author: JUSTICE HAASE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DANIEL CICCOMOSCOLO, Defendant-Appellee.
    Third District
    Nos. 3—91—0058, 3—91—0059 cons.
    Opinion filed October 10, 1991.
    Marshall E. Douglas, State’s Attorney, of Rock Island (John X. Breslin and Nancy Rink Carter, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The defendant, Daniel Ciccomoscolo, was charged with driving under the influence of alcohol and improper lane usage (Ill. Rev. Stat. 1989, ch. 95½, pars. 11—501(a)(2), 11—709(a)). The trial court subsequently granted his oral motion to dismiss, finding that he had not been tried within the time set by Supreme Court Rules 504 and 505 (134 Ill. 2d Rules 504, 505). The State appeals.

Initially, we note that the defendant has not submitted an appellee’s brief. Nevertheless, where the record is simple and the court of review can easily decide the disputed errors without an appellee’s brief, the reviewing court may decide the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The record reveals that the defendant was arrested and charged in separate cases with the above-noted offenses on August 15, 1990. He was released on bond and given a court appearance date of September 4, 1990. By written notice, the circuit court, pursuant to its local custom and not on the motion of either party, changed the appearance date to September 7, 1990. On August 22, 1990, the defendant’s attorney entered his appearance for the defendant by letter addressed to the clerk of the court and entered the defendant’s not guilty plea. The letter also indicated that the defendant would waive trial by jury and requested that the case be set for pretrial conference “with the balance of cases in the court.”

On September 14, 1990, the defendant appeared in court with his attorney, orally waived his right to a jury trial in each case, and filed written waivers of jury. A pretrial conference was held the same day. The defendant also filed a request for a hearing on his petition to rescind his statutory summary suspension. The court set that hearing for September 28, 1990. After the suspension hearing, the court set both cases for bench trial on November 16, 1990. This was done in open court in the presence of the defendant and his attorney, and the defendant never objected to the date set for trial.

On November 16, 1990, the defendant orally moved to dismiss both charges pursuant to Supreme Court Rules 504 and 505. The trial court subsequently granted the motion, relying on this court’s decision in People v. Berg (1989), 182 Ill. App. 3d 431, 538 N.E.2d 177. We find that the trial court’s reliance on Berg in the instant case was misplaced and therefore reverse.

Initially, we note that under Rule 504 the defendant’s first court appearance is to be within 14 to 49 days of his arrest. If he pleads not guilty, Rule 505 generally calls for him to be tried within 7 to 49 days of his first appearance.

In Berg, the defendant was charged with driving while his license was revoked (Ill. Rev. Stat. 1987, ch. 95½, par. 6—303(a)). The complaint set an appearance date of November 2, 1987. The defendant appeared in court on that date, pled not guilty, and demanded a jury trial. On November 23, 1987, the case was scheduled for a pretrial conference on December 9 and for trial on December 16. On December 9, 1987, the defendant withdrew his jury demand. When the case was called for trial on January 28, 1988, the State moved for a continuance because the arresting officer was unavailable. Over the objection of defense counsel, the trial court granted the continuance. The defendant was subsequently tried and convicted.

In Berg, we held pursuant to Supreme Court Rule 504 that the trial court had improperly granted the State’s request for a continuance absent a showing by the State that there was good cause for the officer’s unavailability. Importantly, we did not hold that Supreme Court Rules 504 and 505 bestow upon a defendant an absolute right to be tried within 49 days of the appearance date. We also note that in Berg the defendant’s attorney objected to the continuance.

The instant case is factually distinguishable from Berg. Here, there was no request for a continuance by the State. Furthermore, the defendant and his attorney were present in court and did not object when the case was set for trial. These factual distinctions make Berg inapplicable to the instant case.

We find that in these circumstances the reasoning of People v. Honnold (1989), 191 Ill. App. 3d 340, 547 N.E.2d 755, is controlling. Honnold presented a factual setting similar to the instant case. Notably, the defendant pled not guilty to several traffic offenses and demanded a bench trial. When the trial judge set the cause for bench trial, in open court with both the defendant and his attorney present, the defendant made no objection. Thereafter, the defendant moved to dismiss the charges against him, arguing in part that Supreme Court Rule 505 was not complied with. The trial judge denied the motion, proceeded to bench trial, and ultimately convicted and sentenced the defendant.

On appeal, the defendant in Honnold maintained that Supreme Court Rule 505 gave him an absolute right to a bench trial within 49 days after his first appearance date. After a complete consideration of the relevant case law and supreme court rules, the Honnold court determined that the language in Supreme Court Rule 505, directing that after a not guilty plea the clerk of the court is to set a second appearance date within 7 to 49 days, is merely a direction for the performance of a ministerial task intended to expedite the proceedings and not an absolute deadline for trial. People v. Honnold (1989), 191 Ill. App. 3d 340, 547 N.E.2d 755.

We find the reasoning of Honnold sound and applicable in the instant case. No objection was made by the defendant, who was present at the setting of the trial date, and no delay was occasioned by the State without the showing of good cause. The trial court therefore erred in dismissing the charges.

For the foregoing reasons, the order of the circuit court of Rock Island County dismissing the charges against the defendant is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

BARRY and GORMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GORMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY HARRIS, Defendant-Appellant.
    Third District
    No. 3—90—0855
    Opinion filed October 10, 1991.
    Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

A jury found the defendant, Jeffrey Harris, guilty of armed robbery, attempted murder, and residential burglary (Ill. Rev. Stat. 1989, ch. 38, pars. 18—2, 8—4, 9—1, 19—3). The trial court sentenced him to respective terms of 30 years, 30 years, and 15 years of imprisonment, with all terms running consecutively. The defendant appeals. We affirm in part, and reverse and remand in part.

On appeal, the defendant first argues that his conviction for attempted murder should be reversed. Specifically, he contends that he was denied due process because the jury instructions given failed to include first degree murder instructions. Due to this error, the jury was not fully instructed regarding the elements of the offense of attempted murder.

The trial court must give an instruction that defines the offense that is the alleged subject of the attempt. (Illinois Pattern Jury Instructions, Criminal, No. 6.05, Committee Note (2d ed. 1981).) The court’s failure to instruct the jury regarding the specific offense alleged to have been attempted is reversible error. People v. Davis (1985), 130 Ill. App. 3d 864, 474 N.E.2d 878.

Here, the record shows that the jury was only given instructions regarding attempt and was not given accompanying instructions on the offense of murder. As the above case law indicates, the failure to include that instruction is reversible error. Accordingly, we find that the defendant’s conviction for attempted murder must be reversed and the cause remanded for a new trial.

The defendant next contends that the trial court erred in imposing consecutive sentences. In support of this contention he argues that consecutive sentences cannot be imposed for “offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective.” See Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—4(a).

It is within the discretion of the trial court to determine whether multiple sentences are to be served concurrently or consecutively, and the decision will not be disturbed absent an abuse of discretion. (People v. Paino (1985), 137 Ill. App. 3d 645, 484 N.E.2d 1106.) The test to be used in determining whether a particular offense is part of a single course of conduct, during which there was no substantial change in the nature of the criminal objective, is the independent motivation test; that is, were the defendant’s acts independently motivated? People v. Ingram (1980), 84 Ill. App. 3d 495, 405 N.E.2d 864.

In the case at hand, we find that the trial court did not abuse its discretion in imposing consecutive sentences upon the defendant. The record shows that the defendant broke into the Lambdins’ home. Mrs. Lambdin testified that she was in her basement when she heard the sound of glass breaking. Her first thought was that her husband and children had returned home and caused the noise. However, she then heard her dog barking wildly and again heard glass breaking.

The evidence showed that the glass in the front door was broken and the glass was inside the home. It also showed that a window on the east side of the home was broken and the glass from that window was found outside the home.

Mr. Lambdin testified that when he returned home he heard glass breaking either in the front of his house or on the east side of it. As he reached his front door, he saw the defendant standing on the east side of the house. The defendant pointed a gun at him and came toward him. Lambdin stated that he began backing away but was quickly caught by the defendant. At that time, the defendant forced him to his knees and held the gun to his head. The defendant told Lambdin to give all of his money to him or he would blow Lambdin’s brains out.

After Lambdin gave his money to the defendant, the defendant told him that he had five seconds to run. As he was running, he heard a gunshot. When he reached the end of the fence on his property, he looked back around the corner and saw the defendant point the gun at him and shoot.

Based on the record, we conclude that the evidence supports a finding that the defendant’s actions were independently motivated. The defendant first committed residential burglary by unlawfully entering the Lambdins’ home with the intent to commit a theft therein. When he thereafter left the house, the burglary ended.

He next encountered Mr. Lambdin. Instead of fleeing, he decided to rob Lambdin at gunpoint. These actions indicate that the defendant changed his criminal objective from residential burglary to armed robbery, thereby negating his argument that his actions occurred during a single course of conduct. Accordingly, the evidence supports the trial court’s imposition of consecutive sentences. We note that we need not address the propriety of the consecutive attempted murder sentence, as that conviction has been reversed and remanded for a new trial.

The defendant next argues that his sentences must be vacated and the cause remanded for resentencing because the trial court improperly considered a certain factor in aggravation. Specifically, he contends that the court improperly considered the fact that his conduct caused serious harm when that factor is inherent in every offense of armed robbery and residential burglary.

Case law establishes that a trial court’s reliance on an improper factor in aggravation does not always necessitate remandment for resentencing. Where the reviewing court can determine from the record that the weight placed on the improperly considered factor did not lead to a greater sentence, remandment is not required. People v. Bourke (1983), 96 Ill. 2d 327, 449 N.E.2d 1338.

Here, the trial court found that the defendant committed the instant offenses while out on bond in another case. In addition, it found that the defendant’s criminal career since 1987 had gotten progressively more dangerous, to the point where he was now committing crimes involving weapons and shooting at people. The court stated that these actions indicated that the public needed to be protected from further conduct by the defendant.

Based on our review of the record, we conclude that the weight placed on the improper aggravating factor was insignificant. Given the number of aggravating factors, we find that the trial court’s passing mention that the conduct caused harm did not result in a greater sentence.

The judgment of the circuit court of Will County is affirmed in part, and reversed and remanded in part.

Affirmed in part; reversed and remanded in part.

BARRY and McCUSKEY, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID HUGHES, Defendant-Appellant.
    Fourth District
    No. 4—91—0157
    Opinion filed October 4, 1991.

      Adam Bourgeois, of Chicago, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant, David Hughes was charged with two counts of unlawful delivery of a controlled substance (cocaine), a Class 1 felony with a sentencing range of 4 to 15 years (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(b)(2)), one count of controlled substance trafficking (Ill. Rev. Stat. 1989, ch. 56½, par. 1401.1(a)), and one count of calculated criminal drug conspiracy, a Class X felony with a sentencing range of 6 to 30 years (Ill. Rev. Stat. 1989, ch. 56½, par. 1405(a)). Pursuant to a negotiated plea agreement, defendant entered a guilty plea in Sangamon County circuit court to two counts of unlawful delivery of a controlled substance and one count of calculated criminal drug conspiracy. The State agreed to dismiss the most serious charge, controlled substance trafficking, for which defendant could have received a sentence of twice the minimum and up to twice the maximum term of imprisonment based on the amount of controlled substance, i.e., 12 to 60 years. Defendant was sentenced to a term of nine years’ imprisonment and a $4,000 fine.

Defendant later obtained new counsel and filed a motion to withdraw his guilty plea. Following a hearing, the circuit court denied defendant’s motion. The court concluded defendant’s plea was made knowingly, voluntarily, and without threats or coercion by defendant’s trial counsel.

On appeal, defendant argues his guilty plea was involuntary and the trial court erred in denying his motion to withdraw his plea. We disagree and affirm.

Defendant contends his guilty plea was involuntary because it was induced when trial counsel misinformed him about the minimum sentence he could receive if convicted of all four charges, how much time he would actually serve, the potential for Federal charges being lodged against him, the type of facility where he would be incarcerated, and the strength of the State’s evidence.

Defendant’s claim more specifically raises whether defendant’s plea should be withdrawn because he received ineffective assistance of counsel. (McMann v. Richardson (1970), 397 U.S. 759, 25 L. Ed. 2d 763, 90 S. Ct. 1441; People v. Green (1974), 21 Ill. App. 3d 1072, 1074, 316 N.E.2d 530, 532.) The decision to allow a defendant to withdraw a guilty plea rests with the trial court and will not be disturbed unless it appears defendant misunderstood the relevant facts or law when he entered the plea. People v. Hillenbrand (1988), 121 Ill. 2d 537, 545, 521 N.E.2d 900, 903.

A defendant voluntarily enters a guilty plea after advice from counsel if the advice falls within the range which an objectively reasonable, competent, criminal attorney would provide. (Hill v. Lockhart (1985), 474 U.S. 52, 56-57, 88 L. Ed. 2d 203, 208-09, 106 S. Ct. 366, 369.) Even if the advice is deficient, defendant must also show it is reasonably likely but for counsel’s unprofessional advice, he would not have pleaded guilty, but would instead have proceeded to trial. Hill, 474 U.S. at 59, 88 L. Ed. 2d at 210, 106 S. Ct. at 370, citing Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; McMann, 397 U.S. 759, 25 L. Ed. 2d 763, 90 S. Ct. 1441; Hillenbrand, 121 Ill. 2d at 545, 521 N.E.2d at 903; People v. Correa (1985), 108 Ill. 2d 541, 553, 485 N.E.2d 307, 310-11.

Counsel’s actions did not fall below the level of competence required of criminal attorneys. Effective assistance of counsel means competent, not perfect, representation. (Hillenbrand, 121 Ill. 2d at 548, 521 N.E.2d at 904.) Counsel mailed defendant a letter in which he discussed the plea agreement negotiated by counsel and the State. In the letter, counsel explained if defendant was convicted on all four counts, he could serve a minimum sentence of 18 years and a maximum of 60 years. The minimum sentence defendant in fact could have served was 12 years if convicted of all four charges. Although counsel’s estimate was not precise, it served to inform defendant he could serve significant time if convicted on all four charges.

Defendant also contends counsel’s letter gave him the impression he would be incarcerated for the full 18-year minimum term if he was convicted of all charges. Although counsel did not explain day-for-day good-time credit, counsel’s letter did inform defendant of the significant time he faced if convicted on all charges.

In addition, the fact counsel told defendant he would serve “approximately four years” on his nine-year, negotiated plea, when he would realistically serve 4½ years, considering good time, is not deficient advice which should allow defendant to withdraw his guilty plea.

Even if counsel’s advice was deficient, the defendant must prove this deficiency prejudiced his decision to plead guilty. (Hill, 474 U.S. at 56-57, 88 L. Ed. 2d at 208-09, 106 S. Ct. at 369; Hillenbrand, 121 Ill. 2d at 557, 521 N.E.2d at 908.) Defendant has not established but for counsel’s advice, he would not have pleaded guilty. The sentence imposed on defendant is less than the minimum sentence which he faced if he proceeded to trial and was convicted of all four charges. It is not reasonably probable if defendant knew he might serve six years, half the minimum sentence of 12 years if convicted on all four counts, he would have chosen this possible sentence over the 4½ years which he will serve considering day-for-day good time on the guaranteed nine-year sentence imposed.

In addition, defendant could not have relied on receiving only the minimum sentence if he had been convicted after trial. A substantial risk existed his sentence would exceed the minimum. The trial court expressed concern the sentence recommended, and ultimately imposed, was not severe enough. Defendant is not a youthful offender who transgressed only once. He is 51 years old and carried out drug activity over a period of time. The court clearly could have imposed a sentence greater than the minimum had defendant been convicted after trial of all four charges.

Defendant also argues counsel wrongly assured him he would not face Federal charges and he would not serve his time in a maximum-security facility if he entered the plea agreement. Perhaps counsel was privy to this information. Even if not, the defendant again fails to show he would likely have chosen to proceed to trial on the four charges if he knew otherwise.

Defendant’s final argument on ineffectiveness of counsel is counsel’s recommendation to accept the plea agreement was premature because counsel had not thoroughly investigated his case. Defense counsel’s letter stated although counsel investigated the evidence against defendant “from every angle,” the State’s case was strong. In addition, the record consists of numerous pretrial motions filed by defendant’s counsel. Defendant was represented by the same attorney from April 1989 through January 1991. Defendant’s dissatisfaction with his counsel’s work comes too late. It is impossible to know whether additional information was available to dissuade defendant from entering the plea agreement. Counsel’s actions are far from those which should permit defendant to withdraw his guilty plea.

Furthermore, if defendant was unsure about whether to plead guilty, he had ample opportunity to express his uncertainty to the circuit court during its admonitions. A defendant may be permitted to withdraw his guilty plea where he shows grave injustice occurred in the plea process. (See People v. Christensen (1990), 197 Ill. App. 3d 807, 811-12, 555 N.E.2d 422, 425.) The court was extremely cautious in assessing whether defendant understood the charges against him, the sentencing range for each offense to which he pleaded guilty, and the rights he waived by entering the plea agreement. Defendant assured the court he was entering the plea agreement absent any force, threat, or additional promises made beyond the plea agreement.

Defendant argues two Illinois rulings support his view that when a defendant misapprehends fact or law, he is entitled to withdraw a guilty plea. This principle is correct. The cases cited by defendant, however, are distinguishable. In each, defendant misapprehended the particular sentence which would be imposed against him upon entering the plea agreement. (People v. Morreale (1952), 412 Ill. 528, 531-34, 107 N.E.2d 721, 723-24; People v. Davis (1990), 204 Ill. App. 3d 836, 839, 562 N.E.2d 389, 390.) Contrary to these cases, defendant did not misapprehend the sentence to be imposed when he pleaded guilty. The circuit court correctly noted defendant clearly understood the sentence to be imposed was nine years. A nine-year sentence was imposed. Defendant cannot now complain about a plea agreement which he knowingly and voluntarily entered.

The circuit court properly denied defendant’s motion to withdraw his guilty plea. Accordingly, we affirm the conviction and sentence entered by the circuit court.

Affirmed.

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


author: JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES L. SMITH, Defendant-Appellant.
    Third District
    No. 3—90—0819
    Opinion filed October 10, 1991.

      Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, and Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    William Herzog, State’s Attorney, of Kankakee (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

A jury convicted the defendant, James L. Smith, of the first degree murder of Thomas Ellis (Ill. Rev. Stat. 1989, ch. 38, par. 9—1). The trial court subsequently sentenced him to 23 years’ imprisonment. The defendant appeals. We affirm.

The record shows Hosea Whitelow testified he was Thomas Ellis’ stepson. On December 25, 1988, Whitelow was living in Chicago with Ellis, his mother, and his sister. That day, he and Ellis drove to Kankakee to visit one of Ellis’ friends.

After stopping at a liquor store and another home, they arrived at the home of Ellis’ friend. They were told the friend had passed away, so they then drove to Thomas Hodge’s home. Thomas Hodge, Theresa Hodge, and the defendant were inside the house. After a brief conversation, Whitelow, Ellis, and Theresa Hodge left and went to a liquor store. Theresa asked Whitelow if he wanted to buy some cocaine. When Whitelow said he did not have any money, Theresa walked over to Ellis and began talking to him.

Ellis called Whitelow over and asked if he wanted some cocaine. Whitelow said he did not care. Ellis then gave Whitelow $50. White-low bought some gin in the store and then went outside and bought $40 of cocaine from a friend of Theresa.

Whitelow, Ellis, and Theresa returned to Hodge’s home. After Theresa and Whitelow smoked the cocaine, Theresa obtained money from Ellis to buy more cocaine. She and Whitelow drove to a trailer, where she made a cocaine purchase. After they returned to Hodge’s home, she cooked the cocaine in her bedroom. Whitelow smoked some of the cocaine. As he left the bedroom, the defendant entered. White-low did not see what the defendant did in the bedroom.

Soon thereafter, Theresa emerged and asked Ellis for money to buy more cocaine. Whitelow, Ellis, and Teresa drove to a liquor store, where Theresa purchased cocaine from a man in the parking lot. Upon their return, Theresa cooked some cocaine and told Ellis to join her in the bedroom. After about a half-hour, they came out of the bedroom. Whitelow then asked Theresa to have sex with him. She refused, saying she wanted to be with Ellis because he had money. Theresa and Ellis then went out for beer and cigarettes.

After they returned, Ellis and Whitelow decided to leave. Ellis allowed the defendant to accompany them because the defendant needed a ride to Chicago. The three first drove to a liquor store, where the defendant went inside to purchase alcohol. While he was inside, Whitelow told Ellis he did not have sex with Theresa. Ellis asked him if he wanted to go back, and Whitelow said he did not care. When the defendant came back to the car, they returned to Hodge’s house. Whitelow again asked Theresa to have sex with him. She refused, but said she would the next time he came over.

Whitelow, Ellis, and the defendant returned to the car and started driving back to Chicago. Whitelow drove, while the defendant sat in the rear passenger seat with Ellis located directly in front of him. Ellis was facing Whitelow in the front seat and giving him directions when Whitelow heard a loud noise. Ellis’ head first raised, and then he slumped toward Whitelow. Whitelow turned toward the defendant, who held a small gun in his hand. The defendant smiled and told Whitelow that if he did not listen to him, he would kill him as well.

After the defendant told Whitelow to make a turn, he ordered Whitelow out of the car. Whitelow refused, saying the defendant had to get out first. When Whitelow thought the defendant was out, he accelerated, but the defendant remained in the car. The defendant grabbed Whitelow, causing him to lose control of the wheel. As they struggled, the car hit some mailboxes and a trailer. Whitelow dove into the back seat and pulled the gun away from the defendant. He threatened to shoot the defendant, but the defendant laughed and said the gun was not loaded. Whitelow pulled the trigger, but the gun did not fire.

The defendant began going through Ellis’ pockets. After White-low told him to stop, they exchanged blows. The defendant then left the scene.

Whitelow tried to start the car, but it stalled. He walked to a residence and asked to make a telephone call. The man at the residence refused him. He then went to a hotel and asked to use the telephone. The employee refused but did give him directions to a public phone. Whitelow began walking, but returned to the hotel and asked again to use the telephone. The employee said the telephone did not dial out. Whitelow eventually found a public telephone and reported the shooting to the operator. He remained at the telephone until a police officer arrived. Whitelow told the officer a man had shot his stepfather and turned the gun over to him.

On cross-examination, Whitelow admitted he had been drinking all day. He also admitted that in his written statement to the police he did not mention he had tried three times to make a telephone call.

Theresa Hodge testified she and her two children live with her father, Thomas Hodge. On December 25, 1988, she had been drinking before Whitelow and Ellis arrived. When the defendant arrived later, he gave her his .357 magnum so her son would not be harmed by it.

At some point, Hodge left with Whitelow and Ellis to buy cocaine and liquor. Ellis gave her the money to make the purchases. After she bought the cocaine, they returned to her home. She and Whitelow then smoked the cocaine in her bedroom.

Some time later, she left with either Whitelow or Ellis to buy more cocaine. One of the two men gave her the money to purchase it. When they returned, she and Whitelow smoked it.

Theresa later left with Ellis to buy liquor. During one of the trips to the liquor store, she noticed that Ellis carried currency in large denominations as well as a small revolver.

When Whitelow and Ellis prepared to leave, the defendant asked if they would give him a ride to Chicago. Ellis said he lived on the same street as the defendant and allowed him to come along. The three left but returned briefly to have another drink. Whitelow did not talk to Theresa at that time. After Theresa returned the defendant’s gun to him, the three left for the last time.

Theresa denied having sex with any of the men. She admitted having been convicted of a crime, but could not recall if she had been convicted of either misdemeanor or felony theft.

Officer Joseph Marek testified that on the evening of December 25, 1988, he investigated an accident report. When he arrived at the scene, he saw a car which had crashed into a trailer. He then received a report that a person at a public telephone may have been involved in the accident. Marek drove to the telephone and spoke to Whitelow, who told him a man had shot his stepfather. Marek then testified to Whitelow’s description of the shooting. Whitelow’s description was generally consistent with the story he had given at trial, although he did not tell Marek about his three unsuccessful attempts to make a telephone call. Whitelow also handed over a pistol he said had been used in the shooting. Marek testified that Whitelow could have easily hidden the gun in the fields and woods he walked by as he looked for a telephone. Marek then transported Whitelow to the hospital for treatment of a slight head wound.

Officer Jo Fahrow spoke with Whitelow while he was in Marek’s car. He appeared upset. Whitelow mentioned trying to make a telephone call at a residence and being refused, but Fahrow did not include this in her report. Fahrow then took photographs of the scene. One of the photographs showed a baseball cap found an eighth of a mile from the accident. The defendant stipulated that he owned the cap.

Melinda Greer testified she lived in the mobile home the car had run into. After the accident occurred, she went over to Linda Mc-Crary’s trailer. While McCrary called the police, a black man came up to the trailer. He said an armed man was chasing him and asked to use the telephone. After he spoke on the telephone, he ran from the trailer. She could not identify the defendant as the man who came to the trailer.

Linda McCrary testified a man came to her trailer and said someone was trying to kill him. On the man’s instruction, she called the police. He took the telephone and told the police someone was trying to kill him and he was about to flee. He then left the trailer. A 14-year-old girl who was in the trailer testified the man who used the telephone identified himself as Albert Jones.

Officer Francis Hubert testified he spoke with Whitelow on the evening of the incident. He did not recall Whitelow mentioning he had made three stops to make a telephone call. Hubert also looked through Ellis’ personal effects. He found $97 but no weapons.

A pathologist who performed an autopsy on Ellis testified Ellis died of a gunshot wound to the head. The bullet entered about an inch and a half over the left ear and traveled slightly upward and to the right. The bullet came from a small weapon, such as a .25 caliber handgun. The pathologist believed that when the weapon was fired it was behind Ellis and pointed slightly upward and to the right.

A forensic scientist testified the gun Whitelow turned over to the police was a .25 caliber semi-automatic pistol. In his opinion, the bullet in the victim’s head came from that weapon. Additionally, the shell casing found in the car was consistent with a .25 caliber pistol.

The defendant testified he went to the Hodges’ house on December 25, 1988. Thomas Hodge, Theresa, Ellis, Whitelow, and Theresa’s child were present. Because of the child, he unloaded his .357 magnum and gave it to Theresa. During the time he was there, Ellis, Whitelow, and Theresa left several times to obtain narcotics. The defendant remained and watched the child.

The defendant asked Ellis if he could have a ride to Chicago and Ellis agreed. When they left, Whitelow drove, while Ellis sat in the front passenger seat and the defendant sat directly behind him. After they went to a liquor store and purchased alcohol, they drove back to Hodge’s home. Whitelow went into the bedroom with Theresa for a short time. When he emerged, they left again for Chicago. They were seated in the same positions as before.

The defendant fell into a light sleep. He awakened after hearing a loud noise and saw Whitelow pointing a gun at his face. As they struggled over the gun, Whitelow pulled the trigger. The car then hit an object and ran into a trailer. The defendant pulled Whitelow into the back seat as they continued fighting. The defendant then pushed the door open and got out of the car.

The defendant asked a girl near the trailer to call the police, but she said she did not have a telephone. He ran to another trailer and asked a woman to call the police. She had just called them, so she handed him the telephone. The defendant told the police a man had shot someone and was trying to shoot him. The defendant denied identifying himself as Albert Jones. He then ran down the road into the woods. Eventually, he obtained a ride to Chicago.

On cross-examination, the defendant admitted he did not talk to the police about the incident until seven months later. When asked to explain how his cap left the car, the defendant said it could have flown out the window. He could not remember if the car window was open at the time, although he conceded it was cold that day. The prosecutor and the defendant also had the following exchange:

“Q. Isn’t it not [sic] also true, sir, that as payment for driving to Chicago that you traded Mr. Ellis your .357 magnum for this gun; isn’t that true?
A. No, it isn’t.
Q. Didn’t you pay Mr. Ellis — didn’t you tell him that you would trade your .357 shiny Smith & Wesson Magnum for that .gun if you drive me back to Chicago?
A. No, I didn’t.”

After the cause proceeded to closing arguments, the following exchanges occurred:

“[THE STATE]: Now, they would have you believe — well, let me back up a second. When you look at — when I did my opening statement, I said in essence was that this case is very simple. It’s not a big jigsaw puzzle and there aren’t a lot of pieces. Basically we have a defendant and we have a witness, when you get right down to it. There is [sic] only two possibilities.
In order to find him not guilty, you have to find and decide that [Whitelow] commited [sic] the murder.
[DEFENSE ATTORNEY]: Your Honor, I’m going to object to that. That’s not what the law says and that’s not how the jury is going to be instructed.
THE COURT: Objection is overruled.
[THE STATE]: You have to find that it’s reasonable to believe that [Whitelow] committed the murder and that he’s not a witness but that he was the murderer.
* * *
Was this the actions [sic] of a witness, or was it consistent with a murderer? My religion would say, act as if you had faith—
[DEFENSE ATTORNEY]: Object to Mr. Beaumont and what his religious beliefs are in this case.
THE COURT: Overruled.
[THE STATE]: If we’re to believe in justice, we need only to believe in ourselves and act with justice. That’s why we’re here today to act with justice. There will be justice here today. I believe there is justice in our hearts. Thank you.”

Thereafter, the jury found the defendant guilty of first degree murder.

The defendant first argues on appeal that he was not proved guilty beyond a reasonable doubt. He contends that Whitelow’s testimony, which served as the basis for the State’s case, was incredible.

If there is conflicting testimony, the jury has the responsibility of deciding which witnesses are to be believed. (People v. Henderson (1974), 18 Ill. App. 3d 457, 309 N.E.2d 242.) On review of a conviction, all of the evidence must be viewed in the light most favorable to the State to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

Here, there is sufficient evidence supporting the jury’s determination. The pathologist opined that the weapon was behind the victim when it was fired. Consequently, the defendant’s position in the back seat was consistent with his committing the crime. Whitelow immediately reported the crime, but the defendant did not talk to the authorities until seven months after the incident. Whitelow also told the police a story that was generally consistent with his testimony at trial. Furthermore, the presence of the defendant’s baseball cap an eighth of a mile from the accident scene supported WTiitelow’s version. Whitelow testified that before the accident, he pulled over and the defendant began to get out. He then pulled away in an effort to escape the defendant, but the defendant remained in the car. The defendant could well have lost his cap at this time. Further, the jury might easily have doubted the defendant’s explanation that the cap flew out the window, since it was cold and the windows were probably closed. Accordingly, we find that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.

The defendant next argues the prosecutor improperly cross-examined him when he asked the defendant if he had traded guns with Ellis in order to obtain a ride to Chicago. Since there was no testimony of such an exchange, the defendant argues the prosecutor improperly implied the existence of facts that were not supported by the evidence. See, e.g., People v. Braggs (1988), 184 Ill. App. 3d 756, 540 N.E.2d 767; People v. Curry (1975), 25 Ill. App. 3d 637, 323 N.E.2d 778.

We note the defendant failed to object to the question or to raise the issue in his post-trial motion. Consequently, we will only reverse if there was plain error. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Plain error occurs where the evidence is closely balanced or where the error was of such magnitude the defendant was denied a fair trial. People v. Whitehead (1987), 116 Ill. 2d 425, 508 N.E.2d 687.

Here, there was some basis for the prosecutor’s questioning. The State presented evidence that prior to the trip Ellis had a small caliber gun and the defendant had a .357 magnum, but that during the trip the defendant shot Ellis with a .25 caliber handgun. Although it is true there was no evidence of an exchange of guns, we do not believe this questioning denied the defendant a fair trial. Based on our discussion of the reasonable doubt issue, we also find the evidence was not closely balanced. We therefore conclude the prosecutor did not commit plain error.

The defendant next argues the prosecutor misstated the law in closing argument when he said either Whitelow or the defendant had murdered Ellis, and that in order to find the defendant not guilty, the jury had to find it was reasonable to believe Whitelow committed the murder. The defendant contends the prosecutor improperly shifted to the defendant the burden of introducing evidence which created a reasonable doubt of his guilt. (See People v. Weinstein (1966), 35 Ill. 2d 467, 220 N.E.2d 432.) The defendant also argues the prosecutor improperly implied that in order to believe the defendant, the jury had to find Whitelow was lying. See People v. Ferguson (1988), 172 Ill. App. 3d 1, 526 N.E.2d 525.

The prosecutor’s comments did not speak to the burdens on the parties. He merely stated the obvious: that given the evidence in this case, either Whitelow or the defendant was telling the truth about the shooting and the other was lying. Since neither the witnesses’ recall nor their opportunity to observe the shooting was in dispute, the prosecutor could properly make such comments. (People v. Smith (1991), 209 Ill. App. 3d 1043, 568 N.E.2d 482; People v. Thomas (1988), 172 Ill. App. 3d 172, 526 N.E.2d 467.) We therefore find no error.

The defendant lastly argues the prosecutor improperly referred to his religious beliefs in closing argument. The defendant contends the prosecutor’s remarks were both a personal comment about the strength of the State’s case and an attempt to inflame the passions of the jury.

The prosecutor did not dwell on his religious beliefs. He merely referred to them as a prelude to exhorting the jury to act with justice. Therefore, we find no error.

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

Affirmed.

GORMAN and SLATER, JJ., concur.


text:
    JOYCE J. ELLIS, Plaintiff-Appellee, v. ALAN BORISEK, Defendant-Appellant (Jeremy S. Hrovat et al., Defendants).
    Third District
    No. 3—91—0075
    Opinion filed October 10, 1991.
    Herbolsheimer, Lannon, Henson, Duncan & Reagan, of La Salle (R.J. Lannon, Jr., of counsel), for appellant.
    Anesi, Ozman & Rodin, Ltd., of Chicago (Marc A. Taxman, of counsel), for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

The defendant, Alan Borisek, was found liable in dramshop at a jury trial. He now appeals the trial court’s denial of his motion for summary judgment. He claims that he was improperly joined after the limitations period had run and that there is no relation back because the provisions of section 2—616(d) of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2—616(d)) have not been met. The plaintiff, Joyce J. Ellis, argues that this is merely a case of misnomer, not misidentification, and thus is controlled by section 2—401(b) of the Code. (Ill. Rev. Stat. 1989, ch. 110, par. 2—401(b).) We agree and affirm.

Section 2—401(b) of the Code provides as follows:

“Misnomer of a party is not a ground for dismissal but the name of any party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court requires.” Ill. Rev. Stat. 1989, ch. 110, par. 2—401(b).

Section 2—616(d) provides:

“A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (1) the time prescribed or limited had not expired when the original action was commenced; (2) failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon the person, his or her agent or partner, as the nature of the defendant made appropriate, even though he or she was served in the wrong capacity or as agent of another, or upon a trustee who has title to but no power of management or control over real property constituting a trust of which the person is a beneficiary; (4) the person, within the time that the action might have been brought or the right asserted against him or her, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him or her; and (5) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery when the condition precedent has in fact been performed, and even though the person was not named originally as a defendant. For the purpose of preserving the cause of action under those conditions, an amendment adding the person as a defendant relates back to the date of the filing of the original pleading so amended.” Ill. Rev. Stat. 1989, ch. 110, par. 2—616(d).

This action arises from an automobile accident on July 4, 1987. The plaintiff, Joyce J. Ellis, was injured as a result of a collision with Jeremy S. Hrovat. A complaint was filed on June 27, 1988, naming as one of the defendants Friday’s of Peru, Ltd. (Friday’s), as the owner and operator of the tavern at which Hrovat had been drinking. On August 31, 1988, service was had on Alan Borisek as an agent of Friday’s. Friday’s filed an answer on October 7, 1988, denying the essential allegations, but not denying ownership or control of the tavern. Six months later, Friday’s moved for summary judgment on the grounds that it was not a proper defendant because, at the time of the incident, the tavern was operated as a sole proprietorship by Borisek.

While that motion was pending, Ellis filed an amended complaint naming Alan Borisek, d/b/a Friday’s of Peru, Ltd., as an additional party defendant. In addition, Ellis filed a memorandum in opposition to Friday’s motion for summary judgment, arguing that this was merely a case of misnomer which could be corrected pursuant to section 2 — 401(b) of the Code.

Borisek subsequently filed his own motion for summary judgment, arguing that he was not joined within the limitations period, citing section 2 — 616(d) of the Code.

At the hearing on the motions, it was established that Friday’s had been involuntarily dissolved as a corporation in 1981 and was no longer a legal entity. The facts also showed that the tavern’s liquor license had been issued in the name of Alan Borisek, d/b/a Friday’s of Peru, Ltd. The trial court denied both motions for summary judgment.

A jury trial was held with a verdict being returned against Borisek. In a post-trial motion, Borisek contended that the court erred in not granting his motion for summary judgment, again citing section 2—616(d). The trial court denied that motion and this appeal followed.

Borisek’s position is that this case involves a misidentification and that there is no relation back to the original complaint because the requirements of section 2 — 616(d) of the Code have not been satisfied.

The controlling issue is whether the plaintiff’s naming “Friday’s of Peru, Ltd.,” as a defendant was a misidentification or a misnomer. If it was a misnomer, it can readily be corrected, while if it was a misidentification, the requirements of section 2 — 616(d) must be met in order for the amendment to relate back.

The rule that a misnomer is not a ground for dismissal applies where an action is brought and summons is served upon a party intended to be made a defendant. In a misnomer case, actual notice of the lawsuit is given to the real party in interest, but the complaint does not refer to the person by his correct name. Barbour v. Fred Berglund & Sons, Inc. (1990), 208 Ill. App. 3d 644, 567 N.E.2d 509.

The misnomer statute applies to correctly joined and served, but misnamed, parties. Mistaken identity, on the other hand, occurs when the wrong person was joined and served. The test in deciding whether the misnomer statute applies is whether the party sued is the real party in interest. (Borkoski v. Tumilty (1977), 52 Ill. App. 3d 839, 368 N.E.2d 136.) If section 2—401(b) applies, service of summons after the expiration of the statute of limitations does not bar the suit, provided the plaintiff used reasonable diligence in obtaining service upon the proper defendant. In cases of mistaken identity, however, service upon the proper defendant is required before the expiration of the time provided in the statute of limitations. Thielke v. Osman Construction Corp. (1985), 129 Ill. App. 3d 948, 473 N.E.2d 574.

Defendant relies on Leonard v. City of Streator (1983), 113 Ill. App. 3d 404, 447 N.E.2d 489. There, the dramshop plaintiff sued an individual under the belief that the individual was the owner of the tavern. The real owner was a corporation of which that individual was president. The court held that such a mistake was not a misnomer, and since section 2—616(d) had not been satisfied, the corporation must be dismissed.

The distinction between Leonard and the case at bar lies in the fact that Leonard involved two separate entities: an individual and a corporation. The plaintiff there did not misname the right party, but instead named the wrong party. Here, there is only one entity: an individual. Friday’s has no legal existence. This is not a case where the plaintiff did not know the identity of the proper defendant. Instead, this is a case where the plaintiff knew the identity but did not know the proper name.

This difference is discussed in Greil v. Travelodge International, Inc. (1989), 186 Ill. App. 3d 1061, 541 N.E.2d 1288. The pertinent facts in Greil are closely analogous to the case at bar. The plaintiff filed suit against “Travelodge in the Heart of Chicago,” serving an agent of the motel at the motel office. Travelodge in the Heart of Chicago moved to dismiss, claiming that it was not a legal entity and thus could not be sued. The proper defendant was La Salle Ohio Enterprises, the entity which had been granted the license to use the “Travelodge” trademark. The plaintiff then amended his complaint to add La Salle as an additional defendant. La Salle moved to dismiss on the grounds that the statute of limitations had run and that the Code requirements for relation back (section 2—616(d)) had not been satisfied. The appehate court found that it was a case of misnomer and thus the question of relation back need not be reached. The “[plaintiff served the proper physical party because the agent served for ‘Travelodge in the Heart of Chicago’ is also an agent of La Salle. The only defect is that the correct name is La Salle. Same entity, wrong name.” (Emphasis added.) Greil, 186 Ill. App. 3d at 1066, 541 N.E.2d at 1291.

An important factor is that the party originally named, Friday’s of Peru, Ltd., does not actually exist. Defendant argues that Barbour v. Fred Berglund & Sons, Inc. (1990), 208 Ill. App. 3d 644, 567 N.E.2d 509, vitiates that reasoning. In Barbour the plaintiff was injured while employed on a construction site. He filed a complaint naming as sole defendant “Bergman Construction,” alleging that it was the general contractor at the site. At the plaintiff’s request, the sheriff served “Bergman Construction” at an address in River Grove, Illinois. Later, plaintiff moved to quash summons and file an amended complaint against Fred Berglund & Sons, Inc. This motion was allowed and service was had at an address in Chicago. Berglund moved to dismiss on the grounds that the statute of limitations had run prior to the filing of the amended complaint. The plaintiff argued that there was no such entity as “Bergman Construction” and that he could not have intended to sue a nonexistent entity. The appellate court was uncertain whether or not “Bergman Construction” actually existed. But even assuming that it did not, the court found that the case was one of misidentification, and therefore Berglund was properly dismissed.

The instant case is much different. In Barbour, the party initially named and served had an entirely different name and was served by the sheriff at an address other than that of the correct defendant. Here, Ellis’ complaint named “Friday’s of Peru, Ltd.” (the correct name of the tavern), and service was had on Borisek at the tavern itself.

Borisek correctly notes that a pivotal inquiry is the objective intent of whom the plaintiff intended to sue. (Having v. Davies (1987), 159 Ill. App. 3d 106, 512 N.E.2d 729; Leonard v. City of Streator (1983), 113 Ill. App. 3d 404, 447 N.E.2d 489; Clinton v. Avello (1982), 105 Ill. App. 3d 336, 434 N.E.2d 355.) When viewed in this manner, it becomes clear that this is a case of misnomer, not mistaken identity.

Plaintiff, Ellis, intended to sue the owner of the tavern. She named Friday’s, serving Borisek as its agent at the tavern. The same law firm that represented Borisek individually represented Friday’s for its answer and its motion for summary judgment, a factor noted by the Greil court in finding misnomer. (Greil, 186 Ill. App. 3d at 1065, 541 N.E.2d at 1290.) Friday’s answered the complaint and made no move to correct the plaintiff’s mistake for another six months. Plaintiff corrected the error as soon as she became aware of it. Borisek was obviously aware of the pendency of the action and of the fact that there was really no “Friday’s of Peru, Ltd.”

The plaintiff did not identify the wrong entity; she simply misnamed the right entity. The proper party was served albeit under the wrong name. Upon discovering the error, Ellis corrected it with reasonable diligence. This is the exact situation which section 2 — 401(b) was enacted to address.

We hold that the trial court was correct in allowing the plaintiff to amend her complaint and in denying Borisek’s motion for summary judgment.

Accordingly, we affirm the judgment of the circuit court of La Salle County.

Affirmed.

BARRY and SLATER, JJ., concur.


author: PRESIDING JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENISE R. HARRIS, Defendant-Appellant.
    Fourth District
    No. 4—91—0151
    Opinion filed October 9, 1991.

      Daniel D. Yuhas and Lori L. Mosby, 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 Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Defendant Denise Harris, on trial for first-degree murder (Ill. Rev. Stat. 1989, ch. 38, pars. 9—1(a)(1), (a)(2)), was convicted by a jury in the circuit court of Champaign County of the offense of involuntary manslaughter (Ill. Rev. Stat. 1989, ch. 38, par. 9—3(a)) in connection with the death of her seven-month-old daughter, Tiffany Roundtree. Tiffany drowned after defendant left her unattended in the bathtub. Defendant appeals, contending reversible error took place when evidence of a prior bathtub accident involving Tiffany and defendant was admitted.

We need not go into great detail about the facts surrounding this sad and tragic case. Defendant was 18 years of age at the time of the incident. She has been in special education classes since fourth grade, with a reading comprehension at fourth- or fifth-grade level, and her intelligence quotient is below average. According to her testimony on the day of the drowning, she filled the bathtub half full of water, placed a baby tub in the bathtub, and sat Tiffany in the baby tub. Defendant left Tiffany in the tub and returned about 10 minutes later to find her facedown in the water. Her attempts at resuscitation were unsuccessful. Not wanting to upset her mother and other members of the family, she dressed Tiffany and took her eight-tenths of a mile to her aunt’s home. Her aunt called emergency telephone No. 911 for assistance, and that assistance was also unsuccessful in resuscitation. Over objection, defendant’s brother testified regarding a similar accident approximately two weeks earlier, which involved defendant’s successful resuscitation of Tiffany.

The bizarre circumstances led to the first-degree murder charges. However, the jury was also instructed as to the offense of involuntary manslaughter as follows:

“A person commits the offense of involuntary manslaughter when she unintentionally causes the death of an individual by acts which are performed recklessly and are likely to cause death or great bodily harm to another.”

Citing People v. Stewart (1984), 105 Ill. 2d 22, 62, 473 N.E.2d 840, 860, counsel for defendant argues that “[w]hen such evidence [of other crimes] is offered, it is incumbent upon the trial judge to weigh the relevance of the evidence to establish the purpose for which it is offered against the prejudicial effect.” We agree that when the probative value of the evidence is far outweighed by the prejudicial impact, the admission of the evidence calls for reversal. (People v. Mikyska (1989), 179 Ill. App. 3d 795, 805-06, 534 N.E.2d 1348, 1355.) However, in the present case, the prior event was not necessarily a criminal act (possibly an accident), and it is important evidence relating to defendant’s knowledge of danger inherent in leaving a baby unattended in bath water.

The term “recklessly,” which is used in the involuntary manslaughter instruction, means heedless or careless. If defendant had been unaware of the danger to Tiffany, then it would be difficult to find her heedless or careless. While such an issue might not be present when dealing with one of average intelligence, we must take the present defendant as we find her, with less than average abilities. Indeed, evidence regarding counseling was introduced and was relevant for the purpose of determining the extent of defendant’s knowledge. Likewise, a prior, scary, like-kind experience was admissible so that the fact finder could make a determination of whether the conduct was reckless.

We hold the value of evidence of prior events was substantial and relevant, outweighing the prejudicial effect.

Affirmed.

GREEN and KNECHT, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES E. BOHM, Defendant-Appellant.
    Third District
    No. 3—90—0370
    Opinion filed October 10, 1991.

      Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Jay P. Hoffmann, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

A jury convicted the defendant, James E. Bohm, of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12—16(c)(1)). The trial court sentenced him to a 25-year term of imprisonment. The defendant appeals his conviction and sentence.

The nine-year-old complainant testified that she was staying overnight with her Aunt Wesley and Wesley’s boyfriend, the defendant, sometime in August of 1989. After going to bed on the floor of the defendant’s and Wesley’s bedroom, the complainant asked Wesley to put calamine lotion on her itchy knee. Wesley asked the defendant to do it. The complainant, who was dressed in a nightgown and panties, went into the living room. The defendant followed holding a bottle of calamine lotion. According to the complainant, he dropped the bottle, pushed her onto the couch, pulled off her underwear, got on top of her, and placed his “thing” inside her “private” between her legs. The complainant stated that this hurt. She began screaming and did so for approximately five minutes until her aunt came into the room. At that time, the defendant jumped off of her. The complainant went across the room to retrieve her underpants where the defendant had thrown them. She then telephoned her mother, who came and drove her home. According to the complainant, that night she told both her mother and father what the defendant had done to her. Her father told her to lie down and they would talk about it in the morning. They did not talk about it the following day because the complainant was scared. The complainant stated that about a week later she also told her grandmother what had happened.

The complainant recalled that she was examined in November or December by her family doctor, Dr. Trachtenbarg. When she told the doctor what had happened, he told her she would have to go to the hospital for a proper examination.

The parties stipulated that, if called to testify, Dr. Trachtenbarg would state that he saw the complainant on November 21, 1989, but did not conduct a sexual abuse examination because he refers those to other doctors. The referral was made that same day.

Joan McCullough, the complainant’s school nurse, testified that in October or November of 1989, the complainant came into her office complaining of stomach aches. The nurse thought perhaps the complainant was starting menstruation. She subsequently sent several notes to the complainant’s mother, suggesting the complainant see a doctor. When she received no response, the nurse took the complainant home and spoke with her mother in December of 1989. After Christmas, the complainant told the nurse that she had seen a doctor.

Dr. Michael Keoppen testified that he examined the complainant on January 3, 1990. The examination, done at the behest of the Department of Children and Family Services (DCFS), revealed that the complainant’s vulva was red and inflamed. There was also an irregular laceration of the hymen, which was not normal for a nine-year-old child. According to Dr. Keoppen, those findings were consistent with sexual abuse and the tear was caused by penetration. The doctor opined that the tear had occurred within one to six months prior to the examination.

Tracy Tegg, the complainant’s mother, testified that her sister, Wesley, and the defendant were living together during the summer of 1989 when, on several occasions, the complainant spent the night with them. About 12 a.m. on one such evening, Wesley telephoned Tegg and asked her to pick up the complainant because she was crying. Tegg asked her sister to try to calm the complainant and to call back in a half-hour if she was unsuccessful. Twenty minutes later Wesley and the defendant called to say they could not calm her.

When Tegg arrived, the complainant was crying and said she wanted to go home, but would not say what was wrong. In the car on the way home, the complainant said, “He did it to me.” When Tegg asked who did what, the complainant responded, “Jimmy did.” When she asked the complainant what he did, she would not say. At home, Tegg examined the complainant’s “private parts” and saw nothing unusual. Both she and the complainant’s father talked to her, but she would not say what had occurred. Finally, Tegg told the complainant to go to bed and they would talk in the morning. The next day Tegg asked the complainant several times what had happened, but she only said, “No, mom, I think it was a dream, nothing happened.”

Tegg further testified that the school nurse called her only once in November and said that the complainant was cramping and bleeding and should see a doctor. The next day, a DCFS representative told Tegg to take the complainant to a doctor for a physical. Tegg complied. The doctor did not perform an internal examination and said everything was fine. According to Tegg, two or three weeks later, a DCFS representative told her the examination was not good enough because they suspected sexual abuse. Tegg finally took the complainant to a hospital and an examination was performed. She stated that she did not expect anything sexual and had not known what to think when the complainant said, “He did it to me.” Tegg also testified that following the night of the incident, the complainant never returned to the defendant’s house, not because Tegg objected, but because the defendant did. Finally, Tegg stated that she received four visits from DCFS representative Tom Ivey, but not all of them were in regard to the alleged sexual abuse of the complainant.

Beverly McClure, a DCFS child protective investigator, testified that she interviewed the complainant on January 4, 1990. Initially, the complainant denied the incident and said she had been scared by a bad dream. In the dream, the defendant was on top of her and had taken off her panties. She screamed and her Aunt Wesley came into the room.

Eventually, after being told to tell the truth, the complainant told McClure the defendant had lifted her nightshirt, taken off her panties, “grabbed her butt,” and “humped” her for about five minutes. She said this hurt and that she screamed loud enough to wake Wesley and the neighbors. The complainant told McClure that she was afraid to tell anyone because her mother said she would have to go to a foster home if she did.

Peoria juvenile police officer Tommie Moton testified that she interviewed the complainant in January 1990. Officer Moton’s testimony was substantially similar to that given by Beverly McClure. In addition, Officer Moton stated that the complainant demonstrated on anatomically correct dolls and told Moton that she had previously told her mother it might have been a dream.

Officer Moton also stated that she interviewed the defendant, who admitted rubbing calamine lotion on the complainant’s legs, but denied having sexual intercourse with her. The defendant stated that when he applied the lotion, the complainant started screaming, but he did not know why.

Thomas Ivey, a DCFS child protective investigator, testified that he also interviewed the defendant. The defendant’s responses were the same as those he gave to Officer Moton. Ivey also testified that he had received a report in November 1989 that the complainant was at school and had cramps and a small amount of blood in her underwear. To rule out the possibility of sexual abuse, he contacted the complainant’s parents and suggested an examination. Ultimately, Ivey had to make three trips to see the complainant’s mother, finally threatening to take custody of the complainant, before she was examined for sexual abuse.

Wesley Tripp Bohm, who married the defendant three months prior to his trial, testified that they had been living together at the time in question. Bohm testified that on the night of the incident, she was awakened by the complainant’s scream. She walked into the living room, where she found the complainant and the defendant. According to Bohm, the complainant was wearing a long T-shirt and panties. She was excited and yelling, although Bohm could not tell what she was saying. The defendant told Bohm to call the complainant’s mother. Bohm asserted that she did not see anything happen.

On appeal, the defendant contends that he was not proved guilty of aggravated criminal sexual abuse beyond a reasonable doubt. He contends that the complainant’s testimony was implausible, contrary to human experience, and not substantially corroborated.

It is well settled that a criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. The relevant question for a reviewing court is whether, when the evidence is viewed in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) Whether the evidence is direct or circumstantial, the reasonable doubt test set forth in Collins should be applied in reviewing the sufficiency of the evidence in all criminal cases. (People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344.) In a sex offense case, the State need no longer demonstrate that the victim’s testimony was clear and convincing or substantially corroborated to prove guilt beyond a reasonable doubt. In re A.J.H. (1991), 210 Ill. App. 3d 65, 568 N.E.2d 964.

Applying the above principles to the instant case, we find that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of aggravated criminal sexual abuse. The record discloses that the complainant made a prompt complaint of the attack. While she may not have been successful in relating to her parents what happened, her mother nevertheless confirmed that the complainant had been in a distraught state and had told her the defendant “did it to Pier].” The complainant’s aunt confirmed that she was awakened by the complainant’s scream and that the complainant was yelling something. Additionally, the complainant told a number of people the same story when questioned about the events of that night. The medical testimony confirmed that the complainant had been sexually assaulted and that it had occurred during a time span which included the date on which she asserted the attack happened.

In support of his contention that the complainant’s testimony was implausible, the defendant points out that the complainant at times told people that it was all a dream. However, we do not find it difficult to believe that at those times the child was suffering from fear of the defendant and/or shame over the incident. Certainly a jury could have reasonably believed this to be the case. Therefore, the complainant’s assertions that the incident was a dream do not make her testimony as a whole implausible. In sum, we hold that a rational trier of fact could have found the defendant guilty.

The defendant next argues that his 25-year prison term was an abuse of the trial judge’s discretion because it was not proportionate to the nature of the offense.

Sentencing is a matter of judicial discretion, and absent an abuse of that discretion by the trial court, a sentence may not be altered on review. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) The defendant’s history, character, and rehabilitative potential, along with the seriousness of the offense, the need to protect society, and the need for deterrence and punishment, must be equally weighed. (People v. Darnell (1981), 94 Ill. App. 3d 830, 419 N.E.2d 384.) When there are mitigating factors before the court, the court is presumed to have considered the mitigating circumstances, and there is no requirement that the trial judge recite and assign a value to each factor presented. People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9.

In the instant case, the trial judge specifically noted that he had considered the defendant’s long criminal history, which included four Class A misdemeanors and some other traffic offenses, since the last time the defendant was incarcerated. He further noted that this was the defendant’s second conviction for a sex offense in the past 10 years and that his previous sentences had not rehabilitated him. The trial judge also stated that he found no items in mitigation in the record.

The defendant was eligible for a sentence of between 6 and 30 years’ imprisonment based on his previous convictions of Class 1 and Class 2 felonies (Ill. Rev. Stat. 1989, ch. 38, pars. 1005—5—3(c)(8), 1005—8—1(a)(3)). The trial court sentenced him to a term well within the permissible range for the offense. We find under these circumstances that the court did not abuse its discretion when it sentenced the defendant to 25 years’ imprisonment.

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

Affirmed.

GORMAN and McCUSKEY, JJ., concur.


text:
    THE COUNTY OF WILL et al., Petitioners-Appellants, v. THE ILLINOIS STATE LABOR RELATIONS BOARD et al., Respondents-Appellees.
    Third District
    No. 3—91—0177
    Opinion filed October 16, 1991.

      Edward Burmila, Jr., State’s Attorney, of Joliet (Philip A. Mock, Assistant State’s Attorney, and David A. Hibben, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for petitioners.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Daniel N. Malato, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois State Labor Relations Board.
    • Jacob Pomeranz, of Cornfield & Feldman, of Chicago, for other respondent.
   JUSTICE GORMAN

delivered the opinion of the court:

The Comity of Will seeks review of the Illinois State Labor Relations Board’s (Labor Board’s) finding that it is a joint employer with the Will County Executive for purposes of collective bargaining. The Will County Board (the County Board) was found to have committed an unfair labor practice by refusing to negotiate with the American Federation of State, County, and Municipal Employees, Council 31, AFL-CIO (AFSCME). The Labor Board found the County Board to be a joint employer, along with the Will County Executive (County Executive or Executive), of the employees in question. The County Board now appeals, claiming that the County Executive is the sole employer of the employees. We affirm.

The County of Will adopted a county executive form of government by referendum in 1988. The County Executive is elected at large by the voters and is responsible for all managerial and administrative functions within the county. This form of government is constitutionally based (“[a]ny county may elect a chief executive officer as provided by law. He shall have those duties and powers provided by law and those provided by county ordinance” (Ill. Const. 1970, art. VII, §4(a)), and statutorily controlled (Ill. Rev. Stat. 1989, ch. 34, par. 2—5001 et seq.)).

In August of 1989, the respondent, AFSCME, requested that the Will County Board and County Executive negotiate over a collective bargaining agreement that was due to expire in November of 1989. The County Executive agreed to negotiate. The County Board, however, refused to participate, claiming that as a result of the adoption of the county executive form of government, the County Board was no longer an employer of any members of the bargaining unit.

The County Executive and AFSCME met several times between October 1989 and June 1990. The County Executive stated that he was unable to agree to any economic proposals until the County Board determined the amount of funds that would be available for the contract. Negotiations went on for eight months. An agreement was finalized the same day that the County Board informed the County Executive of the amount of money budgeted for the contract.

AFSCME subsequently filed an unfair labor practice charge with the Labor Board, alleging that the Will County Board and the County Executive were joint employers of the Executive’s employees. It was further alleged that the County Board’s refusal to bargain with AFSCME concerning the wages, hours, and other terms and conditions of employment violated sections 10(a)(1) and (a)(4) of the Illinois Public Labor Relations Act. Ill. Rev. Stat. 1989, ch. 48, par. 1610(a)(1), (a)(4).

On December 5, 1990, Labor Board hearing officer Philip M. Kazanjian issued his recommended decision and order. He found that the County Board is responsible for approving the budget of the County Executive and that the County Board takes the position that it has the discretion to fund or not fund any agreement entered into by the County Executive and AFSCME. Kazanjian also found that the County Board has the authority to fix the hours of business for county offices, including the County Executive’s office. Based on these findings, Kazanjian issued his recommended decision and order that the County Board is a joint employer and had committed an unfair labor practice by refusing to negotiate.

The County Board timely filed exceptions to the recommendation. Upon review, the Labor Board adopted the recommendation of the hearing officer. The County Board then petitioned this court for administrative review.

The issue on appeal is whether the Labor Board’s finding that the Will County Board and the Will County Executive are joint employers is against the manifest weight of the evidence.

Courts may not interfere with the discretionary authority vested in an administrative agency unless that authority is exercised in an arbitrary and capricious manner or the administrative decision is contrary to the manifest weight of the evidence. A decision is contrary to the manifest weight of the evidence only when, after viewing the evidence in the light most favorable to the administrative agency, the court determines that no rational trier of fact could have agreed with the agency’s decision. American Federation of State, County, & Municipal Employees v. Illinois Educational Labor Relations Board (1990), 197 Ill. App. 3d 521, 554 N.E.2d 476.

The test for existence of joint employer status is “whether two or more employers exert significant control over the same employees — where from the evidence it can be shown that they share or co-determine those matters governing essential terms and conditions of employment.” (Orenic v. Illinois State Labor Relations Board (1989), 127 Ill. 2d 453, 474, 537 N.E.2d 784.) Relevant factors include the putative joint employer’s role in hiring and firing; promotions and demotions; setting wages, work hours, and other terms and conditions of employment; discipline and actual day-to-day supervision and direction of employees on the job. (Orenic, 127 Ill. 2d at 475, 537 N.E.2d at 794-95.) Additional factors include the authority to tax and raise funds and to approve budgets and grant financing. (County of Kane v. Illinois State Labor Relations Board (1988), 165 Ill. App. 3d 614, 518 N.E.2d 1339.) The key consideration in determining employer status is “the extent to which an entity is necessary to create an effective bargaining relationship.” City of Rockford v. Illinois State Labor Relations Board (1987), 158 Ill. App. 3d 166, 173, 512 N.E.2d 100.

This is the second recent case in which the Will County Board has challenged a finding that it is a joint employer with another entity. In County of Will v. Illinois State Labor Relations Board (1991), 219 Ill. App. 3d 183, this court upheld a finding that Will County is a joint employer with the Will County Board of Health. This court noted several elements which supported that finding, many of which are applicable here as well. The Will County Board of Health is an administrative agency which was created by referendum. Approximately 40% of its funding is derived from a tax levied by the County Board. The Board of Health must submit its budget to the County Board for approval. When viewing these factors in toto, it becomes clear that the County Board was necessary to create a stable and effective bargaining relationship.

Two other analogous cases support the Labor Board’s finding in the instant case: County of Kane v. Illinois State Labor Relations Board (1988), 165 Ill. App. 3d 614, 518 N.E.2d 1339, and City of Rockford v. Illinois State Labor Relations Board (1987), 158 Ill. App. 3d 166, 512 N.E.2d 100.

City of Rockford involved the question of whether the city and the Rockford Public Library were joint employers of the library’s employees. The Labor Board found that the primary link between the two was the city’s shared power to tax and raise funds for library purposes. The court noted that “[a]s funding directly affects negotiations over wages and as the city has a direct effect on the library’s funding, meaningful collective bargaining cannot take place in the instant case without the presence of the city.” (158 Ill. App. 3d at 173, 512 N.E.2d at 104.) Accordingly, the city and the library were held to be joint employers.

County of Kane dealt with the joint employer question in the context of a county and the nonpeace personnel employed by the Sheriff’s Department. That case is similar to the one at bar in that one employer (the sheriff) is an independently elected official while the other is the county board. The sheriff controlled the internal operations of his office subject to the County Board’s appropriations power. The appellate court, relying on City of Rockford, found that the county is a necessary party to the creation of an effective bargaining relationship and is a joint employer with the sheriff.

Applying these cases to the case at bar, the Will County Board retains sufficient control to require it to be considered a joint employer. The County Board has exclusive control over funding. Furthermore, the record reveals that during negotiations between AFSCME and the County Executive, the County Board made known the parameters of any agreement that it would approve. For example, the County Board would not fund any contract containing fair-share language. Accordingly, no such provision was included in the final contract. This evidence establishes that there is a significant link between the County Board and the County Executive.

Will County, however, argues that a finding that the County Board and the County Executive are joint employers would improperly hinder the independence of these two branches of county government, i.e., legislative and executive. Will County bases this position on Orenic v. Illinois State Labor Relations Board (1989), 127 Ill. 2d 453, 537 N.E.2d 784. We believe that the reasoning of Orenic is inapplicable here.

The principal question in Orenic was whether given their statutory role in funding circuit courts, counties may be considered joint employers of those courts’ nonjudicial employees for purposes of collective bargaining under the Illinois Public Labor Relations Act. (Ill. Rev. Stat. 1989, ch. 48, par. 1601 et seq.) The supreme court answered that question in the negative.

In Orenic, four chief judges of Illinois circuit courts sought a writ of prohibition that would prevent the Labor Board from certifying any bargaining unit in which a county had been listed as a joint employer of judicial branch employees. The court in Orenic was clearly concerned with a local entity asserting “control of the number, salary, or employment conditions of court personnel” (Orenic, 127 Ill. 2d at 477, 537 N.E.2d at 796), and thus interfering with the courts’ administration of justice.

Such a concern does not exist here. It is true that the County Board and County Executive are two distinct entities. As such each has identifiable powers and duties. Many of the Executive’s duties are delineated at section 2—5009 (Ill. Rev. Stat. 1989, ch. 34, par. 2— 5009). Conversely, the interdependence of the two offices is exemplified by section 2— 5009(q) (Ill. Rev. Stat. 1989, ch. 34, par. 2—5009(q)), which states that the Executive shall “perform such other duties as shall be required of him by the [county] board.”

The County Board argues that despite this interdependence, the County Board’s control over the purse strings is not sufficient to find that it is a joint employer. In support, Will County focuses on a passage from Orenic wherein the supreme court stated:

“Labor representatives at the bargaining table know that any agreement reached will be affected by the county boards’ salary-setting and appropriations authority, but similar knowledge prevails when labor representatives bargain with agencies of the executive branch for agreements that will be affected by the General Assembly’s budgetary authority. [Citation.] The General Assembly’s budgetary authority with regard to the executive branch certainly surpasses that of the county boards with regard to the judicial branch. Just as the General Assembly’s appropriations role fails to make that body the joint employer of executive-branch employees [citation], the counties’ appropriations role fails all the more to make [the] counties the joint employers of the circuit courts’ nonjudicial employees.” Orente, 127 Ill. 2d at 481, 537 N.E.2d at 798.

Requiring the County Board to sit at the negotiation table with the County Executive could hamper the Executive in fulfilling his duties of controlling all managerial and administrative functions within the county. However, some interdependence between branches of government is necessary for smooth functioning, particularly when only one of the parties controls funding.

Orente is readily distinguishable. Here we are not dealing with a county infringing upon the judiciary’s independence; instead, we are dealing with two offices both legally responsible for discharging the activity of local government from one funding source and using the same employees.

The finding of the Labor Board is not against the manifest weight of the evidence and its decision is therefore affirmed.

Affirmed.

BARRY and McCUSKEY, JJ., concur.