author: JUSTICE STEIGMANN

text:
      In re MARRIAGE OF LES R. HENSLEY, Petitioner-Appellant, and JANELLE L. HENSLEY, Respondent-Appellee.
    Fourth District
    No. 4 — 90—0608
    Opinion filed March 21, 1991.
    — Rehearing denied May 1, 1991.

      Anthony P. Corsentino, Ltd., of Peoria, and Susan Butler, of Morton, for appellant.
    Carl F. Reardon, of Reardon, Orr & Dvorak, Ltd., of East Peoria, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

This appeal concerns a judgment entered during marriage dissolution proceedings between petitioner, Les R. Hensley (Les), and respondent, Janelle L. Hensley (Janelle). On appeal, Les claims that the trial court erred in (1) awarding maintenance to Janelle in the amount of $310 per month for years, subject to review in the fourth and seventh years, (2) ordering that Janelle not be required to show efforts for her employment during the period in which she receives maintenance, (3) ordering Les to pay Janelle $1,550 for funds he “overdrew” from his 401(k) savings plan during the pendency of the dissolution of marriage proceedings, and (4) awarding Janelle attorney fees in the amount of $1,000. We affirm in part and reverse in part.

I. Facts

Les and Janelle were married in 1980. In January 1989, Les filed for dissolution of the marriage. Les was then 33 years old and Janelle was 28 years old. Two children were born as a result of the marriage, Justin and Jeffrey, 8 and 2>xk years old, respectively, at the time of the dissolution proceedings. During the course of the marriage, Janelle was responsible for the primary care of the children. Upon dissolution, Janelle was awarded custody of both children, subject to Les’ visitation rights.

At the time of these proceedings, Les was employed by Central Illinois Light Company (CILCO) as a gas engineering specialist, earning approximately $427 in net income per week. He also received net income from rental property of $31 per week. Janelle was employed by Con Winter Insurance Company as a secretary at the rate of $7.25 per hour. She worked a total of 21 hours per week so that she could “take care of the kids.” As of September 1990, Jeffrey would be in day care the entire working day. Claiming zero exemptions on her W-2 forms, Janelle earned approximately $121.66 in net income per week.

At the dissolution hearing, Janelle testified that she was a high school graduate. She had taken classes which allowed her to obtain an insurance license. She had also taken a computer course. She opined that in order to command a higher salary in her field, she would have to take more classes. She testified that an associate degree at Illinois Central College cost $28 per semester hour. A year of coursework there would cost approximately $1,800 for tuition and books. She stated, however, that her employer has never asked her to work full time or to pursue further schooling. Janelle had no physical or mental disabilities.

Because Janelle did not like the rental housing available on the market, she determined that it was necessary for her to buy a house after she and Les were divorced. She hoped to be able to purchase a home costing between $50,000 and $70,000 in order to maintain the standard of living she had previously enjoyed during her marriage. She planned to use the cash proceeds of her property settlement as a down payment.

In connection with his CILCO employment, Les participated in a voluntary 401(k) savings plan. During the pendency of this action, the trial court issued several orders concerning this account. The first of these was a confirming order of June 1, 1989, which stated as follows:

“Both the Petitioner and the Respondent are prohibited from taking, transferring, encumbering, concealing, damaging, or otherwise disposing of any property except in the ordinary and normal course of business or for the necessities of life or until further order of Court. * * *
As long as both parties are living together in the marital residence, each party shall continue to pay those payments and expenses he or she traditionally paid in the past in order to maintain the financial status quo between the parties.”

By order of June 29, 1989, the court stated as follows:

“The Petitioner’s reasonable expenses caused by his having to live elsewhere than the marital home shall be taken out of marital assets on a share and share alike basis.”

By confirming order of July 31, 1989, the court stated as follows:

“[T]he Petitioner *** shall immediately take whatever steps are necessary to cause the sum of Two Thousand Seven Hundred and Fifty Dollars *** to be transferred for the Central Illinois Light Company 501(K) [sic] account of the parties to the regular Central Illinois Light Company savings account of the parties. Respondent shall be entitled to withdraw said sum of $2,750.00 and use the same for any purpose that she see fit. The Petitioner shall not withdraw any additional funds from either of said accounts until such time as the Respondent has received the aforesaid sum of $2,750.00. * * *
In addition to the lump sum amount awarded to the Respondent in Paragraph 1 above, Respondent shall immediately be allowed to begin withdrawing from the regular Central Illinois Light Company savings account of the parties such amounts from time to time which are usual and necessary for living expenses for her and the two minor children of the parties. Petitioner shall cause sufficient transfers to be made from time to time from the 501(K) [sic] account of the parties to the regular savings account of the parties to enable the Respondent to make withdrawals for this purpose.”

During the course of the proceedings, Les withdrew approximately $14,000 from his 401(k) plan. He testified that he used these funds to pay debts of the parties and living expenses for himself, Janelle, and the children. Of the $14,000 withdrawn from the plan, Janelle directly received $4,150. During the property settlement hearing, Les’ accounting of the major payments associated with this account and his regular income was admitted into evidence. However, Les could not account for approximately $7,000 of the money withdrawn.

Les and Janelle agreed that (1) each would receive half the equity in the former marital residence, which amounted to approximately $19,400; (2) Les would be awarded his rental property in exchange for Janelle’s being awarded the 1986 Oldsmobile, lien free; and (3) the 401(k) funds were to be divided in half, with each party receiving approximately $10,000. However, Janelle claimed that she should receive more than one-half of the 401(k) funds because Les overdrew from the plan. The parties divided up the rest of the household goods and furnishings without much conflict. A 1977 truck and a 1978 truck were awarded to Les, and Janelle was awarded her pension in the amount of $2,388.12.

With respect to attorney fees, Janelle and her attorney testified that Janelle incurred attorney fees and costs totalling $5,011.40, $2,700 of which had been paid by marital funds. The balance due her attorney totalled $2,311.40. By the time of the dissolution hearing, Les had paid his attorney $3,718.90.

After the hearing, the trial court ordered Les to pay Janelle’s attorney $1,000 in attorney fees and $1,550 to Janelle for the money he had “overdrawn” from the 401(k) funds. The court further found that rehabilitative maintenance was appropriate for Janelle in the amount of $310 per month for 872 years.

Les filed a post-trial motion contesting the award of rehabilitative maintenance, repayment of the 401(k) funds, and attorney fees to Janelle. At the hearing on that motion, the court reserved jurisdiction on the award of maintenance to review it in four and seven years. The court explained its award of maintenance by explicitly stating:

“[The] court is not going to place upon the Respondent [Janelle] the burden of showing efforts for employment during the period of time. The Court entered an award as it now exists and is now being amended principally based upon the age of the children of the marriage, and the possibility that she would be seeking employment.”

II. Analysis

A. Maintenance

Les first argues on appeal that the maintenance awarded Janelle was both an abuse of discretion and against the manifest weight of the evidence because it was excessive in amount and duration. He also claims that the trial court abused its discretion in providing for maintenance review provisions in four and seven years. Last, Les contends that the trial court erred when it ordered, contrary to law, that Janelle was under no duty to show efforts for her employment for the duration of her maintenance award.

Initially, we note that an award of maintenance is within the discretion of the trial court and will not be reversed on appeal unless it constitutes an abuse of discretion or is against the manifest weight of the evidence. In re Marriage of Hart (1990), 194 Ill. App. 3d 839, 851, 551 N.E.2d 737, 744; In re Marriage of Zummo (1988), 167 Ill. App. 3d 566, 521 N.E.2d 621.

Section 504 of the Illinois Marriage and Dissolution of Marriage Act (Act) states the following with respect to maintenance:

“[T]he court may grant a maintenance order for either spouse, only if it finds that the spouse seeking maintenance:
(1) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, and
(2) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home, or
(3) is otherwise without sufficient income.
(b) The maintenance order shall be in such amounts and for such periods of time as the court deems just, made without regard to marital misconduct and may be in gross or for fixed or indefinite periods of time and the maintenance may be made from the income or property of the other spouse after consideration of all relevant factors ***.” (Ill. Rev. Stat. 1989, ch. 40, pars. 504(a), (b).)

That section further directs the court to consider the following factors in deciding the amount of maintenance:

“(1) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) the standard of living established during the marriage;
(4) the duration of the marriage;
(5) the age and the physical and emotional condition of both parties;
(6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; and
(7) the tax consequences of the property division upon the respective economic circumstances of the parties.” Ill. Rev. Stat. 1989, ch. 40, par. 504(b).

We find that the evidence clearly supported the trial court’s determination that Janelle is entitled to maintenance for the length of time and in the amount awarded to her. At the time of the hearing, Janelle received $121.66 per week in net income. She also is to receive $112.34 per week in child support for her two young sons. These sums total about $936 per month. However, she had no other income. In her last financial affidavit, Janelle listed her monthly expenses as totalling approximately $1,800, leaving a monthly deficit of approximately $864. Even if Janelle had been “free” to obtain a better paying job (she worked a total of 21 hours per week so that she could take care of her children), she would still have been unable to provide for her and the children’s monthly needs. Janelle is not required to sell her assets or her capital in order to maintain herself and the children in the manner established during the marriage. (In re Marriage of Emery (1989), 179 Ill. App. 3d 744, 750, 534 N.E.2d 1014, 1018.) The award of maintenance was neither an abuse of discretion by the trial court nor against the manifest weight of the evidence.

With respect to Les’ second contention regarding Janelle’s maintenance award — that the trial court abused its discretion in reserving jurisdiction to review Janelle’s maintenance award in four and seven years — we find no abuse of discretion. This order merely provided the court with an opportunity to review the maintenance award at the end of two fixed periods in order to determine whether the amount and terms of the maintenance award continue to be appropriate or should be modified.

In In re Marriage of Asch (1981), 100 Ill. App. 3d 293, 298, 426 N.E.2d 1066, 1069, the trial court similarly chose to reserve jurisdiction to review the award of maintenance after three years in order “to avoid the speculation often inherent in future maintenance awards.”

The last argument Les makes regarding Janelle’s maintenance award is that the trial court erred when it held that Janelle was under no duty to enhance her employment situation while receiving maintenance. Citing primarily In re Marriage of Henzler (1985), 134 Ill. App. 3d 318, 480 N.E.2d 147, and In re Marriage of Mittra (1983), 114 Ill. App. 3d 627, 450 N.E.2d 1229, Les argues that the Act “places an affirmative obligation on the party receiving maintenance to become financially independent in the future, either by seeking self-supportive employment, or by obtaining appropriate training and skills.” We disagree that the goal of becoming financially independent is required in all cases where maintenance is awarded.

In Henzler, the parties were divorced in 1980 after 20 years of marriage. (Henzler, 134 Ill. App. 3d at 319, 480 N.E.2d at 148.) The ex-wife was awarded maintenance in the sum of $1,000 per month for the stated purpose of providing her an opportunity “ ‘to permit [the ex-wife] to acquire marketable job skills and become self-supporting.’ ” (Henzler, 134 Ill. App. 3d at 320, 480 N.E.2d at 148.) Because the father was ordered to contribute to the educational expenses of the parties’ daughter and no child support was ordered, it appears that there was no unemancipated child of the marriage still living with the ex-wife. (Henzler, 134 Ill. App. 3d at 320, 480 N.E.2d at 148.) In 1984, the ex-husband filed a petition to terminate or abate maintenance, stating that the ex-wife had obtained a college degree in accounting, acquired marketable skills enabling her self-sufficiency, and was gainfully employed. (Henzler, 134 Ill. App. 3d at 321, 480 N.E.2d at 149.) The trial court reduced the monthly maintenance award from $1,000 to $750, and this court reversed, finding that the petition for termination should have been granted. (Henzler, 134 Ill. App. 3d at 323, 480 N.E.2d at 150.) In so holding, this court, citing its earlier decision in Mittra, wrote: “[I]t is inherent in the concept of rehabilitative maintenance under the [Act] that the ex-spouse awarded maintenance is under an affirmative obligation to seek appropriate training and skills to become financially independent in the future.” (Henzler, 134 Ill. App. 3d at 322, 480 N.E.2d at 149, citing Mittra, 114 Ill. App. 3d at 634-35, 450 N.E.2d at 1234.) The court concluded in Henzler that, because the statutory goal of rehabilitative maintenance had been achieved, the petition for termination should have been granted. Henzler, 134 Ill. App. 3d at 323, 480 N.E.2d at 150.

In Mittra, the parties had been married approximately 23 years and had three children; two were attending college at the time of the dissolution, and custody of the third child was awarded to the ex-wife, with the ex-husband directed to pay child support. (Mittra, 114 Ill. App. 3d at 629, 450 N.E.2d at 1231.) At the time of the dissolution of the marriage in Mittra, the husband was 49 years old and the wife was 46 years old. (Mittra, 114 Ill. App. 3d at 629, 450 N.E.2d at 1231.) The ex-wife was awarded maintenance in the amount of $1,800 monthly, and the ex-husband challenged the amount and duration of that order. (Mittra, 114 Ill. App. 3d at 629, 450 N.E.2d at 1231.) This court affirmed, but noted that the ex-wife was under an affirmative obligation to seek appropriate training and skills to become financially independent in the future, stating that the ex-wife’s failure to make good-faith efforts to do so might form the basis for a petition to modify the maintenance award. Mittra, 114 Ill. App. 3d at 634-35, 450 N.E.2d at 1234.

Similar language was used in In re Marriage of Heller (1987), 153 Ill. App. 3d 224, 505 N.E.2d 1294, where, at the time of the dissolution of the parties’ marriage, the wife was 47 years old, the husband was 51 years old, the two children of the marriage were emancipated, and the wife was awarded permanent maintenance of $3,500 per month. (Heller, 153 Ill. App. 3d at 227-28, 505 N.E.2d at 1296.) The appellate court held that the award of permanent maintenance was an abuse of discretion, “but only to the extent that it failed to make provision for review of the award.” (Heller, 153 Ill. App. 3d at 235, 505 N.E.2d at 1301.) The court then stated the following:

“Here, notwithstanding the facts that at the time of trial [the wife] was a healthy 47-year-old woman, free of raising a family, with a college degree in teaching, training as a travel agent, and experience in culinary cooking, her part-time employment at $105 per week and/or her anticipated $15,000 annual income from full-time employment as a travel agent was clearly disproportionate to the standard of living established during the marriage. However, in light of the facts that [she] is well-educated and her earning capacity speculative, we believe it would have been more appropriate for the trial court to have reserved for review the maintenance award after a given period of time [citation], such as every five years, in order to reassess [her] ability to become financially independent.” (Emphasis added.)Heller, 153 Ill. App. 3d at 235, 505 N.E.2d at 1301.

What makes the present case distinguishable from the foregoing cases is that here Janelle, as the custodian of her two young children, has elected to do only part-time work so that she may be more of a homemaker to those children than if she had full time employment. We believe the trial court’s order, when properly understood, amounts to an approval of Janelle’s election and a finding that her part-time employment plus acting as a homemaker for her children is fully equivalent to her obtaining full-time employment and placing those children in day care. We hold the trial court’s conclusions in this regard were well within its discretion. In so holding, we note that section 504(a)(2) of the Act specifically provides that maintenance is appropriate if the court finds that the spouse seeking maintenance “is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.” (Ill. Rev. Stat. 1989, ch. 40, par. 504(a)(2).) That language authorizes the court, as here, to award maintenance in order to permit the custodial ex-spouse, if he or she elects to do so, to be employed full time or part time as a homemaker. Section 504(a)(2) of the Act, as so construed, is simply reflective of the legislative judgment of the importance, dignity, and worth of the role of homemaker.

When the children in the present case have become emancipated, then the factual circumstances of this case will be more akin to those in Henzler, Mittra, and Heller. However, at that point the maintenance order, being 8V2 years in duration, will have expired. Accordingly, at this point in the proceedings, we find no abuse in the trial court’s exercise of discretion in awarding maintenance so as to permit Janelle to be a homemaker.

B. Dissipation of the 401(h) Account

Les next argues that the trial court erred in ordering him to pay Janelle $1,550 as a result of excessive withdrawals he made from his CILCO 401(k) plan. Specifically, he claims that because the trial court authorized him to use funds from his 401(k) plan for payment of living expenses for both parties, and because he presented a detailed accounting of all major expenditures made from that plan during the pendency of the dissolution proceeding, the trial court abused its discretion in finding that Les dissipated marital assets.

We find In re Marriage of Rai (1989), 189 Ill. App. 3d 559, 565, 545 N.E.2d 446, 449-50, helpful in analyzing this issue. In Rai, the court stated the following:

“Dissipation has been defined as one spouse’s use of marital property for his or her own benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. [Citation.] *** Whether a given course of conduct constitutes dissipation depends upon the facts of each case. [Citation.] The explanation given by the spouse charged with dissipation as to how funds were spent requires the trial court to determine his or her credibility. [Citation.] Where the funds are spent for legitimate *** purposes, there is no dissipation. [Citation.] The spouse charged with dissipation of marital funds has the burden of showing, by clear and specific evidence, how the funds were spent. [Citation.] If expenditures are not documented adequately by the person charged with dissipation, courts will affirm a finding of dissipation. [Citation.] General and vague statements that funds were spent on marital expenses or to pay bills are inadequate to avoid a finding of dissipation. [Citation.] Whether there was dissipation is a matter for the trial court’s discretion, and a finding concerning dissipation will not be disturbed unless it is against the manifest weight of the evidence.”

Here, we find that the trial court did not abuse its discretion in finding that Les dissipated the marital assets and in ordering that Les pay Janelle $1,550 for dissipation of those assets. At the property settlement hearing, Les failed to establish by clear and specific evidence how the funds were spent or that he used them for living expenses on a share-and-share-alike basis. While Les prepared an accounting showing all major payments by him during the pendency of the dissolution proceeding, he gave vague statements about the unaccounted-for funds spent on his living expenses. He also admitted that he was unsure of where all the money went that he withdrew from the 401(k) plan.

C. Attorney Fees

Last, Les argues that the trial court erred in awarding Janelle $1,000 in attorney fees. We agree. While the allowance of attorney fees is within the sound discretion of the trial court (In re Marriage of Bussey (1985), 108 Ill. 2d 286, 299, 483 N.E.2d 1229, 1235; In re Marriage of Stockton (1988), 169 Ill. App. 3d 318, 328, 523 N.E.2d 573, 580), the propriety of an award of attorney fees is dependent upon (1) a showing by the party seeking them of an inability to pay, and (2) a demonstration of the ability of the other party to do so. Bussey, 108 Ill. 2d at 299-300, 483 N.E.2d at 1235; Stockton, 169 Ill. App. 3d at 328, 523 N.E.2d at 580.

At the hearing on attorney fees, Janelle presented no evidence that she was unable to pay her own attorney fees or that Les was in a better financial position to pay them than she was. By the time their marriage was dissolved, Janelle had already used $2,700 in marital funds to pay her attorney, as had Les. In addition, Janelle was awarded $30,000 in cash assets, most of the household goods, and her pension. She was also awarded a lien-free 1986 Oldsmobile, and she was employed at $7.25 an hour. According to their affidavits, both parties were “short of money” and were unable to pay all their monthly expenses. Based upon these facts, the trial court should have ordered each party to pay his or her own attorney fees. Accordingly, we reverse the trial court’s order on this issue.

III. Conclusion

For the reasons stated, we affirm the trial court’s award of maintenance to Janelle and the trial court’s order that Les pay Janelle $1,550 for dissipation of marital assets. We reverse that part of the trial court’s order awarding attorney fees to Janelle in the amount of $1,000.

Affirmed in part; reversed in part.

LUND, P.J., and SPITZ, J., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    ELIZABETH F. CANFIELD, Ex’r of the Estate of Edith Dahlstrom, Deceased, Plaintiff-Appellant, v. STEVEN DELHEIMER, Defendant-Appellee.
    Second District
    No. 2 — 90—0929
    Opinion filed April 2, 1991.
    — Rehearing denied May 1, 1991.

      James R. Canfield, of Canfield Law Offices, of Rockford, for appellant.
    Gregory P. Guth and Roberta L. Holzwarth, both of Holmstrom & Green, P.C., of Rockford, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court;

Plaintiff, Elizabeth Canfield, as executor of the estate of Edith Dahlstrom (decedent), appeals from an order of the circuit court of Winnebago County, which granted summary judgment in favor of defendant, Dr. Steven Delheimer. Plaintiff contends that there are genuine issues of material fact concerning informed consent and whether defendant breached the standard of care of a neurosurgeon when he operated on decedent.

On October 4, 1988, plaintiff filed a complaint seeking $950,000 in damages based upon defendant’s alleged negligence during a surgical procedure. The complaint alleged that decedent entered Swedish-American Hospital on February 28, 1983, due to problems with dizziness. A tumor was discovered during an examination, and surgery was set for March 18, 1983. Defendant performed the surgery on this day, and a biopsy of the tumor revealed that it was a nonmalignant meningioma. Defendant continued with the surgery in an attempt to resect the tumor, but instead caused “a vascular insult to [decedent’s] right frontal lobe and caused hypothenic damages.” Plaintiff alleged that defendant failed to inform decedent of the risks associated with the “massive” surgery he performed. As a result of the surgery, decedent suffered permanent physical and mental injuries which required her to live in a nursing home.

On April 27, 1989, decedent died. Nearly one year later, plaintiff filed an amended complaint in which she alleged that defendant was also negligent by failing to utilize an anteriogram study prior to surgery and should have used an alternative surgical procedure due to the location of the tumor.

On May 16, 1990, plaintiff filed a second amended complaint in which she alleged that defendant also should not have operated on decedent because her potassium level was such that she was “dangerously hypokalemic.”

Plaintiff filed a third amended complaint one week later in which she changed her damages requested to include $750,000 for pain and suffering and $230,833.74 for medical, hospital and nursing expenses. Also on this date, defendant filed two motions for summary judgment. The first motion concerned the informed consent issue, while the second one dealt with “whether [defendant’s] ‘approach’ to this surgery was malpractice.”

On May 30, 1990, the trial court heard arguments on both of defendant’s motions for summary judgment and granted the motions “on all issues.” This order was filed on June 22, 1990. On June 13, 1990, plaintiff filed a motion to vacate the court’s order, arguing that legitimate questions of fact remained in the case.

On July 26, 1990, the court indicated that the evidence depositions of plaintiff’s expert witnesses presented no testimony that defendant deviated from the standard of care. The court noted that one expert, Dr. Martins, simply indicated that it was a “judgment call” and was not a deviation from the standard of care. The court then stated: “So anyway, the Plaintiff’s Motion to Reconsider the Court’s granting of the Defendant’s Motion for Summary Judgment is heard and denied. I guess that makes our record on the matter.” Defendant’s attorney then informed the court that she could “prepare an order to that effect.” The court responded: “All right. Thank you.” No written order concerning the court’s denial of plaintiff’s motion to vacate appears in the record on appeal. Plaintiff filed her notice of appeal on August 23,1990.

Before addressing the merits of this appeal, we must first determine whether we have jurisdiction to consider this appeal. Although neither party has questioned our jurisdiction, we have a duty to raise it sua sponte and dismiss the appeal if we determine that we do not have jurisdiction. (Waitcus v. Village of Gilberts (1989), 185 Ill. App. 3d 248, 250; Sutherland v. Norbran Leasing Co. (1988), 180 Ill. App. 3d 95, 96.) At issue in this case is whether the absence of a written order affects our jurisdiction.

Supreme Court Rule 272 (134 Ill. 2d R. 272) provides:

“If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record.” (134 Ill. 2d R. 272.)

The purpose of this rule is to remove any doubt regarding when a judgment is entered or becomes final. (Stoermer v. Edgar (1984), 104 Ill. 2d 287, 293; Ahn Brothers, Inc. v. Buttitta (1986), 143 Ill. App. 3d 688, 690.) Furthermore, Rule 272 provides for two alternatives: (1) either a written order is necessary; or (2) no written order is necessary and the judgment is entered when it becomes of record. Ahn Brothers, 143 Ill. App. 3d at 690; Hasty v. Kilpatrick (1985), 130 Ill. App. 3d 859, 861.

In the present case, the trial court orally denied plaintiffs motion for reconsideration, after which defense counsel stated that she would prepare an order. The court stated: “All right. Thank you.” The clerk then made the following entry on the record sheet: “Motion to reconsider heard and denied. See Order.” No written order was ever filed.

It is our opinion that the trial court expected a written order to be submitted for its approval. In a situation such as this, the judgment becomes final only when the signed judgment is filed. (See Stoermer, 104 Ill. 2d at 292-93; 134 Ill. 2d R. 272; see also In re Marriage of Roberts (1980), 84 Ill. App. 3d 538, 541.) Until the written judgment is filed, the proceedings are in a “state of temporary abeyance and the bare announcement of the final judgment cannot be enforced.” (In re Marriage of Black (1987), 155 Ill. App. 3d 52, 54.) Furthermore, in the time between the announcement of judgment and the entry of the order, the judgment cannot be appealed. (Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 441; Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 538-39.) Because no judgment was entered of record in this case, the filing of the notice of appeal on August 23, 1990, did not satisfy the jurisdictional requirements of Supreme Court Rule 303(a) (134 Ill. 2d R. 303(a)), which requires that the notice of appeal be filed within 30 days of the entry of the final judgment from which the appeal is taken. See Ahn Brothers, 143 Ill. App. 3d at 691.

It is well established that this court does not have jurisdiction to consider an appeal from a judgment which has yet to be entered. (See Illinois State Toll Highway Authority v. Marathon Oil Co. (1990), 200 Ill. App. 3d 836, 841.) Accordingly, we must dismiss this appeal.

In making this determination, we also note that this appeal must also be dismissed for another reason. It is undisputed that defendant’s motions for summary judgment were granted on May 30, 1990, as the record sheet states: “Court enters Judgment in favor of defendant and against the plaintiff. See Order.” This order was entered on June 22, 1990. However, plaintiff filed a motion to reconsider the court’s order on June 13, 1990. A motion to reconsider a judgment must be filed within 30 days after the challenged judgment is entered. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1203; Barth, 103 Ill. 2d at 538.) Plaintiff’s premature motion to reconsider the court’s judgment was not filed within 30 days after the order granting defendant’s motions for summary judgment was entered. Therefore, the June 13, 1990, motion to reconsider was untimely (see Barth, 103 Ill. 2d at 539), and an untimely post-judgment motion does not extend the time for filing a notice of appeal (103 Ill. 2d at 539; Sears v. Sears (1981), 85 Ill. 2d 253, 259). Consequently, the notice of appeal filed on August 23, 1990, filed more than 30 days after the June 22, 1990, order was entered, does not vest this court with jurisdiction, and we must dismiss the appeal.

Appeal dismissed.

WOODWARD and NICKELS, JJ., concur.


author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL S. JOYCE, Defendant-Appellant.
    Second District
    No. 2 — 89—0139
    Opinion filed March 28, 1991.
    — Rehearing denied May 6, 1991.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, and Eleesha Pastor O’Neill, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Michael Joyce, appeals from his child abduction conviction (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 5(b)(10)). He raises six issues which can be summarized as follows: (1) whether section 10— 5(b)(10) of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 5(b)(10)) is unconstitutionally vague; (2) whether the indictment insufficiently set out the nature and elements of the offense; (3) whether the jury instructions conveyed an unconstitutional presumption; (4) whether the jury instructions were deficient since they did not define the statutory language of “other than a lawful purpose”; (5) whether the defendant was proved guilty beyond a reasonable doubt; and (6) whether the defendant was denied a fair trial by the introduction of evidence that he exercised his constitutional rights during interrogation. We reverse and remand.

On February 16, 1988, a Kane County grand jury indicted the defendant on one count of child abduction (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 5(b)(10)). A later amended indictment alleged that on January 14, 1988, the defendant intentionally attempted to lure M.W., a child under age 16, into a motor vehicle for other than a lawful purpose and without the consent of a parent.

The defendant sought a bill of particulars to specify both the manner of the alleged attempt to lure M.W. into a motor vehicle and the unlawful purpose that the defendant allegedly harbored at the time. The trial court ordered the State to amend its indictment to include the possible unlawful purposes harbored by the defendant. The State supplemented its indictment by adding a list of 29 possible “unlawful purposes” which included homicide, kidnapping, sexual assault, tattooing the body of a minor, and violation of bail bond.

The defendant then moved to dismiss the indictment, alleging, inter alia, that section 10 — 5(b)(10) of the Code is vague, overly broad, and unenforceable and that, by creating an improper presumption, section 10 — 5(b)(10) shifts the burden of proof to the defendant to prove a lawful intent or innocence. On June 9, 1988, the trial court denied the motion, finding that section 10 — 5(b)(10) was not unconstitutionally vague or overly broad and that it did not shift the burden of proof to the defendant.

The defendant again moved to dismiss the indictment. He sought reconsideration of the trial court’s denial of his June 9 motion. He additionally argued that section 10 — 5(b)(10) of the Code improperly combines choate and inchoate offenses since, in contradiction of the attempt statute (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4), luring and attempting to lure a child are treated the same. The trial court denied both reconsideration of its June 9 order and the new motion to dismiss.

Before trial, the defendant moved in limine to prevent the State from introducing evidence that the defendant chose to exercise his constitutional rights after being given Miranda warnings at the time of his arrest. The trial court granted this motion.

On October 24, 1988, the cause proceeded to trial. The State called M.W., M.W.’s aunt D.K., M.W.’s mother D.W., and four Batavia police officers to testify. The defense did not present any evidence.

The following testimony was elicited during trial. M.W. was born on March 20, 1975. In January 1988, she was living with her aunt in Batavia. On January 14, neither her aunt nor her mother gave the defendant permission to ask M.W. into a car or to give her a ride home from school.

On January 14, M.W. left Batavia Junior High School at 2:50 p.m. and walked home alone. While she was walking, a light blue pickup truck passed her heading in the opposite direction. The driver honked his horn and waved. M.W. waved back, thinking he was someone she knew. She noticed the truck turn around to head in her direction.

As M.W. tried to cross a street, the truck turned to block her from crossing. The driver rolled down his window and asked M.W. if she wanted a ride home. M.W. told him, “[n]o,” and kept walking.

The driver asked her name, and she replied, “Sarah.” He then stated, “Sarah, get into the truck. I don’t bite, and I will give you a ride home.” M.W. again said, “No.” She then walked behind the truck to get the license number. Once M.W. walked behind the truck, the driver turned the corner and left. M.W. reported the incident to the police and gave them a description of the truck, its driver, and the license plate number.

On January 15, 1988, Batavia police sergeant Donald Hubbard was on patrol. He noticed a light blue pickup truck pass his squad car. The truck description and the license plate number matched the one in a police report that Sergeant Hubbard had read. He stopped the truck, which was driven by the defendant.

Sergeant Hubbard told the defendant that he had been stopped because he and his truck matched the descriptions from an “attempted child pick up.” Hubbard testified that the defendant then stated, “It doesn’t surprise me that I would be accused of this.” The defendant denied that he had been involved in the attempted “pickup” but that he may have stopped to ask someone for directions. Hubbard arrested the defendant for “attempted child abduction.”

At Hubbard’s request, the defendant followed him to the police station. The defendant received Miranda warnings and was questioned by investigators John Albertson and Fred Buss. Buss testified that he told the defendant that there was no doubt that he had done what the victim had claimed he had done. The defendant initially replied that he did not feel that he could talk about it since he had “a lot of problems” in his life. From the defendant’s statements, Buss opined that the defendant’s unlawful purpose in “luring” M.W. to his truck was for “[s]exual purposes.”

Later on January 15, M.W. came to the Batavia police station. Investigator Albertson showed her six photographs, one being the defendant’s photograph. M.W. selected the defendant’s photograph as that of the person who had told her to get in his truck on the previous day. She also identified the defendant at trial.

After the photographic identification, Albertson spoke with the defendant in the booking area. He informed the defendant of the charge against him. The defendant asked him if his court-appointed attorney would arrive soon. Albertson replied, “no,” but further told him, “[i]f you wish to make a call to a lawyer of your choice, I will provide you with a phone, but if you want a Court appointed lawyer, you will have to make that request to a Judge at bond call.”

The defendant told Albertson that he was not trying to be uncooperative, but that he felt that he should talk to an attorney. Albertson then advised the defendant that he would not be asking the defendant any further questions since he had requested an attorney. Approximately one minute later, the defendant said, “Well, this is what I was going to tell my lawyer anyway.” He then made the following statement. On January 14, he was driving in his truck, which he described as having a “funny” horn which “goes off by accident often when he touches it.” While he was driving, he saw a girl on the sidewalk. He could not tell how old she was because of her winter clothing. He “accidentally” sounded his horn and the girl waved at him. He turned his truck around and pulled up alongside her. He spoke to the girl, but did not remember whether she responded. She hesitated for a “couple of seconds” and then walked away from the truck.

The defendant told Albertson that he was “not trying to pick the girl up” and that “[i]t would not have done” him “any good” since he was impotent. After that, the defendant made no further statements which pertained to this case.

On cross-examination, Albertson admitted that he was not able to uncover any evidence that the defendant attempted to commit a sexual assault on M.W. The State rested after his testimony.

The defense did not present any testimony. After the instruction conference, the defendant moved for a directed verdict which the trial court denied.

The State’s proffered instructions defined the offense of child abduction under section 10 — 5(b)(10) and defined “prima facie” evidence. The trial court, over the defendant’s objection, gave the proffered jury instructions.

The jury returned a guilty verdict on the child abduction charge. Judge McCarthy entered judgment on the verdict. On December 1, 1988, the date that the trial court had scheduled for the defendant’s sentencing, the defense counsel orally moved for a new trial. The trial court denied the oral motion, but granted the defendant an extension of time to file a written motion. The trial court sentenced the defendant to two years’ probation. Judge McCarthy retired from the bench shortly thereafter.

On December 14, 1988, the defendant filed his written motion for a new trial. The State indicated that it had no objection to the written motion. Judge DiMarzio, the judge who had taken Judge McCarthy’s trial call, noted that Judge McCarthy had ruled on the motion when it was presented orally and denied relief. This appeal followed.

The first issue on appeal is whether section 10 — 5(b)(10), forbidding the luring or the attempting to lure a child “for other than a lawful purpose,” is unconstitutionally vague and indefinite. Section 10 — 5(b)(10) provides:
“(b) A person commits child abduction when he or she: * * *
(10) Intentionally lures or attempts to lure a child under the age of 16 into a motor vehicle without the consent of the parent or lawful custodian of the child for other than a lawful purpose.
For the purposes of this subsection (b), paragraph (10), the luring or attempted luring of a child under the age of 16 into a motor vehicle without the consent of the parent or lawful custodian of the child shall be prima facie evidence of other than a lawful purpose.” Ill. Rev. Stat. 1987, ch. 38, par. 10 — 5(b)(10).

Recently, our supreme court rejected an argument similar to the one the defendant raises here. In People v. Williams (1990), 133 Ill. 2d 449, the trial court dismissed the defendant’s indictment, finding section 10 — 5(b)(10) impermissibly vague. (133 Ill. 2d at 450.) As in this case, the defendant in Williams first argued that the phrase “for other than a lawful purpose” was impermissibly vague because it is not defined in the Code. (133 Ill. 2d at 452-53.) Our supreme court found that the phrase was not impermissibly vague and stated that “[g]iven its ordinary meaning, the phrase ‘other than a lawful purpose’ means any purpose which is unlawful.” (133 Ill. 2d at 454.) The court further stated, “It is unquestioned that the State has a substantial interest in the protection of its children, and may validly proscribe the luring or attempted luring of children into motor vehicles for criminal purposes ***.” 133 Ill. 2d at 457.

The defendant argues that the Williams court did not consider his argument that the phrase, “other than a lawful purpose,” which applies to the act of luring or attempting to lure a child into a vehicle, “is not the most definite actus reus for a crime.” The defendant points to section 10 — 5(c)(4) of the Code, which in pertinent part provides:

“It shall be an affirmative defense that: * * *
(4) The person lured or attempted to lure a child under the age of 16 into a motor vehicle for a lawful purpose in prosecutions under subsection (b), paragraph (10).” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, par. 10-5(c)(4).

The defendant argues that the phrase “for a lawful purpose” still remains undefined, since the phrase “for a lawful purpose” was not defined in the Williams case. He argues that without such a definition, the State cannot prove the necessary intent to invoke the affirmative defense. However, as the Williams court found the ordinary meaning of the phrase, “other than a lawful purpose,” to refer to any unlawful purpose (see 133 Ill. 2d at 454), we find that the ordinary meaning of the phrase, “for a lawful purpose,” refers to any purpose that is lawful.

The defendant then argues that the Williams court “did not give its narrowing construction to the element of unlawful purpose until after the defendant was tried and convicted.” The defendant contends that the trial court and the jury were not given the benefit of that narrowed construction in deciding whether he acted in a manner “other than a lawful purpose.”

We note that the Williams court gave the phrase, “other than a lawful purpose,” its “ordinary meaning.” (133 Ill. 2d at 454.) We find that the jury would have applied the same “ordinary meaning” to the phrase “other than a lawful purpose” in determining the defendant’s guilt. See Williams, 133 Ill. 2d at 454.

The second issue on appeal is whether the trial court erred in failing to dismiss the indictment. The defendant argues that although the indictment tracks the language of section 10 — 5(b)(10), the offense is one which requires greater specificity in the charge.

When reviewing the sufficiency of a charging instrument which has been challenged, the court must determine whether the complaint or information comports with the statutory requirements that the charge be in writing and that it state the name of the offense, the statutory provision alleged to have been violated, and the nature and elements of the offense pursuant to the Code. (Ill. Rev. Stat. 1987, ch. 38, par. 111 — 3(a); People v. Pisani (1989), 180 Ill. App. 3d 812, 815.) The statute’s language can serve to apprise a defendant of both the nature and the elements of the offense, so long as the statutory language specifies, with reasonable certainty, the type of conduct being alleged. (People v. Clay (1988), 167 Ill. App. 3d 628, 634.) Section 111 — 3(a) requires:

“A charge shall be in writing and allege the commission of an offense by:
(1) Stating the name of the offense;
(2) Citing the statutory provision alleged to have been violated;
(3) Setting forth the nature and elements of the offense charged;
(4) Stating the date and county of the offense as definitely as can be done; and
(5) Stating the name of the accused, if known, and if not known, designate the accused by any name or description by which he can be identified with reasonable certainty.” Ill. Rev. Stat. 1987, ch. 38, par. 111 — 3(a).

The indictment here initially tracked the statutory language of section 10 — 5(b)(10). After the trial court granted the defendant’s bill of particulars, the State amended its indictment to include 29 possible “unlawful purposes.” The defendant, however, argues that this case presents a situation where a charge which tracks the statutory language of the offense is insufficient to apprise the defendant of the offense.

We note that in Williams the defendant’s indictment tracked the language of section 10 — 5(b)(10), charging that the defendant attempted to lure a child under the age of 16 into his car without the consent of her parent or legal guardian “for other than a lawful purpose.” The indictment did not specify any particular unlawful purpose harbored by the defendant at the time he allegedly attempted to lure the child into his car. (133 Ill. 2d at 451.) The conduct of the State in filing its response to the defendant’s request for a bill of particulars was inappropriate. Such overly broad and cavalier conduct is not approved by this court. However, the indictment that the supreme court approved in Williams was no more specific than the one here. We therefore find that the defendant was sufficiently apprised of both the nature and the elements of the offense. See Williams, 133 Ill. 2d at 454.

The third issue on appeal regards the jury instructions on prima facie evidence. Those instructions allowed the jury to find that the defendant acted with other than a lawful purpose if it found the other elements of section 10 — 5(b)(10) to be proved. The defendant argues that these instructions denied him due process of law by creating either an unconstitutional mandatory rebuttable presumption or a permissive inference which alone would be insufficient to establish the element of unlawful purpose.

Evidentiary devices known as presumptions are categorized into two groups, mandatory and permissive. (People v. Hester (1989), 131 Ill. 2d 91, 99.) A mandatory presumption is one that the fact finder is not free to reject. The trier of fact must find the presumed elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts. (County Court v. Allen (1979), 442 U.S. 140, 157, 60 L. Ed. 2d 777, 792, 99 S. Ct. 2213, 2225; People v. Haas (1990), 203 Ill. App. 3d 779, 793-94.) A permissive presumption leaves the trier of fact free to accept or reject the connection between the presumed fact and the basic fact. (County Court, 442 U.S. at 157, 60 L. Ed. 2d at 792, 99 S. Ct. at 2224-25.) In criminal cases, the ultimate test of any presumption’s constitutional validity remains constant: the presumption must not undermine the fact finder’s responsibility at trial to find the ultimate facts beyond a reasonable doubt, based on evidence adduced by the State. (County Court, 442 U.S. at 156, 60 L. Ed. 2d at 791, 99 S. Ct. at 2224.) To determine whether a presumption contained in a jury instruction is mandatory or permissive, a court must examine the words contained in the jury instruction. Hester, 131 Ill. 2d at 100.

In this case, the questioned jury instructions included the following:

“A person commits the offense of Child Abduction when he intentionally attempts to lure a child under the age of sixteen into a motor vehicle, for other than a lawful purpose, without the consent of the parent of the child.
To sustain the charge of Child Abduction, the State must prove the following propositions:
First: That the defendant intentionally attempted to lure [M.W.] into a motor vehicle;
Second: That the defendant did so without the consent of the parent of [M.W.];
Third: That the defendant did so for other than a lawful purpose;
Fourth: That [M.W.] was under the age of sixteen at the time of the incident.
If you find from your consideration of all the evidence that each one of the propositions has been proved beyond a reasonable doubt you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of the propositions has not been proved beyond a reasonable doubt you should find the defendant not guilty. [(People’s Instruction 10.)] * * *
Prima facie evidence means such evidence as is sufficient to establish a given fact. [(People’s Instruction 13.)] * * *
The attempted luring of a child under the age of sixteen into a motor vehicle without the consent of the parent may be prima facie evidence of other than a lawful purpose. You are never required to find prima facie evidence. In determining whether or not the defendant’s purpose was other than lawful, you may take into consideration any other evidence presented in the case.” People’s Instruction 12.

The problem with these instructions is the definition of “prima facie evidence.” Prima facie evidence is such evidence which may be rebutted by competent evidence. (People v. Embry (1988), 177 Ill. App. 3d 96, 100-01, citing Morrison v. Flowers (1923), 308 Ill. 189, 195.) We find that by failing to instruct the jurors that prima facie evidence may be rebutted or contradicted, the trial court created a mandatory presumption. (See County Court, 442 U.S. at 157, 60 L. Ed. 2d at 792, 99 S. Ct. at 2225.) The instructions, as worded, undermine the jury’s responsibility to find the ultimate facts of the defendant’s guilt beyond a reasonable doubt, based on the evidence that the State presented. (See Hester, 131 Ill. 2d at 100.) The trial court has thus denied the defendant his due process rights, and we must reverse the judgment and remand the cause for a new trial. In deciding to remand, we make the necessary determination that the defendant was proved guilty beyond a reasonable doubt so that his retrial will not present the risk of a double jeopardy violation. (See People v. Taylor (1979), 76 Ill. 2d 289.) That determination, which we make without unnecessarily protracted comment, follows from our obligation on review to consider the evidence in the light most favorable to the prosecution. See People v. Collins (1985), 106 Ill. 2d 237.

Although we need not address the remaining issues on appeal, we note that, upon remand, the same issues will arise. We therefore choose to address them. The defendant’s fourth issue on appeal is whether he was denied a fair trial since the jury instructions did not define “for other than a lawful purpose.”

The defendant analogizes the offense of section 10 — 5(b)(10) to a burglary offense. Burglary occurs when one enters a building or other structure “with intent to commit therein a felony or theft” (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1). The Illinois Pattern Jury Instructions for the offense require mention of a “felony or theft” that the defendant intended to commit. (Illinois Pattern Jury Instructions, Criminal, Nos. 14.05, 14.06 (2d ed. 1981).) He argues, by analogy, that the instructions here should have specified the particular offense that was the defendant’s unlawful purpose.

As the State points out, the offense of burglary is different from this offense since the burglary statute requires a felonious intent, i.e., the intent to commit a misdemeanor would not sustain a conviction of burglary. (See People v. Palmer (1980), 83 Ill. App. 3d 732, 737.) However, section 10 — 5(b)(10) merely requires the intent to lure a child under the age of 16 into a motor vehicle for any unlawful purpose. (See Ill. Rev. Stat. 1987, ch. 38, par. 10 — 5(b)(10).) That phrase is not so obscure that people of “common intelligence must necessarily guess at its meaning and differ as to its applicability.” (Williams, 133 Ill. 2d at 454.) There is no need to determine whether the intent is felonious. We find that the giving of that instruction did not deny the defendant a fair trial.

The defendant, in his final issue on appeal, asserts prejudicial error in Investigator Buss’ observation that the defendant had asserted his right to silence and in Investigator Albertson’s testimony that the defendant had asserted his right to counsel. We find, as the defendant argues, that the challenged comments were covered by the court’s motion in limine precluding certain testimony. We further find that the challenged statements were inadmissible since they were neither material nor relevant. (See People v. McMullin (1985), 138 Ill. App. 3d 872, 877.) The testimony was improperly allowed.

The decision of the circuit court of Kane County is reversed and the cause remanded for a new trial.

Reversed and remanded.

BOWMAN and McLAREN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE PINTA, Defendant-Appellant.
    Second District
    No. 2 — 90—0255
    Opinion filed April 2, 1991.

      Peter B. Nolte, of Sreenan & Cain, P.C., of Rockford, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers, Cynthia N. Schneider, and Martin P. Moltz, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, George Pinta, appeals his two convictions of battery under section 12 — 3(aX2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 3(aX2)) and raises two issues on appeal. The first issue is whether the trial court properly applied section 115 — 10 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10(aX2)) in a prosecution for battery when it allowed the hearsay testimony of defendant’s ex-wife regarding alleged sexual contact between defendant and the victims, his daughters. The second issue is whether defendant was proved guilty beyond a reasonable doubt of knowingly committing the offense of battery by touching the victims’ groins when the alleged contact occurred during a tickling session initiated by the victims.

Defendant’s ex-wife, Donna Hames, was the first witness called at the bench trial and testified over defendant’s objection. Hames testified that while she and defendant were married, they had two daughters, J.P., age 8, and K.P., age 10. In March 1984, the couples’ marriage was dissolved. Hames was granted legal custody of the children, and defendant had visitation rights every other weekend, alternate holidays, and Wednesday evenings. Defendant had the children on the weekend of November 26, 1989, and on the following Wednesday evening, the daughters were scheduled to visit defendant again.

Following an objection by defendant and legal arguments regarding the applicability of section 115 — 10 of the Code, the court permitted Hames to testify further. Hames testified that K.P. told her that she did not want to go with defendant because he scares her and touches her in her privates. When Hames asked her how he does that, K.P. explained that defendant starts off by tickling her and her sister and then tickles them under the arms and grabs their breasts. K.P. told Hames that at other times defendant had tickled their legs and touched their privates. Hames testified that K.P. told her that defendant does this to them a lot and, specifically, that he did it the weekend of November 26, 1989. J.P. also told Hames that defendant had touched her in the same spots. J.P. reported that during that weekend, defendant had held her tightly between her legs and would not let go. J.P. said that he did the same thing to K.P. The girls were fully clothed at the time of the alleged incident. After they told their mother this information, defendant arrived, and the girls went with him to the library.

On cross-examination, Hames admitted that, although her marriage had been dissolved in 1984, she and defendant were back in court in 1985 to litigate child support and visitation rights. In 1989, defendant had filed a petition alleging that Hames had interfered with his visitation rights, and a judge warned her that he could enter sanctions, including a change in custody, for her interference of withholding the Wednesday visitations.

The State next examined J.P., age eight, with leading questions. She answered “[n]o” to the questions of whether her mother had told her what to say in court and whether she was making anything up. J.P. testified that on November 26, she and her sister were playing at their father’s house. At one time, defendant squeezed them between their legs by the knees. She asked him to stop squeezing, but he would not. Finally defendant let go, and J.P. went to the washroom because she could hardly breathe. J.P. testified that defendant had not been tickling her that day. The day defendant had been tickling her, she said, “[h]e tickled me under the arm and I think he accidentally got my chest.” She was wearing clothes while she was tickled.

The prosecutor then gave J.P. a dressed, anatomically correct doll. She used the doll to show where defendant had tickled her. The prosecutor asked that the record reflect that the witness had indicated the breast portion of the doll. The court disagreed and stated for the record that she indicated under the armpit. J.P. then said defendant had touched her in another part, “Right by where I go to the washroom,” and indicated the groin area of the doll, according to the prosecutor and the court. J.P. then demonstrated defendant’s hand movements, which was reflected in the record as a “grabbing motion.” J.P. did not say anything to defendant about how she felt, although she felt “gross.”

On cross-examination, J.P. stated that she and her sister often wrestled with their father, jumped on him, and tickled him. On the day in question, she and K.P. had jumped on him together, wrestled with him, and rolled all over. They were tickling him when he tickled them. After a while, they got tired and later went next door to play with a neighbor girl.

K.P., the next witness, responded that neither the prosecutor nor her mother had told her what to say in court. She testified that on November 26, 1989, she and J.P. were at defendant’s house with defendant and his girlfriend, Karen. K.P., J.P. and defendant were watching television and then were playing on the floor, laughing, wrestling and tickling each other. K.P. used the doll to show where defendant tickled her. Over defendant’s objection, the court let the record reflect that K.P. had indicated the crotch of the doll. She then explained that defendant had moved his hand while touching her between the legs, and she made an indication in court. K.P. testified that defendant tickled her and J.P. under the arm and the breast area. K.P. stated that she did not say anything to her father because she was scared of him. The court allowed K.E to testify that defendant had touched her in those private parts on previous occasions.

On cross-examination, K.P. testified that on November 26, 1989, they were watching football on television. She stated that she and her sister often wrestled with their father just for fun. They would jump on him, wrestle, tickle and laugh. On redirect examination, K.P. stated that immediately after the tickling, J.P. had run to the bedroom because defendant had thrown her down in a scissor lock.

Karen Szilkowski had been defendant’s girlfriend for two years. She testified that on November 26, 1989, she stood in the entranceway to the living room watching defendant and his two daughters. Defendant was watching the Bears football game on the television. K.P. came into the room and jumped on him and started tickling, as Karen had often seen her do. Defendant laughed and tickled back. Karen saw defendant’s hands; he tickled the girl’s rib-cage area and the outsides of her legs but nowhere else. J.P. then jumped in and started tickling both K.P. and defendant. Karen saw defendant touch J.P. on her back, her rib cage and the lower, outside part of her legs. Karen watched for two or three minutes, but missed seeing the end of their playing. Karen stated that the girls were laughing.

Defendant testified on his own behalf. He claimed that he was sitting on the floor watching the football game when K.P. came into the room and started wrestling with him as she had done many times. J.P. then jumped into the play. The three tickled each other all over and laughed. The girls were fully clothed during the incident. Defendant testified that when K.P. jumped on him, he threw her off, and she rolled on the floor. Defendant then tickled her feet, and when J.P. jumped on him, he threw her off too. Defendant stated that one girl would be back on him as soon as he threw the other one off. Defendant testified that he tickled J.P. under the arms, under the neck and on the inner thigh by the knee where the girls were ticklish. Defendant stated that the three of them played for about five minutes and were laughing when they ended. The girls left the room and subsequently played with the neighbor. Defendant testified that the girls never said anything about the tickling, were not crying, and appeared normal and relaxed. They hugged and kissed defendant good-bye that evening. Defendant denied that he had tickled or even touched the girls in the groin area.

The trial court found defendant guilty of two charges of battery for knowingly making physical contact of an insulting nature with his daughters. Although defendant had argued that his ex-wife, Hames, had put the girls up to testifying against him, the trial court concluded that there was no substantial evidence that the children’s testimony was in any way suggested, altered or manufactured. The court stated that it decided the cause based upon the credibility of the witnesses. The court found that the children’s testimony, based on their demeanor, articulation and manner, was compelling and that the ex-wife’s bitterness had not tainted their testimony. While J.P. stated that defendant had accidentally touched her chest, the court remarked that the manner in which she demonstrated the manipulation of the doll was convincing beyond a reasonable doubt. Defendant appeals.

The first issue before this court is whether the trial court erred in permitting Donna Hames to repeat the hearsay statements of the girls under the exception of section 115 — 10 of the Code. That section provides in part:

“(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12 — 13 through 12 — 16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child of an out of court statement made by such child that he or she complained of such act to another; and
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.” (Ill. Rev. Stat. 1989, ch. 38, par. 115—10.)

Defendant contends that section 115 — 10 is not applicable to the offense of battery because the sexual contact is not an element of the offense.

The State argues that defendant has waived this issue because he failed to raise it in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 187.) Alternately, the State argues that the statute was properly applied in the battery prosecutions. Finally, the State argues that any such error was harmless because the girls themselves provided clear testimony against defendant. See People v. Holveck (1990), 141 Ill. 2d 84, 104.

Although the issue was thoroughly argued before the trial court, the law in this State requires a post-trial motion for the trial court to have an opportunity to correct any mistakes; hence, the issue is waived in the case at bar due to defendant’s failure to file a post-trial motion. (Enoch, 122 Ill. 2d at 186-87.) Even if the issue is not waived, we believe the trial court properly overruled defendant’s objection to Hames’ testimony. Section 115 — 10 applies to a prosecution for any sexual act, including but not limited to those offenses where sexual conduct is an element of the offense. (Ill. Rev. Stat. 1989, ch. 38, pars. 12—13, 12—14, 12—15, 12—16.) Battery, as charged in this cause, requires a contact of an insulting nature. (Ill. Rev. Stat. 1989, ch. 38, par. 12— 3(a)(2).) We believe that sexual contact which is nonconsensual or with a child is of an insulting nature, and thus these charges of battery involve a prosecution for a sexual act. For the exception to the hearsay rule to be applied, the statute also requires that the act be an element of the offense which is the subject of the prosecution. An insulting contact is an element of the batteries with which defendant was charged. Battery does not require that the insulting contact be sexual, but only that the act be insulting. We believe that section 115 — 10 is broad enough to include the instant offenses. Hames testified to the girls’ statements describing an act which was an element of battery; the hearsay consisted of the girls describing the act of an insulting nature. Therefore, defendant’s objection to Hames’ testimony was properly overruled based on section 115 — 10.

Finally, the result of the testimony was harmless because the testimony of the girls was by itself clear and convincing without Hames’ corroboration. Moreover, defendant’s case was partially strengthened by Hames’ testimony. Defendant maintained that the prosecution was initiated by his vindictive ex-wife, who would try all means to deny him his rights to visitation. Without her testimony in support of the prosecution, defendant’s theory of the case was weaker. Thus, any prejudice suffered by defendant on account of the overruling of his objection was slight.

Defendant also alleges he was not proved guilty beyond a reasonable doubt because there was no evidence that he knowingly committed the offense of battery. Accusations of sexual misconduct are “easily made, hard to be proved, and harder to be defended.” (People v. Nunes (1964), 30 Ill. 2d 143, 146; People v. Douglas (1989), 183 Ill. App. 3d 241, 251.) However, a reviewing court will not reverse the trial court’s judgment unless the proof is so unsatisfactory, improbable or implausible as to justify a reasonable doubt regarding the defendant’s guilt. People v. Collins (1985), 106 Ill. 2d 237, 261; see In re A.J.H. (1991), 210 Ill. App. 3d 65, 70-71; People v. Roy (1990), 201 Ill. App. 3d 166, 185.

Defendant contends that no evidence was presented which could prove the essential elements of the charging instrument. (People v. Rothermel (1982), 88 Ill. 2d 541, 544; People v. Austin (1984), 123 Ill. App. 3d 788, 794.) Specifically, the information charged in count I that “said defendant without legal justification knowingly made physical contact of an insulting nature with [K.P.] in that he touched [K.P.] in the groin with his hand.” Count II alleged identical language concerning J.P. Defendant contends that the element of knowledge was not proved beyond a reasonable doubt. (People v. Miller (1990), 199 Ill. App. 3d 603, 607; People v. Barrington (1973), 15 Ill. App. 3d 445, 446.) Defendant maintains that the prosecution did not prove that he acted with a conscious awareness that his conduct, wrestling and tickling, would be practically certain to cause contact of an insulting nature.

Defendant quotes the definition of “knowledge”:

“A person knows, or acts knowingly or with knowledge of:
(a) The nature or attendant circumstances of his conduct, described by the statute defining the offense, when he is consciously aware that his conduct is of such nature or that such circumstances exist. Knowledge of a material fact includes awareness of the substantial probability that such fact exists.
(b) The result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct.
Conduct performed knowingly or with knowledge is performed wilfully, within the meaning of a statute using the latter term, unless the statute clearly requires another meaning.” (Ill. Rev. Stat. 1989, ch. 38, par. 4—5.)

Defendant contends that there is no evidence showing that he was consciously aware that his conduct was practically certain to cause conduct of an insulting nature. Defendant argues that his lack of the wrongful mental state may be inferred from the fact that the roughhousing, wrestling and tickling were initiated by the children.

Knowledge is ordinarily proved by circumstantial evidence, rather than by direct proof, and the State must present sufficient evidence from which an inference of knowledge can be made, as the inference must be based on established facts and not pyramided on an intervening inference. (People v. Quiver (1990), 205 Ill. App. 3d 1067, 1071.) Without proof of the mental state, a conviction cannot be sustained. (A.J.H., 210 Ill. App. 3d at 71-72.) We note that while J.P. did use the word “accidentally” in her testimony, she was referring to defendant’s brushing over her chest, and defendant in the case at bar was charged with touching the child’s groin.

We believe that the trial court could draw an inference of knowledge from the manner in which the children held their hands over the crotch of the doll during their testimony. While the record cannot reflect with accuracy the manipulation of the doll, the record does suggest that the trial judge had a clear, objective view of the demonstration. The trial judge disagreed with both counsel concerning where the children were indicating while testifying with the doll. The manner in which the children were holding their hands could show that the hands remained on the crotch and that the fingers were grabbing rather than tickling in a glancing or brushing movement or that the hand passed over the groin accidentally. The fact that defendant kept his hand there or changed his finger movement from rotating to grabbing reasonably implies that he consciously knew he was making the contact which is insulting. Defendant did not contest that ordinarily a purposely placed hand on the crotch is insulting. Thus, the record does support a finding that a reasonable trier of fact could have found defendant guilty, and we must, therefore, affirm the conviction.

For the above reasons, the order of the trial court is affirmed.

Affirmed.

WOODWARD and UNVERZAGT, JJ., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. PHILIP J. PEARSON, Defendant-Appellee.
    Second District
    No. 2 — 90—0417
    Opinion filed April 5, 1991.

      Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Allen M. Anderson, of Ariano, Anderson, Bazos, Hardy, Kramer & Castillo, of Elgin, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Philip J. Pearson, was charged in a two-count indictment with unlawful possession of a controlled substance (cocaine) with intent to deliver and unlawful possession of a controlled substance (cocaine) (Ill. Rev. Stat. 1989, ch. 561/2, pars. 1401(b)(2), 1402(b)). Upon the State’s continued refusal to comply with the discovery ordered by the trial court in response to defendant’s motion for discovery, the court dismissed the indictment on April 6, 1990. The State appealed and filed a certificate of impairment pursuant to Supreme Court Rule 604(a)(1) (134 Ill. 2d R. 604(a)(1)). The State contends that it was error for the trial court to dismiss the indictment when the State refused to comply with its discovery order where the defendant’s request for information concerned a possible confidential informant. We disagree, and we affirm the judgment of the trial court.

The record reveals that, on August 31, 1989, defendant filed a motion for discovery in which he sought, in the first three paragraphs, police reports, files, and documentation of payments, negotiations, promises or agreements entered into by law enforcement officials with a person named Wayne Taylor during the years 1987 through 1989; defendant also requested the names and case numbers of all cases in which Taylor was listed by the State as a possible witness during those years.

At a status hearing on September 28, 1989, defense counsel noted the State had not yet provided the information requested concerning Taylor. The defense believed Taylor was involved in the case, particularly with respect to the issuance of a search warrant. Defense counsel pressed for the information on October 27 and on December 8. The case was continued to January 26, 1990, at which time the prosecutor indicated he was attempting to obtain the information. The case was again continued to March 23, 1990, when defense counsel informed the court he had just learned the State did not intend to comply with the discovery request pertaining to Taylor and this refusal had also delayed defendant’s own investigation. The State argued for the first time defendant was not entitled to the information and speculated defendant now believed Taylor was an informant. The State appeared to argue hypothetically that, if in fact Taylor were an informant, he was not involved in the transaction, and, therefore, defendant was not entitled to discovery because the State would be privileged to deny such a request.

The trial court opined that, in order to resolve the issue whether the information should be disclosed, a hearing would be necessary to determine whether Taylor was, in fact, an informant.

Defendant again asserted the information was critical to his case, particularly in evaluating the accuracy of the warrant and in determining whether any motions pertaining to the warrant would be available to him. Defendant noted he was not asking for the disclosure of an informant, but, rather, he was asking for information about a specific individual. Defendant further asserted that, if the State wished to invoke its privilege, an in camera proceeding would be appropriate.

The trial court ruled that, if the State failed to produce the requested information within two weeks, the indictment would be dismissed. When the prosecutor further argued the propriety of the order, the trial court noted the person was a named individual. The court stated that, if the State had “information regarding this man that is relevant to this case, it must be produced unless he happens to be the confidential informant under circumstances where it doesn’t have to be produced.” The trial court added, “[h]e isn’t asking you today to name the confidential informant.” After the court restated its ruling, the prosecutor commented that the request would be burdensome. The court suggested that, if the prosecutor needed more time, he should ask for it.

On April 6, 1990, the State informed the court it would refuse to comply with the discovery order. The State asked the court to reconsider its prior ruling. In its written motion to reconsider, the State asserted defendant was attempting to discover whether Wayne Taylor was a confidential informant who provided information which served as the basis for an executed search warrant which, in turn, resulted in the charges. The State would not disclose whether Taylor was an informant and urged that, if Taylor was, in fact, an informant, this was a State secret protected by privilege (see 134 Ill. 2d R. 412(j)(ii)). The State argued alternatively that, if Taylor was not a confidential informant, the information requested was material only if the State called Taylor as a witness. The State then asserted it would not call Taylor as a witness. In presenting the State’s motion, the State argued its refusal to comply was based on its need to protect all confidential sources.

The trial court noted the State’s position left it three choices. First, the trial court could “cave in” — a solution the court found unacceptable. Second, the court could issue a rule to show cause against the State’s Attorney, but that option would affect the trial court’s disposition of other pending cases involving the State’s Attorney until the issue was resolved, and it could create a situation where the trial judge would have to recuse himself. The third option was to dismiss the charges. This was the course of action the trial court chose. The State then indicated it had already prepared an order of dismissal. When the trial court expressed its surprise the State had guessed the outcome, the State indicated it wanted the issue clarified and the case would be appealed.

The court noted that, considering the totality of the record, it was obvious that the person in question had not been identified as a confidential informant. If he had been identified as an informant, then there would need to be a hearing to ascertain whether he was an occurrence witness. The court reiterated the person was not identified as a confidential informant, and he may have relevant information. The case was thereupon dismissed.

The issue before this court is whether it was an abuse of discretion for the trial court to dismiss the indictment against defendant where the State declined to actually assert the informant privilege as a ground for refusing disclosure of the information ordered by the court and where the State refused to submit the propriety of its claim of privilege to the court’s scrutiny.

The informant’s privilege is an exception to the general rule of disclosure in criminal cases and is founded on a public-policy consideration of encouraging effective law enforcement by protecting confidential sources of information concerning the commission of crimes. (See People v. Raess (1986), 146 Ill. App. 3d 384, 388-89.) The privilege is set forth in Supreme Court Rule 412(j)(ii), which provides:

“Disclosure of an informant’s identity shall not be required where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused. Disclosure shall not be denied hereunder of the identity of witnesses to be produced at a hearing or trial.” (Emphasis added.) 134 Ill. 2d R. 412(j)(ii).

There is no fixed rule concerning when an informant’s identity must be disclosed, and the decision to disclose must be made on the circumstances of each case by balancing the public interest in protecting informants against the right of an accused to prepare a defense. (People v. Woods (1990), 139 Ill. 2d 369, 378.) The privilege is not absolute, however, and its scope is limited by the fundamental requirement of fairness. (Raess, 146 Ill. App. 3d at 389.) Thus, where the disclosure of an informant’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations, the trial court may require disclosure, and, if the government withholds the information, the court may dismiss the action. (Roviaro v. United States (1957), 353 U.S. 53, 61-62, 1 L. Ed. 2d 639, 645-46, 77 S. Ct. 623, 628.) Thus, for example, when the informant has participated in, witnessed, or helped to set up the criminal occurrence and has not been merely a tipster, the State’s privilege against disclosure may be overcome and disclosure may be required. (See Woods, 139 Ill. 2d at 380.) However, where the informant’s identity is already known, the privilege no longer applies. Woods, 139 Ill. 2d at 377-79.

In the case at bar, the State stopped short of invoking the privilege, and defendant already knew the identity of the person in question, Wayne Taylor. Defendant did not ask for disclosure of an informant’s identity, but sought documents concerning a person named Taylor which might be relevant to defendant’s case. Under the circumstances, we deem the privilege mapplicable.

The State contends that, if Taylor were in fact an informant, the information requested might conceivably reveal his status as an informant and this status, the State appears to argue, is a State secret. In any case, the State asserts that, if Taylor were an informant, he was not a participant or witness in the criminal transaction; therefore, the State argues, information concerning him would be privileged. This argument begs the question. We believe if the State wishes to have the protection afforded by the privilege, it must first invoke the privilege. Additionally, if the State believes it has grounds for asserting the privilege, it is required to submit those grounds to the trial court so it can determine the legitimacy of the assertion. Whether the informant’s privilege may be properly asserted is a matter for the trial court to decide, not the State. The courts cannot permit the State to be the self-appointed arbiter of a defendant’s constitutional rights. (See People v. Perez (1974), 25 Ill. App. 3d 371, 374; see also Raess, 146 Ill. App. 3d at 393.) If the information was, in fact, privileged, we see no reason why the State could not have submitted it to the trial court for an in camera determination of whether any of the information was privileged. Since it cannot be determined from the record whether any of the information was privileged, we can only speculate as to the merits of the State’s claim of privilege. See People v. Adam (1972), 51 Ill. 2d 46, 49.

The State also argues that, due to its concern for Taylor’s safety, it should not be required to divulge any further information regarding Taylor even though his identity was known to defendant. However, the State failed to present any basis for this assertion in the trial court. If disclosure of the information presented some actual concern for Taylor’s safety or well-being, it was the State’s burden to demonstrate disclosure would place Taylor in danger. People v. Lewis (1974), 57 Ill. 2d 232, 237; Raess, 146 Ill. App. 3d at 394.

Finally, the State argues that it fails to see the usefulness of the desired information to the defense. Defendant did articulate his belief information regarding Taylor would be useful in evaluating the accuracy of the search warrant and to determine whether defendant had any basis for a motion with respect to the warrant. The desirability of calling a witness, or at least interviewing him in preparation for trial, is a matter for the defendant rather than the State to decide. Raess, 146 Ill. App. 3d at 393.

A trial court has inherent power to impose sanctions, including dismissal, in order to insure a defendant gets a fair trial (People v. Lawson (1977), 67 Ill. 2d 449, 456) and to compel compliance with its discovery orders, particularly where it has warned the offending party of the consequences beforehand (see Raess, 146 Ill. App. 3d at 395). Here, the State only interjected the issue of privilege after it had indicated for several months the information would be forthcoming. We cannot condone this type of stonewalling, and we conclude the court was within its discretion to dismiss the indictment as a sanction for the State’s recalcitrance where the court had warned the State of the consequences beforehand. Furthermore, the State not only refused to comply but made no argument against dismissal and offered no alternative sanction. Under the circumstances, the trial court’s order of dismissal was warranted.

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

Affirmed.

GEIGER and INGLIS, JJ., concur.