text:
    THE DEPARTMENT OF PUBLIC AID ex rel. KAREN McGEE, Plaintiff-Appellant, v. JACK W. KENNEDY, Defendant-Appellee.
    Fourth District
    No. 4—90—0554
    Opinion filed March 29, 1991.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Susan Frederick Rhodes, Assistant Attorney General, both of Chicago, of counsel), for appellant.
    No brief filed for appellee.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

On February 21, 1990, the circuit court of Greene County entered an order dismissing a paternity complaint brought by the Illinois Department of Public Aid (Department) ex rel. Karen McGee against defendant Jack Kennedy. The Department now appeals. We reverse.

On October 17, 1989, the Department filed a complaint seeking to establish that defendant was the father of Justin McGee, pursuant to the Illinois Parentage Act of 1984 (Parentage Act) (Ill. Rev. Stat. 1989, ch. 40, pars. 2501 through 2526). On January 9, 1990, defendant filed a motion to dismiss the complaint. The motion alleged that Karen McGee had previously filed a paternity complaint involving Justin against defendant in People ex rel. McGee v. Kennedy (Cir. Ct. Greene Co.), No. 82—F—18 (McGee)] the matter was dismissed on motion of the State’s Attorney on June 10, 1985; and this dismissal was pursuant to an agreement entered between the parties.

The record establishes that, in McGee, plaintiff, with the assistance of the Greene County State’s Attorney’s office, pursued a paternity complaint against defendant. On June 10, 1985, the following docket entry was made:

“The Court is advised that the Petitioner [McGee] contacted the State’s Attorney’s Office this date at 2:30 p.m. Petitioner advised S.A. Goetten that she did not want to pursue the paternity action. Petitioner further advised S.A. Goetten that she was not receiving Public Aid benefits on behalf of the minor child. Motion by S.A. Goetten to dismiss without prejudice. No objection by Attorney Clough. Motion allowed. Cause Stricken.”

This was apparently done pursuant to an agreement between the parties. The agreement provided that defendant would allow his name to be placed upon the birth certificate, and that McGee would withdraw her complaint and release the defendant from any claims for medical bills, expenses, or support for the child. It concluded by stating that the parties believed it was in their best interest and that of the minor child to settle this matter as set forth. There is no indication this agreement was presented to, or approved by, the court.

Subsequently, the child began receiving benefits from the Department. Accordingly, on October 17, 1989, the Department filed the instant action. On February 21, 1990, the court, agreeing with defendant, dismissed the complaint. In doing so, the court found that, at the time of the original dismissal, the court and the State were satisfied with the resolution, and that the mother is still bound by the agreement.

At the outset, we note that appellee has not filed a brief in this court. However, since the record is simple and the issues are clear, we will address the merits of the case. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The Parentage Act, under which the present claim was brought, became effective on July 1, 1985, and repealed the Paternity Act (Ill. Rev. Stat. 1983, ch. 40, pars. 1351 through 1368). Section 25 of the Parentage Act provides that the repeal of the Paternity Act “shall not affect rights or liabilities which have accrued thereunder and which have been determined, settled or adjudicated prior to the effective date of this Act or which are the subject of proceedings pending thereunder on such effective date.” (Ill. Rev. Stat. 1989, ch. 40, par. 2525.) Thus, since the first action was brought and resolved under the Paternity Act, it is necessary to turn first to that act to resolve this question.

A similar fact situation recently arose in Illinois Department of Public Aid ex rel. Spurgetis v. Newburg (1989), 181 Ill. App. 3d 424, 537 N.E.2d 384, appeal denied (1989), 127 Ill. 2d 616, 545 N.E.2d 111. There, Spurgetis filed a complaint, under the Paternity Act, against Newburg. The parties entered into a settlement agreement, which the court incorporated into an order. Spurgetis subsequently received benefits from the Department, which then filed an action pursuant to the Parentage Act. Newburg filed to dismiss the complaint, arguing that it was barred by the earlier settlement. The court agreed.

In reaching this conclusion, the court observed that the settlement order conformed with the provisions of section 9A of the Paternity Act. (Ill. Rev. Stat. 1983, ch. 40, par. 1360.) It further noted that section 9 of the Paternity Act provided that the court shall retain jurisdiction to make new or supplemental orders in all cases, except where a settlement order has been entered as provided in section 9A. (Ill. Rev. Stat. 1983, ch. 40, par. 1359.) Accordingly, it concluded that a court-approved settlement order barred the mother, the alleged father, or a public agency from bringing another action. (Newburg, 181 Ill. App. 3d at 427, 537 N.E.2d at 386.) While we concur with this analysis, we note there is a factual distinction which takes this case out of the Newburg analysis.

Section 9A of the Paternity Act provided:

“In cases where the putative father has not acknowledged paternity and where the parties have requested a settlement, the court shall review the proposed settlement in the light of the allegations made, the probable evidence and the circumstances of the parties. If the court is satisfied the best interests of the child and of the parties will be served by entry of an order incorporating the settlement, and if it is satisfied that the financial security of the child is adequately provided for and that the child and its mother are not likely to become public charges, it may enter an order to that effect.” (Ill. Rev. Stat. 1983, ch. 40, par. 1360.)

In Newburg, the parties presented a proposed settlement to the court, in which Newburg paid $12,500 for medical expenses and support and Spurgetis agreed to release Newburg from any liability. The court reviewed the proposal and, upon finding the settlement was in the best interest of the minor and parties, incorporated the agreement into the ultimate settlement order. Thus, this procedure clearly complied with the provisions of section 9A of the Paternity Act.

However, the same cannot be said in our case. There is no indication this proposed agreement was presented to the court, nor is there any evidence showing that the court considered it and made the requisite findings. Thus, we conclude that, since this agreement does not comport with the requirements of section 9A, it is not properly considered a settlement within the meaning of the Paternity Act and does not preclude any subsequent action.

We similarly conclude that this agreement does not bar the current action under the Parentage Act. Section 12.1 of the Parentage Act (Ill. Rev. Stat. 1989, ch. 40, par. 2512.1) contains the same provisions for a settlement order as contained in section 9A of the Paternity Act. Elsewhere in section 7(d), the Parentage Act provides:

“Regardless of its terms, an agreement, other than a settlement approved by the court, between an alleged or presumed father and the mother or child, does not bar an action under this Section.” (Ill. Rev. Stat. 1989, ch. 40, par. 2507(d).)

The phrase “settlement approved by the court” is properly construed as referring to the settlement orders of section 12.1 of the Parentage Act. Thus, unless such an order complies with this section, it has no preclusive effect under the Parentage Act. Again, for the same reasons, it is clear the agreement between McGee and Kennedy does not suffice.

Accordingly, we conclude that the circuit court of Greene County erred in dismissing the complaint filed by the Department.

Reversed and remanded.

STEIGMANN and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VINCENT SPARKS, Defendant-Appellant.
    Fourth District
    No. 4—90—0821
    Opinion filed March 29, 1991.

      Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, and Robert W. Mueller, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

In June 1990, defendant, Vincent Sparks, was charged with aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(1) (commission of a battery with the use of a deadly weapon other than a firearm discharge)) based on an allegation that he committed a battery upon Richard Hartman by using a knife to stab Hartman in the abdomen. Defendant was convicted at a September 1990 jury trial and sentenced to 24 months’ probation with the condition that he serve 90 days in the Macon County jail.

On appeal, defendant argues that the trial court erred by refusing to give his instruction on the lesser included offense of battery. We disagree and affirm his conviction.

Briefly summarized, the evidence at trial showed that a fight occurred in a tavern parking lot between defendant and Hartman. Before the fight, Hartman and his friend, Randy Spears, were drinking in the tavern. When they left the tavern and walked to Spears’ car in the parking lot, they came upon defendant, another man, and a woman, who were standing by Spears’ car. At that point, a fight broke out between Spears and the other man. Hartman and defendant had a few words but agreed that they would stay out of the fight. After a few minutes, when Spears was getting the better of the fight, defendant got a jack handle or pipe from a car and hit Hartman in the head, knocking him down. Hartman got back up and yelled at defendant, who then grabbed Hartman by the throat and threw him on Spears’ car. Hartman testified that, “the next thing I know, I am bleeding.” As soon as defendant let go of Hartman’s throat, Hartman put his hand down to the area of his stomach and noticed then that he was bleeding. When defendant threw him on the hood of the car, no one else was in the immediate vicinity.

Hartman testified that he said to Spears, “Let’s go, take me to the hospital,” and defendant asked, “You guys had enough?” Hartman said yes, and Spears drove him to a Decatur hospital. As a result of his injury, Hartman required surgery and was hospitalized for seven days.

On cross-examination, Hartman described the area where the incident occurred as a gravel parking lot. He testified that, to his knowledge, there were no sharp rocks or broken glass in the parking lot, but he admitted he did not know for sure.

Hartman testified that he never saw a knife or any other weapon in defendant’s hand and he did not feel when the injury occurred. Hartman insisted, however, that he was not bleeding until he was thrown on top of Spears’ car. He also insisted that he was stabbed while on Spears’ car.

Another witness testified that she was in the tavern on the night in question and, a few hours before the incident in the parking lot, saw defendant with a pocketknife that had a blade approximately three to four inches long.

Spears testified and substantially corroborated Hartman’s version of the incident. Spears did not see any blood until Hartman got in the car and told Spears, “You had better take me to the hospital. I think he stabbed me.”

A photograph of the shirt Hartman was wearing on the night in question was admitted into evidence and showed a large bloodstain in the lower area of the shirt, just to the left of the center. Also shown in that photograph was an approximately 21/2-inch cut in the shirt.

The last evidence introduced was a stipulation that the doctor who treated Hartman on the date in question would testify that Hartman had a wound to his abdomen which was consistent with having been inflicted by a sharp object. Defendant chose not to testify and offered no evidence.

At the conference on jury instructions, defendant asked that the jury be instructed on the lesser included offense of battery, arguing that there was a jury question as to whether a knife was used to inflict the injuries upon Hartman. The State objected and argued that there was no evidence in the case that anything other than a knife could have caused Hartman’s injury. Both at the trial level and on appeal, defendant argues that something in the parking lot, such as broken glass or sharp rocks, could have caused Hartman’s injury when Hartman was pushed down. Accordingly, defendant argues that the trial court erred in refusing to give the jury an instruction on the lesser included offense of battery. We disagree.

There is no dispute on the law governing when a jury should be instructed on a lesser included offense. As this court wrote in Peo ple v. Williams (1989), 191 Ill. App. 3d 269, 274, 547 N.E.2d 608, 612, “A defendant’s instruction on the lesser offense is appropriate when the evidence would permit a jury rationally to find him guilty of the less serious offense and not guilty of the more serious offense.” In People v. Mitchell (1985), 136 Ill. App. 3d 205, 208, 482 N.E.2d 1046, 1048, this court also wrote the following: “A trial court may properly refuse a defendant’s proposed jury instruction when there is no evidence supporting the proffered instruction.”

Essentially, defendant’s argument is that he was entitled to have the jury instructed on the lesser included offense of battery because the State did not preclude all possible causes of Hartman’s injury other than his being stabbed with a knife. However, this argument is not in comportment with Williams and Mitchell. Here, the record contains no evidence to show that the parking lot, in fact, contained any sharp rocks or broken glass which might have been the cause of Hartman’s injuries. The sole testimony on this point was that while Hartman did not recall seeing any sharp rocks or broken glass present, he could not say for sure. Further, Hartman was unequivocal that the injury to his abdomen occurred when defendant had him pinned to the car. We agree with the State’s argument that defendant is trying to establish by speculation what he could not establish by evidence. We emphasize that the claimed “failure” of the State to rebut all possible or imagined causes of Hartman’s injury is not the same as evidence which establishes (or at least suggests) that some other object may have been the cause.

We conclude that the trial court’s refusal of defendant’s proposed instruction on battery was entirely appropriate. See People v. Partee (1987), 157 Ill. App. 3d 231, 265, 511 N.E.2d 1165,1187-88.

On appeal, defendant also argues that he was not given credit on his 90-day jail sentence for 6 days previously served. The State concedes that the defendant is entitled to this credit, and we agree.

For the reasons stated, the defendant’s conviction is affirmed, and the cause is remanded for the entry of a modified sentencing order giving defendant credit on his 90-day jail sentence for 6 days previously served.

Affirmed and remanded with directions.

GREEN and McCULLOUGH, JJ., concur.


author: PRESIDING JUSTICE LUND

text:
    LOCAL No. 193, International Brotherhood of Electrical Workers, AFL-CIO, Plaintiff-Appellee, v. THE CITY OF SPRINGFIELD et al., Defendants-Appellants.
    Fourth District
    No. 4—90—0532
    Opinion filed March 29, 1991.
    James K. Zerkle, Corporation Counsel, of Springfield (John P. Schmit and Jill D. Leka, Assistant Corporation Counsel, of counsel), for appellants.
    Charles A. Werner and David C. Holtzman, both of Schuchat, Cook & Werner, of St. Louis, Missouri, for appellee.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

On December 1, 1987, Local No. 193, International Brotherhood of Electrical Workers, AFL-CIO (Union), filed a complaint for declaratory judgment in the circuit court of Sangamon County against the defendants, City of Springfield and City Water, Light and Power (City), seeking an order that, pursuant to a labor agreement between them, Union employees are not subject to Civil Service Commission Rules (Commission Rules), and seeking a permanent injunction ordering the City to desist disciplining the employees pursuant to these Commission Rules. Following a hearing on June 29, 1990, the court entered an order so providing. The City now appeals.

The declaratory judgment complaint alleged that the Union represented various employees of the City Water, Light and Power Department (Department); the parties have been operating under a labor agreement continually since the 1950’s; this agreement contains an arbitration procedure which is in accordance with the Uniform Arbitration Act (Ill. Rev. Stat. 1989, ch. 10, par. 101 et seg.) and the Illinois Public Labor Relations Act (Labor Act) (Ill. Rev. Stat. 1989, ch. 48, par. 1601 et seq.); in People ex rel. Dellert v. Torrey (Cir. Ct. Sangamon Co.), No. 96691 (Torrey), the circuit court of Sangamon County found the Union was exempt from the provisions of “An Act to regulate the civil service of cities’’ (Civil Service Act) (Ill. Rev. Stat. 1949, ch. 24½, pars. 39 through 77a); and since August 1987 the City has refused to honor the terms of the labor agreement by disciplining the Union’s employees pursuant to the Commission Rules. Accordingly, the complaint asked that (1) the court declare the Union’s members were not subject to the Commission Rules and, instead, are subject to the Labor Act and the parties’ agreement; and (2) the court enter a permanent injunction commanding the City to desist in disciplining the Union’s members through civil service procedures rather than the grievance and arbitration procedure agreed to by the parties.

The evidence presented established that since 1940 the Union and the City have continually operated under a written labor agreement, and it has remained substantially the same during this time. In 1985, an election-of-remedies provision was added, allowing an employee to choose to have a disciplinary matter resolved either through the agreement’s grievance and arbitration provisions or pursuant to the City’s employment policy. The written agreement contains no rules of conduct, no standards of discipline, and no process for initiating discipline.

The City has adopted an employee policy, which applies to all employees as long as its provisions are not inconsistent with any collective-bargaining agreements. This policy contains standards and procedures for discipline and, under the causes for discharge, it lists 14 different violations. The last one is “[fjailure to follow rules of conduct as promulgated by the Civil Service Commission.” The policy also provides that the disciplinary action shall be taken in accordance with the Commission Rules.

The City continues to discipline the Union’s members for violating rule 48 of the Civil Service Commission (Commission). This rule sets forth the grounds for discipline under the Commission Rules, and it contains many of the same grounds contained in the City employment policy. The Union objects to this procedure, maintaining that its members in the Department are not subject to the Commission. The evidence establishes that these members are not subject to civil service testing or civil service eligibility lists.

After reviewing the evidence, the court found for the Union. It concluded that the Union employees are exempt from the Commission Rules, and it ordered the City to desist from disciplining the Union’s members by referring to or alleging a violation of the Commission Rules. This appeal followed.

This case involves an interpretation of the labor agreement between the parties. In Board of Governors v. Illinois Educational Labor Relations Board (1988), 170 Ill. App. 3d 463, 470, 524 N.E.2d 758, 761, this court addressed some applicable general provisions, stating:

“The meaning of the language used in a written contract is ordinarily a question of law. (Lenzi v. Morkin (1984), 103 Ill. 2d 290, 469 N.E.2d 178.) The primary objective in construing a contract is to effectuate the parties’ intentions when entering the agreement. The entire document should be considered. (Carrico v. Delp (1986), 141 Ill. App. 3d 684, 490 N.E.2d 972.) Absent ambiguity, the intention of the parties must be gathered from the language used in the contract, not from a party’s construction of that language. (Lenzi, 103 Ill. 2d 290, 469 N.E.2d 178.) A contract is ambiguous if it is subject to more than one reasonable interpretation. (Marathon Plastics, Inc. v. International Insurance Co. (1987), 161 Ill. App. 3d 452, 514 N.E.2d 479.) The clear and unambiguous language of a bargaining agreement should control. Bogguess v. Board of Education (1985), 133 Ill. App. 3d 864, 479 N.E.2d 1100.”

It is the City’s position that use of the Commission Rules to determine what conduct results in discipline is appropriate under the management-rights provision of the agreement. The agreement includes the following paragraph:

“Management Rights — Subject to the provisions of this Agreement and [Labor Act (Ill. Rev. Stat. 1989, ch. 38, par. 1601—27)], [the City] retains the inherent management authority and is vested with the exclusive right to control its operations, to determine its policies, its over-all budget, the manner of exercise of its functions, and the direction of its workforce and to maintain efficiency provided the exercise of such rights by management does not conflict with specific provisions of this Agreement.”

The City observes there are no provisions in the agreement which deal with the procedure for instituting discipline, the standards for discipline, and the specific conduct resulting in discipline. Accordingly, since there are no specific provisions dealing with these concepts, the City believes that, pursuant to this clause, it has the right to adopt rules and regulations covering these concepts. The City observes that it has adopted a comprehensive employment policy, which includes discipline procedures. In the disciplinary procedures, the policy sets standards of discipline, which include as one standard the failure to follow rules of conduct, promulgated by the Commission, and it provides that the procedure to be used is the procedure contained in the Commission Rules. Therefore, it believes, pursuant to the management-rights clause, that these provisions can be used.

It is the Union’s position that the question of the relationship of its members with the Commission has previously been resolved in circuit court cases which the City did not appeal. Thus, the Union maintains, apparently pursuant to the doctrine of collateral estoppel, that the City cannot relitigate the issue. The Union relies primarily on Torrey.

The original order in Torrey was filed on May 8, 1950. It appears from the findings that this mandamus action was brought due to the creation of the Commission of Springfield, in order to seek protection for current employees. Accordingly, the court ordered that in the first examination for a position held after June 1, 1950, any person who has held that position for an excess of one year will be given a passing grade, certified for such position, and shall not be required to serve any probationary period.

On July 31, 1950, a modified order was entered. In its findings, the court found that positions with the Department are highly specialized and the apprenticeship with the Union is in excess of the probationary period. It further stated that it:

“[Fjinds that such aforesaid positions and classifications of employees are not within the meaning of the said Civil Service Act, exempt from its provisions, and should not be made a part of the Classified Civil Service by the aforesaid Civil Service Commission.” (Torrey (Cir. Ct. Sangamon Co.), No. 96691, slip op. at 2.)

The court then entered an order similar to the one of May 8, 1950, including a directive to hold examinations for all positions except those found exempt.

On November 24, 1950, the court again entered an order modifying the May 8, 1950, order. This one did not contain the above findings involving the Department employees. The court did find that a “majority of the positions in the Department of Public Property are in specialized trades which require apprenticeships in various labor unions.” (Torrey (Cir. Ct. Sangamon Co.), No. 96691, slip op. at 2.) The court found that, as to these individuals, they should receive credit against the probationary period for any apprenticeship. In its order, the court stated that exams should be given for all positions “not specifically exempt from the Civil Service Act.” Torrey (Cir. Ct. Sangamon Co.), No. 96691, slip op. at 5.

In the doctrine of collateral estoppel, the parties are precluded from relitigating an issue in a subsequent proceeding where that issue was actually or necessarily decided by a court in an earlier proceeding. (Redfern v. Sullivan (1982), 111 Ill. App. 3d 372, 375, 444 N.E.2d 205, 208.) The issue must have necessarily been decided by the court and, if any uncertainty exists, the doctrine will not apply. (Redfern, 111 Ill. App. 3d at 376-77, 444 N.E.2d at 209.) As can be seen from the above, it is difficult to determine what question the Torrey court actually addressed and what the court’s ultimate order was. Thus, by this very uncertainty, the doctrine of collateral estoppel is clearly inapplicable, and the orders have no preclusive effect on the current litigation.

We find the City’s position to be well taken. The labor agreement contains no provisions involving employee discipline, other than the appeal process which provides for an election of remedies. There is no indication what type of conduct is to be avoided, what standard is to be used in imposing discipline, and what procedures are to be used in implementing it. The management-rights provision explicitly provides that the City is vested with the right to control its operations and to determine its policies, the manner of the exercise of its functions, and the direction of its work force. This authority would clearly include the discipline of its employees. The only limit on this authority is the caveat that the City, by this exercise, must not conflict with any specific provisions of the labor agreement. As noted, there are no such procedures. Thus, the City is allowed to fill that void as it sees fit. Here, i; has done so by use of its city employment policy.

Much of the Union’s difficulty with this case has been due to its misapprehension of the City’s practices. Even if we had concluded that the Torrey case had resolved that the Union’s members were exempt from the Civil Service Act, the result would be no different. The City is not placing the Union’s members under the authority of the Commission. It does not, for example, require them to take civil service tests or to be placed on Commission eligibility lists. Rather, the City has adopted an extensive employment policy, which has adopted by reference certain of the standards and procedures of the Commission Rules. By doing so, the City does not place the employees under the control of the Commission. Therefore, even assuming the above-stated construction of Torrey, the City would not be in contravention of its holding.

We wish to make a couple of points particularly clear. First, we are not holding that the Union’s members are under the authority of the Commission in all its aspects. We are simply holding that, absent specific provisions in the agreement otherwise, the City, pursuant to the management-rights provisions of the agreement, can set the standards and procedures for discipline. We note this conclusion is entirely in accord with other circuit court cases on which the Union relies, where the court ordered the City to comply with the appeal procedures for discipline contained in the agreement rather than the City’s procedures contained in the employment policy.

Second, we are not holding by this reference to the agreement’s management-rights clause that the standards and procedures for discipline are not subject to bargaining. That very question was resolved by City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 522 N.E.2d 1219. There, Decatur had a Commission, and it felt there was no duty to bargain over disciplinary matters that feU within the scope of the Commission. The court disagreed and held Decatur had a duty to bargain over this subject. (Decatur, 122 Ill. 2d at 366, 522 N.E.2d at 1225.) Thus, in the present case, if the Union does not like the disciplinary standards and procedures the City uses, the Union can seek a change in the future bargaining. However, until the agreement is changed, the City can continue to use the standards and procedures contained in its employment policy.

For the above-mentioned reasons, the order of the circuit court of Sangamon County is reversed.

Reversed.

GREEN and STEIGMANN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEON BRAMLETT, Defendant-Appellant.
    Fourth District
    No. 4—90—0565
    Opinion filed March 28, 1991.

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

delivered the opinion of the court:

On June 19, 1990, defendant Leon Bramlett was found guilty by a jury sitting in the circuit court of Macon County of committing the offense of residential burglary. (Ill. Rev. Stat. 1989, ch. 38, par. 19—3.) He was subsequently sentenced to a 10-year period of imprisonment. Defendant now appeals.

On March 2, 1990, defendant was charged with committing the offense of residential burglary on the residence of Bobbie Jones. Mark Evans was similarly charged.

Prior to trial, defendant filed a motion seeking to sever his trial from that of Evans. It was alleged that Evans would be calling a witness who would place some of the stolen property in defendant’s car earlier than the time of the burglary, and that defendant would deny this. Accordingly, defendant maintained the defenses were antagonistic and the trial should be severed. The court denied the motion.

The first witness at the trial was Decatur police officer Thomas Butts. He stated that on February 28, 1990, at approximately 10:21 p.m., he was one block from the residence at 1805 Morgan, Decatur, Illinois. At that time, he observed four black males running from the residence with some items in their hands. Butts exited the car and chased them. As they ran, the men dropped the items they were carrying and split up. Butts eventually stopped one of them.

Butts returned and examined the house at 1805 Morgan. He found a window broken out and a door forced open. He also found a two-door brown Cadillac parked on the alley in the lot immediately north from the back door of 1805 Morgan. The trunk was partially open. In the passenger compartment, behind the seat, Butts found a gold clock and a picture. Butts acknowledged that since he did not get a good look at the fleeing subjects’ faces, he could not say for sure one way or another whether defendant and Evans were among them.

Police officer James Chervinko was talking with Butts at approximately 10:21 p.m., when he also saw several people running from the 1800 block of Morgan. He believed there were three subjects. About 1 to IV2 minutes later, he observed a person running north in the east alley on the 1800 block of Morgan. This is on the opposite side of the street from 1805 Morgan. Chervinko followed him. The person ran north in the east alley, then crossed the street and ran in the west alley of the 1800 block of Morgan. Eventually, since the person would not stop when called, Chervinko chased and tackled him north of 1805 Morgan. This person originally gave a false name, but then admitted he was Mark Evans.

Sergeant Robert Harvey heard the radio transmissions of this incident and responded to the area. When he arrived around 10:23 p.m., he observed two black men running down the driveway of 1805 Morgan. The two men ran across Morgan, over to the east, and then split up. Harvey stopped one subject, the defendant, running north on Morgan Street. He saw the other subject run to the alley east of Morgan and then turn north. He stated that Chervinko caught this individual. On cross-examination, he acknowledged that he simply called to defendant and defendant stopped running and returned to him. He also admitted that he could not identify Evans as being the other man who ran away, though he could not exclude him either.

The State presented the testimony of Bobbie Jones, who resides at 1805 Morgan, and who identified the items found in the car and the yard as belonging to her. She stated she never gave defendant or Evans permission to enter her house on February 28, 1990. The State also establishes that a fingerprint of Evans was found on the gold clock found in the car, and that the car belonged to the defendant and Amos Lofton.

The State’s final witness was 13-year-old Leslie Taylor. On February 28, 1990, she was walking to her grandmother’s house, which took her past 1805 Morgan. She saw three men coming from the back of the house and identified one as Evans. The men were carrying something and walking toward the Cadillac parked in back. She knows defendant, but she does not think she saw him that night. She also did not see any of these people actually come out of the house.

Defendant’s first witness was Facelli Drummer, who is a sister of defendant’s girlfriend. She testified that on February 28, 1990, around 8 p.m., he came to her house and visited with her and her sister. He was walking at the time. He left around 10 p.m. when the news came on. She acknowledged finding out the day before, for the first time, that she would be a witness, and that she has a retail-theft conviction.

Defendant testified and acknowledged he is part owner of the Cadillac with Amos Lofton. He explained he is simply the cosigner. On February 28, 1990, he used the car around 2 p.m. to give Theresa Snow and Evans a ride to the store so that Snow could cash her support check and do some shopping. He had to go get the car from Lofton. At the time he gave Snow and Evans the ride, the gold clock and picture were not in the vehicle. When they were done, he dropped them off and returned the car.

He then walked over to Drummer’s around 8 p.m., and left a little after 10 p.m. On the way back, he walked down Morgan Street, which is the way he always goes. When he arrived near the 1800 block of Morgan, the police stopped him about a purse snatching. They then went to the house and started talking about a residential burglary. He did not run from the police, but the person who was with him did. This person was Terry Link, who started walking with defendant several blocks earlier. Defendant stated he did not enter Jones’ house, did not drive the Cadillac that evening, and did not possess any of the stolen items.

On cross-examination, he acknowledged he has a felony conviction for unlawful possession of a registration sticker. He also acknowledged that his name was first on the title and registration, but maintained he only acted as the cosigner for the car. He stated that he was simply walking on the sidewalk at the time of his arrest. He denies running down the driveway or running from Harvey. He has no idea why the car was at the scene.

Theresa Snow, Mark Evans’ girlfriend, stated that on February 28, 1990, she arrived home from work around 3:30 p.m. and asked Evans to get defendant to take them to the store. They went to the store in defendant’s Cadillac. When they were putting the groceries in the back, she saw a gold object on the floor of the backseat which Evans had to move. Evans then stayed at her house until around 11 p.m., when he left to get cigarettes. He never returned.

On cross-examination, she stated she saw nothing else in the car. She denied earlier telling an officer that she saw nothing in the car. She explained that he asked if she saw a clock, and she said she did not because she did not know what the gold object was.

Evans testified similarly to Snow concerning the shopping. When he put the groceries in the car, he had to move the clock out of the way. This would have been around 4:30 p.m. He then returned to Snow’s house until approximately 10:50 p.m. He left to get some cigarettes. Snow’s house is one block north of Jones’ house. As he walked past Jones’ house, he saw some people exit the house and run. Two police cars came after them. He hid at that time because he had two failure-to-appear warrants outstanding. He then ran when the police saw him. The reason he ran and gave the false name was because of the warrants. He did not see defendant in the area. He acknowledged having a retail theft conviction.

On rebuttal, police officer Rick Jones testified that Snow told him that when she was in the car she did not observe a clock or any other property. She did not tell him that she saw Evans move a gold object. The jury found the defendant and Evans guilty, and defendant received a 10-year prison sentence. Defendant now appeals, asserting (1) he was not proved guilty beyond a reasonable doubt; (2) the court erred in denying his motion for a severance of his trial from that of Evans; and (3) improper comments by the prosecutor denied him a fair trial. We disagree and affirm.

The standard of review in sufficiency of the evidence cases is well settled. A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt. (People v. Vriner (1978), 74 Ill. 2d 329, 342, 385 N.E.2d 671, 676.) When presented with a challenge to the sufficiency of the evidence, it is not the function of this court to retry the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) Once the defendant has been found guilty of the charged crime, the fact finder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.) The relevant question is whether, if after viewing the evidence in such a fashion, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789; Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.) This standard applies in all criminal cases, whether the evidence is direct or circumstantial. People v. Pintos (1989), 133 Ill. 2d 286, 291, 549 N.E.2d 344, 346.

Defendant argues there are many factors which establish he did not commit the crime. Among these are: (1) no one saw him enter or leave the house; (2) Taylor testified she saw Evans but she did not see defendant; (3) there were no fingerprints of defendant in the house or on the stolen property; (4) when he was arrested there was no incriminating evidence in defendant’s possession; and (5) there was no evidence showing defendant was in control of the car on the night in question.

We find the evidence, considered in the light most favorable to the State, sustains the conviction. It is clear the burglary was taking place. Defendant concedes that. The sole question is his involvement, or lack thereof, as a principal or under an accountability theory.

The evidence, considered within the above-stated framework, establishes that Butts saw, at 10:21 p.m., four men running south from Jones’ house with items in their hands. They dropped these as they fled. Butts chased three, catching one, with two getting away. Chervinko also saw the men running, though he saw only three. Within one or two minutes, he saw Evans in the alley on the east side of Morgan Street running north. He chased and caught him. At about that same time, Harvey saw defendant and another man running down a driveway next to Jones’ house. He took chase. Defendant stopped, and the other person crossed the street to the east side of Morgan Street and ran north in the alley. Harvey stated this is the man Chervinko caught, Evans. Thus, the evidence established that the defendant was in the presence of Evans at the time of the chase.

The evidence further establishes that Evans was seen at the back of the house heading to the car carrying some items, and that the clock in the car had his fingerprint on it. Also, the car containing the stolen property belonged in part to defendant. Therefore, the evidence has defendant running in the presence of a person who is clearly involved in the burglary, while defendant’s car is near the broken-in door and contains stolen property. This is sufficient to establish defendant’s involvement in the crime.

Admittedly, Taylor said she did not see defendant among the men at the back of the house. However, she said she saw three people and Butts testified he saw four running. Thus, the jury could reasonably have concluded that defendant was out of her sight at the time. Also, while defendant has presented an alibi and explanation, this testimony conflicts with that of Harvey in critical ways (i.e., whether defendant was running down the driveway). It is the responsibility of the trier of fact to determine the credibility of witnesses, the weight to be given to their testimony, and the reasonable inferences to be drawn from the evidence. (People v. Jimerson (1989), 127 Ill. 2d 12, 43, 535 N.E.2d 889, 903, cert. denied (1990), 497 U.S. 1031, Ill L. Ed. 2d 796, 110 S. Ct. 3288.) The jury could have reasonably concluded that defendant was lying in this regard, which would cast a cloud on all his testimony. Accordingly, we find that defendant was proved guilty beyond a reasonable doubt.

Prior to trial, defendant made a motion seeking to sever his trial from that of Evans, maintaining that the testimony that the gold clock was in his car earlier that evening would prejudice him. The court denied the motion. Defendant believes this was error.

The long-established rule in this jurisdiction is that defendants jointly indicted are to be jointly tried unless fairness to one of the defendants requires a separate trial to avoid prejudice. (People v. Byron (1987), 116 Ill. 2d 81, 92, 506 N.E.2d 1247, 1251; People v. Lee (1981), 87 Ill. 2d 182, 187, 429 N.E.2d 461, 463.) At least two types of prejudice can be readily identified. (Lee, 87 Ill. 2d at 187, 429 N.E.2d at 463.) The first is when a codefendant’s confession is to be introduced. (People v. Bean (1985), 109 Ill. 2d 80, 93, 485 N.E.2d 349, 355; Lee, 87 Ill. 2d at 187, 429 N.E.2d at 463.) The second is when the codefendants’ defenses are so antagonistic to each other that one of the codefendants cannot receive a fair trial jointly with the others. (People v. Daugherty (1984), 102 Ill. 2d 533, 542, 468 N.E.2d 969, 973.) The decision to grant a severance is within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Byron, 116 Ill. 2d at 92, 506 N.E.2d at 1251.

It is this second variety of prejudice, antagonistic defenses, which is involved in the present case. Severance is required when the defenses are so antagonistic that a severance is imperative to ensure a fair trial. (Byron, 116 Ill. 2d at 92, 506 N.E.2d at 1251; Lee, 87 Ill. 2d at 187, 429 N.E.2d at 464.) Actual hostility between the two defenses is required. (Bean, 109 Ill. 2d at 93, 485 N.E.2d at 355.) This is generally the situation in which one defendant points a finger at the other as the real perpetrator of the offense (Lee, 87 Ill. 2d at 187, 429 N.E.2d at 463), or where each defendant is protesting his innocence in condemning the other (Daugherty, 102 Ill. 2d at 542, 468 N.E.2d at 973). Thus, antagonistic defenses have been confined to those instances where one codefendant testifies implicating the other. People v. Murphy (1981), 93 Ill. App. 3d 606, 609, 417 N.E.2d 759, 761; People v. Precup (1977), 50 Ill. App. 3d 23, 29, 365 N.E.2d 1007, 1010.

Defendant’s concern in the case at bar is over the testimony of Evans and Snow placing the stolen clock in his car earlier in the afternoon of February 28, 1990. He observes that codefense counsel referred to this testimony in his opening and closing statements, suggesting that a prior burglary had taken place to procure the clock. Thus, defendant argues Evans’ counsel not only implicated him in this burglary, but also in a possession of stolen property offense. He relies on Byron and Bean in asserting this is a sufficiently antagonistic situation to require severance.

Defendant’s reliance on Bean and Byron is misplaced. Those cases involved situations where the trials became more contests between the codefendants than the State and defendants. (Bean, 109 Ill. 2d at 94, 485 N.E.2d at 355; Byron, 116 Ill. 2d at 93, 506 N.E.2d at 1252.) Both Lee and Bean cited People v. Braune (1936), 363 Ill. 551, 2 N.E.2d 839, the fountainhead of this State’s jurisprudence in this area, and quoted the following language:

“The trial was in many respects more of a contest between the defendants than between the People and the defendants. It produced a spectacle where the People frequently stood by and witnessed a combat in which the defendants attempted to destroy each other.” Braune, 363 Ill. at 557, 2 N.E.2d at 842.

The present case involves no such controversy. The evidence that the clock was in the car six to eight hours prior to the burglary does not implicate defendant in being involved in the residential burglary at 10:30 p.m. As noted in the earlier discussion, defendant’s criminal involvement is established without any reference to the clock. Thus, this evidence has little impact on defendant’s case. Further, except for the clock, Evans’ testimony was of assistance to defendant. Evans stated he saw the people leaving the house, but he also stated he did not see defendant in the area. Since much of the State’s case hinges on the two of them being together, this testimony is beneficial.

Since this case did not become a contest between Evans and defendant, which is the situation the courts are concerned with, and since care must be taken in severance cases to ensure that the nature of the defenses are truly inconsistent (see Lee, 87 Ill. 2d at 187, 429 N.E.2d at 464), we conclude that the motion was properly denied.

Defendant’s final assertion was that he was denied a fair trial by the prosecutor’s reference in cross-examination and in closing argument to the fact that the arresting officer was of the same race as defendant.

On cross-examination, when asking defendant to explain the conflicts in his testimony with that of Officer Harvey, the prosecutor queried:

“Q. [Prosecutor:] Now, you saw Officer Harvey, the Black sergeant yesterday; right?
* * *
Q. [Prosecutor:] Okay. Do you have any idea why a — another Black — a Black police officer would say that about you?
***
Q. [Prosecutor:] So, you’re saying, you’ve no idea why the Black police officer would testify the way he did?”

In closing argument, the prosecutor stated:

“What about Leon Bramlett. He testifies for himself. What’s the noteworthy thing that Leon Bramlett has to say. Leon Bramlett says, ‘I was never running at the scene. No policeman ever chased me.’ You heard Sergeant Robert Harvey testify from the witness stand that he saw the defendant running through Bobbie Jones’ driveway and had to chase him down. When he ordered him to stop, he stopped. Somebody’s not telling the truth. Now, who are you going to believe, Robert Harvey or the defendant. Now, this isn’t some case of some White police officer coming to court and saying, ‘Yeah. I saw that Black man, and he was running.’ You saw Sergeant Robert Harvey. He’s a sergeant for the Decatur Police Department, a Black; and he said, T saw another Black running.’ ”

Initially, we observe, concerning the questioned cross-examination, that defendant made no objection, nor did he include this argument in his post-trial motion. It is well settled that the failure to do so waives any asserted error. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.

Defendant did object to the closing argument, but was overruled. He now notes that “[n]o one will question that appeals to racial prejudice, whether open or oblique, discredit our justice and are to be condemned.” (People v. Dukett (1974), 56 Ill. 2d 432, 443, 308 N.E.2d 590, 596.) The supreme court has repeatedly so commented. In People v. Johnson (1986), 114 Ill. 2d 170, 199, 499 N.E.2d 1355, 1368, the court observed that a reference to defendant as “ ‘that black man’ ” by the prosecutor in closing argument was “unnecessary and potentially offensive.” Recently, in People v. Thomas (1990), 137 Ill. 2d 500, 543, 561 N.E.2d 57, 75, the court found reference to the victim’s race was improper.

However, while the court did make the above comments, in each case the court found no reversible error occurred. The ultimate question in each case was whether the comments constituted a material factor in the result. (Dukett, 56 Ill. 2d at 443-44, 308 N.E.2d at 596; Johnson, 114 Ill. 2d at 199, 499 N.E.2d at 1368; Thomas, 137 Ill. 2d at 543-44, 561 N.E.2d at 75.) This is the conventional analysis for any prosecutorial comments at closing arguments. (See People v. Cisewski (1987), 118 Ill. 2d 163, 175, 514 N.E.2d 970, 976; People v. Berry (1960), 18 Ill. 2d 453, 458, 165 N.E.2d 257, 259.) In concluding that no reversible error occurred, the Johnson and Thomas courts relied on the following facts: (1) the statement was an isolated statement; (2) the prosecutor did not dwell on it; (3) the jury could see the racial makeup of the individuals; and (4) the jury was instructed to consider only the evidence and not counsel’s argument in reaching its verdict. Johnson, 114 Ill. 2d at 199, 499 N.E.2d at 1368; Thomas, 137 Ill. 2d at 543, 561 N.E.2d at 75.

Applying this analysis to the present controversy leads to a similar conclusion. The remark was isolated, and the prosecutor did not dwell on it. It was readily apparent to the jury that defendant and Harvey are both black. The jury was also instructed to rely only on the evidence and not on counsel’s argument. Thus, we find Johnson and Thomas controlling, and conclude there is no reversible error.

Defendant believes that our decision should follow the holdings of People v. Turner (1977), 52 Ill. App. 3d 738, 367 N.E.2d 1365, and People v. Richardson (1977), 49 Ill. App. 3d 170, 363 N.E.2d 924. However, those cases are distinguishable by their much more egregious fact situations.

In Turner, the incident involved an altercation between two black girls and a white girl. The prosecutor in closing argument apologized for using, on a black defense witness, such big words as “spectator,” and the prosecutor accused the witness of wishing to observe “blacky tromp whitey.” The court, in reversing, observed the phrase “blacky tromp whitey” or the suggestion that the witness was going to watch two black girls beat up a whitey never came up at trial, and that the sole purpose of the argument was to arouse racial animosity and deprive defendant of a fair trial. Turner, 52 Ill. App. 3d at 739-40, 367 N.E.2d at 1366-67.

In Richardson, a black defendant with black witnesses robbed a white person. Pertinent parts of the State’s closing argument were:

“ ‘First of all, concerning the defendant’s witness, you have to remember that they don’t live in the same social structure that we do, that you and I do. The witnesses that the defendant brought are street people — simple as that. The society they live in do [sic] not consider the truth a great virtue. The society they live in, they lie every day. It is nothing to them to protect one of their own kind by lying.
* * *
Here is [the victim] here saying, “yes, I had intercourse, I had intercourse with a black woman.” That is embarrassing. It is so embarrassing [sic] it is reasonable to believe the rest of the story is true. When a man comes up and says “yes, I had intercourse with a black” wouldn’t lie about anything else. If he is going to lie about anything else, he wouldn’t admit having intercourse with a black woman. Now that is reasonable. He is telling you the truth. That is the way it happened.’ ” (Richardson, 49 Ill. App. 3d at 172-73, 363 N.E.2d at 926.)

The court, in reversing, observed that these were not isolated incidents, but that the tenor of the argument was an appeal to prejudice and an attempt to affect the credibility of witnesses, not by the evidence but by their race. Richardson, 49 Ill. App. 3d at 173, 363 N.E.2d at 926.

These are clearly different situations from the one now facing us. In fact, the present situation is not as serious as those in Johnson and Thomas, where the comments were potentially more offensive in that they injected into the cases the racial difference between the victim and the defendant. Here the subject of race, not racial prejudice, was presented and argued. Accordingly, we conclude those cases control, and no reversible error exists.

We reach this conclusion, assuming the statements were error. As the comments of our supreme court suggest, counsel should be very careful in making any racial references. This does not mean they can never be made. We can envision the case in which a defendant asserts his arrest is due entirely to racial prejudice. In such a case, the race of the arresting officer could be a legitimate factor for the jury to consider. This is the State’s position as to what happened here and why the comment should be found appropriate. However, it does not appear from the record that this door was opened by the defendant. Regardless, we find no reversible error occurred.

Affirmed.

SPITZ and McCULLOUGH, JJ., concur.


author: JUSTICE STEIGMANN JUSTICE McCULLOUGH,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEBRA STRICKLAND, a/k/a Debra Rucks, Defendant-Appellant.
    Fourth District
    No. 4—90—0257
    Opinion filed March 29, 1991.

      McCULLOUGH, J., specially concurring.
    Daniel D. Yuhas and M. Jeffrey Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

The peculiar procedural history of this case requires this court to analyze section 5—6—4 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005—6—4), which deals with both revocations and modifications of probation, and to distinguish between the procedural requirements involved when the State seeks to have a defendant’s probation revoked as opposed to when the defendant’s probation is merely modified.

In August 1985, defendant, Debra Strickland, a/k/a Debra Rucks, pleaded guilty to theft of property (a diamond ring) having a value in excess of $300 (Ill. Rev. Stat. 1985, ch. 38, par. 16—1) and was placed on probation for 18 months, subject to certain conditions. These conditions included that she pay court costs of $104.20 in 12 equal monthly installments, perform 120 hours of public service work, and report to the Champaign County court services department as directed.

In February 1987, the State filed a petition to revoke probation, alleging that defendant had violated the conditions of her probation by making no payments toward court costs, completing no public service, and not reporting to the court services department as directed.

In April 1987, defendant admitted and stipulated to certain allegations of that petition, and the court entered judgment in favor of the State and against defendant.

In May 1987, the court resentenced defendant to probation, but this time the period of probation was 24 months. As conditions of probation, defendant was again ordered to pay court costs within the first 12 months of probation, to perform 120 hours of public service work, and to report to the court services department as directed. As an additional condition of probation, defendant was ordered to make restitution through the circuit clerk of Champaign County, which was to be paid in full within the first 12 months of probation. The amount of restitution, however, was not determined at that time.

In March 1989, a hearing on the amount of restitution was held. Defendant appeared personally and with her counsel. The State’s Attorney recited a stipulation (which the court accepted) that defendant’s restitution for the ring should be in the amount of $1,500. The court and counsel agreed that because defendant’s probation was due to expire in May 1989, the term of her probation would have to be extended so that she would have time to pay the restitution ordered. The prosecutor suggested the court set a hearing at some future date to assess compliance with the restitution order and, if necessary, to take evidence at that hearing regarding defendant’s ability to pay restitution. Defendant’s counsel agreed, and defendant’s probation was extended for an additional three years, until May 1992. The court noted that the only condition of defendant’s probation for the next three years would be the payment of restitution. The March 1989 hearing concluded with the following statement by the trial court: “And for that specific purpose, cause continued to September 27, 1989 — that’s six months — at 9:30 a.m. for a status report on restitution.” An amended certificate of probation was entered on that date, consistent with the orders stated in open court.

Two weeks prior to the September 27, 1989, “status hearing,” the court services department submitted a “probation violation report” (report) to the court and counsel, which read in part as follows:

“Regarding the matter of payment of restitution: To date, Ms. Rucks has made no payments whatsoever, with a balance due of $1,500.00. On 09/12/89 Ms. Rucks contacted this officer by phone. She stated that she will make no payments for restitution now or in the future, further indicating that she has requested that restitution be discharged in bankruptcy proceedings.”

At the hearing on September 27, 1989, the prosecutor referred to the report and stated, “It’s clear to me that we have *** the best case I have ever seen for a willful disregard for the Court’s Order, and I want to proceed accordingly.” Defendant’s counsel stipulated to the accuracy of the report and indicated defendant was ready to testify regarding her inability to pay restitution. In response, the prosecutor stated the following:

“Judge, I don’t know whether I am seeking to have the probation here granted to be terminated and have a resentencing on the matter. I suppose it may be that I’ll have to file an official Petition. As such, I think this is a status hearing. The evidence is clear from the report here for the court to consider. This is a classic case of a willful disregard of the Court’s Order to pay restitution. And we want to act accordingly.”

The prosecutor never told the court what he thought “acting accordingly” would be.

After noting that the parties had stipulated to the report, the court permitted defendant to testify in her own behalf. She described in some detail her limited financial resources and her intention to seek legal aid to file for bankruptcy. No other evidence was presented. At the conclusion of the hearing, the prosecutor stated the following: “[M]y position is that I’d ask the Court to *** enter an order to vacate this probation and to allot it for a re-sentencing ***. She might even be subject to, and may be a great candidate, for Intensive [probation supervision (IPS)] care, because they would look to her needs as well as would look to her needs day to day to day to find out exactly what we are dealing with here.”

Defendant’s counsel disagreed with the State that defendant’s failure to pay restitution had been wilful, arguing instead that defendant was “a woman struggling to get some sort of ability to survive.” Defense counsel further stated that she thought there was no need for defendant to be on IPS because defendant was consulting with social services agencies that might be able to help her and there was “no need to burden [IPS] with that.”

After the court reviewed the evidence and arguments, it stated the following:

“Based on everything that I’ve indicated, and plus the fact that it’s been established that Ms. Strickland has not paid one penny of this restitution, plus her statements of her future intent not to pay any, I find that she’s in violation of probation. And I’m scheduling this matter for re-sentencing to November 2nd, 1989, at 11 A.M. Champaign County Court Services Officer to prepare Pre-Sentence Report and IPS Suitability Study.”

At the hearing on November 2, 1989, defendant was present personally and by her counsel. The court began the hearing by stating, “Cause called for re-sentencing. Pre-Sentence Report on file and read by the Court.” Both counsel indicated they had received that report and that neither was aware of any factual inaccuracies in it. Neither party offered any evidence. The prosecutor then stated the following:

“When we were here the last time and we had the hearing and the probation was revoked, it was my position then that this Defendant had actually just, in essence, thumbed her nose with respect to the condition of probation here, of restitution. It appears that she continues in that position with respect to not even seeking to qualify for the suitability with respect to [IPS]. And I’m asking the Court to sentence this Defendant to three years in the Department of Corrections.”

In response, defendant’s counsel argued that a more appropriate course of action for defendant would be a form of probation in which there was mandatory counseling to address the many problems in her life. At the conclusion of the hearing, the court entered the following order:

“I’ll resentence the Defendant to a period of probation of two years, subject to the usual statutory terms and conditions, and specifically subject to the terms and conditions of [IPS] with the emphasis on obtaining and maintaining full-time employment and payment toward restitution. Amended order and Certificate of Probation to be entered.”

On December 18, 1989, the State filed a petition to revoke probation, alleging that defendant violated curfews on various dates, failed to report to the IPS office as directed, failed to submit a urine sample as directed by the IPS office, failed to cooperate with employment searches, and failed to contact the probation officer as directed to begin public service scheduling. The petition also alleged that defendant committed the offense of disorderly conduct when she placed her face within inches of the face of Robert Schwieter, her IPS probation officer, and “shouted at him in such a manner as to disrupt the operation of the probation office,” to alarm or disturb Schwieter, and to provoke a breach of the peace.

On January 31, 1990, the court held a hearing on that petition and entered a finding in favor of the State and against defendant.

On March 16, 1990, a resentencing hearing was held, and defendant was sentenced to the Illinois Department of Corrections for a term of three years, with no credit for the time spent on probation when not incarcerated.

On appeal, defendant raises no issue regarding the January 31, 1990, and March 16, 1990, proceedings. Instead, defendant argues that the trial court’s order of September 27, 1989, must be reversed because the evidence was insufficient to establish that defendant’s failure to pay restitution was wilful. Defendant further argues that this court may review the trial court’s orders of September 27, 1989, because the trial court failed to admonish defendant, when she was resentenced to a term of IPS on November 2, 1989, that she had a right to appeal the court’s judgment. The State responds that the trial court’s findings on September 27, 1989, were not against the manifest weight of the evidence. In order to resolve these issues, this court must analyze the September 27 and November 2 proceedings in light of the applicable statutory provisions.

Section 5 — 6—4 of the Code governs proceedings involving the modification or revocation of probation. Subsection (a) of that section sets forth the procedures to be followed when a petition is filed alleging a violation of a condition of probation (Ill. Rev. Stat. 1989, ch. 38, par. 1005—6—4(a)). Subsection (c) provides that the State has the burden of going forward with the evidence and proving a violation of a condition of probation by the preponderance of the evidence (Ill. Rev. Stat. 1989, ch. 38, par. 1005—6—4(c)). Subsection (c) further requires that the evidence in probation revocation proceedings be presented in open court with the right of confrontation, cross-examination, and representation by counsel (Ill. Rev. Stat. 1989, ch. 38, par. 1005—6—4(c)). Subsection (d) provides that probation shall not be revoked for failure to comply with conditions which impose financial obligations unless that failure is due to a probationer’s wilful refusal to pay (Ill. Rev. Stat. 1989, ch, 38, par. 1005—6—4(d)). Subsection (e) provides that if the court finds a violation of probation to have occurred, it may continue defendant on the existing sentence, with or without modifying or enlarging the conditions, or may impose any other sentence that was available at the time of the initial sentencing (Ill. Rev. Stat. 1989, ch. 38, par. 1005—6—4(e)).

In contrast to the above subsections, which deal with revocation of probation and the procedural requirements thereof, subsection (f) deals with modification of probationary conditions and states the following: “The conditions of probation *** may be modified by the court on motion of the probation officer or on its own motion or at the request of the offender after notice and a hearing.” Ill. Rev. Stat. 1989, ch. 38, par. 1005-6-4(f).

When the proceedings in the present case are considered in light of the foregoing statutory provisions, it becomes apparent that both the trial court and counsel misconstrued the nature of the September 27 and November 2 proceedings. At the September 27 hearing, the prosecutor termed the defendant’s noncompliance with probationary conditions a “classic case” of wilful disregard of the court’s order and suggested that the court “proceed accordingly.” The prosecutor also indicated at the beginning of the hearing that he was unsure whether he was seeking to have probation terminated and defendant resentenced, stating, “I suppose it may be that I’ll have to file an official petition.” Later in that same proceeding, after defendant testified, the prosecutor argued that the court should “enter an order to vacate this probation and to allot it for a resentencing.” Defendant’s counsel did not challenge the prosecutor’s remarks other than to point out that defendant’s failure to make payments was not wilful. At the conclusion of the September 27 hearing, the court entered a finding that defendant was “in violation of probation.” The matter was then scheduled for resentencing on November 2, with the court services department directed to consider defendant’s suitability for IPS.

What is most significant about this series of events is that prior to the September 27 hearing, there was no petition to revoke defendant’s probation on file. The only reason a hearing was held on that date is that the court, in March 1989, set the cause for a “status hearing” to determine defendant’s compliance, as of September 1989, with the probationary condition that she pay restitution.

A condition precedent to the revocation of a defendant’s probation is that there must first be on file a petition to revoke probation. We agree with the following statements from People v. Butler (1985), 137 Ill. App. 3d 704, 484N.E.2d 921:

“ ‘[A] defendant is entitled to know the nature of the charge in advance of any hearing wherein he is alleged to have breached the order granting him probation and must be given an opportunity to answer any charge that has been preferred against him.’ [(People v. Price (1960), 24 Ill. App. 2d 364, 376, 164 N.E.2d 528, 533-34.)] The proof of the violation must be by a preponderance of the evidence, and the court’s determination will be reversed only when it is contrary to the manifest weight of the evidence. [Citation.]
*** The issue in a probation revocation proceeding is two fold: first, whether a probation violation actually occurred, and second, whether the purposes of defendant’s probation are being served by his continued liberty. [Citation.] Because the outcome of the probation revocation proceedings is the curtailment of a defendant’s liberty, due process requires a fair determination that acts forming the basis of the petition occurred, and that fairness be afforded the defendant during the proceedings.” (Emphasis added.) (Butler, 137 Ill. App. 3d at 711-12, 484 N.E.2d at 927.)

If a defendant’s due process rights require a fair determination that acts forming the basis of the petition occurred, those rights cannot be respected if no petition has been filed. When no petition for revocation is on file, a defendant cannot possibly know the nature of the allegations with which she will be confronted when the State seeks to terminate her probation. See People v. Followell (1987), 165 Ill. App. 3d 28, 31, 518 N.E.2d 706, 707.

In the present case, the confusion first manifested by counsel at the September 27 hearing continued at the November 2 hearing, as shown by the prosecutor’s remark that, “When we were here the last time [September 27] and we had the hearing [defendant’s] probation was revoked ***. I’m asking the Court to sentence defendant to three years in the Department of Corrections.” In response to these remarks, defendant’s counsel never pointed out that her client’s probation could not have been revoked because no petition for revocation was ever filed. Instead, she simply argued against a prison sentence.

The trial court’s belief that defendant’s probation had been revoked at the September 27 hearing is shown by its remark at the conclusion of the November 2 hearing that it was going to “resentence the defendant” to a period of probation of two years, subject to the usual statutory conditions, and also subject to the terms and conditions of IPS. As earlier noted, a formal “resentencing” of a defendant on probation may only occur pursuant to section 5—6—4(e) of the Code, when the court has first found, upon a petition duly filed by the State, that the defendant has violated a condition of her probation. Ill. Rev. Stat. 1989, ch. 38, par. 1005—6—4(e).

If, as a result of the November 2 proceedings, defendant had been sentenced to prison (as requested by the State) pursuant to the erroneous belief of the trial court and the attorneys that on September 27 she had been found to be in violation of a condition of her probation, this court would have reversed that judgment because of the State’s failure to first file a petition to revoke her probation. However, despite what the court and counsel may have intended and even said, the legal effect of the September 27 and November 2 proceedings was that defendant was still on probation (her probation having been extended, at the hearing in March 1989, to May 1992); only the terms of her probation had been modified. The following question then arises: Were the September 27 and November 2 hearings sufficient to authorize the court to modify defendant’s probation? We hold that they were.

Section 5 — 6—4(f) of the Code provides that a defendant’s probation may be modified “by the court on motion of the probation officer or on its own motion or at the request of the offender after notice and a hearing.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005—6—4(f).) The grounds for the court’s actions at the September 27 and November 2 hearings, which resulted in the modification of defendant’s probation, were contained in the probation violation report of defendant’s probation officer, which was filed September 13. The September 27 hearing revealed that defendant, her counsel, and the prosecutor were all aware of that report, and defendant’s counsel stipulated to its accuracy before calling defendant to testify about her difficulties complying with probationary conditions. Under these circumstances, the requirements of section 5 — 6—4(f), “notice and a hearing” before a defendant’s probation can be modified, were clearly met.

Accordingly, at the conclusion of the September 27 hearing, the trial court would have been fully justified in entering an order modifying defendant’s probation. That the court waited until a second hearing was held, on November 2, before formally modifying defendant’s probation is of no moment; by so waiting, the court merely insured that it had the benefit of an updated probation report when it finally decided on the modifications ordered.

As opposed to a probation revocation proceeding, which implicates many of the procedural concerns of criminal due process (see Butler, 137 Ill. App. 3d at 711-12, 484 N.E.2d at 927; Followell, 165 Ill. App. 3d at 31, 518 N.E.2d at 707), the process due a defendant in a probation modification proceeding requires only “notice and a hearing.” The State has neither the burden of going forward with the evidence nor of proving the desirability of the modification it may be seeking. These views are in accord with the recent decision of the supreme court in People v. Dinger (1990), 136 Ill. 2d 248, 257-58, 554 N.E.2d 1376, 1379, wherein the court stated the following:

“[Modification of probation may be made upon the petitioner’s showing that there are sufficient reasons to warrant modification of the sentence. (See Ill. Rev. Stat. 1987, ch. 38, par. 1005—6—4.) However, as already discussed, revocation of probation may be made only upon the State’s proof by the preponderance of the evidence that a violation of a condition of probation occurred. [Citations.] Further, a procedure providing for the modification of the conditions of probation presumes that the underlying sentence will still exist after the procedure has been completed. Yet, when the court revokes an offender’s probation, no conditions of that probation remain and the offender must be resentenced on the original charge.”

Consistent with Dinger, we note that defendant’s underlying sentence of probation was still in existence after the hearings on September 27 and November 2 had been held.

That defendant’s probation in the present case was modified from minimal probationary supervision to intensive probation supervision does not change our conclusion, even though we recognize that, as its name implies, defendant’s probationary conditions became considerably more “intense” than they were before. An example of just how much more intense is shown by the following three conditions (chosen from a total of 20) which were set forth in the defendant’s IPS certificate:

“Report in whatever fashion as directed in writing by a Probation Officer to the Champaign County Court Services Department, including a requirement that the defendant may be required to report as often as daily in person as early as 7:30 a.m.
Comply with all curfew conditions established in writing by the Probation Officer requiring the defendant to be and to remain at certain places during certain times. Such conditions may also restrict the number and identity of others persons permitted to be present with the defendant.
Not be present any place, business, building, park, apartment, residence, or other specified location of whatever designation at which place or places his presence has been prohibited in writing by a Probation Officer.”

While we recognize that these conditions are onerous, we are not prepared to equate them with a change in defendant’s probationary conditions leading to her incarceration. When a defendant is going to be incarcerated as a result of proceedings regarding her behavior while on probation, we hold that such incarceration may be ordered only after a petition to revoke her probation has been filed and a finding in favor of the State based thereon has been made. However, all other modifications of a defendant's probation under section 5 — 6—4(f) of the Code short of incarceration do not implicate the same procedural requirements. This is because defendant’s “underlying sentence of probation” will still exist after the modification has been ordered. See Dinger, 136 Ill. 2d at 257, 554 N.E.2d at 1379.

Support for this conclusion is found in People v. Ramos (1990), 138 Ill. 2d 152, 159, 561 N.E.2d 643, 647, wherein the supreme court held that a defendant’s period of home confinement, while released from custody on a recognizance bond, was not time for which the defendant should have been granted credit, under section 5—8—7(b) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—7(b)), on the length of the prison term he subsequently received. We find that the supreme court’s treatment in Ramos of home confinement (which is obviously as substantial a restriction on a defendant's freedom as is the most intense of the IPS conditions) demonstrates that the supreme court distinguishes between actual incarceration on the one hand and all other limitations on a person’s liberty, such as probationary conditions, on the other.

Having determined that the September 27 and November 2 proceedings in the present case involved a modification of defendant’s probation, not its revocation, this appeal presents us with two more issues to resolve. First, because defendant’s probation was not revoked as a result of the September 27 and November 2 hearings, but as a result of the hearings on January 31, 1990, and March 16, 1990, can this court nonetheless review the September 27 and November 2 proceedings? Second, assuming that we can review the September 27 and November 2 proceedings, did the trial court abuse its discretion in modifying defendant’s probation?

Defendant argues that this court can review the September 27 and November 2 proceedings because, after the court placed defendant on IPS at the conclusion of the November 2 hearing, the court failed to advise defendant of her right to appeal that action. Because of that failure, defendant maintains that she should not be held to have waived appellate review of the propriety of the court’s order. We agree.

Supreme Court Rule 605(a) reads in part as follows:

“In all cases in which *** a sentence of probation or conditional discharge has been revoked or the conditions attached to such a sentence have been modified, except in cases in which the judgment and sentence are entered on a plea of guilty, the trial court shall, at the time of imposing sentence or modifying the conditions of the sentence, advise the defendant of his right to appeal, of his right to request the clerk to prepare and file a notice of appeal, and of his right, if indigent, to be furnished, without cost to him, with a transcript of the proceedings at his trial or hearing, and, [in cases like the present one], *** of his right to have counsel appointed on appeal. The trial court shall also advise him that his right to appeal will be preserved only if a notice of appeal is filed in the trial court within 30 days from the date of the sentence.” (134 Ill. 2d R. 605(a).)

When a trial court has appropriately discharged its duties under Rule 605 and a defendant has not filed a notice of appeal within 30 days, the defendant is barred from appealing the sentence imposed. The corollary of that rule is that when, as here, a trial court has not complied with the requirements of Rule 605, a defendant should not be barred from appealing the sentence in question. (See People v. Balsar (1989), 178 Ill. App. 3d 876, 880, 533 N.E.2d 1140, 1142.) Accordingly, we will consider defendant’s argument that the trial court’s action on September 27 and November 2 was improper.

As was the case at the trial level, counsel for both parties on appeal have called the September 27 and November 2 hearings probation revocation proceedings. As we explained earlier in this opinion, that designation is incorrect. This misdescription accounts for defendant’s argument on appeal that the trial court committed error when, at the September 27 hearing, it found the evidence sufficient to establish that defendant had wilfully failed to pay restitution. This argument would be appropriate if the proceedings were in fact probation revocation proceedings and the finding of which defendant complains was necessary in order to authorize further court action. However, because the September 27 and November 2 proceedings involved merely the modification of defendant’s probation, the allegedly objectionable findings were not necessary. Instead, the question for the trial court at the September 27 and November 2 proceedings should have been whether, in the court’s discretion, a modification of defendant’s probation would be desirable.

On appeal, the standard of review of a decision merely modifying a defendant’s probation is whether the trial court’s action constitutes an abuse of its discretion. Neither party to this appeal has directly addressed this issue. However, based upon our review of the record of the September 27 and November 2 proceedings, we can resolve it without the parties’ doing so. We find that there was ample justification for the action taken by the trial court in modifying defendant’s probation by placing her on IPS. On this record, the trial court’s action was not an abuse of discretion.

Because the sole issues presented on appeal concern the September 27 and November 2 proceedings, we need not address the subsequent proceedings in January and March 1990 in which defendant’s probation was revoked and she was sentenced to three years in the Department of Corrections.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

KNECHT, J., concurs.

JUSTICE McCULLOUGH,

specially concurring:

The majority states that when the trial court has not complied with the requirements of Rule 605, a defendant is not barred from appealing the sentence in question. For that reason, the majority allows the defendant to challenge the propriety of the final order entered November 2, 1989. The defendant filed a timely notice of appeal from the trial court’s order of March 16, 1990, not the order of November 2, 1989. She cannot challenge the order of November 2, 1989, unless either the provisions of Rule 606(c) (134 Ill. 2d R. 606(c)) are complied with by defendant or this court sua sponte grants a late notice of appeal.

The issues raised by defendant are not of constitutional dimension and, unless this court addresses the granting of the late notice of appeal issue, the defendant’s appeal should be dismissed without addressing the merits.

As stated in People v. Covington (1970), 45 Ill. 2d 105, 108, 257 N.E.2d 106, 108:

“[T]he allegation of the petition that the court failed to give defendant such advice did not raise a question of constitutional dimension. Our rule stems from the dictates of good practice rather than constitutional command, and where the question has arisen it has been held that the failure of a court to advise of the right to appeal is not a denial of due process or equal protection.”

In People v. Schultz (1975), 27 Ill. App. 3d 844, 327 N.E.2d 334, defendant was sentenced on February 20, 1970, to three years’ probation. Defendant’s probation was subsequently revoked and he was sentenced to the penitentiary in November 1972. In March 1973, the appellate court allowed a late notice of appeal as to the sentence entered in November 1972. Defendant first sought to attack the February 20, 1970, sentence asserting the trial court failed to properly admonish him. The appellate court stated:

“[P]ursuant to Supreme Court Rule 606(c), this court vested itself with jurisdiction only as to the revocation of probation and sentencing proceedings which had occurred in November, 1972. Consequently, we are without jurisdiction to consider the defendant’s first contention.” Schultz, 27 Ill. App. 3d at 848, 327 N.E.2d at 337.

This appeal may be heard on the merits because the issues presented and record show an excuse for failure to file a timely notice of appeal pursuant to Supreme Court Rule 606(b). (134 Ill. 2d R. 606(b).) The time limitations of Supreme Court Rule 606(c) have been met. As stated by this court in In re K.M. (1979), 70 Ill. App. 3d 915, 919, 389 N.E.2d 188, 190-91:

“[W]e interpret the decisions to require us to hear appeals covered by Rule 606(b) and (c) when the ends of justice would be served thereby and the appellant has shown an intent to appeal during the 6-month period by filing a document so indicating but fails to precede the filing with a request for leave to do so.”

Balsar, cited by the majority, does not stand for the proposition, a defendant, without complying with the time limitations of Supreme Court Rule 606 (134 Ill. 2d R. 606), can at any time appeal a final order because the trial court failed to admonish him of his right to appeal.

The record does show a sufficient basis to permit the trial court to modify the conditions of probation and, for that reason and the reasons set forth above, the trial court should be affirmed.


author: JUSTICE SPITZ

text:
    LOGAN COUNTY ANIMAL CONTROL WARDEN, Plaintiff-Appellee, v. MARK DANLEY et al., Defendants-Appellants.
    Fourth District
    No. 4—90—0644
    Opinion filed March 29, 1991.

      Steven W. Perbix, of the Lawyers Group, P.C., of Lincoln, for appellants.
    John Turner, State’s Attorney, of Lincoln (Kenneth R. Boyle, Robert J. Biderman and Donna Dagnail, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellee.
   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by defendants Mark and Sara Danley from an order of the circuit court of Logan County finding defendants’ dogs to be vicious, pursuant to section 15(a)(1)(i) of the Animal Control Act (Act) (Ill. Rev. Stat. 1989, ch. 8, par. 365(a)(1)(i)), ordering defendants to pay to plaintiff, Logan County animal control warden, $2,965 for the use and benefit of Craig D. Conrady, $105 for boarding costs for their dogs, and requiring defendants to keep the dogs confined to an enclosure or run line. On appeal, defendants raise two issues.

The first issue is whether the Logan County State’s Attorney had authority to bring an action which resulted in money damages awarded for the use and benefit of a private, third party. The plaintiff in this case is the Logan County animal control warden. The State’s Attorney has a duty to commence and prosecute all actions and proceedings brought on behalf of a county officer in the officer’s official capacity. (Ill. Rev. Stat. 1989, ch. 34, par. 3—9005(3).) The animal control warden is such an officer. Ill. Rev. Stat. 1989, ch. 8, pars. 352.01, 352.03, 353.

Defendants do not challenge the State’s Attorney’s authority to institute an action to restrain the dogs. Instead, defendants complain there is no provision which would, in effect, allow the State’s Attorney to prosecute a civil action on behalf of the owner of injured livestock, as in this case Conrady.

Section 18.1 of the Act expressly makes dog owners liable for such damages. (Ill. Rev. Stat. 1989, ch. 8, par. 368.1.) However, there is also provision for the property owner to be reimbursed by the animal control fund upon proper application thereto and proof of damages by appearing before a member of the county board and making an affidavit as to the number and type of animals injured or killed. In order to recover, the owner of the livestock must be a resident of this State and the injury or killing must have been reported within 24 hours. (Ill. Rev. Stat. 1989, ch. 8, par. 369.) The monies in the animal control fund come from fees for the registration of dogs. (Ill. Rev. Stat. 1989, ch. 8, pars. 353, 357.) One-third of all fees collected is retained in the fund until the first Monday in March of each calendar year for the purpose of paying claims for the loss of livestock. (Ill. Rev. Stat. 1989, ch. 8, par. 357.) Once the owner of livestock which has been injured or killed has made an appropriate claim and the member of the county board has filed a written report with the county treasurer, payment is authorized as follows:

“The County Treasurer shall, on the first Monday in March of each calendar year, pay to the owner of the animals or poultry the amount of damages to which he is entitled. Unless the county board, by ordinance, establishes a schedule for damages reflecting the reasonable market value; the damages allowed for grade animals or poultry shall not exceed the following amounts:
a. For goats killed or injured, $30 per head.
b. For cattle killed or injured, $300 per head.
c. For horses or mules killed or injured, $200 per head.
d. For swine killed or injured, $50 per head.
e. For turkeys killed or injured, $5 per head.
f. For sheep killed or injured, $30 per head.
g. For all poultry, other than turkeys, $1 per head.
The maximum amounts hereinabove set forth may be increased 50% for animals for which the owner can present a certificate of registry of the appropriate breed association or organization. However, if there is not sufficient money in the portion of the fund set aside as stated in Section 7 to pay all claims for damages in full, then the County Treasurer shall pay to such owner of animals or poultry his pro rata share of the money available.” (Ill. Rev. Stat. 1989, ch. 8, par. 369.)

Such a payment does not bar the owner of the livestock from bringing an action against the dog owner for damages. However, to the extent there is a recovery, reimbursement is to be made to the county treasurer. Ill. Rev. Stat. 1989, ch. 8, par. 370.

While section 18.1 of the Act provides that the dog’s owner is liable for all damages, it does not in any way authorize the veterinarian appointed as administrator under the Act, any deputy administrator, or the animal control warden to prosecute an action to establish liability or the amount of damages payable to the owner of the injured or killed livestock.

The proper procedure is fully set forth in the statutes. This is not a criminal proceeding as a result of which defendants have been ordered to pay restitution, although such a procedure might be employable. For example, the Act provides it is unlawful to keep or maintain a dog which has been found to be a vicious dog, unless the dog is kept on a run line or in an enclosure at all times. (Ill. Rev. Stat. 1989, ch. 8, par. 365(b).) It is also unlawful to maintain a public nuisance by allowing any dangerous dog to leave the owner’s premises when the dog is not on a leash or controlled by some other recognized means. (Ill. Rev. Stat. 1989, ch. 8, par. 365(c).) The statute defines the terms “vicious dog” and “dangerous dog.” (Ill. Rev. Stat. 1989, ch. 8, pars. 365(a)(1), (a)(2).) The violations of these provisions are Class C misdemeanors (Ill. Rev. Stat. 1989, ch. 8, par. 376), and in the event of a conviction for one of these offenses, restitution may be ordered as part of the sentence. Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—6.

The case at bar, however, was initiated by a civil complaint. The complaint, which was filed by the State’s Attorney on behalf of the Logan County animal control warden, as plaintiff, merely requests the trial court to determine the appropriate penalties and relief for all parties involved. The complaint alleges defendants’ dogs attacked and killed or injured swine owned by Craig D. Conrady. Conrady was not named a party to the civil litigation. Although the party designation on a complaint need not necessarily demonstrate that the action is brought for the use and benefit of another person, the plaintiff must be vested with a legal right of action. (2 C. Nichols, Illinois Civil Practice §903 (1990).) An example of such an appropriate procedure would be when the action was brought pursuant to a recognized right of subrogation. (See Ill. Rev. Stat. 1989, ch. 110, par. 2—403.) However, in this case the State has failed to establish any statutorily recognized right in the animal control warden to bring an action against defendants for damages payable to Conrady.

The State has cited no authority which indicates the State’s Attorney can act as counsel for Conrady. Furthermore, even if it is assumed that section 18.1 would allow county officials to seek from defendants reimbursement for monies expended to owners of injured or killed livestock, there is no allegation or proof of that amount so expended to Conrady or that Conrady had made an appropriate claim to the county. Moreover, it is obvious that since the alleged incident occurred on May 17, 1990, the county treasurer would make no payment under the statute to Conrady until the first Monday in March 1991. The trial court’s order having been entered on August 14, 1990, clearly the county was not yet entitled to reimbursement.

As a result of this analysis, it is obvious the entry of a money judgment in favor of plaintiff for the use and benefit of Conrady is not appropriate here. The State’s Attorney cannot utilize his official capacity to represent a private individual in a private matter. (People ex rel. Carey v. Lincoln Towing Service, Inc. (1976), 40 Ill. App. 3d 126, 351 N.E.2d 342.) Nor is this the type of incidental benefit which would remove the State’s Attorney’s disqualification. (See People ex rel. Mahoney v. Decatur, Springfield & St. Louis Ry. Co. (1905), 120 Ill. App. 229.) The appropriate incidental benefit is the protection of Conrady’s hogs by having the defendants’ dogs restrained. The State argues that this court should allow the judgment to stand in the interest of judicial economy. There seems to be no logical reason the instant action could not have been consolidated with a cause of action for damages initiated by Conrady. However, Conrady brought no such action. Accordingly, that portion of the order which awards plaintiff a judgment in the amount of $2,965 for the use and benefit of Conrady is reversed since the Act authorizes no such relief.

Defendants do not otherwise challenge the method employed by plaintiff to initiate the action. Defendants do, however, argue that the trial court’s finding the defendants’ dogs to be vicious was against the manifest weight of the evidence. The statutory definition of “vicious dog” is as follows:

“(i) Any individual dog that when unprovoked inflicts bites or attacks a human being or other animal either on public or private property;
(ii) Any individual dog with a known propensity, tendency or disposition to attack without provocation, to cause injury or to otherwise endanger the safety of human beings or domestic animals;
(iii) Any individual dog which attacks a human being or domestic animal without provocation;
(iv) Any individual dog which has been found to be a ‘dangerous dog’ upon 3 separate occasions;
(v) No dog shall be deemed ‘vicious’ if it bites, attacks, or menaces a trespasser on the property of its owner or harms or menaces anyone who has tormented or abused it or is a professionally trained dog for law enforcement or guard duties ***.” (Ill. Rev. Stat. 1989, ch. 8, pars. 365(a)(1).)

It is defendants’ contention that the evidence fails to establish that the attack by their dogs was unprovoked.

The judgment of the trial court will be considered to be against the manifest weight of the evidence if, after a review of the record, it is clearly evident the conclusion opposite to that reached by the trial court was the proper disposition. (Stone v. City of Areola (1989), 181 Ill. App. 3d 513, 536 N.E.2d 1329.) This standard of review recognizes that the trial court is in a much better position than is this court to observe the witnesses, assess credibility, and weigh the evidence. For this reason, a reviewing court will not overturn the trial court’s findings merely because the reviewing court might have reached a different result. In re Application of the County Treasurer (1989), 131 Ill. 2d 541, 546 N.E.2d 506.

The evidence may be summarized as follows. Defendants’ dogs were allowed to run loose. These dogs were observed in and around Conrady’s hog pen at the time the dead and injured hogs were discovered. The hogs had been purchased only two days before and were confined to the pen. There is a distance of about three miles from defendants’ residence to the hog pen.

While there was no eyewitness testimony to the actual killing and injuring of the pigs, the lack of provocation can be inferred from the facts established at trial. Under the facts of this case, the trial court could reasonably find the hogs did nothing, other than their mere presence, to provoke the attack by defendants’ dogs. Just as the scream of a small child will not be considered sufficient provocation to avoid liability in a civil action (Robinson v. Meadows (1990), 203 Ill. App. 3d 706, 561 N.E.2d 111), the mere presence of livestock in their own pen cannot be considered sufficient provocation to avoid a finding that the dogs are vicious.

Defendants’ reliance on this court’s decision in Forsyth v. Dugger (1988), 169 Ill. App. 3d 362, 523 N.E.2d 704, is misplaced. Forsyth involves a case in which a person was injured by a horse. Since eyewitnesses were present, there is much more direct testimony relating to provocation than is present in the instant case. Moreover, the trial court in this case correctly pointed out that there is a qualitative difference between provocation by a human being and provocation by another animal. Since the hogs were confined, it is clear they did not attack the dogs. As a result, the trial court’s finding the dogs to be vicious is not against the manifest weight of the evidence.

For the foregoing reasons, the order of the circuit court of Logan County is affirmed in part and reversed in part.

Affirmed in part; reversed in part.

LUND, P.J., and KNECHT, J., concur.