuit court erred in considering the untimely, oral objections to the Commission’s ordinance; (2) whether the circuit court erred in finding the Department’s prevailing wage determinations were against the manifest weight of the evidence; and (3) whether the circuit court erred in finding that the Sanitary District, the Commission, and the County do not have the authority under the Prevailing Wage Act to determine when overtime rates shall apply.

The pertinent statutory provisions are as follows. Section 3 of “An Act regulating wages of laborers, mechanics and other workers employed in any public works ***” (Prevailing Wage Act or Act) provides, in pertinent part:

“§3. Not less than the general prevailing rate of hourly wages for work of a similar character on public works in the locality in which the work is performed, and not less than the general prevailing rate of hourly wages for legal holiday and overtime work, shall be paid to all laborers, workers and mechanics employed by or on behalf of any public body engaged in the construction of public works.” Ill. Rev. Stat. 1987, ch.48, par. 39s—3.

Section 4 of the Act mandates:

“§4. The public body awarding any contract for public work or otherwise undertaking any public works, shall ascertain the general prevailing rate of hourly wages in the locality in which the work is to be performed, for each craft or type of worker or mechanic needed to execute the contract, and where the public body performs the work without letting a contract therefor, shall ascertain the prevailing rate of wages on a per hour basis in the locality, and such public body shall specify in the resolution or ordinance and in the call for bids for the contract, that the general prevailing rate of wages in the locality for each craft or type of worker or mechanic needed to execute the contract or perform such work, also the general prevailing rate for legal holiday and overtime work, as ascertained by the public body or by the Department of Labor shall be paid for each craft or type of worker needed to execute the contract or to perform such work, and it shall be mandatory upon the contractor to whom the contract is awarded and upon any subcontractor under him, and where the public body performs the work, upon the public body, to pay not less than the specified rates to all laborers, workers and mechanics employed by them in the execution of the contract or such work[.]” (Ill. Rev. Stat. 1987, ch. 48, par. 39s—4.)

Section 9 of the Act requires public bodies to investigate and ascertain the prevailing rate of wages during the month of June of each calendar year and additionally requires the Department to investigate and ascertain the prevailing rate of wages for each county in the State during June. Ill. Rev. Stat. 1987, ch. 48, par. 39s—9.

Following ascertainment of the generally prevailing wage rates for a locality, a public body must publish its determination, whereupon any person affected by the determination may within 15 days object in writing to the determination. (Ill. Rev. Stat. 1987, ch. 48, par. 39s—9.) Thereafter, it is the duty of the public body to conduct a hearing on the objection. If the public body fails to do so, the Department may, upon request of the objectors, conduct the hearing on behalf of the public body. Ill. Rev. Stat. 1987, ch. 48, par. 39s—9.

With respect to the hearing, section 9 of the Act provides:

“At such hearing the public body or Department of Labor shall introduce in evidence the investigation it instituted which formed the basis of its determination, and the public body or Department of Labor, or any interested objectors may thereafter introduce such evidence as is material to the issue. Thereafter, the public body or Department of Labor, must rule upon the written objection and make such final determination as it believes the evidence warrants, and promptly file a certified copy of its final determination with such public body and the Secretary of State, and serve a copy by personal service or registered mail on all parties to the proceedings. The final determination by a public body shall be rendered within 10 days after the conclusion of the hearing.
If proceedings to review judicially the final determination of the public body or Department of Labor are not instituted as hereafter provided, such determination shall be final and binding.
The provisions of the Administrative Review Law, and all amendments and modifications thereof, and the rules adopted pursuant thereto, shall apply to and govern all proceedings for the judicial review of final administrative decisions of any public body or the Department of Labor hereunder. The term ‘administrative decision’ is defined as in Section 3—101 of the Code of Civil Procedure.” Ill. Rev. Stat. 1987, ch. 48, par. 39s—9.

Initially, the Department contends that the trial court erred in modifying the wage rates in the Commission’s order for 18 trades which plaintiffs had not included in their original objection to the ordinance. The Association has not responded to this contention, and Grading has made a brief argument not supported by the record. We agree with the Department’s argument. The Prevailing Wage Act only requires the Department or a public body to conduct a hearing on written objections filed “within 15 days after a certified copy of the determination has been published.” (Ill. Rev. Stat. 1987, ch. 48, par. 39s—9.) The Department’s hearing officer, presiding over the hearing conducted on behalf of the Commission, properly declined to consider new, untimely oral objections to the ordinance. Accordingly, the judgment of the trial court is reversed with respect to these objections to the Commission’s determination as to the prevailing wage rate for these 18 trades.

The Department and the Sanitary District further argue that the trial court erred in finding their determinations of the prevailing wage rates in the objections before the Sanitary District and the County to be against the manifest weight of the evidence. It is well established that the findings of an administrative agency on questions of fact are prima facie true and correct, and a reviewing court may set aside such findings only if they are against the manifest weight of the evidence. Evert v. Board of Trustees of the Fire Fighters’ Pension Fund (1989), 180 Ill. App. 3d 656, 660, 536 N.E.2d 143.

We believe the determinations of the Department and the Sanitary District were properly set aside by the circuit court in the instant case. The Sanitary District, County, and Commission all adopted the Department’s determination as to prevailing wage rates. No evidence was presented as to any independent investigation by the Sanitary District, County or Commission; nor was any evidence submitted of the Department’s investigation. Accordingly, the record is devoid of any support for the wage rates determined by the Department.

In contrast, the Association presented the testimony of its executive vice-president, who related the results of his survey of prevailing wages in June 1988 in Lake County for various trades. He testified that the Association represents approximately 170 contractors and that he had participated in the negotiation for collective bargaining agreements for a number of trades. He further testified that in conducting his survey he contacted unions and other trade associations. Moreover, union representatives and a contractor testified that the Association’s figures reflected prevailing wage rates, whereas the Department’s figures reflected rates under expired collective bargaining agreements.

The fact that the Association’s figures were based on union scale does not render them invalid as it has been recognized that in such times or situations as union labor predominates in the public works field, the prevailing union scale will no doubt set the standard for the prevailing wage rate under the statute. (Hayen v. County of Ogle (1984), 101 Ill. 2d 413, 423, 463 N.E.2d 124.) Here, the evidence clearly shows that over 90% of the public works projects in Lake County are performed by contractors employing union labor. Under these circumstances, there is no basis to reject the rates introduced by the Association.

The Department repeatedly asserts that the trial court did not properly consider the record or employ the correct standard of review as to the Commission’s and the County’s determinations. The Department contends that the trial court was under the mistaken belief that the evidence before the Department was identical to the evidence before the Sanitary District. The Department points out that at the Sanitary District hearing complete copies of collective bargaining agreements were placed into evidence, whereas the evidence at the Department hearing was primarily testimonial and not all the exhibits in the Sanitary District hearing were in evidence in the Department hearings. We find no indication that the trial court failed to distinguish properly between the records in the two proceedings. Moreover, while the evidence presented at the Department hearing may have been less extensive than at the Sanitary District hearing, it was still sufficient to support plaintiffs’ objections, despite some inconsistency in the evidence. Indeed, the Department stipulated to the accuracy of the schedule of wages and benefits presented by Macgruder during the hearing. The Department also contends that the trial court improperly made a de novo determination. We find no indication that the trial court applied an incorrect standard of review.

The Department additionally argues that it is entitled to deference with respect to its determination from its original investigation of prevailing wages. The Department asserts that, by rejecting the Department’s original determination, the trial court would impose an undue burden on the Department with respect to the extent of the investigation it must conduct. The adequacy of the Department’s procedures is not at issue, but, rather, the issue is the correctness of its determination. The Department cites no authority and advances no reason why the Department or a public body at a hearing on objections should defer to its original determination in the face of evidence of its inaccuracy. Moreover, the Department is in a poor position to defend the adequacy of its investigation, having presented little specific evidence in this regard at the hearing below.

The Department and the Sanitary District also contend that the trial court erred in holding that they were without authority to determine when overtime must be paid. Plaintiffs contend that the trial court ruled correctly and that the Prevailing Wage Act only allows public bodies to determine the amount of pay employees must receive when working overtime but does not give the public bodies the power to determine the prevailing overtime practice, which is the hour of the day or the day of the week on which employers are to pay the overtime rate of pay. Alternatively, plaintiffs contend that the trial judge correctly ruled when he found that even if such authority exists, the Department and the Sanitary District erred in their determinations.

The Department and the Sanitary District maintain that implicit in the statutory mandate that they determine the generally prevailing rate for overtime work is the authority to determine when overtime must be paid. They contend that such a construction is necessary to fulfill the purposes of the Act. We agree with this position.

In interpreting a statute, the function of the court is to ascertain and give effect to the intent of the legislature. (Maloney v. Bower (1986), 113 Ill. 2d 473, 479, 498 N.E.2d 1102.) In determining legislative intent, consideration must be given to the entire statute, its nature, object, and purpose to be attained, and the evil to be remedied. (Benjamin v. Cablevision Programming Investments (1986), 114 Ill. 2d 150, 157, 499 N.E.2d 1309.) On appeal from an administrative agency’s action, the agency’s construction of a statute or rule, as here, is to be considered persuasive, but is not binding on the court, and the court will not be bound by an interpretation that is clearly erroneous, arbitrary, or unreasonable. (Mitee Racers, Inc. v. Carnival-Amusement Safety Board (1987), 152 Ill. App. 3d 812, 816-17, 504 N.E.2d 1298.) Courts of review are not bound to give the same measure of deference to an administrative agency’s construction of a statute as is given to its findings of fact. Harrisburg-Raleigh Airport Authority v. Department of Revenue (1989), 126 Ill. 2d 326, 331, 533 N.E.2d 1072.

Among the purposes of the Act is to “protect local workers by removing the incentive to import less expensive labor from areas outside the locality in which the work is being performed.” (People ex rel. Bernardi v. City of Highland Park (1988), 121 Ill. 2d 1, 10, 520 N.E.2d 316.) We can envision circumstances in which, if a public body is not given authority to specify prevailing overtime practices, but rather is limited to specifying the rate only, this purpose would be undermined. If, for example, the prevailing overtime practice in a trade in a given locality pays workers time and a half for each hour worked after eight hours in a workday and time and a half for each hour worked after 40 in a work week, but in another locality tradesmen receive time and a half after 40 hours in a work week, but are paid at straight time for up to 10 hours a day, contractors employing the latter group of tradesmen would have a competitive advantage if a pub-lie body could only specify that overtime was to be paid at “time and a half.” Accordingly, we believe the Act authorizes the department or a public body to determine the prevailing overtime practices.

Nonetheless, we agree with plaintiffs’ alternative contention that the determinations by the Sanitary District and the Department in the instant case were erroneous. It is clear from the record that overtime practices vary among trades. The overtime provisions of the ordinances in this case do not reflect the prevailing practices in certain trades as shown by plaintiffs’ evidence. The Department contends that overtime practices which allow Saturday makeup days or four 10-hour days cannot be adopted as the prevailing wage because, pursuant to the Prevailing Wage Act, each year’s determination sets a “floor” for wages in subsequent years, and previous determinations had required overtime pay for the 9th and 10th hours of the day and for weekends and holidays. The Department cites Bradley v. Casey (1953), 415 Ill. 576, 114 N.E.2d 681, for the proposition that each year’s prevailing wage determination sets a floor for succeeding years. Suffice it to say that Bradley stands for no such proposition. The trial court properly determined that the correct prevailing practices as of June 1, 1988, were those contained in the collective bargaining agreement as to each particular trade.

Accordingly, the portion of the judgment of the circuit court modifying 18 wage determinations in the Commission’s ordinance is reversed. Otherwise the judgment of the circuit court is affirmed for the reasons stated in this opinion.

No. 2 — 89—0753, Affirmed.

No. 2 — 89—0764, Affirmed in part; reversed in part.

UNVERZAGT, P.J., and WOODWARD, J., concur.