author: JUSTICE GORMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALBERT LEE MILLER, Defendant-Appellant.
    Third District
    No. 3—90—0638
    Opinion filed December 30,1991.

      Timothy M. Gabrielsen, of State Appellate Defender’s Office, of Springfield, for appellant.
    Samuel Naylor VI, State’s Attorney, of Carthage (Terry A. Mertel and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the "opinion of the court:

The trial court convicted the defendant, Albert Lee Miller, of three counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(b)). It subsequently sentenced him to 30 months’ probation, conditioned upon his serving 90 days in the county jail and paying a $200 fine. The defendant appeals his conviction. We affirm.

The record shows that the defendant was convicted of one count of aggravated criminal sexual abuse of his granddaughter A.R. This count alleged that on or about April 12, 1989, the defendant, a family member, knowingly committed an act of sexual conduct by fondling or touching A.R. through her clothing on her vagina, when she was under the age of 18 years. The defendant was also convicted of two counts of aggravated criminal sexual abuse of his granddaughter C.R. One count alleged that on or about April 12 to April 26, 1989, a Wednesday, the defendant, a family member, knowingly committed an act of sexual conduct by touching or fondling C.R. on her breast when she was under the age of 18 years. The other count alleged that within the same time frame the defendant had touched or fondled C.R. through her clothing on her vagina. The trial court directed verdicts for the defendant on four other counts of sexual abuse involving the defendant’s two other grandchildren, B.R. and M.R.

At trial, nine-year-old A.R. testified that her family moved into her grandparents’ home on April 9, 1989. Approximately three days later, as A.R. walked by the defendant in the kitchen, he pulled her onto his lap and touched her through her clothes in her crotch area. The defendant used his hand that was not crippled. Her grandmother was in the kitchen at the time, first reading a book and then fixing supper.

A.R’s testimony on direct examination concerning the whereabouts of her brother and sisters at the time of the incident in question was unclear. However, on cross-examination she stated that her brother and sisters were outside and she was going to join them when the defendant pulled her onto his lap and began touching her. When the other children became tired of playing outside and came back into the house, the defendant stopped his actions. The other children then went into the living room.

Eleven-year-old C.R. testified that one incident of sexual abuse occurred in the defendant’s bedroom a couple of days after she and her family moved into the defendant’s home. The defendant had said he was tired, and C.R. and her brother B.R. helped the defendant into his bedroom. C.R. testified that the defendant pulled them onto the bed and started touching them. She admitted that she did not actually see the defendant touch B.R. She stated that at one point she tried to crawl over the foot of the bed but was pulled back by the defendant. On direct examination, she stated that there was a wooden board at the foot of the bed, but on cross-examination she admitted that she had been mistaken and there was no wooden board. After pulling her back on the bed, the defendant rubbed her under her dress on her chest with his hand that was not crippled. The defendant held her on the bed by wrapping his legs around one of hers.

C.R. further testified that she was not sure but she thought her stepfather, Ronnie, was at home in his room that day. This incident ended when her sister, M.R., came into the bedroom three or four times to tell them to come to supper. While in the bedroom, the defendant told C.R. not to tell anyone about what had occurred. C.R. testified that the defendant told her not to tell her mother “or else” on a subsequent occasion in the living room.

C.R. also testified to other incidents of sexual abuse which took place in the defendant’s kitchen. She testified that one of the occasions of abusive touching occurred while “My Two Dads” was on television, which aired on Wednesday evenings. During one instance, C.R.’s grandmother and either her sister A.R. or her brother B.R. were present. Her grandmother was standing by the stove making supper. C.R. testified that the defendant touched her under her shirt and on her “privates” between her legs. C.R. noted that she and A.R. were screaming and her grandmother told them to stop. According to C.R., she and her siblings sometimes yelled in the defendant’s home. Her grandmother would sometimes ignore them or tell them to be quiet without looking at them. C.R. testified that this type of touching by the defendant happened on more than one occasion on different days and her. grandmother was not always present.

Sheriffs deputy John Jefferson testified that he interviewed C.R. on June 26, 1989. C.R. told him about two separate touching incidents, one in the defendant’s kitchen and one in his bedroom. C.R. also told him that the defendant had only warned her once in the bedroom not to tell anyone.

Terri Allen, a Department of Children and Family Services (DCFS) investigator, interviewed the children on June 29, 1989. She testified that the children were upset and shy during the interview. C.R. told Allen that the defendant had grabbed her and B.R., taken them into the bedroom, and put them on the bed. C.R. also told Allen that the defendant had only warned her once in the bedroom not to tell.

Thirteen-year-old M.R. testified that she and her family moved in with the defendant on Sunday, April 9, 1989. A few days later, she saw C.R. and B.R. walk the defendant to his bedroom. A.R. followed them in. Subsequently, M.R. returned several times to call the children and the defendant to supper. The first time, A.R. left the room. The next time, M.R. saw the defendant’s hand down B.R.’s pants. After that, B.R. left and C.R. remained. Finally, she returned and saw the defendant with his good hand up C.R.’s shirt. C.R. told M.R. she could not come to eat because the defendant kept pulling her down on the bed. M.R. further testified that she and the other children did not say anything because C.R. told them the defendant had told her not to tell anyone. M.R. stated that the children began telling others a few days after they moved out of the defendant’s home.

Ronnie Noll, the children’s stepfather, testified that he and his family moved in with the defendant around April 6, 1989, and stayed with him for about three weeks. A few days after they moved out of the defendant’s home, C.R. told him the defendant had been touching all of the children and that she was afraid to tell anyone because the defendant had threatened her.

Carolyn Hameedah Carr, a sexual assault therapist, testified that she interviewed the children in December of 1989. In her opinion, the symptoms of C.R., M.R., and A.R. were consistent with sexual abuse.

The defendant testified that he had been unable to use his right hand since an accident which occurred 20 years prior to the date of trial. He denied any sexual misconduct toward the children. He stated that he had wrestled with B.R. and C.R. on his bed the first Saturday after they moved in, but denied any improper touching. The defendant also testified that he and Ronnie Noll worked for the defendant’s brother, Gene. He claimed that he and Noll would return home after work between 8 and 9 p.m. on weekdays. The trip home took about 45 minutes.

Donna Noll, the victims’ mother and the defendant’s daughter, testified along with Ronnie Noll that the defendant and Ronnie did not work that late. Ronnie stated that they returned from work anywhere from 4 to 8 p.m., depending upon the job. Donna stated that the defendant and Ronnie returned from work between 6 and 8 p.m. Both Donna and Ronnie testified that on several days in April the defendant and Ronnie did not work because of rain. Ronnie also testified that he and Donna had gone to Hannibal, Missouri, on the first Saturday after he and his family moved in with the defendant.

Barbara Miller, the defendant’s sister-in-law, testified that the defendant and Noll worked for her husband and they usually worked until 7 to 8:30 p.m. They would leave her house around 8 p.m. or sometimes 9 p.m.

Donna Noll testified that the defendant had touched her in inappropriate ways from the time she was 11 years old until she was 14 and left home for foster care. She also testified that after moving back in with the defendant she was upset with him for various things, such as his not allowing her and her then-boyfriend Ronnie to shower together and for not fulfilling his promise to replace the furniture she sold before moving home with the defendant. She also admitted that she was upset with the defendant for telling her not to return to the house again. She denied having said that she would get even with the defendant.

Barbara Walker, another of the defendant’s daughters, testified that Donna told her she would “make [her father] pay.” Walker further stated that she never witnessed any improper touching of Donna’s children by the defendant. She stated that because she had three sexually abused stepchildren she knew the symptoms they would manifest. She never saw Donna’s children manifest those symptoms.

Jean Miller, the defendant’s wife, testified that she saw Donna’s children on the defendant’s lap constantly during their stay. According to her, there was no way the defendant could have engaged in the alleged misconduct in the kitchen area without her knowing about it. She would not have tolerated it.

Steve Blentlinger, the defendant’s stepson, testified that he saw Donna’s children playing with the defendant on the Sunday following the Saturday that Ronnie and Donna went to Hannibal. He never saw the children exhibit any fear of the defendant, nor did he see the defendant engage in any sexual misconduct with them. Percy Blentlinger, the defendant’s father-in-law, also saw the children that Sunday. He did not see the defendant exhibit any improper conduct toward them.

On appeal, the defendant argues he was not proven guilty beyond a reasonable doubt. He asserts that the evidence was insufficient to establish the aggravated criminal sexual abuse of either C.R. or A.R.

Initially, we note that the defendant has not cited the correct standard of review in the instant case. In People v. Schott (1991), 145 Ill. 2d 188, the Illinois Supreme Court clarified the law regarding the standard of review in sex-offense cases. In order to sustain a conviction, the evidence need no longer meet the standard that either the complainant’s testimony was clear and convincing or was substantially corroborated. Instead, the ordinary standard in criminal cases applies, i.e., whether, after viewing all of the evidence in the light most favorable to the State, 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.) When evidence is merely conflicting, a court of review will not substitute its judgment for that of the trier of fact. (People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733.) Minor discrepancies in a child’s testimony do not necessarily render the testimony incompetent, unbelievable, or impeached. (People v. Brewer (1983), 118 Ill. App. 3d 189, 454 N.E.2d 1023.) In reviewing a claim by the defendant that a sexual assault victim’s testimony is implausible, a reviewing court must remember that the trier of fact believed the witness and that the fact finder’s finding of guilt will not lightly be disturbed. People v. Davis (1981), 95 Ill. App. 3d 161, 419 N.E.2d 682.

In the instant case, the defendant argues that it was unclear from the testimony whether the improper touching of C.R. occurred in the kitchen or bedroom. We find that C.R.’s testimony in the record is clear that the improper touching took place in both rooms.

The defendant also contends that the State was required to prove a specific date on which the offenses against both A.R. and C.R. occurred. Since an exact date was not proven, the defendant contends the State failed to prove him guilty. Initially, we note that the charging instruments did not allege specific dates upon which the offenses occurred, but rather gave a general time frame. Therefore, the exact date of the offenses was not an element of the crimes charged, and the proof of an exact date was not required. (See People v. Kelly (1989), 185 Ill. App. 3d 43, 540 N.E.2d 1125.) Additionally, a witness’ inability to remember the exact dates of an offense merely affects the weight to be given his testimony and does not create a reasonable doubt of guilt. People v. Foley (1990), 206 Ill. App. 3d 709, 565 N.E.2d 39.

The.defendant argues that the victims’ and M.R.’s testimony established that the offenses occurred on a weeknight. He also asserts that his testimony, Ronnie Noll’s testimony, and the testimony of other witnesses established that he would not yet have returned home from work at suppertime, when the alleged offenses occurred.

We find from a careful reading of the record that the children’s testimony did not preclude the possibility that the offenses could have taken place on a Saturday when the defendant was home. Indeed, the defendant admitted wrestling with C.R. and B.R. in his bedroom on a Saturday. He only denied any improper touching. Further, even if the offenses occurred on a weeknight, the trial judge was not required to accept the defendant’s assertions that he could not have been home. Additionally, Ronnie Noll’s testimony did not support the defendant’s testimony, but rather established that on some nights the defendant was home as early as 4 p.m. and that they did not even go to work on several days in April due to rain. The trial judge was not required to accept the defendant’s version of events, and there was sufficient evidence from which the judge could have concluded that the defendant was present to commit the offenses.

The defendant also argues that C.R.’s testimony concerning the incident in the bedroom, was impossible or improbable since the defendant had a useless hand and could not possibly have held both C.R. and B.R. on the bed and molested them. We note from the record that C.R. did not testify that B.R. was held down on the bed by the defendant at the same time that he held her down. C.R. testified that the defendant had his leg wrapped around hers. She also stated that he touched her with his good hand. We further note that M.R.’s testimony corroborated C.R.’s concerning the bedroom incident. In short, we find nothing in the record that makes C.R.’s account of the bedroom incident impossible or improbable.

The defendant also argues that C.R. was impeached by her testimony that she thought Ronnie Noll was present in his bedroom in the defendant’s home when the bedroom incident occurred. He also asserts that she was impeached when she first stated that there was a wooden board at the foot of the bed and then later admitted there was not.

Again, a careful reading of C.R.’s testimony reveals that she only stated that she thought Ronnie was home, but was not sure. Also, she stated on cross-examination that she had been mistaken regarding the wooden board at the foot of the bed. We do not find these discrepancies so important that they cast serious doubt on C.R.’s testimony as a whole.

The defendant also attacks the trial judge’s finding that most of the acts in the kitchen that C.R. complained about took place below the table and would thus have been out of the view of the defendant’s wife. The defendant asserts that this conclusion was erroneous since no testimony concerning where the defendant sat, or of Mrs. Miller’s view, was adduced at trial.

We note from the record that the defense introduced pictures at trial which depicted the defendant seated at the kitchen table. Also, testimony regarding where the defendant generally sat was introduced.- Finally, pursuant to a defense request, the trial judge visited the defendant’s residence and was able to personally view the table where the defendant sat from Mrs. Miller’s vantage point. Thus, we find that the trial judge had ample evidence upon which to base his conclusion.

The defendant also complains that since the trial court concluded that the incidents in the kitchen took place outside the clothing, the State failed to prove the count which charged that the defendant touched C.R.’s breast under her shirt. However, we note simply that there was ample evidence presented which established that this improper touching took place in the bedroom. Therefore, this portion of the defendant’s argument is also without merit.

The defendant further argues that A.R.’s testimony was inconsistent concerning where her siblings were when the defendant fondled her in the kitchen. A careful reading of her testimony reveals that she was fairly clear about their whereabouts, as the factual recitation above indicates.

Finally, the defendant notes that several witnesses testified that they never saw the children exhibit any signs of fear of the defendant, nor did they witness any improper touching. Again, he argues this testimony was inconsistent with a finding of sexual abuse.

Regarding this argument, we simply note that there was also ample evidence presented which indicated that the children’s behavior was consistent with sexual abuse. The defendant had warned C.R. not to tell anyone. C.R. told the other children of the warning. The children complained of the abuse shortly after moving away from the defendant. Additionally, Ms. Carr, the sexual abuse therapist, testified that the children’s behavior was consistent with sexual abuse. The trial judge was in the best position to judge the credibility of the witnesses and their possible bias in testifying. We cannot say he should have placed more weight on the testimony of the witnesses for the defendant.

In conclusion, we note that the trial judge heard all of the testimony presented at trial. Thus, he was aware of all of the alleged inconsistencies the defendant now complains about on appeal. Before finding the defendant guilty, the trial judge specifically noted that the girls’ testimony was corroborated by their prompt complaints and stated that he believed they were telling the truth about the essential facts. Based on our review of the record, we cannot say the trial judge erred in his conclusions. Applying the Schott standard, we find that the defendant was proved guilty beyond a reasonable doubt. People v. Schott (1991), 145 Ill. 2d 188.

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

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE SLATER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BILLY HARRIS, Defendant-Appellee. — THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DAVID H. STANISLAUS, Defendant-Appellee. — THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TODD RACLAW, Defendant-Appellee.
    Third District
    Nos. 3-91-0034, 3-91-0035, 3-91-0063 cons.
    Opinion filed December 18, 1991.

      Edward Burmila, Jr., State’s Attorney, of Joliet (Gary E Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Alexander Beck, Assistant Public Defender, of Joliet, for appellee David H. Stanislaus.
    No brief filed for other appellees.
   JUSTICE SLATER

delivered the opinion of the court:

These three consolidated cases present a common question: whether the trial court abused its discretion in refusing to grant a continuance to the State. In each case the State declined to participate in further proceedings and a judgment of acquittal was entered for the defendant. We reverse and remand.

Although the legal issues presented by these cases are virtually identical, the factual circumstances are not. Therefore we will relate the relevant facts in the record in each case.

APPEAL No. 3-91-0034.

On September 5, 1990, defendant Billy Harris was charged by criminal complaint with battery (Ill. Rev. Stat. 1989, ch. 38, par. 12— 3(a)(2)) and aggravated assault (Ill. Rev. Stat. 1989, ch. 38, par. 12— 2(a)(1)), both Class A misdemeanors. After defendant did not appear on his initial trial date, trial was set for December 21, 1991. When the case was called for trial, the State made an oral motion for a continuance due to the absence of a material witness, which was denied. The State then filed a written motion for continuance supported by affidavit and a handwritten document entitled “Stipulation.” The motion averred that the missing witness was material, had been duly notified, was unavailable for trial and that the prosecution would be prejudiced by her absence. The motion requested a continuance pursuant to section 114 — 4 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 4) upon a finding by the court of due diligence on the part of the State. The motion further requested a continuance pursuant to section 114 — 4(e) if the court should find a lack of due diligence by the State. The document entitled “Stipulation” was signed by an assistant State’s Attorney and stated:

“I undersigned on oath state that should the witness fail to testify appear testify [sic] he [sic] would state that what is written in the police report is true and correct.”

The trial court denied the motion for continuance, and the defendant waived a jury trial and consented to a bench trial. The State elected to stand on its motion for continuance rather than request a nolle prosequi and declined the opportunity to present any evidence. Thereafter the trial court entered a judgment of acquittal. In its written order, the trial court noted that the affidavit attached to the State’s motion did not state what the testimony of the absent witness would be and that the unsworn stipulation referred to a police report which was not attached to the motion and was not offered to the court. The motion was therefore denied for failure to comply with sections 114 — 4(a) and 114 — 4(c)(2).

APPEAL No. 3-91-0035.

On September 25, 1990, defendant David Stanislaus was charged by complaint with theft (Ill. Rev. Stat. 1989, ch. 38, par. 16 — 1(a)(4)), a Class A misdemeanor. When the case was called for trial on December 21, 1990, the State filed a written motion for continuance pursuant to sections 114 — 4 and 114 — 4(e). The motion alleged that a material witness, who had been duly notified, was unavailable for trial and that the prosecution would be prejudiced by the witness’ absence. The motion was supported by an unsworn affidavit signed by an assistant State’s Attorney. The trial court denied the motion, and the State did not seek a nolle prosequi. A jury was selected with the State declining to participate or present any evidence, and the court entered a judgment of acquittal for defendant. The court’s subsequent written order stated that the motion for continuance failed to comply with sections 114 — 4(a) and 114 — 4(c)(2) because the affidavit was not sworn to and the motion did not state how the missing witness was material or why he was unavailable. In addition, the motion failed to indicate the substance of the missing witness’ testimony, thereby precluding the defendant from deciding whether or not to stipulate to that testimony and avoid a continuance. The court also found that the State had not been diligent in procuring the witness’ appearance because the motion did not explain how or when the witness was notified and there was no evidence of a subpoena having been issued.

APPEAL No. 3-91-0063.

Defendant Todd Raclaw was charged by uniform traffic citation on July 17, 1990, with failure to reduce speed to avoid an accident (Ill. Rev. Stat. 1989, ch. 95½, par. 11 — 601(a)). Defendant’s motion for a continuance was granted and trial was set for December 27, 1990. On that date the State filed a written motion for continuance pursuant to sections 114 — 4 and 114 — 4(e), alleging that a material witness had not been notified due to a clerical error and that the prosecution would be prejudiced by her absence. The motion was supported by an affidavit and an “Affidavit of Stipulation” which asserted that the witness would testify that defendant “failed to reduce his speed thereby causing an accident involving the auto [in] which she was a passenger.” The defendant objected to the motion, and the trial court denied the continuance. When the case was called for trial the State chose to stand on its motion and presented no evidence. The court then granted defendant’s motion for a directed verdict and entered a judgment of acquittal. In its subsequent written order, the court found that section 114 — 4(e) applied only to indictments and informations. The court also held that the State’s affidavit did not comply with Supreme Court Rule 231 (134 Ill. 2d R. 231) because it did not contain a showing of diligence nor did it outline what testimony the absent witness would have given. The court found that the statement contained in the affidavit of stipulation was conclusory and insufficient.

We note initially that defendant Stanislaus is the only appellee to file a brief in this court. We nevertheless address the merits of each of these appeals in light of the simplicity of the records and the substantial similarity among the legal issues raised in each case. See First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

As a threshold matter, we consider defendant Stanislaus’ contention that this court lacks jurisdiction to decide these cases because the State may not appeal from a judgment of acquittal. While it is true that the State may not ordinarily appeal from a judgment of acquittal, under Supreme Court Rule 604(a)(1) (134 Ill. 2d R. 604(a)(1)) the State may appeal from a judgment which has the substantive effect of a dismissal, and the fact that the court labels a judgment as an “acquittal” is not controlling. (People v. Verstat (1983), 112 Ill. App. 3d 90, 444 N.E.2d 1374; People v. Edwards (1981), 97 Ill. App. 3d 407, 422 N.E.2d 1117; see also People v. Deems (1980), 81 Ill. 2d 384, 410 N.E.2d 8.) It appears that the judgments here were acquittals in name only, and were instead “an artifice employed by the trial judge to achieve the result of a dismissal with prejudice for want of prosecution which *** he did not have the authority to order.” (Deems, 81 Ill. 2d at 389, 410 N.E.2d at 11.) We hold, therefore, that this court has jurisdiction over these appeals.

The State contends that the trial judge in each of these cases abused his discretion in denying the State’s motion for a continuance. We agree.

In appeal number 3 — 91—0063, the court denied the State’s motion for failure to comply with Supreme Court Rule 231 because the motion did not contain a showing of diligence nor sufficiently detail what testimony the absent witness would provide. In appeals numbers 3 — 91—0034 and 3 — 91—0035, the court denied the motions for failure to comply with sections 114 — 4(a) and 114 — 4(c)(2). The bases of the rulings were that the motions and supporting documents did not reveal the substance of the absent witnesses’ testimony and did not state how the missing witnesses were material, how they had been notified, nor why they were unavailable. In addition, there was no indication that a subpoena had been issued and one of the affidavits had not been notarized. Section 114 — 4 provides in relevant part:

“Motion for continuance, (a) The defendant or the State may move for a continuance. If the motion is made more than 30 days after arraignment the court shall require that it be in writing and supported by affidavit.
* * *
(c) A written motion for continuance made by the State more than 30 days after arraignment may be granted when:
* * *
(2) A material witness is unavailable and the prosecution will be prejudiced by the absence of his testimony; however this shall not be a ground for continuance if the defendant will stipulate that the testimony of the witness would be as alleged;
* * *
(d) The court may upon written motion of either party or upon the court’s own motion order a continuance for grounds not stated in subsections (b) and (c) of this Section if he finds that the interests of justice so require.
(e) All motions for continuance are addressed to the discretion of the trial court and shall be considered in the light of the diligence shown on the part of the movant. Where 1 year has expired since the filing of an information or indictments, filed after January 1, 1980, if the court finds that the State has failed to use due diligence in bringing the case to trial, the court may, after a hearing had on the cause, on its own motion, dismiss the information or indictment. Any demand that the defendant had made for a speedy trial under Section 103 — 5 of this code shall not abate if the State files a new information or the grand jury reindicts in the cause.
After a hearing has been held upon the issue of the State’s diligence and the court has found that the State has failed to use due diligence in pursuing the prosecution, the court may not dismiss the indictment or information without granting the State one more court date upon which to proceed. Such date shall not be less than 14 nor more than 30 days from the date of the court’s finding. If the State is not prepared to proceed upon that date, the court shall dismiss the indictment or information, as provided in this section.
* * *
(h) This Section shall be construed to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the State to a speedy, fair and impartial trial.” Ill. Rev. Stat. 1989, ch. 38, par. 114 — 4.

The decision to grant or deny a continuance is within the discretion of the trial court, and the diligence shown by the movant is considered in weighing the exercise of that discretion. (People v. Lott (1977), 66 Ill. 2d 290, 362 N.E.2d 312; People v. Verstat (1983), 112 Ill. App. 3d 90, 444 N.E.2d 1374.) The trial court’s decision depends upon the facts and circumstances existing at the time of the request and will not be disturbed absent an abuse of discretion. (Verstat, 112 Ill. App. 3d 90, 444 N.E.2d 1374.) The provisions of section 114 — 4 are not to be applied mechanically, but should be construed “to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the State to a speedy, fair and impartial trial” (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 4(h); Lott, 66 Ill. 2d 290, 362 N.E.2d 312). It has been held that it is an abuse of discretion to deny the State’s first request for a continuance where a legitimate reason exists for the absence of the witness (see Verstat, 112 Ill. App. 3d 90, 444 N.E.2d 1374), and an abuse of discretion may be found even in the absence of a written motion and supporting affidavit (see People v. Peruscini (1989), 188 Ill. App. 3d 803, 544 N.E.2d 1133).

In each of the instant cases the State filed a written motion for continuance supported by affidavit as required by section 114 — 4. In each case the trial judge found the motion to be insufficient due to a lack of information about the substance of the proposed testimony and the efforts by the State to produce the absent witness. It does not appear, however, that the denials of the motions were predicated upon a dearth of information about the State’s diligence in contacting the witness or the nature of the testimony. Rather, it seems that the motions were denied due to perceived technical deficiencies in the written motions and supporting documents. There is no indication in the record that the additional information sought by the trial judges could not or would not have been provided orally in open court. Since section 114 — 4 does not specify that this information must be contained in the written motion for continuance, we find that it was an abuse of discretion for the trial judge in each of the instant cases to deny the motions solely on that basis. Although the trial court in appeal number 3 — 91—0063 based its decision on a failure to comply with Supreme Court Rule 231, we nevertheless find an abuse of discretion. Rule 231 applies to motions for continuances in civil cases (see 134 Ill. 2d R. 1, Committee Comments, at 1); section 114 — 4 governs continuances in criminal cases.

In addition, even if we were to find that there was no abuse of discretion in denying the motions for continuance, we would nevertheless reverse and remand these cases. Although each of the defendants was “acquitted” by the trial court after the State declined to participate, we find that these “acquittals” were in effect dismissals for want of prosecution. The statutory grounds for a dismissal of charges against a defendant are set forth in section 114 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 1), and these grounds do not include dismissal for want of prosecution. While trial courts also have inherent authority to dismiss charges where there has been a denial of due process (People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244), no such denial is involved in these cases.

The situation in People v. Verstat (1983), 112 Ill. App. 3d 90, 444 N.E.2d 1374, is very similar to that presented here. In Verstat the State appealed from judgments of acquittal of 11 defendants who were charged with various misdemeanors and traffic violations. In each case the State’s motion for continuance was denied, after which the defendant was sworn, the State presented no evidence, and the defendant was acquitted. The Verstat court examined each of the 11 cases and found in three of them that the trial court had not abused its discretion in denying the continuance. Nevertheless, the Verstat court held that the trial court “was without authority to proceed to a ‘trial’ as it did since the ‘trial’ was, in effect, a dismissal which the court lacked the authority to order.” Verstat, 112 Ill. App. 3d at 102, 444 N.E.2d at 1383.

The only difference between Verstat and these cases is that in Verstat the State moved to nol-pros each case, but the motions were denied. However, no motions to nol-pros are reported in People v. Hall (1983), 117 Ill. App. 3d 881, 454 N.E.2d 6, or People v. Edwards (1981), 97 Ill. App. 3d 407, 422 N.E.2d 1117, and yet both courts also held that “acquittals” granted where the State presented no evidence were impermissible attempts to grant a dismissal for lack of prosecution. Based on Verstat, Hall, and Edwards, we believe that the trial court erred in proceeding as it did. See also People v. Rudi (1984), 103 Ill. 2d 216, 469 N.E.2d 580; People v. Deems (1980), 81 Ill. 2d 384, 410 N.E.2d 8.

While we understand and sympathize with a trial court’s need to control its docket, the procedure employed in these cases was improper. We point out that a court may enforce its orders through the use of its inherent contempt powers. Our decision makes its unnecessary to address the State’s additional argument that it was entitled to an automatic continuance under the second paragraph of subsection (e) of section 114 — 4 (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 4(e)). We note parenthetically, however, that this subsection by its terms applies only to informations and indictments and not to complaints or uniform traffic citations. (See Verstat, 112 Ill. App. 3d 90, 444 N.E.2d 1374.) In addition, we believe this provision is inapplicable unless one year has passed since the filing of the indictment or information. See Hall, 117 Ill. App. 3d 881, 454 N.E.2d 6.

For the reasons stated above, the judgment of the circuit court in each of these consolidated cases is reversed and remanded.

Reversed and remanded.

BARRY and McCUSKEY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RANDY EYMAN, Defendant-Appellant.
    Third District
    No. 3—90—0852
    Opinion filed December 30,1991.

      Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (Robert M. Hansen, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

Randy Eyman was convicted at a jury trial of armed violence, predicated on the charge of aggravated battery. He was sentenced to 12 years’ imprisonment and now appeals. We affirm.

On May 7, 1989, around 9:30 p.m., someone fired several shots into a house at 522 Irving in Joliet. At that time, 10-year-old Amy Sanchez was sitting in the living room of that house watching television. One of the bullets struck Amy in the head, causing serious injury*

A police investigation revealed that the house had been struck by five shots from a .25 caliber weapon. Bullet holes were found in the following locations: one in the front door which was caused by the bullet which struck Amy, one in the east front window, one in the west front window, and two in the aluminum siding on the front of the house. According to an expert witness for the defense, the paths of the bullets indicated that the shooter had been standing across the street from the house, approximately 105 feet away.

The house is located close to the line which divides two rival street gangs’ (the Latin Kings and the Two Sixers) territory, but is in Latin Kings’ territory. The defendant, who was 16 years old at the time, is a member of the Latin Kings.

Erasmo “Eddie” Delacruz is a cousin of Amy Sanchez. At the time of the shooting, he was a member of the Two Sixers. About a week prior to the shooting, Delacruz had stayed overnight at 522 Irving.

On July 10, 1989, approximately two months after the Sanchez shooting, Delacruz was sitting in the driveway of fellow gang member Michael Rideout’s house in Two Sixer territory. Rideout’s sister, Julie, was also present.

About 1:30 p.m., Delacruz shouted derogatory comments at a passing car because the occupants were Latin Kings. A little while later, the car returned. As the car drove by, several shots were fired from it towards Delacruz and the Rideouts. In a subsequent photographic lineup, Delacruz identified Eyman as one of the shooters. Delacruz had never seen Eyman prior to July 10. Julie Rideout placed Eyman in the car but said that she did not see him fire a gun. Delacruz and Rideout did both agree that Eyman was in the back seat of the car.

On July 14, 1989, the Joliet police asked the defendant’s mother to bring him to the police station for questioning. At the defendant’s request, the defendant’s mother was not present during the actual interrogation. Defendant was read his Miranda rights. He stated that he understood those rights and would talk with the police. During the interrogation, defendant admitted to being in the car when the shots were fired but denied being the shooter.

Later during the questioning, the police questioned Eyman about the Sanchez shooting. He initially denied involvement. Eventually, he gave a taped statement in which he admitted firing three shots at the house because he was after Delacruz.

It was for the Sanchez shooting that Eyman was charged with armed violence. The State alleged that Eyman, while armed with a handgun, committed aggravated battery by knowingly shooting Amy Sanchez and causing great bodily harm. (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 4(a), 33A — 2.) Despite being a minor at the time of the incident, Eyman was tried as an adult. Ill. Rev. Stat. 1989, ch. 37, par. 805-4(3).

Prior to trial, the defendant moved to suppress his statement to the police on the grounds that he was of below-average intelligence and that his statement was coerced and involuntary. After a hearing, the court denied that motion.

The defense also moved in limine to preclude evidence of the defendant’s alleged participation in the July 10 shooting. The court also denied that motion.

At trial, the defendant claimed to have been several blocks away from 522 Irving when the shots were fired. Eyman presented several alibi witnesses who claimed to be with him at the time of the Sanchez shooting. However, evidence also showed that the place he claimed to be was close to 522 Irving and that he could readily have left, fired the shots and then returned to his friends within a period of a few minutes. Eyman also denied shooting at Delacruz on July 10, although he again admitted to being in the car.

During the examination of an alibi witness, the defense attempted to elicit testimony about a phone conversation between Eyman and Pete Davilla, arguing that it was admissible as a statement against Davilla’s interest. Davilla was also a member of the Latin Kings and had been seen near 522 Irving around the time of the shooting. The judge did not allow the testimony. According to an offer of proof, two witnesses would testify that they overheard Davilla talking on the phone with Eyman in September 1989. Davilla reportedly told Eyman, who was in the county jail at the time, to “take the fall” for Davilla.

The jury returned a guilty verdict and the court entered judgment on the verdict.

At the sentencing hearing, the defense presented the testimony of Dr. Lawrence Egal, a licensed psychologist, as evidence in mitigation. Dr. Egal testified that Eyman was mentally retarded under the definition contained in the Criminal Code of 1961 and had an IQ of 72.

The defense also used Dr. Egal’s testimony to support a post-trial motion. The defense claimed that the defendant’s psychological problems were so severe that he could not have understood or knowingly waived his Miranda rights. Thus, his inculpatory statement to the police should have been suppressed. According to the defense, Dr. Egal’s testimony constituted newly discovered evidence which warranted a reopening of the suppression hearing and also a new trial. After a hearing at which Dr. Egal testified further, the trial court denied the motion. This appeal followed.

The defendant first argues that his mental deficiency made him unable to appreciate his rights and correspondingly unable to validly waive them. Following Dr. Egal’s testimony at the post-trial hearing, the trial court stated that defense counsel had known from the outset that Eyman was mentally slow and thus Egal’s testimony was merely cumulative of testimony presented at the suppression hearing.

In People v. Bernasco (1990), 138 Ill. 2d 349, 562 N.E.2d 958, the supreme court held that a valid Miranda waiver must be knowing and intelligent in addition to being voluntary and free from coercion. There, the trial court had suppressed the statement of a 17-year-old boy who had dropped out of school in the ninth grade, had a fourth-grade reading level, and who had no prior police experience. The trial court reached its conclusion “after hearing police, parental, and psychological testimony and — what is very significant — making its own observations of defendant while he was testifying.” (138 Ill. 2d at 368, 562 N.E.2d at 966.) Both the appellate court and the supreme court affirmed. The supreme court noted that the validity of a waiver is essentially a question of fact which will not be overturned unless it is manifestly erroneous.

Under the same standard, the opposite result was reached in People v. Reid (1990), 136 Ill. 2d 27, 554 N.E.2d 174. There, after hearing similar testimony and arguments, the trial court denied the motion to suppress. The supreme court affirmed, again noting a deference to the trial judge who was in the best position to determine the issue.

At the initial suppression hearing, Eyman’s mother had testified that he was very slow mentally and was in special education. She also stated that he had been to a psychologist who had determined that he had the IQ of a third-grader. Furthermore, at the hearing, the court heard testimony by several police officers who had interacted with the defendant. Most importantly, the judge was able to listen to and watch Eyman testify at trial in order to assess the defendant’s demeanor and credibility. The judge stated that he found Eyman able to understand the questions and the purpose of the questions and relate answers and concepts. In addition, Eyman, unlike Bernasco or Reid, had prior police experience. The record indicates that he had been read his Miranda rights on at least three prior occasions.

Determining whether a valid waiver occurred involves examining the circumstances of each case, including the defendant’s background, experience and conduct. (Bernasco, 138 Ill. 2d at 368, 562 N.E.2d at 966.) Eyman had had prior police contact in 1989. At the time of the trial, Eyman was in the eleventh grade, albeit in special education. The presentence report indicates that his academic work was more than satisfactory. He was also given the opportunity to have his mother present during the questioning, but declined.

The trial judge was in the best position to determine Eyman’s mental ability. Here, as in Bernasco and Reid, the court had the benefit of police and parental testimony in addition to being able to directly observe the defendant. It was brought out at the suppression hearing that a psychologist had already determined that Eyman had subnormal intelligence. The trial judge found that Dr. Egal’s opinion added nothing that had not already been considered at the suppression hearing. Accordingly, he ruled that the testimony did not constitute newly discovered evidence and thus did not justify either reopening the suppression hearing or holding a new trial. His decision is not against the manifest weight of the evidence.

The defendant argues in the alternative that if the evidence is not “newly discovered” evidence, then he was denied effective assistance of counsel by his attorney’s failure to raise this at the suppression hearing. Given the trial court’s finding that this evidence was cumulative, the defendant was not given ineffective assistance, as it would have not changed the result of that hearing.

Eyman’s next contention is that the trial court erred in allowing evidence of the July 10, 1989, shooting. The trial court denied the defendant’s motion in limine to exclude this evidence. The court ruled that evidence of the subsequent shooting was admissible because it was relevant to show the identity intent, motive and knowledge of the person who injured Amy Sanchez and instructed the jury accordingly.

Defendant first argues that a proper foundation was not laid in that Eyman was not sufficiently shown to be the shooter in the second incident. In order for the evidence to be admissible, the prosecution need not prove the other crime beyond a reasonable doubt, but there must be more than a mere suspicion that the defendant engaged in the other criminal activity. People v. Wolfbrandt (1984), 127 Ill. App. 3d 836, 469 N.E.2d 305.

Here, that burden was met. Delacruz identified Eyman as one of the shooters. Another eyewitness placed Eyman in the car but did not see him shoot the gun. Eyman admitted that he was in the vehicle. Delacruz and Eyman were members of rival gangs. Although this is not proof beyond a reasonable doubt, it is more than mere suspicion, especially in light of Eyman’s statement to the police that he had a grudge against Delacruz. The prosecution laid a sufficient foundation.

Defendant next argues that, even if the foundation was solid, the evidence was irrelevant to show identity, intent, motive or knowledge.

Evidence of another crime may be used to show intent when the other crime has some threshold similarity to the crime charged. (People v. Bartall (1983), 98 Ill. 2d 294, 456 N.E.2d 59.) It is of no significance that the crime charged happened prior to the other crime. Bar-tall, 98 Ill. 2d at 312, 456 N.E.2d at 68.

The intent of whoever shot the house at 522 Irving was clearly an issue in the case. As discussed below, Eyman argues, that even if the evidence shows that he did the shooting, his conduct was no more than reckless. It was the State’s theory that Eyman fired the shots with the intention of hitting Delacruz, who had recently been seen staying there. The two shootings are sufficiently similar. Both were unprovoked, gang-related shootings. Evidence of the July 10 shooting was relevant to establish that Eyman’s intention was to hit Delacruz and was properly admitted for that purpose.

Evidence of the subsequent shooting also tended to show the motive of the defendant in firing at the house. Eyman had a professed dislike for Delacruz. Delacruz was a member of a rival gang and had allegedly shot at Eyman’s friend some time in the past. Evidence of the defendant’s later shooting at Delacruz showed malice toward Delacruz which could be probative of his motive in shooting at the house.

The knowledge of the defendant was also at issue in the case. Evidence concerning the absence of an innocent frame of mind would rebut the defendant’s claim that at most he acted recklessly. Eyman knew that Delacruz had recently been seen at 522 Irving. He thought that by firing into the house, he might hit Delacruz. Therefore, evidence that defendant had participated in a later attack on Delacruz supports the State’s theory that Eyman shot at the house, knowing that Delacruz may have been inside.

The question of admissibility of evidence is within the sound discretion of the trial judge and will not be overturned unless a clear abuse of discretion is shown. (People v. Brown (1990), 199 Ill. App. 3d 860, 557 N.E.2d 611.) The trial court did not abuse its discretion in admitting this testimony.

The defendant’s next contention on appeal is that the trial court erred by not admitting into evidence certain hearsay statements. The defense attempted to introduce, through the testimony of Eyman and two alibi witnesses, evidence that Pete Davilla had made self-incriminatory statements. It was defendant’s theory that Davilla was actually the one who shot Amy Sanchez and that Davilla’s statements were admissible as declarations against interest.

There are four factors to look at when examining a statement for admission as declaration against penal interest: (1) whether the statement was made spontaneously to a close acquaintance shortly after the crime; (2) whether it was corroborated by other evidence; (3) whether it was self-incriminating and against the declarant’s interest; and (4) whether there was adequate opportunity to cross-examine the declarant. (Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038.) These factors are to regarded simply as indicia of trustworthiness and not as requirements of admissibility. People v. Bowel (1986), 111 Ill. 2d 58, 488 N.E.2d 995.

Under this standard, the evidence was properly excluded. The statement was made four months after the shooting. There is no corroboration other than the fact that Davilla was seen in the area by Delacruz and was known to dislike Delacruz. The statement is extremely vague and not clearly against Davilla’s interest. Davilla was not available at trial for cross-examination.

Furthermore, there are no other factors which might tend to show this hearsay’s reliability. Although Eyman sought to testify to the conversation, the other witnesses were not parties to the conversation, a factor noted by the Bowel court in determining reliability. (111 Ill. 2d at 68, 488 N.E.2d at 1000.) Instead these witnesses simply overheard one end of a telephone conversation while Davilla was at a party. One witness who heard it was 15 feet away. The distance to the other witness is unknown. This statement contains no indicia of trustworthiness sufficient to overcome its hearsay nature. The trial court did not abuse its discretion in excluding this testimony.

Defendant’s final contention is that his conviction should be reduced to reckless conduct. Defendant contends that, at most, the evidence showed that he acted recklessly. The jury was instructed on both armed violence and reckless conduct.

Aggravated battery (which was the predicate for the armed violence charge) requires intentional or knowing conduct by the offender. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(a).) “A person *** acts knowingly *** when he is consciously aware that such result is practically certain to be caused by his conduct.” Ill. Rev. Stat. 1989, ch. 38, par. 4 — 5(b).

In viewing the evidence in the light most favorable to the prosecution (People v. Sanchez (1986), 115 Ill. 2d 238, 503 N.E.2d 277), it cannot be said that the jury’s verdict was wrong. Five shots were fired into the home by a stationary gunman from a distance of 105 feet. It was 9:30 p.m. The house’s exterior and interior lights were on. Delacruz had been seen in the area recently. This was Latin Kings turf, and Delacruz was a Two Sixer. Eyman told the police that he wanted to shoot Delacruz because Delacruz had at some time shot at the defendant’s friend. The defendant confessed to police that he had fired the shots. It is a logical conclusion that when Eyman fired into the house, he did so with the intent of hitting Delacruz. Any intent which Eyman had towards injuring Delacruz would apply to the actual victim under the doctrine of transferred intent. People v. Hickman (1973), 9 Ill. App. 3d 39, 291 N.E.2d 523.

The jury was properly instructed on both reckless conduct and on armed violence. The jurors found that Eyman fired the shots with the intent to cause great bodily harm. When viewing the evidence in the light most favorable to the prosecution, it cannot be said that their conclusion was erroneous.

For the foregoing reasons, the Will County circuit court is affirmed.

Affirmed.

BARRY and McCUSKEY, JJ., concur.


author: JUSTICE McLAREN

text:
    BANK OF NORTHERN ILLINOIS, f/k/a First Trust and Savings Bank of Glenview, et al., Plaintiffs-Appellants, v. MARY JANE NUGENT et al., Defendants-Appellees (Donald J. Moyers et al., Defendants).
    Second District
    No. 2 — 91—0026
    Opinion filed December 24, 1991.

      Fitzsimmons, Roberts, Bowen & Paine, of Oak Brook, Jerome J. Roberts, of Fitzsimmons, Roberts, Bowen & Paine, of Chicago, and Michael L. Ralph and Michael M. Melius, both of Richards, Ralph, Eiden, Eckert & O’Donnell, Chartered, of Vernon Hills (J. Michael Fitzsimmons, of counsel), for appellants.
    Robert A. Carson, of Gould & Ratner, and Paul W. Carroll, both of Chicago (Kathryn S. Matkov and Edward A. Trio, of counsel), for appellee Estate of Edward W. Nugent, Jr.

      Roger Littman, of Querrey & Harrow, Ltd., of Chicago (Michael Resis, of counsel), for appellees Mary Jane Nugent, Michael C. Nugent, and E. William Nugent III.
   JUSTICE McLAREN

delivered the opinion of the court:

The plaintiffs appeal from an order dismissing counts I and II of their first amended complaint with prejudice, pursuant to sections 2— 615 and 2 — 619 of the Code of Civil Procedure (Code) (111. Rev. Stat. 1989, ch. 110, pars. 2 — 615, 2 — 619). They also appeal from an order denying leave to amend the complaint and to substitute parties. We affirm in part, reverse in part, and remand.

I. Background

Classic Auto Leasing, Inc. (Classic), was an Illinois corporation, engaged in the business of leasing new automobiles. It was owned and operated by Edward W. Nugent, Jr. (decedent Nugent), from April 1987, until his death in October 1988. Classic was subsequently controlled by Mary Jane Nugent, as administrator of decedent’s estate (Estate), who appointed her sons Michael C. Nugent and Edward William Nugent III to run the business.

On February 28, 1989, the plaintiff Bank of Northern Illinois, formerly known as First Trust & Savings Bank of Glenview, filed a claim against the Estate of Nugent to collect on two guarantees for credit extended to Classic. The lines of credit took the form of two promissory notes. The first was dated November 30, 1987, in the amount of $322,000. The second was dated December 1, 1987, in the amount of $300,000. The loans were secured by guarantees of decedent Nugent, Donald J. Moyers and Rick Ozuk, employees of Classic, in limited percentages. Decedent Nugent provided additional personal guarantees for the full amount of each note. On April 4, 1989, a judgment on the claim was entered against the Estate for the full amount of the notes, plus interest.

In addition to the entry of the judgment, the plaintiff banks filed an amended complaint in three counts, naming as defendants the Estate of Edward W. Nugent, Jr. (Estate); the decedent’s widow, Mary Jane Nugent (Mary Jane); the decedent’s sons, Michael C. Nugent (Michael) and Edward William Nugent III (Edward); Classic Auto Leasing, Inc. (Classic); the employees Donald J. Moyers (Moyers) and Rick Ozuk (Ozuk).

Count I of the amended complaint alleged that Moyers, Ozuk, Michael, Edward, and Mary Jane engaged in tortious fraudulent conduct. It specifically alleged that the above-named defendants perpetrated a fraud on the banks by causing Classic to use proceeds advanced in a manner inconsistent with the terms of the loan agreement.

Pursuant to the agreement, Classic was to use funds advanced to finance the purchase of new automobiles for future leasing and to repay the bank immediately upon receipt of payment. However, Moyers, Ozuk, and decedent Nugent are alleged to have used the funds to draw their salaries, as well as for other personal expenses. It is also alleged in count I that Michael and Edward misrepresented Classic’s financial circumstances to the plaintiffs following Nugent’s death, by requesting funding for automobiles which had already been transferred to the final purchasers and were no longer assets of Classic.

Count II of the complaint alleged that the above-described conduct constitutes a pattern or scheme to defraud a financial institution, in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. §§ 1962(a) through (d) (1988)).

Count III alleged that Moyers and Ozuk breached the loan contract with the bank by failing to honor their guarantees on the promissory notes. This count, however, is not subject to this appeal, as these defendants are in default for failing to appear and answer.

The Estate filed a motion to dismiss counts I and II of the complaint pursuant to section 2 — 619(a)(3) of the Code (111. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(3)). The basis for this motion was that count I prayed for recovery on the same notes for which a judgment was previously entered, which is duplicative and therefore barred, because “[tjhere is another action pending between the same parties for the same cause.” (111. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(3).) The Estate argued in its motion that count II should also be dismissed, because a RICO claim cannot be maintained against an estate.

After hearing arguments on the Estate’s motion, the court dismissed counts I and II of the plaintiffs’ amended complaint with prejudice and denied the plaintiffs’ motion to further amend the complaint to name Mary Jane in her capacity as administrator of the Estate.

Michael, Edward, and Mary Jane Nugent subsequently filed a motion to dismiss counts I and II of the complaint pursuant to section 2 — 615 of the Code, for failing to state a cause of action. The Nugents argued in their motion that count I, the fraud claim, should be dismissed, because the promise to limit the use of the line of credit for purposes delineated in the loan agreement is merely a promise of intent to perform a future action, which is insufficient to support a cause of action for fraud. They further argued that count II should also be dismissed, because the conduct consists of a single isolated injury, which does not constitute a “pattern” or “scheme” necessary to state a cause of action under RICO.

Thereafter, the plaintiffs filed a motion to reconsider the section 2 — 619 dismissal. The court heard arguments on the motion to reconsider and the section 2 — 615 dismissal simultaneously. It dismissed counts I and II against the Estate and confirmed its denial of leave to amend the complaint to name Mary Jane in her capacity as administrator of the Estate. Pursuant to the section 2 — 615 motion, the court dismissed counts I and II as to Mary Jane and dismissed only count II as to Michael and Edward. All of the dismissals were with prejudice.

Accordingly, the plaintiffs appeal from both the section 2 — 619 dismissal of the Estate and the subsequent section 2 — 615 dismissal of the Nugents. The central issues as to the section 2 — 619 dismissal are whether the judgment on the promissory notes against the Estate serves as a bar to the causes of action for fraud and whether a RICO claim can be maintained against an estate. The issue as to the section 2 — 615 dismissal is whether the court erred in determining that the complaint failed to state causes of action in fraud and under RICO. Also at issue is whether the court abused its discretion by refusing to allow the plaintiffs to amend the complaint and plead over.

II. ANALYSIS

A. PROCEEDING UNDER SECTION 2-615 OR SECTION 2-619

The legal theories for proceeding on a motion to dismiss under section 2 — 615 and section 2 — 619 differ. Although all well-pleaded facts of the complaint are admitted and taken as true in both motions, the legal sufficiency of the complaint is disputed in a section 2 — 615 motion, but admitted in a section 2 — 619 motion. When a court dismisses under section 2 — 619, a subsequent dismissal under 2 — 615 is not logical, because the legal sufficiency of the complaint has been previously assumed by virtue of the section 2 — 619 motion. (See Morrey v. Kinetic Services, Inc. (1985), 133 Ill. App. 3d 1002, 1004 (the court stated in support of its reversal that there would have been no need for summary judgment if the motion to dismiss the complaint had been granted).) Therefore, it is inherently inconsistent for a court to dimiss under section 2 — 619 and subsequently entertain a section 2 — 615 dismissal.

Our supreme court confronted this type of problem when the trial court examined a hybrid motion to dismiss with a motion for summary judgment in Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398. It stated in pertinent part:

“To combine an inquiry into whether a pleading is sufficient to state a cause of action with an examination which almost necessarily assumes that a cause of action has been stated and proceeds to determine whether there are any material issues of fact to be tried is likely to confuse both the parties and the court. If this sort of procedure were sanctioned, it would be left to the reviewing courts to sort matters out and to remand with directions to allow leave to amend the complaint ***. *** The defendants in this case should have first challenged the legal sufficiency of the complaint. When, and only when, a legally sufficient cause of action had been stated should the court have entertained the motions for summary judgment and considered the affidavits filed in support thereof.” (Janes, 57 Ill. 2d at 406.)

In spite of the criticism of hearing such a hybrid motion, the Janes court considered the case on the merits in the interest of judicial economy. (See Janes, 57 Ill. 2d at 407.) Other courts have followed Janes by reviewing the merits of improper motions to dismiss, indicating that a combined motion is not grounds for reversal absent a showing of prejudice. See Sutton v. Mytich (1990), 197 Ill. App. 3d 672, 676; MBL (USA) Corp. v. Diekman (1985), 137 Ill. App. 3d 238, 242; Davis v. Weiskopf (1982), 108 Ill. App. 3d 505, 509.

Prejudice will result when the erroneous commingling of motions causes the court to improperly consider evidence or draw conclusions based on facts outside the complaint. (See Bloomingdale State Bank v. Woodland Sales Co. (1989), 186 Ill. App. 3d 227, 233; Premier Electrical Construction Co. v. LaSalle National Bank (1983), 115 Ill. App. 3d 638, 642.) Aside from any prejudice the plaintiffs endured in defending the legal sufficiency of their complaint when it was previously deemed admitted, the plaintiffs were further prejudiced because the court did not adhere to the limitations of the respective motions when it made the simultaneous ruling. In dismissing Michael and Edward under section 2 — 615, it made findings with respect to the time frame during which the alleged fraud took place. All of the allegations in the complaint should have been regarded as admitted and true. But, instead, the court chose particular allegations it believed were true and made findings based on a perceived set of facts, which was improper and prejudicial.

Furthermore, the court made improper conclusions of fact and law in dismissing the Estate under section 2 — 619. It implicitly determined that Mary Jane’s acts did not constitute fraud on the part of the Estate by refusing to allow an amendment to name her in the capacity as administrator of the Estate. This inherent prejudice gives grounds for reversal alone. Nevertheless, in the spirit of Janes, we will review the merits of the dismissals in the interest of judicial economy.

B. THE SECTION 2-615 MOTION TO DISMISS

For purposes of the appeal of the dismissal pursuant to section 2 — 615, all well-pleaded facts within the four corners of the amended complaint are regarded as admitted and true, together with all reasonable inferences drawn in the light most favorable to the plaintiffs. (Pelham v. Griesheimer (1981), 93 Ill. App. 3d 751.) An appeal from a section 2 — 615 dismissal for failure to state a cause of action reviews only the question of the legal sufficiency of the complaint, by ascertaining whether the essential elements of the cause of action were alleged. (Konicki v. Village of Hinsdale (1981), 100 Ill. App. 3d 560.) The ultimate facts to be proved must be alleged, and any evidentiary support or conclusions drawn from the allegations should not be considered in a section 2 — 615 motion. (Schnidt v. Henehan (1986), 140 Ill. App. 3d 798.) Therefore, a motion to dismiss for failure to state a cause of action should be affirmed on appeal only where no set of facts can be proved under pleadings which set forth a cause of action entitling the plaintiff to relief. Duncan v. Rzonca (1985), 133 Ill. App. 3d 184.

COUNT I (FRAUD)

For the count I claim for common-law fraud to be legally sufficient, the plaintiff must allege that (1) the defendant made a statement; (2) of a material nature; (3) which was untrue; and (4) was known by the defendant to be untrue, or was made in culpable ignorance of its truth or falsity; (5) was made for the purpose of inducing reliance by the plaintiff; (6) was actually relied on by the plaintiff; and (7) resulted in plaintiff’s injury. (Brown v. Broadway Perryville Lumber Co. (1987), 156 Ill. App. 3d 16; International Meat Co. v. Bockos (1987), 157 Ill. App. 3d 810.) However, a false representation of intent to act in the future, if it does not amount to actual fraudulent conduct, is not a fraud in law. (Roda v. Berko (1948), 401 Ill. 335, 340; see also Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320.) The rationale for this rule is that allegations for fraud must be based on affirmative acts and not mere promises or expressions of intent to perform.

An exception to the general rule exists where the false promise or representation of future conduct is alleged to be part of a preexisting fraudulent scheme, with no intention of performing the promised acts. (Baker, Bourgeois & Associates, Inc. v. Taylor (1980), 84 Ill. App. 3d 909, 914, citing Roda v. Berko (1948), 401 Ill. 335.) In this instance, the court must look to the totality of the circumstances in determining whether a scheme or device to defraud has been pleaded with specificity. Zaborowski v. Hoffman Rosner Cory. (1976), 43 Ill. App. 3d 21, 25; see also International Meat Co. v. Bockos (1987), 157 Ill. App. 3d 810, 815.

In this case, the allegations of fraud are predicated on representations made on behalf of Classic, both before and after decedent Nugent’s death. The complaint specifically alleges the fraud began when Moyers, Ozuk and decedent secured a line of credit from the plaintiff banks and used the funds for purposes contrary to the terms of the agreement. It further alleges that Michael and Edward continued the fraud after their father’s death by intentionally misrepresenting Classic’s economic condition to bank officers in an effort to secure further financing, that the banks relied on these statements, and would not have advanced additional funds if they knew Classic was not complying with the terms of the loan. Assuming these facts are true as we are directed in reviewing a section 2 — 615 dismissal, we find the allegations contained in count I are sufficient to state a cause of action for fraud against Michael and Edward. Therefore, the court erred in dismissing these parties under section 2 — 615.

Count I also names Mary Jane, individually, by virtue of the same conduct described above. However, her only alleged involvement in Classic’s business operations was in appointing her sons to run the business following the death of her husband. She was not alleged to have directed or approved any statements made to the banks by Michael, Edward, or Moyers. Instead, the complaint alleges that she “knew or should have known in the diligent exercise of her duties as administrator of the Estate of decedent Nugent of the fraud perpetrated on the bank.”

Regarding Mary Jane, the plaintiffs did not properly plead the scienter and intent elements necessary to state a cause of action for fraud. Allegations of fraud must contain specific, directive manifestations of fraudulent intent for fraud. References to plans or schemes without specific allegations of intent are too conclusional to satisfy the pleading requirements. (Schnidt v. Henehan (1986), 140 Ill. App. 3d 798, 805.) Therefore, “knew or should have known” allegations do not comport with the standard for pleading scienter and intent. (Landon v. GTE Communications Services Inc. (N.D. Ill. 1988), 696 F. Supp. 1213, 1219 (applying Illinois law), citing Polivka v. Worth Dairy, Inc. (1974), 26 Ill. App. 3d 961, 965-66.) Accordingly, we find that the section 2 — 615 dismissal of Mary Jane from count I was proper.

2. COUNT II (RICO)

Count II of plaintiffs’ amended complaint alleges that defendants Michael, Edward, Mary Jane, Moyers, and Ozuk violated the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. §§ 1962(a) through (d) (1988)). The complaint prays for civil damages under section 1964 of RICO by virtue of the same conduct described above. To state a claim for relief in a civil action under RICO, a plaintiff must plead that: (1) a person, through a pattern of racketeering activity; (2) directly or indirectly invests, maintains an interest, or participates in an enterprise or conspires to do any of the foregoing; (3) all of which affects interstate commerce. 18 U.S.C. §§1962(a) through (d) (1988).

A violation of section 1962(a) requires the receipt of income from a pattern of racketeering and the use of that income in the operation of an enterprise. Section 1962(b) requires a person engaging in a pattern of racketeering activity to acquire or maintain an interest in an enterprise engaged in interstate commerce. A section 1962(c) violation requires a person employed by an enterprise to participate in the conduct of that enterprise’s affairs through a pattern of racketeering activity. Finally, a section 1962(d) violation requires a person to conspire to violate any subsection of section 1962. In all sections, however, the crucial element of the claim is the existence of a pattern of racketeering activity. See Sedima, S.P.R.L. v. Imrex Co. (1985), 473 U.S. 479, 87 L. Ed. 2d 346, 105 S. Ct. 3275.

A “pattern” is defined under the statute as “at least two acts of racketeering activity *** the last of which occurred within ten years [of the first].” (18 U.S.C. §1961(5) (1988).) The Supreme Court has indicated that two predicate acts alone are insufficient to constitute a pattern, suggesting that the acts must have “continuity plus relation ship which combines to produce a pattern.” (Emphasis in original.) (Sedima, 473 U.S. at 496 n.14, 87 L. Ed. 2d at 358 n.14, 105 S. Ct. at 3285 n.14.) Fortunately, the Supreme Court has recently discussed what is necessary to properly plead a “pattern.” (See H.J. Inc. v. Northwestern Bell Telephone Co. (1989), 492 U.S. 229, 106 L. Ed. 2d 195, 109 S. Ct. 2893.) The “relationship” prong requires that the predicate acts be committed somewhat closely in time and involve the same victim or the same type of misconduct. The “continuity” prong, however, has been defined as “both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition.” (H.J. Inc., 492 U.S. at 241, 106 L. Ed. 2d at 209, 109 S. Ct. at 2902.) The Court, however, stressed that a RICO pattern will be established only when “the predicates themselves amount to, or *** otherwise constitute a threat of, continuing racketeering activity.” (Emphasis in original.) H.J. Inc., 492 U.S. at 240, 106 L. Ed. 2d at 208, 109 S. Ct. at 2901.

In providing several examples of predicates meeting its construction of a “pattern,” the court stated that “the threat of continuity may be established by showing that the predicate acts or offenses are part of an ongoing entity’s regular way of doing business,” legitimate, or otherwise. (H.J. Inc., 492 U.S. at 242, 106 L. Ed. 2d at 210, 109 S. Ct. at 2902.) However, it noted that the facts of each case must always be considered, stating that “[t]he limits of the relationship and continuity concepts that combine to define a RICO pattern, and the precise methods by which relatedness and continuity or its threat may be proved, cannot be fixed in advance with such clarity that it will always be apparent whether in a particular case a ‘pattern of racketeering activity’ exists.” H.J. Inc., 492 U.S. at 243, 106 L. Ed. 2d at 210, 109 S. Ct. at 2902.

Defendants contend that the activity allegedly violating RICO was directed at one victim over a two-month period which is insufficient to constitute a “pattern” under the statute. Although the line of credit was advanced in the form of two notes with different dates, defendants conclude that the close proximity of the dates indicates that it was a single transaction. Because the defendants moved to dismiss count II under section 2 — 615, we are directed to consider only the allegations in the four corners of the complaint. We believe there is insufficient evidence necessary to establish, as a matter of law, that the alleged fraudulent conduct constitutes a single transaction. Therefore, the court erred in dismissing these parties under section 2 — 615.

The plaintiffs also allege that Mary Jane violated the same provisions of RICO. However, as we stated earlier, Mary Jane’s only alleged involvement with Classic was in appointing her sons to run the business. She was not an employee of Classic, nor did she allegedly conspire with any of the employees to violate RICO. She is not alleged to have known of any acts concerning Classic by her husband prior to his death, or of Michael, Edward, Moyers or Ozuk following his death. Furthermore, any benefit by virtue of the alleged actions would be imputed to Classic and to the Estate and not to Mary Jane in her individual capacity. Therefore, the section 2 — 615 dismissal of Mary Jane from count II was proper.

Nevertheless, the trial court did not allow the plaintiffs to amend the complaint to attempt to state a cause of action against Mary Jane, Michael or Edward. The court also denied a motion to amend the complaint to name Mary Jane as administrator of the Estate.

Parties do not have an absolute right to amend, but may do so only at the trial court’s discretion. (Village of Rosemont v. Lentin Lumber Co. (1986), 144 Ill. App. 3d 651.) However, amendments to pleadings should be liberally allowed, unless an opposing party would be prejudiced as a result. (Maplehurst Farms, Inc. v. Greater Rockford Energy & Technology Co. (1988), 167 Ill. App. 3d 767, 770.) A court’s decision to allow an amendment will not be disturbed absent an abuse of discretion. (Talas v. Youngstown Sheet & Tube Co. (1985), 134 Ill. App. 3d 103, 107.) Among the factors to be considered in deciding whether discretion was properly exercised is whether the proposed amendment would cure the defective pleading; whether it would cause prejudice or surprise to the other parties; the timeliness of the proposed amendment; and whether previous opportunities to amend the pleadings were allowed. Schwaner v. Belvidere Medical Building Partnership (1987), 155 Ill. App. 3d 976, 988; Talas, 134 Ill. App. 3d at 107.

Assuming arguendo that the complaint did not sufficiently state a cause of action, the court abused its discretion by dismissing the cause with prejudice. As counsel for the plaintiffs stated, the court’s finding that the complaint did not provide sufficient facts to state a cause of action does not necessarily mean those facts do not exist. The sufficiency of the complaint was considered only once, and it was not clear that the defect could not be cured. An amendment would have been in furtherance of justice in this case. The court abused its discretion by refusing to allow leave to amend and to name Mary Jane in her capacity as administrator of the Estate.

C. THE SECTION 2-619 MOTION TO DISMISS

Section 2 — 619 of the Code provides nine grounds upon which a motion to dismiss may be based. The Estate contends that the count I claim for fraud should be dismissed under section 2 — 619(a)(3), because by virtue of the prior judgment on the notes, “there is another action pending between the same parties for the same cause.” (El. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(3).) The Estate further contends that the count II RICO claim cannot be maintained against an estate and should be dismissed under section 2 — 619(a)(9), as “other affirmative matter avoiding the legal effect of or defeating the claim.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(9).

1. COUNT I (FRAUD)

Section 2 — 619(a)(3) allows dismissal of a complaint if “there is another action pending between the parties for the same cause.” (111. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(3).) The purpose of section 2 — 619(a)(3) is to relieve both courts and litigants of the unnecessary burden of duplicative litigation. (Ransom v. Marrese (1988), 122 Ill. 2d 518, 530.) Our supreme court considered the “same cause” requirement of section 48(a)(3), the predecessor to section 2 — 619(a)(3), in Skolnick v. Martin (1964), 32 Ill. 2d 55. It noted that “[t]he section refers to ‘the same cause,’ not to the same ‘cause of action,’ and it has been held that actions are ‘for the same cause,’ when relief is requested on substantially the same set of facts. [Citations.] *** [Identity of cause of action depends on identity of transaction or occurrence.” Skolnick, 32 Ill. 2d at 57.

Thus, the crucial inquiry is whether the relief requested is on substantially the same set of facts, not whether the legal theory, issues, burden of proof or relief sought differ between the two actions. (Catalano v. Aetna Casualty & Surety Co. (1982), 105 Ill. App. 3d 195, 198.) The statute may be invoked to support a dismissal when there is a substantial similarity of issues between the two actions, even though the purposes are not identical. (Tambone v. Simpson (1980), 91 Ill. App. 3d 865, 867.) It is important to note, however, that the remedies delineated in section 2 — 619(a)(3) are within the discretion of the court and are not mandated by the pendency of another cause between the same parties arising out of the same operative facts. See People ex rel. Department of Public Aid v. Santos (1982), 92 Ill. 2d 120; A.E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245.

The facts underlying the plaintiffs’ judgment entered on the notes and the claims asserted in counts I and II are not the same. In order to procure a judgment against the Estate based on the notes, the plaintiffs were required merely to show that the decedent owed sums of money which remained unpaid, as evidenced by the notes themselves. These facts alone are insufficient to support a cause of action either for fraud, or under RICO. Additionally, the plaintiffs’ amended complaint prays for relief in tort and for punitive damages, which do not encompass the prior judgment on the notes. Although the mere possibility of procuring additional relief on an alternate theory is insufficient in determining that the causes of action are sufficiently separate, the claims for fraud and under RICO set forth additional facts which show additional “transactions” or “occurrences” in a different time frame.

In addition, the Nugents assert that the prior judgment serves as a bar to any further causes of action under the doctrine of res judicata. The doctrine of res judicata provides that a final judgment on the merits operates as a bar to any subsequent cause of action between the same parties or their privies which was or might have been litigated in the earlier proceeding. (Mendelson v. Lillard (1980), 83 Ill. App. 3d 1088, 1095.) It applies only in situations where the first and second causes involve the same parties, subject matter, and issues. National Tea Co. v. Confection Specialities, Inc. (1977), 48 Ill. App. 3d 650.

The prior judgment was entered against the Estate, which is only one defendant in this case. As we stated above, different evidence is necessary to sustain causes of action for fraud or under RICO than in contract. Furthermore, the causes of action alleged in the plaintiffs’ amended complaint arose, in part, after the judgment on the contract claim had been entered. It is absurd to plead that a cause of action is barred by a prior judgment that did not exist at the time the judgment was entered. Therefore, the plaintiffs should not be barred from advancing the two additional theories as a basis for relief. Under such circumstances, it was an abuse of discretion for the trial court to have dismissed the Estate from count I of the plaintiffs’ amended complaint under section 2 — 619.

2. COUNT II (RICO)

In support of the dismissal of count II, the Estate contends that a RICO claim cannot be maintained against it because (1) a “pattern” of racketeering activity was not alleged, as required by the RICO statute; (2) RICO is penal in nature and does not survive the death of Edward W. Nugent, Jr., and (3) an estate is not considered a “person” for RICO purposes. The Estate moves to dismiss pursuant to section 2 — 619(a)(9), on the basis that the above contentions constitute “other affirmative matter avoiding the legal effect of or defeating the claim” (111. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(9)).

“Affirmative Matter,” within the meaning of section 2— 619(a)(9) must be something more than the assertion that the complaint fails to state a cause of action, since the well-pleaded facts must be taken as true for purposes of a section 2 — 619 dismissal. In order to sustain dismissal, the moving party must set forth facts which constitute an affirmative matter completely negating the plaintiff’s cause of action, or refuting crucial conclusions of law, or refuting material facts which are unsupported by allegations of specific fact contained in or inferred from the complaint. (Samansky v. Rush-Presbyterian-St. Luke’s Medical Center (1990), 208 Ill. App. 3d 377, 383-84; Egidi v. Town of Libertyville (1989), 181 Ill. App. 3d 542, 546.) Therefore, it is necessary to examine whether the facts as alleged and taken as true set forth a viable cause of action against the Estate.

In our discussion of the section 2 — 615 motion to dismiss, we determined that defendants had not established that the complaint failed to plead a “pattern” of racketeering activity as a matter of law. Since the alleged fraud took place before decedent Nugent’s death, and was alleged to continue after his death by agents of the Estate and the corporation, defendants’ first contention lacks merit.

The Estate next contends that, because a civil RICO action is penal in nature, it does not survive the death of the alleged wrongdoer. The RICO statute contains no provision regarding survival or abatement of a cause of action brought under it. Since there is no applicable general Federal statute, Federal common law governs the survival of a RICO claim. Smith v. No. 2 Galesburg Crown Finance Corp. (7th Cir. 1980), 615 F.2d 407, 413.

Therefore, a determination of whether a civil RICO action is penal or remedial is necessary to resolve this issue. Although the Court of Appeals for the Seventh Circuit has set forth a three-part test for determining whether an action is generally considered penal or remedial (see Smith, 615 F.2d at 414), it has never addressed the issue in the context of a civil RICO claim for treble damages. Three courts in the Northern District of Illinois and several courts outside this district have decided this issue. (See Carroll v. Brown (N.D. Ill. 1988), No. 80 — C—6251; Eliasen v. Hamilton (N.D. Ill. 1987), No. 81 — C—123; First Interstate Bank v. Chapman & Cutler (N.D. Ill. 1986), No. 83— C — 8583, Fed. Sec. L. Rep. (CCH), at 91,994; Faircloth v. Jackie Fine Arts, Inc. (D. S.C. 1988), 682 F. Supp. 837, 850; Summers v. Federal Deposit Insurance Corp. (W.D. Okla. 1984), 592 F. Supp. 1240, 1243; State Farm, Fire & Casualty Co. v. Estate of Caton (N.D. Ind. 1982), 540 F. Supp. 673, 677.) However, these decisions are not uniform, and there is clearly a split among districts.

Furthermore, the cases cited above address the issue of whether a claim for treble damages under RICO may be assessed against an estate for conduct only of the decedent during his lifetime. In this case, the complaint alleged fraudulent conduct both before and after decedent Nugent’s death. Therefore, these cases are factually inapposite, and this contention lacks merit.

Finally, defendants cite several Illinois cases for the proposition that decedents’ estates “are not natural or artificial persons and lack capacity to sue or be sued.” (Precision Components, Inc. v. Estate of Kuntz (1983), 112 Ill. App. 3d 309, 310; Wisemantle v. Hull Enterprises, Inc. (1981), 103 Ill. App. 3d 878, 881; Estate of Godair v. Case (1920), 220 Ill. App. 348, 349.) Contrary to defendants’ assertion, these cases do not indicate that an estate is nothing more than a collection of assets and cannot be sued. A reading of each case in its entirety indicates that the statement is included to support the proposition that a claim against an estate must be brought through its executor or administrator, who must be named as a party. Therefore, the court abused its discretion in refusing to allow plaintiffs to amend the complaint to name Mary Jane as executor. Accordingly, we find the affirmative defenses raised by defendants lack merit, are unavailing, and the section 2 — 619 dismissal of the Estate from count II was improper.

To summarize, we affirm the section 2 — 615 dismissal of Mary Jane Nugent from counts I and II; we reverse the section 2 — 615 dismissal of Michael Nugent and Edward Nugent from count II; we reverse the section 2 — 619 dismissal of the Estate from counts I and II; and we remand this case to the trial court with directions to allow plaintiffs to amend the complaint.

Accordingly, the judgment of the circuit court of Lake County is affirmed in part, reversed in part, and remanded.

Affirmed in part; reversed in part and remanded.

UNVERZAGT and NICKELS, JJ., concur.