text:
    ROBIN MASLANKA, Plaintiff-Appellant, v. RUSSELL BLANCHETT, JR., Defendant-Appellee.
    Third District
    No. 3—92—0201
    Opinion filed December 23, 1992.

      Michael M. Grujanac, of Carl Graf, Jr. & Associates, of Morton Grove •(Carl N. Graf, Jr., of counsel), for appellant.
    Cory D. Lund, of Hinshaw & Culbertson, of Joliet, and Hinshaw & Culbertson, of Chicago (Bruce L. Carmen, of counsel), for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Plaintiff, Robin Maslanka, appeals the trial court’s refusal to enter judgment n.o.v. or order a new trial following a jury verdict in favor of defendant, Russell Blanchett, Jr. Plaintiff also contends the trial court abused its discretion in denying her motion for a continuance during trial. We find no error in the trial court’s decisions. Accordingly, we affirm.

Plaintiff brought a negligence action against the defendant for personal injuries she received in a boating accident on the Illinois River near Morris. Plaintiff was a passenger in the open bow of an 18-foot motorboat operated by the defendant. Plaintiff alleged the defendant operated the motorboat in a negligent manner which caused her to hit her face against a side handrail after being thrown across the boat.

The record shows the defendant’s parents and the Grogan and Tunnel families leased adjoining undeveloped waterfront lots on the Illinois River. All three families operated motorboats. Defendant and his family spent nearly every summer weekend on the river. Defendant had been operating his family’s motorboat, alone or under his father’s supervision, for 10 years.

Plaintiff had been a weekend guest of the Grogan family the previous summer and the summer of the accident. She had been a passenger in boats on the Illinois River both summers and had ridden with the defendant on other occasions.

The accident occurred on June 14, 1987. Plaintiff and two women were seated in the open bow of the boat. The defendant and another passenger were seated amidship, with two passengers located in the stern. The bow of the boat, located in front of the defendant/operator, contained a small footwell in the middle. The perimeter of the bow area contained padded bench seats, which came together at the point of the bow. Two women sat on the side bench seats, while the plaintiff was located somewhere in the middle.

The testimony at trial was in conflict concerning exactly where and how the plaintiff was sitting. The plaintiff testified that she sat left of the point of the bow, at the end of Michelle Tunnel’s outstretched legs. Tunnel recalled the plaintiff sitting to the right of the point of the bow with her feet tucked under her behind. Pam Mysliwiec, the other forward passenger, recalled plaintiff sitting at the point of the bow, with her left knee on the cushion, her right foot in the footwell, and both hands on the railing. Defendant testified that the plaintiff sat directly at the point of the bow, between the other women’s outstretched legs, with her knees on the cushion and her hands on the rail.

Traffic on the Illinois River that Sunday was especially heavy. The water was choppy from the wakes of the numerous boats. The wakes were estimated to be one to two feet high. Plaintiff testified the defendant drove at a speed of 25 to 30 miles per hour. The defendant and others placed the boat’s speed closer to 25 miles per hour. The motorboat was capable of traveling 58 miles per hour.

Plaintiff testified the defendant was alternately accelerating and decelerating and swinging the steering wheel from side to side. Plaintiff alleged the defendant’s actions caused the motorboat to bounce on the waves. Plaintiff stated the defendant looked and laughed at her when she urged him to “cut it out.” Plaintiff responded by changing the way she was sitting in order to make herself more stable. She then put her left knee on the seat and grabbed the railing with both hands.

Plaintiff testified that while the defendant was turning the boat 180 degrees, he steered the boat into a wake, causing the boat to become airborne. Plaintiff testified she lost her grip on the railing and was thrown across the nose of the boat. Plaintiff hit her mouth on the opposite railing. Teeth marks found on the railing were 11 to 12 inches to the right of the point of the bow.

Defendant testified that after coming out of the turn, he saw a two-foot wake. Defendant stated he then cut across the wake to lessen its impact. The bow raised up as the boat hit the wake. Defendant admitted he did not slow before turning. However, the defendant testified that the boat naturally slows as a result of turning. Defendant denied turning the boat from side to side as he made the turn. He also denied ever hearing the plaintiff urge him to stop.

Michelle Tunnel and Pam Mysliwiec testified the defendant did nothing to cause the boat to rock unusually or bounce. Mysliwiec also testified she told the plaintiff three times to sit differently because she felt the plaintiff was sitting improperly. Neither witness could recall the plaintiff ever being thrown from her seat.

Jeff Grogan met the boat when it returned to shore. Plaintiff and Grogan both testified the plaintiff stated the defendant “was driving like an idiot.” Grogan said Michelle Tunnel told him she had “never been so scared as this boat ride.” Tunnel denied making the statement. Grogan also testified the defendant apologized for “horsing around” and asked Grogan not to tell his parents because his father would revoke his boating privileges. The defendant denied having this conversation with Grogan.

Following a jury trial, the trial court entered judgment on a verdict for defendant. Plaintiffs motions for judgment n.o.v. and a new trial were denied.

On appeal, the plaintiff contends the trial court should have granted her motion for a new trial because the jury verdict was against the manifest weight of the evidence. We disagree. Alternatively, the plaintiff requests entry of a judgment notwithstanding the verdict. She contends the evidence so overwhelmingly favored the plaintiff that no contrary verdict could stand. Following our review of the evidence, we disagree and affirm the trial court.

On a motion for a new trial a court will weigh the evidence and order a new trial if the verdict is contrary to the manifest weight of the evidence. (Mizowek v. De Franco (1976), 64 Ill. 2d 303, 310, 356 N.E.2d 32, 36.) A verdict is against the manifest weight of the evidence when the opposite conclusion is clearly evident or when the findings are unreasonable, arbitrary and not based on the evidence. Kure v. Sluski (1989), 186 Ill. App. 3d 472, 474, 542 N.E.2d 1152, 1154.

A judgment notwithstanding the verdict should be granted if all the evidence, viewed in the light most favorable to the nonmovant, so overwhelmingly favors the movant that no contrary verdict could stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.

Plaintiff argues that the defendant was negligent in maintaining a speed greater than what was reasonable and proper in light of the heavy boat traffic and the one- to two-foot wakes. However, plaintiff presented no evidence, other than her own testimony, that it was improper to operate the boat at that speed under those conditions. Absent evidence that the defendant was operating his boat in an unsafe manner, we cannot say the jury’s verdict was arbitrary, unreasonable or not based upon the evidence presented at trial.

Plaintiff also argues that the defendant’s statements to Jeff Grogan were admissions of negligence. Grogan testified the defendant admitted he was “horsing around.” Grogan stated the defendant asked him not to tell his father about the accident so the defendant would not lose his boating privileges. We disagree with plaintiff’s contention that these statements are admissions. First, our review of the record shows the defendant denied ever having this conversation with Grogan. Second, Grogan’s testimony was impeached five times, including his recollection of the plaintiff’s characterization of defendant’s driving. We believe the jury more than likely considered Grogan’s impeachment when it weighed his credibility as a witness.

The credibility of witnesses and the weight to be given testimony are typically matters for a jury to consider. (Finley v. New York Central R.R. Co. (1960), 19 Ill. 2d 428, 436, 167 N.E.2d 212, 216.) The evidence presented was clearly conflicting as to whether defendant’s driving was careless, unsafe or negligent. Our review of the record indicates the jury’s verdict in favor of the defendant is supported by the evidence. We find the proximate cause of the plaintiff's injury was her own conduct in how she positioned herself in the boat. After reviewing the evidence in its aspect most favorable to the defendant, we cannot conclude that it so overwhelmingly favors the plaintiff that no contrary verdict could stand. Also, under the lesser standard of granting a motion for a new trial, we conclude that the verdict was not against the manifest weight of the evidence.

Plaintiff finally contends the trial court abused its discretion in denying her motion for a continuance. Plaintiff sought a continuance on the third day of trial in order to obtain the testimony of Judy Soria, a claims representative employed by defendant’s liability insurer. During a recess in the trial, the defendant’s attorney told plaintiff’s counsel that Mysliwiec’s trial testimony would most likely differ from the transcribed statement Mysliwiec gave to Soria. As a result, the plaintiff determined that she would need Soria’s testimony in order to impeach Mysliwiec. The trial court refused the plaintiff’s request for a continuance so she could subpoena Soria.

The defendant responds by noting that the plaintiff should have anticipated the need for Soria’s sworn testimony. Mysliwiec’s unauthenticated and unsworn statement clearly could not be used to impeach Mysliwiec’s courtroom testimony. Without a waiver of foundation by the defendant or the production of deposition testimony from Soria, the plaintiff would be unable to impeach Mysliwiec’s courtroom testimony to the extent that it might be inconsistent with Mysliwiec’s unsworn and unauthenticated statement. Defendant argues that the plaintiff should have interviewed or deposed Mysliwiec in advance of trial to prevent the quandary she found herself in on the third day of the trial. We agree.

Good cause must be offered before a motion to continue during trial will be granted:

“Because of the potential inconvenience to the parties, the witnesses and the court, especially grave reasons for granting a delay must be given once a case has reached the trial stage.” (Schneider v. Seibutis (1972), 3 Ill. App. 3d 323, 326, 279 N.E.2d 37, 39.)

Supreme Court Rule 231(f) requires that a sufficient excuse must be shown in order to grant a continuance once the cause has been reached for trial. (134 Ill. 2d R. 231(f).) Similarly, section 2—1007 of the Civil Practice Law requires a showing of good cause to obtain a continuance, although a grant of a continuance under that section is at the discretion of the court. Ill. Rev. Stat. 1989, ch. 110, par. 2—1007.

The granting or denying of a motion for continuance will not be disturbed on appeal unless there has been a manifest abuse of discretion or a palpable injustice. (Thomas v. Thomas (1974), 23 Ill. App. 3d 936, 940, 321 N.E.2d 159, 163.) We find the plaintiff did not establish sufficient cause to warrant a continuance in the middle of trial. From the initial filing of the case in June 1989 to the trial in September 1991, plaintiff clearly had sufficient time to obtain any necessary statements. We further note the plaintiff neither deposed nor interviewed Mysliwiec prior to trial, even though she was an obvious occurrence witness. Therefore, we conclude the trial court did not abuse its discretion in denying plaintiff’s motion for continuance.

For the reasons indicated, the judgment of the circuit court of Grundy County is affirmed.

Affirmed.

BARRY, P.J., and SLATER, J., concur.


source: Caselaw Access Project

author: JUSTICE McCUSKEY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHARON SAINDON, a/k/a Sharon Griffin, Defendant-Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHARON SAINDON, a/k/a Sharon Griffin, Defendant-Appellant.
    Third District
    Nos. 3—91—0757, 3—91—0758 cons.
    Opinion filed December 23, 1992.
    Daniel J. Bute, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet, and Howard R. Wertz, of Lynwood (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Following a bench trial, the defendant, Sharon Saindon a/k/a Sharon Griffin, was convicted of two counts of unlawful delivery of less than 10 grams of a substance containing heroin (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(c)). The defendant was sentenced to a term of 48 months’ probation and was ordered to pay a street value fine in the amount of $475.

The sole issue raised by the defendant on appeal is whether the evidence presented by the State was sufficient to rebut her affirmative defense of entrapment. We find the evidence was sufficient and affirm.

At trial, police officer Terry Paggi testified that he was assigned to the Metropolitan Area Narcotics Squad. On January 25, 1990, and again on February 22, 1990, he was working with Robert Gabel, a recovered heroin addict who was assisting the police in exchange for lenient treatment regarding pending felony charges. On both dates, Paggi searched Gabel and then observed Gabel make a telephone call. Shortly after the call was made, Paggi observed the defendant drive to a meeting place arranged with Gabel. Paggi then provided Gabel with the money for a drug purchase. He paid $175 on the first date and $300 on the second. Gabel then went to the defendant’s car, gave the defendant the money and, on each date, received from the defendant a silver-foil packet containing a brown powdery substance. The parties entered into a stipulation that the packet received by Gabel on January 25 contained 1.1 grams of a substance containing heroin and the packet received on February 22 contained 3.3 grams of a substance containing heroin. The defendant was arrested following the February 22 transaction.

Gabel’s testimony regarding the events of January 25 and February 22 was very consistent with that of Paggi. In addition, Gabel testified that, prior to January 1990, he had been incarcerated in three States following convictions of theft and burglary. In March 1990, after the transactions involving the defendant, Gabel was sentenced to two years’ probation for two counts of forgery. Gabel stated that he was a heroin addict but had not used heroin since he was incarcerated in Alaska from the end of 1987 to the end of 1989. Gabel knew the defendant’s husband, Charles Griffin, because he had purchased heroin from Griffin prior to his incarceration. Gabel also knew the defendant through her husband.

During cross-examination, Gabel testified that he probably called the defendant about 15 to 20 times between January 25 and February 22. None of the telephone calls were taped. Gabel also admitted, during his testimony in an unrelated case, that he called the defendant’s residence 20 to 30 times prior to January 25, at all hours of the day. He denied, however, that the defendant ever said she would not sell him drugs.

The defendant testified that, during January and February 1990, she was using both methadone and heroin. She frequently purchased heroin for her own use and also purchased heroin for her husband. The defendant admitted delivering a mixture of heroin and lactose to Gabel on two occasions. She stated, however, that Gabel began calling her about one week before January 25, 1990. Gabel asked her where he could buy heroin, and she told him the location of her sources. Gabel insisted that he did not want to go to these locations to buy drugs. Thereafter, he began calling her six to seven times a day and asked her to bring him some drugs. Gabel told her that he had someone who would supply the money. Finally, Gabel told her that he was sick and reminded her of their earlier friendship. The defendant finally agreed, after 35 to 40 telephone calls, to sell Gabel some heroin on January 24. She stated that Gabel told her he would leave her alone if she made the delivery. She then purchased heroin for $140, mixed it with lactose, and gave it to Gabel in exchange for $175. The defendant testified that part of the heroin was supposed to be for the man who was supplying the money (Paggi) and part of it was secretly packaged for Gabel’s own use.

The defendant testified that Gabel called her again on February 20. He sounded frantic and begged her to sell him more heroin by saying he was sick. The defendant told him she did not have any heroin. Gabel then began calling her about every half-hour to an hour. When Gabel again promised her he would stop bothering her if she made the delivery, the defendant purchased another $140 worth of heroin and mixed it with lactose. She delivered the heroin to Gabel in exchange for $300. The defendant stated that she made a profit on January 25 and expected to make a profit on February 22.

Following this testimony, the trial court concluded the entrapment defense did not apply because the defendant was not “an innocent babe in the woods” and had a predisposition to commit the offenses. The trial court found the defendant guilty of two counts of the unlawful delivery of heroin. The defendant was subsequently sentenced to a term of 48 months’ probation.

The defendant’s sole argument on appeal is that the State failed to prove her guilty beyond a reasonable doubt because the evidence showed that she was entrapped as a matter of law. The defendant contends that she was entrapped because the idea of committing the offense originated with the State through its agent, Gabel, and because she was essentially badgered into making the deliveries. The defendant also argues the trial court erroneously concluded that she was predisposed to commit the crime because the evidence did not show that she had ever delivered heroin before she was contacted by Gabel. We find the defendant’s arguments are not supported by case law.

A defendant may raise the affirmative defense of entrapment when he is induced by the State to commit a crime which he was not predisposed to commit. (People v. Kulwin (1992), 229 Ill. App. 3d 36, 38, 593 N.E.2d 717, 719.) Once the defendant presents some evidence to raise this defense, the State bears the burden of proving beyond a reasonable doubt that the defendant was not entrapped. (People v. Colano (1992), 231 Ill. App. 3d 345, 348, 596 N.E.2d 195, 197.) The defendant here is essentially arguing that the evidence presented was not sufficient to meet this burden.

When the sufficiency of the evidence is questioned in a criminal case, the test to be employed on review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) Thus, in determining whether the State has met its burden of proof with respect to the entrapment defense, all of the evidence must be viewed in the light most favorable to the prosecution. (Colano, 231 Ill. App. 3d at 349, 596 N.E.2d at 198.) Also, the question of entrapment is one for the trier of fact, unless the reviewing court can find entrapment as a matter of law. See People v. Tipton (1980), 78 Ill. 2d 477, 487, 401 N.E.2d 528, 533; People v. Lambrecht (1992), 231 Ill. App. 3d 426, 434, 595 N.E.2d 1358, 1364; People v. DeBeck (1990), 204 Ill. App. 3d 15, 18, 561 N.E.2d 1081, 1084.

The defense of entrapment is available when: the idea to commit the crime does not originate with the defendant; government agents actively encourage the defendant to act; the purpose of the encouragement is to obtain evidence to prosecute the defendant; and the defendant is not independently predisposed to commit the crime prior to first being approached by government agents. (Kulwin, 229 Ill. App. 3d at 39, 593 N.E.2d at 719; see also Ill. Rev. Stat. 1989, ch. 38, par. 7—12; Jacobson v. United States (1992), 503 U.S. 540, 548-49, 118 L. Ed. 2d 174, 184, 112 S. Ct. 1535, 1540.) Thus, even if the other prerequisites are present, the defense does not apply if the defendant was predisposed to commit the crime. DeBeck, 204 Ill. App. 3d at 18, 561 N.E.2d at 1064.

Various factors which courts have considered in narcotics cases when making a determination as to predisposition include: (1) the defendant’s initial reluctance or his ready willingness to commit the crime; (2) the defendant’s familiarity with drugs and willingness to accommodate the needs of drug users; (3) the defendant’s willingness to make a profit from the illegal act; (4) the defendant’s prior or current use of illegal drugs; (5) the defendant’s participation in testing or cutting the drugs; (6) the defendant’s course of conduct involving similar offenses; and (7) the defendant’s ready access to a drug supply. People v. D’Angelo (1992), 223 Ill. App. 3d 754, 776, 585 N.E.2d 1239, 1253; see also People v. Martin (1991), 219 Ill. App. 3d 1064, 1076, 580 N.E.2d 575, 584.

In the instant appeal, after viewing the evidence in the light most favorable to the State, we conclude that the evidence clearly supports the trial court’s finding that the defendant was predisposed to commit the crime. The defendant’s own testimony was consistent with the majority of the relevant factors we have previously cited. The defendant also testified that she was a drug user and familiar with drugs. Further, she stated that she made a profit on the first sale and expected to make a profit on the second sale. She testified that she cut the heroin she sold to Gabel with a cutting agent, lactose. Her testimony clearly supported a conclusion that she had ready access to a drug supply and engaged in a course of conduct involving similar offenses. Finally, she testified that she frequently purchased heroin for herself and had purchased heroin for the purpose of delivering it to her husband. Because the evidence supports the trial court’s finding that the defendant was predisposed to commit the crime, we cannot say as a matter of law that the defendant was entrapped.

Accordingly, we affirm the judgment of the circuit court of Will County.

Affirmed.

BARRY, P.J., and SLATER, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN L. WOODS, Defendant-Appellant.
    Third District
    No. 3-92-0280
    Opinion filed December 23, 1992.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    William Herzog, State’s Attorney, of Kankakee (John X. Breslin and Robert M. Hansen, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court;

On April 18, 1985, the defendant, Steven L. Woods, entered a negotiated plea of guilty to two counts of robbery (Ill. Rev. Stat. 1991, ch. 38, par. 18—1(a)). He was then sentenced to two concurrent terms of five years’ imprisonment. On January 27, 1992, Woods filed a pro se petition for post-conviction relief. The petition was dismissed on February 25, 1992. Woods appeals. We affirm.

The record shows that on February 18, 1992, the State filed a motion to dismiss claiming that Woods’ petition was frivolous and patently without merit. On February 20, 1991, a hearing was held in Woods’ absence. The trial court found that Woods could not invoke post-conviction relief because he was no longer imprisoned or on mandatory supervised release. (See Ill. Rev. Stat. 1991, ch. 38, par. 122—1.) The court further found Woods’ petition was frivolous and patently without merit. Woods’ sole argument on appeal is that the trial court was improperly tainted by the State’s premature motion to dismiss. We disagree.

We note the State initially argues that we do not have jurisdiction because Woods’ notice of appeal was not timely filed. Our review of the record indicates that the notice of appeal was untimely only because Woods had received late notice of the denial of his petition. Since the late filing was not Woods’ fault, we extend the time for filing the notice of appeal. Accordingly, we find Woods’ appeal was timely filed. See 134 Ill. 2d R. 606(c).

Woods argues that the trial judge did not follow the proper procedure pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1991, ch. 38, par. 122—1 et seq.). Therefore, Woods argues that the dismissal of his petition must be reversed and the cause should be remanded for appointment of counsel and further consideration under sections 122 — 4 through 122 — 6 of the Act. We disagree.

Woods supports his argument with the case of People v. Merritte (1992), 225 Ill. App. 3d 986, 589 N.E.2d 190. In Merritte, the State moved to dismiss the defendant’s post-conviction petition within 30 days of its filing. This court held that the premature input by the State had tainted the trial court’s decision to dismiss the defendant’s post-conviction petition. In Merritte, the facts clearly show that the State argued at length its motion to dismiss. Further, in Merritte, the trial court dismissed the defendant’s petition “based on the reasons stated by counsel in his argument.”

The State, however, contends that People v. Mitchell (1991), 218 Ill. App. 3d 401, 578 N.E.2d 297, is controlling. We agree. In Mitchell, this court recognized that neither the Post-Conviction Hearing Act nor case law holds that the premature filing of a motion to dismiss by the State per se contaminates the process. In Mitchell, we noted that the trial judge’s findings clearly showed an independent analysis of the merits of the petition. We also found in Mitchell that the record did not indicate any reliance on the State’s motion to dismiss.

We find that Mitchell is controlling in the instant appeal. Here, the State’s motion to dismiss was short, terse, and only claimed that Woods’ petition was frivolous and patently without merit. Although the State did file a case in support of its motion, it did not make any oral arguments at the petition hearing. Our review of the record indicates that the trial judge’s analysis was not influenced by the State’s motion. We conclude that the trial judge ruled independently as a result of clear case law. The trial judge found Woods was not within the scope of the Post-Conviction Hearing Act because he was no longer imprisoned or on mandatory supervised relief. Accordingly, the trial court properly dismissed Woods’ petition as frivolous and patently without merit.

For the reasons indicated, we affirm the judgment of the circuit court of Kankakee County.

Affirmed.

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


author: JUSTICE H. LEWIS

text:
    HENRY H. AUGUSTINE, Successor Guardian of the Estate and Person of Richard F. Griffin, et al., Appellee, v. THE INDUSTRIAL COMMISSION et al., Appellant and Cross-Appellee (Robert L. Silberstein, Appellee and Cross-Appellant).
    Third District (Industrial Commission Division)
    No. 3—91—0207WC
    Opinion filed November 18, 1992.
    Rehearing denied February 5, 1993.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for appellant.
    David B. Mueller, of Cassidy & Mueller, and Robert Silberstein, pro se, both of Peoria, for appellee Robert L. Silberstein.
    John F. Power III, of Kubiesa & Power, of Westmont, and Arnold G. Rubin and Richard A. Kimnach, both of Anesi, Ozmon & Rodin, Ltd., and Joel D’Alba, Stephen Feinberg, and Susan Brannigan, all of Asher, Gittler, Greenfield, Cohen & D’Alba, Ltd., both of Chicago, for amici curiae.

   JUSTICE H. LEWIS

delivered the opinion of the court:

The Illinois Industrial Commission (hereafter referred to as the Commission) appeals the judgment of the circuit court and presents issues pertaining solely to its award of attorney fees to the claimant’s counsel. The claimant, Richard F. Griffin, was rendered permanently and totally disabled as the result of a fall on March 5, 1983. As a consequence of his injuries, the claimant has a profound neurological deficit, including paralysis of all four extremities, impaired pulmonary and respiratory function, and inability to eat or speak. The employer, Pabst Brewing Company, at no time disputed that the claimant was permanently and totally disabled.

Claimant’s counsel, Robert L. Silberstein, negotiated a structured settlement for the claimant with the employer’s insurer and negotiated his own fee with the insurer separately. This settlement contract, including the proposal with respect to counsel’s fees, was presented to the Commission for its approval. The proposed settlement provided for the following payments to the claimant during his lifetime: $315,000 to be paid each year with a 3% annual cost of living increase and special allocations of $215,000 immediately; $1,200,000 in the 16th year; $2,100,000 in the 21st year; $3,500,000 in the 26th year; and $3 million in the 31st year. It is undisputed that the life expectancy of the claimant, who was 41 years old at the time of the accident, is markedly reduced as a consequence of Ms virtually total paralysis that renders him highly susceptible to infection and respiratory, bladder, and kidney dysfunction. The terms of this proposed settlement contract provided further that claimant’s counsel would receive attorney fees in the amount of $4,202 per month at a 3% annualized cost of living increase for counsel’s lifetime with 30 years guaranteed. Following a hearing, in an order dated August 6, 1986, Commissioner Barbara Sherman found that the parties failed to show that the settlement was in the claimant’s best interest and, accordingly, rejected the settlement contract.

Upon judicial review, in an order entered March 10, 1988, the circuit court ruled that the Commissioner’s decision of August 6, 1986, rejecting the proposed settlement was an abuse of discretion and against the manifest weight of the evidence. The circuit court remanded the cause to the Commission with directions that in the event another settlement contract was presented for consideration, it was to be considered in the light of the circuit court’s findings that the prior rejection was an abuse of discretion and against the manifest weight of the evidence.

Another settlement contract was presented to the Commission. In a decision dated April 11, 1988, following a hearing upon remand, the Commission found this settlement contract to be in the best interest of the claimant and his employer. The settlement approved by the Commission for the claimant provided more benefits to him than the prior, rejected proposed settlement had done. In its decision the Commission stated that “the parties have agreed that the [stated] allocations and such predetermined amount represent and stand for a full, final and complete compromise settlement of all claims for compensation for any and all alleged injuries and disabilities, either temporary or permanent.” In this decision the Commission retained jurisdiction of the claim for the purpose of fixing the claimant’s attorney fees.

In a 16-page decision dated January 13, 1989, the Commission addressed the matter of attorney fees, finding that claimant’s counsel seeks a fee of $700,000 and awarding claimant’s counsel fees as follows:

“[Claimant’s] attorney is entitled to receive 20% of 364 weeks at a permanent total disability rate of $327.23, or $23,822.34[,] in recognition of the fact that while no dispute existed as to the extent of [claimant’s] disability, substantial time and effort have been required of Mr. Silberstein in resolving disputes arising pursuant to [section] 8(a) of the [Workers’ Compensation] Act [Ill. Rev. Stat. 1983, ch. 48, par. 138.8(a)]. In further consideration of the time and effort required in resolving these disputes and obtaining a settlement in [claimant’s] interest, the Commission awards [claimant’s] attorney further fees of $18,750.00, representing 150 hours at a rate of $125.00 per hour. [Claimant] is to receive credit against this fee award in the amount of $17,153.01 for fees already received by his attorney. [Claimant’s] attorney is therefore entitled to now receive from [claimant] the net amount of $25,419.33.”

In this decision the Commission described the settlement agreement proposed in March of 1988 and approved by it in its decision of April 11, 1988, as follows:

“In March 1988, the parties presented a settlement contract which provided essentially that [claimant] would receive a first installment of $758,350.00, that thereafter he would receive $343,350.00 per year compounding at the annual rate of 3% throughout the remainder of his life, and that in addition thereto, [claimant] would receive $200,000.00 after 5 years, $445,000.00 after 8 years, $1,450,000.00 after 13 years, $2,600,000.00 after 18 years, and $4,100,000.00 after 23 years, and $6,100,000.00 after 28 years. The foregoing payments would be payable only for and during the life of Richard Griffin, and payments would cease upon his death.”

Proposed in that settlement, but not approved, were the following terms pertaining to claimant’s attorney fees, which were described by the Commission in its decision of January 13,1989, as follows:

“Respondent and [claimant’s attorney] separately negotiated [claimant’s] attorney’s fee as part of the settlement agreement to provide that Attorney Robert Silberstein would be paid $3,612.00 per month, compounding at the annual rate of 3%, for life, with payments guaranteed for 30 years. An additional $100,000.00 would be paid after the first five years.”

In this decision the Commission found further that, in order to obtain Commission approval of the settlement petition pursuant to remand, the parties had agreed to pay to the claimant the amount of $700,000, which was the amount the insurer had previously agreed to pay as Robert Silberstein’s attorney fee, and to reserve the question of attorney fees and expenses for later determination by the Commission. The amount of $700,000 includes $600,000 as the purchase price of an annuity for Robert Silberstein.

In this same decision the Commission expressed its view as follows:

“[R]ead in its entirety, [section] 16a [Ill. Rev. Stat. 1983, ch. 48, par. 138.16a] evinces a legislative determination that attorneys’ fees should be limited in Workers’ Compensation claims, and the provisions relating to attorneys’ fees should be strictly construed. This is particularly so in that prior to September 15, 1980, no such limitations on attorneys’ fees were included in the Act. Where an attorney seeks fees beyond those provided by statute the burden is on the attorney to prove entitlement to further fees. On the basis of the maximum weekly compensation rate for an accident occurring on March 5, 1983, the highest possible attorneys’ fee with specific statutory authorization could not exceed $32,497.92 (20% of 364 weeks at $446.40 per week). On the basis of Richard Griffin’s compensation rate the fee would not exceed $23,822.34 (20% of 364 weeks at $327.33 per week).”

The Commission expressed the further opinion that only in cases where the Commission has found that the employer has acted improperly, as provided in section 16 of the Workers’ Compensation Act (hereafter referred to as the Act) (Ill. Rev. Stat. 1983, ch. 48, par. 138.16), are employers or their agents, that is, insurance carriers, to pay attorney fees; otherwise, claimants’ attorney fees are recoverable only from compensation actually paid to the claimant, pursuant to section 16a(J).

In the decision of January 13, 1989, the Commission found, inter alia, that it is and has been undisputed that the claimant has been entitled to disability benefits since the accident, that the accident resulted in a statutory permanent disability such that claimant is entitled to weekly disability compensation for the remainder of his life, and that all compensation has been paid in a timely manner. The Commission found further:

“The disputes that have arisen have related to the interpretation, application, and relationship of Sections 8(a) and 12, that is, disputes related to the right of the employer to have the employee examined and to the necessity of certain medical, rehabilitation and institutionalization services. Respondent did not act unreasonably or vexatiously in its efforts to obtain reports from providers of services rendered or in seeking independent evaluation of Richard Griffin in order to evaluate the propriety of services being rendered to him.”

The Commission found that claimant’s attorney had charged and received $15,353.01 in attorney fees, representing 20% of temporary total disability compensation paid from September 12, 1983, through March 17, 1988, in violation of section 16a(K). The Commission found further that claimant’s attorney had also charged and received $1,800, representing 20% of a $9,000 computer purchased by the employer for claimant’s rehabilitation. The Commission found that counsel is entitled to the $1,800 fee because his efforts contributed to the employer’s eventual agreement to purchase the computer.

Further findings of the Commission included the following:

“4) Despite repeated requests by the Commission for same, there is no competent evidence from which the Commission can determine the extent of disputed and/or undisputed medical expenses incurred in the care of Richard Griffin. While reference was made that his costs could be reduced by 22%, and that costs could reasonably be reduced by half, there is no persuasive evidence in support of these references. While Mr. Perry of Kemper [the insurer] at times testified to the unusual nature of this case, he also claimed, both in his testimony and in a letter to the Commission dated February 25, 1988[,] to have handled many claims such as this. Larry Hostetler, also of Kemper, testified to the effect that Kemper’s position regarding reduction of costs was not based on any investigation or research, but was a speculative estimate raised as a starting point for settlement negotiations. The testimony shows that the only areas of dispute involved some services and technology in psychological rehabilitation, the necessity of daily physician visits and private nursing care while claimant was living in a nursing home, and some transportation costs. Mr. Perry’s testimony confirms that there were substantial undisputed costs pursuant to [section] 8(a).
5) The Commission finds that an employer’s (or its agent’s or insurance carrier’s) negotiation of an employee’s attorney’s fee and negotiation of such fee separate from negotiation of a settlement for the benefit of the claimant such as occurred between Kemper through Mr. Perry and Attorney Silberstein is not provided for in the Workers’ Compensation Act, is in contravention of the intent, expressed and implied, of [sections] 16a (B), (C) and (I) of said Act, and creates at least an appearance of impropriety. Neither is a fee in such amount as was negotiated between Kemper and Mr. Silberstein contemplated in the Act.”

The Commission noted the factors set forth in Rule 2 — 106 of the Code of Professional Responsibility (107 Ill. 2d R. 2—106) which, it said, it will look to in determining whether and to what extent an attorney is entitled to fees beyond the fee specifically provided in section 16a. The Commission expressly found:

“1) No time records were presented, such that it is impossible to determine with any reasonable certainty the time expended by Mr. Silberstein in litigation and settlement of this claim. In the absence of such records it is also impossible to determine whether all services rendered were reasonably necessary. The Commission further finds that in no event is Mr. Silberstein entitled to fees or expenses for time, services or costs expended or incurred in support of his petition for attorney’s fees.
2) The Commission further finds it has authority to fix [claimant’s] attorneys’ fees and expenses in this case only in relation to services rendered and costs incurred to the time of approval of the settlement. Future fees for services to be rendered or costs to be incurred in administering the proceeds of the settlement, which are part of claimant’s estate, are subject to the jurisdiction of probate court.
3) It is clear that most of the time and effort expended in this case were directed at negotiation of and obtaining approval of the settlement which was negotiated between Mr. Silberstein and Mr. Perry. Mr. Perry’s testimony regarding disputes, time expended, and negotiations must be viewed in the context of his essential testimony, upon inquiry of the Commission at the hearings of both settlement petitions, that he ‘was most anxious to get this case settled,’ that his employer gives him a certain settlement authority, that as long as he stays within that authority he and his employer are happy, and that it didn’t matter to him what was apportioned as [section] 8(a) expense, disability compensation or attorneys’ fees, so long as a settlement within his authority was approved.
4) As previously noted, the only disputed issues were the extent of [the employer’s] right to medical examination of [claimant] and the related issue of the necessity of some services rendered in his mental rehabilitation and medical care. The legal research required for the litigation and settlement of this claim was very minimal. Those provisions of the Act previously cited herein make clear the Illinois legislature was aware that industrial accidents may result in an employee’s quadriplegia, and it is precisely in such cases (of complete loss of both arms or legs (Section 8(e)(18)) where liability to pay compensation in a timely manner is undisputed, that the legislature determined that attorneys’ fees should be set in a nominal amount not exceeding $100.00. Those are also the cases in which physical and mental rehabilitation, maintenance and institutionalization, contemplated in [section] 8(a)[,] are most commonly required. Perhaps the most novel aspect of the case is in the psychological assistance and technology being implemented to enhance Mr. Griffin’s communication abilities. To the extent that the employer evaluated these services, their experts (Barry Romich and Peter Erickson) concurred with the decisions being made by [claimant’s] providers in regard to psychological rehabilitation.
5) The professional relationship between Richard Griffin and Attorney Silberstein lasted nearly 5 years, from undertaking representation to obtaining approval of the settlement. While there were periods of time in which this case was very time consuming, notably the periods of negotiation and hearing of the first settlement which was rejected, preparing briefs for hearing by the Circuit Court on appeal of rejection of the settlement, and negotiation and hearing of the second settlement which was approved, from the evidence presented it appears that this case would not significantly have precluded other employment during the greater duration of the relationship.
6) Throughout the pendency of this claim, Attorney Silberstein has responded appropriately and successfully to the petitions filed by [the employer], and has acted so as to successfully maintain the quality of care of Mr. Griffin recommended by those entrusted with his care, up to and including negotiation of a settlement in Mr. Griffin’s best interest in that the settlement should provide financially for his substantial needs, has increased his independence for decisions affecting his life and saves him the expense of ongoing litigation. Although it has been undisputed since 1983 that the accident herein caused the statutory permanent and total disability of [claimant], the decision not to have his disability adjudicated prior to approval of the settlement agreement has deprived him of the benefits of the Rate Adjustment Fund pursuant to [section] 8(g), or approximately $11,230.00, based on an adjudication prior to July 15, 1984.”

In this decision the Commission noted that the claimant requests that the settlement order approved by the Commission on April 11, 1988, be modified to include a finding that the settlement provides solely for the future medical expenses of the claimant and that the settlement specifically excludes any provision for funding of claimant’s disability, either temporary or permanent, or for reimbursement of wages lost or to be lost. The Commission, however, made no such finding.

Upon judicial review, Robert Silberstein argued that the Commission’s decision of January 13, 1989, was against the manifest weight of the evidence and an abuse of discretion and should, therefore, be set aside. Robert Silberstein asked the circuit court to enter an order fixing attorney fees at $700,000 with interest to be paid thereon at the rate of 8% per annum from March 18, 1988, the date on which the first payments were to be paid to the claimant pursuant to the settlement agreement. The circuit court found in an order entered April 20, 1989, that the Commission’s decision on January 13, 1989, is against the manifest weight of the evidence and an abuse of discretion and remanded the cause to the Commission “with directions that Attorney Robert Silberstein be awarded a substantially higher attorney fee than that previously set by the Commission.”

In its order of April 20, 1989, the circuit court found in part as follows:

“7. The record clearly reflects that disputes have arisen throughout the pendency of the claim as to the nature of services reasonably required for Richard Griffin’s physical and mental care and rehabilitation. The Court finds from the record that Mr. Silberstein admirably and tenaciously withstood and fought off efforts of the insurance carrier that would have dramatically reduced or terminated the amount of medical benefits the [claimant] received prior to the Commission’s approval of [claimant’s] settlement. Mr. Silberstein through his skills as an attorney and negotiator dramatically increased the medical benefits available to Mr. Griffin, which benefits would have been denied [claimant] or terminated by the insurance carrier if their position would have prevailed. Therefore, this Court finds substantial competent evidence in the record of disputed medical expenses.
8. The sum of $700,000 has been paid to [claimant] for his benefit while the question of attorney fees and expenses for [claimant’s] attorney Robert L. Silberstein have been determined by the Commission. It is out of this fund that the [claimant] shall pay the attorney fees and costs ultimately allowed.
9. The Court finds specifically that the settlement approved by the Commission provides solely for the future medical expenses of the [claimant] and not for the funding of [claimant’s] disability, either temporary or permanent, or for reimbursement of wages lost or to be lost.”

The court expressly found that “[t]he second settlement agreement provided [claimant] with a more lucrative settlement as a result of Attorney Silberstein’s efforts.” The court found as well that “[if] the entire $700,000 now paid to [claimant] is not consumed by attorney fees and costs, then a further monetary benefit will be conferred upon [claimant] above and beyond the approved settlement.” The court concluded that “the Commission’s calculation of 150 hours is against the manifest weight of the evidence and an abuse of discretion since the record clearly reflects substantial services of Mr. Silberstein on a time and result basis far in excess of the 150 hour calculation of the Commission” and that the Commission abused its discretion by issuing an order that gives claimant an additional benefit of $700,000, “being fees not awarded to Attorney Silberstein,” but fails to grant counsel “any computational financial benefit for this additional settlement benefit above the settlement amount already approved for [claimant].”

Upon remand, in a decision dated September 22, 1989, the Commission awarded claimant’s counsel an additional $5,000 in attorney fees, representing 40 hours at $125 per hour, thereby awarding counsel a total of $47,572.34 for his fee, as opposed to a total of $42,572.34 which it had awarded as attorney fees in its previous decision of January 13, 1989. Upon remand the Commission made virtually all of the same findings with respect to the award of attorney fees that it had made in its order of January 13, 1989. In this decision upon remand, the Commission expanded as follows upon its earlier finding with respect to the absence of records concerning time spent on the case by claimant’s counsel:

“It is of upmost importance to note that no records reflecting either the time spent, the dates the time was spent, or the type of legal activities engaged in when time was spent, were placed into evidence by [claimant’s] Attorney and it is therefore impossible to determine with any certainty the time expended by [claimant’s] attorney in litigation and settlement of this claim. This critical paucity of such germane records is of considerable hinderance [sic] in establishing the amount of fees [claimant’s] Attorney is entitled to pursuant to the Circuit Court’s order. It should be understood that in the absence of such records it is also impossible to determine whether all services rendered were reasonably necessary. The Commission finds that in no extent is [claimant’s] Attorney entitled to fees or expenses for time, services or costs expended or incurred in support and pursuant to the Petition for Attorneys’ fees.”

Upon judicial review, in an order entered February 8, 1990, the circuit court found the Commission’s order of September 22, 1989, awarding fees of $47,572.34 to be contrary to the order of remand, an abuse of discretion, and against the manifest weight of the evidence. The court found that the Commission’s order of September 22, 1989, “has merely awarded Mr. Silberstein nominal attorney fees in disregard of this Court’s Mandate of April 20,1989[,] that a substantially higher attorney fee be awarded.” The court noted that the only objector to the relief sought by claimant’s counsel was the Commission and that the First National Bank of Peoria, as successor guardian of the estate of the incompetent, Richard Griffin, had made no objection to Robert Silberstein’s petition for attorney fees. The court found as well that both the nature of counsel’s services and their value to the claimant were extraordinary. The court found further that the Commission had made the sum of $700,000 payable to the claimant although the sum is “above and beyond that required for the approved settlement given to Richard F. Griffin, Incompetent, [and] was the direct result of negotiations by Attorney Silberstein and was intended as a fund from which attorney[’]s fees would be paid.” The circuit court found that income earned on the amount of $700,000 has been received by the claimant and “constitutes an additional benefit accruing to him as a consequence of the services of Attorney Silberstein.” The circuit court remanded the cause to the Commission “with directions that Attorney Robert Silberstein be awarded a substantially higher attorney fee consistent with the findings set forth in this order rather than the nominal fee previously set by the Commission.”

Thereafter the Commission filed a petition for clarification. In an order entered March 7, 1991, the circuit court found that “under the extraordinary circumstances of this case, the facts contained in the record before the Commission are sufficient to justify this Court’s decision herein, that the attorney fee of $700,000, is appropriate.” The circuit court ordered that the sum of $700,000 be paid immediately to Robert Silberstein by the guardian of the estate of the claimant and that any and all interest earned upon the sum of $700,000 be retained by the estate of the claimant. This appeal by the Commission and cross-appeal by claimant’s counsel followed.

The Commission presents two issues for review: (1) whether the Commission abused its discretion in its two decisions awarding attorney fees of approximately $42,500 and $47,500 to claimant’s attorney and (2) whether it was error for the circuit court to award discretionary fees and, if not, whether the $700,000 fee granted was excessive. In his cross-appeal claimant’s counsel raises one issue for review: whether interest earned on a fund which is held pending litigation follows the fund upon resolution of the controversy. We have allowed the filing of two briefs by amici curiae, one by the Illinois Trial Lawyers Association and the other by the Illinois Manufacturers’ Association and the Illinois State Federation of Labor and Congress of Industrial Organizations. Both of these briefs urge, in effect, reversal of the judgment of the circuit court and reinstatement of the Commission’s decision.

Section 16 of the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.16) (hereafter referred to as the Act) provides in part that “[t]he Commission shall have the power to determine the reasonableness and fix the amount of any fee of compensation charged by any person, including attorneys ***, for any service performed in connection with this Act, or for which payment is to be made under this Act or rendered in securing any right under this Act.” Section 16a (Ill. Rev. Stat. 1989, ch. 48, par. 138.16a) provides with respect to attorney fees in relevant part as follows:

“(A) In the establishment or approval of attorney’s fees in relation to claims brought under this Act, the Commission shall be guided by the provisions of this Section and by the legislative intent, hereby declared, to encourage settlement and prompt administrative handling of such claims and thereby reduce expenses to claimants for compensation under this Act.
(B) With respect to any and all proceedings in connection with any initial or original claim under this Act, no claim of any attorney for services rendered in connection with the securing of compensation for an employee or his dependents, whether secured by agreement, order, award or a judgment in any court shall exceed 20% of the amount of compensation recovered and paid, unless further fees shall be allowed to the attorney upon a hearing by the Commission fixing fees, and subject to the other provisions of this Section. However, except as hereinafter provided in this Section, in death cases, total disability cases and partial disability cases, the amount of an attorney’s fees shall not exceed 20% of the sum which would be due under this Act for 364 weeks of permanent total disability based upon the employee’s average gross weekly wage prior to the date of the accident and subject to the maximum weekly benefits provided in this Act unless further fees shall be allowed to the attorney upon a hearing by the Commission fixing fees.
(C) All attorneys’ fees in connection with the initial or original claim for compensation shall be fixed pursuant to a written contract on forms prescribed by the Commission between the attorney and the employee or his dependents, and every attorney, whether the disposition of the original claim is by agreement, settlement, award, judgment or otherwise, shall file his contract with the Chairman of the Commission who shall approve the contract only if it is in accordance with all provisions of this Section.
(D) No attorneys’ fees shall be charged with respect to compensation for undisputed medical expenses.
(E) No attorneys’ fees shall be charged in connection with any temporary total disability compensation unless the payment of such compensation in a timely manner or in the proper amount is refused, or unless such compensation is terminated by the employer and the payment of such compensation is obtained or reinstated by the efforts of the attorney, whether by agreement, settlement, award or judgment.
(F) In the following cases in which there is no dispute between the parties as to the liability of the respondent to pay compensation in a timely manner or in the proper amount and there is no dispute that the accident has resulted in:
(2) a statutory permanent disability; ***
(5) *** the legal fees, if any, for services rendered are to be fixed by the Industrial Commission at a nominal amount, not exceeding $100.
(I) All attorneys’ fees for representation of an employee or his dependents shall be only recoverable from compensation actually paid to such employee or dependents.
(K) After reasonable notice and hearing before the Commission, any attorney found to be in violation of any provision of this Section shall be required to make restitution of any excess fees charged plus interest at a reasonable rate as determined by the Commission.”

The decision of the Commission on a question of fact will not be disturbed unless it is contrary to the manifest weight of the evidence. (Paganelis v. Industrial Comm’n (1989), 132 Ill. 2d 468, 548 N.E.2d 1033.) It is within the province of the Commission to judge the credibility of witnesses, to draw reasonable inferences from their testimony, and to determine what weight the testimony is to be given. (Paganelis, 132 Ill. 2d 468, 548 N.E.2d 1033.) We note that appeal of the final order of the circuit court brings the entire record before the reviewing court and permits review of the correctness of the remanding orders (City of Rockford v. Industrial Comm’n (1978), 69 Ill. 2d 597, 373 N.E.2d 17).

We have read the entire record on review, which reveals plainly that the findings of the Commission in its initial decision of January 13, 1989, awarding attorney fees to claimant’s counsel in the amount of $42,572.34 are not against the manifest weight of the evidence. Claimant’s counsel seems to suggest that the settlement consists entirely of disputed medical expenses and that a fee of $700,000 falls within the limits imposed by section 16a because it is 20% of $3,500,000, which was the cost to the insurer to settle the case. However, the record indicates that although the necessity of some aspects of the claimant’s care were disputed, many, if not most, of his medical expenses were, in fact, undisputed. The record is such, however, that the amount of claimant’s disputed medical expenses cannot be ascertained. Whether the settlement provides solely for the claimant’s future medical expenses and not at all for the funding of his disability does not alter the nature of the claimant’s case as one involving total disability. In such cases, in section 16a(B) of the Act, the legislature has limited attorney fees to “20% of the sum which would be due under this Act for 364 weeks of permanent total disability based upon the employee’s average gross weekly wage prior to the date of the accident and subject to the maximum weekly benefits provided in this Act unless further fees shall be allowed to the attorney upon a hearing by the Commission fixing fees.” In this case, upon a hearing the Commission fixed further fees. Nothing in the record suggests that the Commission abused its discretion in fixing a fee of $42,572.34. Although the Commission subsequently awarded claimant’s counsel an additional sum of $5,000 in attorney fees, it did so only because it was ordered to increase “substantially” the amount of attorney fees awarded upon remand, in accordance with the erroneous determination by the circuit court that the Commission’s decision was against the manifest weight of the evidence and an abuse of discretion. Therefore, the judgment of the circuit court entered on March 7, 1991, is reversed with respect to its award of attorney fees, and the decision of the Commission entered on January 13, 1989, is reinstated.

Our disposition with respect to the award of attorney fees has rendered moot the issue counsel presents in his cross-appeal, and we do not consider it.

Judgment reversed; Commission decision of January 13, 1989, reinstated.

McCULLOUGH, P.J., and WOODWARD, STOUDER, and RAKOWSKI, JJ., concur.


author: PRESIDING JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BIJOU WILLIAMS, Defendant-Appellant.
    Third District
    No. 3—92—0325
    Opinion filed January 14, 1993.

      Thomas A. Karalis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    William Herzog, State’s Attorney, of Kankakee, and Howard Wertz, of Lynwood (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

A jury convicted the defendant, Bijou Williams, of unlawful possession of over 15 but less than 100 grams of a controlled substance (111. Rev. Stat. 1991, ch. 56V2, par. 1402(a)(2)(A)). Thereafter, he was sentenced to a six-year term of imprisonment. He appeals, and we affirm the judgment as modified.

The record shows that police officer Bridget Bertrand testified that on August 27, 1991, she was on patrol. While driving south on Interstate 57, she observed a white Pontiac approaching from behind. She saw the Pontiac change lanes several times without using either turn signal. She observed two people in the front seat of the Pontiac. Bertrand also saw the passenger bend down several times and then return to an upright position.

Bertrand stated that she pulled over to the shoulder of Interstate 57 and slowed down enough to let the Pontiac pass her vehicle. At the same time, she observed a white Chevrolet go by her vehicle. Bertrand saw the driver of the Chevrolet hold something up in her direction. She later discovered that the driver of the Chevrolet was John Stambaugh, an off-duty Illinois State trooper.

After pulling back onto Interstate 57, Bertrand drove behind the Pontiac and activated her emergency lights. The driver of the Pontiac did not stop. Bertrand then observed the passenger in the Pontiac throw handfuls of a white powdery substance out the car window. While Bertrand pursued the Pontiac, she saw the Chevrolet continue in front of the Pontiac and then slow down in an attempt to stop the Pontiac. After the three cars had driven about a mile, the Pontiac pulled over. Bertrand pulled her vehicle over and came to a stop behind the Pontiac. Stambaugh then pulled his Chevrolet over and stopped directly in front of the Pontiac.

Bertrand testified that she approached the Pontiac and ordered the driver and passenger to get out. They obeyed and she arrested them. Larry Shannon was the driver of the Pontiac and Williams was the passenger. Bertrand and another officer who had arrived at the scene then searched the front interior area of the Pontiac. They observed white powder on the seat, floor, and the interior areas around the passenger door. She also observed that Williams had white powder on his clothing. Bertrand and Sergeant Donald Yann later collected as much of the white powder as they could from the roadway and the interior of the Pontiac.

State Trooper Stambaugh also testified concerning the traffic stop. Stambaugh stated that he kept his Chevrolet in front of the Pontiac as Bertrand attempted to stop the Pontiac. Stambaugh observed the passenger, Williams, opening bags and throwing a white powdery substance out the car window. The wind blew the substance back into Williams’ face, hair, and shirt, as well as the interior of the Pontiac. Williams then tossed three unopened bags out the car window. The bags burst open upon striking the highway.

Forensic scientist Aurelia Rizo testified that the white substance collected by Bertrand and Yann was determined to be cocaine. Rizo stated there was some debris mixed in with the cocaine. However, she was unable to completely separate the debris from the cocaine. Therefore, the total weight included the weight of the debris. While Rizo could not say how much the debris weighed, she indicated the amount was small. Rizo testified that the entire substance weighed 18.3 grams.

Larry Shannon testified on behalf of Williams. Shannon stated that he was facing the same charge as Williams. However, Shannon said that he had not gone to trial yet, nor had he reached a plea agreement. Shannon testified that as he was driving back from Chicago, he observed a police car attempting to stop him. Shannon then pulled out three bags of cocaine he had hidden in the crotch of his pants. Shannon threw the bags at Williams and told Williams to get rid of them. Williams complied by opening the bags and throwing the contents out the window. Shannon stated that Williams did not know Shannon possessed any drugs before he gave Williams the cocaine. Shannon also testified that Williams was not a drug user.

Based on this evidence, the jury found Williams guilty of possession of a controlled substance.

On appeal, Williams first contends that he was not proven guilty beyond a reasonable doubt of possession of a controlled substance because the State failed to prove that he knowingly and voluntarily possessed the cocaine. He points out that Shannon admitted possessing the cocaine. Also, Williams argues that his possession only occurred involuntarily and momentarily as a result of Shannon telling him to throw the cocaine out the car window. We disagree with Williams’ misplaced logic. The record does not support his conclusion.

To support a conviction for unlawful possession of a controlled substance, the State must prove the defendant had knowledge of the substance and that it was under his immediate and exclusive control. (People v. Strong (1986), 151 Ill. App. 3d 28, 502 N.E.2d 744.) However, possession may also be constructive. Additionally, the rule that possession must be exclusive does not preclude joint possession. People v. Burke (1985), 136 Ill. App. 3d 593, 483 N.E.2d 674.

On appeal, when reviewing a conviction in a criminal case, the court will preserve the trier of fact’s role as weigher of the evidence by viewing the evidence in the light most favorable to the prosecution. The relevant question upon review is whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) Proof beyond a reasonable doubt does not require the exclusion of every possible doubt. We note that as long as the entire chain of circumstances leads to a reasonable certainty that the accused committed the crime, the judgment must be upheld. People v. Stepteau (1986), 142 Ill. App. 3d 400, 491 N.E.2d 821.

After reviewing the evidence in light of the foregoing principles, we conclude that a rational trier of fact could have found Williams guilty as charged. The record shows that Williams, while riding in the car, bent down and came back several times to an upright position. In addition, Williams was seen by two police officers throwing handfuls of cocaine out the car window. Williams also was observed throwing several unopened bags out the window. The bags contained a white substance which broke apart after striking the pavement. Based on this evidence, we find the State clearly established that Williams possessed the cocaine.

Now we review Williams’ contention that Shannon’s testimony proved his possession was involuntary. The jury was free to disregard Shannon’s testimony because the jury was the ultimate trier of fact. The jury’s function is to weigh the evidence and judge the witnesses’ credibility. Here, the jury obviously did not believe Shannon’s version of the story. Rather, the jury believed the State’s evidence, which showed that Williams had possessed the cocaine and threw several unopened bags out the car window. Therefore, the jury could reasonably conclude that Williams had committed the crime and his possession was not involuntary.

The defendant next argues that the State failed to prove beyond a reasonable doubt that the substance containing cocaine weighed at least 15 grams because the State could not precisely quantify the weight of the debris which was comingled with the cocaine. We disagree.

The weight of a substance alleged to contain a controlled substance is an essential element of a charge of unlawful possession of that substance. Accordingly, where there is a lesser-included offense for possessing a smaller amount, the weight of the substance containing the drug must be proved beyond a reasonable doubt. (People v. Hill (1988), 169 Ill. App. 3d 901, 524 N.E.2d 604.) However, the State may determine the weight of the contraband based upon its condition at the time it was seized or discovered. (People v. Calhoun (1977), 46 Ill. App. 3d 691, 361 N.E.2d 55.) This court in Calhoun allowed bits of paper and soil mixed with cannabis to be properly considered in determining the weight of a substance containing cannabis.

Here, the evidence shows that Williams created the dilemma which he now complains of by throwing the cocaine onto a debris-filled highway. The record clearly shows that the police and the forensic expert did everything reasonably possible to eliminate the debris from the cocaine. Based on these facts and our holding in Calhoun, we refuse to allow Williams to benefit from the situation he created. Accordingly, we reject Williams’ contention that the State failed to prove beyond a reasonable doubt that the cocaine weighed over 15 grams.

Williams next complains about several remarks the prosecutor made during his closing argument. He contends that the remarks amounted to reversible error. We disagree. Williams first alleges the prosecutor improperly appealed to the fears and prejudices of the jury when he stated that drugs are a horrible problem in the community.

The Hlinois Supreme Court has noted that the State’s Attorney is the representative of all of the people, including the defendant, and it is as much his duty to safeguard the rights of the defendant as those of any other citizen. At the same time, the State’s Attorney is expected to prosecute with earnestness and vigor. (People v. Lyles (1985), 106 Ill. 2d 373, 478 N.E.2d 291.) Where the prosecutor’s closing argument serves no purpose except to inflame the jury, the statements constitute error. However, improper remarks generally do not constitute reversible error unless they result in substantial prejudice to the accused. People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174.

Here, while we do not approve of the prosecutor’s comments, we do not find they resulted in substantial prejudice to Williams. The prosecutor only made a brief remark concerning the problem of drugs in society and did not dwell upon the issue. Therefore, we find the prosecutor’s comments were not so prejudicial that they denied Williams his constitutional right to a fair trial.

Williams next argues that the prosecutor improperly commented upon evidence that was not admitted at trial. Specifically, he complains about the following comments made by the prosecutor:

“What do you think is going on in that car? What do you think these two are up to coming back from Chicago? They’ve got a lot of cocaine in that car, a lot more than what you saw in this courtroom today. A lot more.”

It is well established that a prosecutor has great latitude in making closing arguments and absent a clear abuse of discretion, the trial court’s determination concerning the propriety of the comments will not be disturbed. (People v. Barkauskas (1986), 147 Ill. App. 3d 360, 497 N.E.2d 1183.) A prosecutor can argue any logical inference which can be drawn from the evidence. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

We note that Williams’ counsel made two objections to the prosecutor’s comments. Both objections were overruled by the trial court. However, we decline to find the trial court abused its discretion in ruling that the comments were not improper. The record shows that two police officers saw Williams throw several unopened bags of a white substance out the car window. The evidence also shows that much of this substance was not collected because it was scattered on the highway. However, since the substance ultimately retrieved tested positive for cocaine, one can logically infer that the additional white substance not retrieved was also cocaine. Consequently, the prosecutor could reasonably argue that Williams had more cocaine in his possession than the amount collected and admitted into evidence. Therefore, we find the prosecutor’s comments were not improper because they were logical inferences reasonably drawn from the evidence.

Williams’ next three contentions deal with the fines he was ordered to pay. He first alleges that the trial court improperly imposed a street value fine of $2,000 without any evidence indicating the fine actually represented the value of the cocaine found in his possession. Williams’ second contention is that his $20 crime victim relief fine was improperly imposed because it was not specifically ordered by the trial court during his sentencing hearing.

Issues not objected to at trial or raised in a post-trial motion are considered waived on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The record shows that Williams’ private counsel made no objections at trial, or in any post-trial motions, concerning the fines which are now objected to on appeal. Therefore, we find that the issues concerning the fines have been waived on appeal.

Williams’ final contention is that he is entitled to a $175 reduction in his fines in order to properly reflect a $5-a-day credit for his 35 days of pretrial custody. The State did not respond to this argument. We believe the State has conceded that Williams is entitled to a $5-per-day credit for the time he served prior to his conviction. (Ill. Rev. Stat. 1991, ch. 38, par. 110—14.) We also agree with Williams’ contention and therefore direct the trial court to reduce Williams’ fine by $175.

The judgment of the circuit court of Kankakee County is affirmed as modified with Williams’ fine being reduced by $175.

Affirmed as modified.

BARRY and SLATER, JJ., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY L. BURNETT, Defendant-Appellant.
    Third District
    No. 3—91—0560
    Opinion filed January 20, 1993.
    Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.

      Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Following a bench trial, the defendant, Terry L. Burnett, was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12—14(b)(1)) and sentenced to six years’ imprisonment. He appeals.

The record reveals that at trial, the victim’s 13-year-old sister testified that on October 3, 1990, she was home with her mother’s boyfriend, Steve Popple. Also present were her brother, her mother, a man named Derwin Popple, the defendant, and the victim. At 8:30 p.m., her mother went out with the defendant’s sister. Derwin Popple left shortly thereafter, leaving the defendant home alone with the children. The victim’s sister testified that when she and her brother went upstairs to bed, the defendant was watching a movie and the victim was taking a bath. The victim’s sister stated that she was asleep when the victim eventually came upstairs.

The 10-year-old victim testified that on October 3, 1990, her mother went out drinking with her boyfriend, Steve Popple. Around 8 p.m., she took a bath that lasted a half-hour. When she got out of the tub, the defendant asked her to watch a movie with him. The defendant then asked her to put the movie “Coming to America” in the VCR. After putting the movie in the VCR, she sat down and the defendant told her to suck his “thing.” She told the defendant “No,” but he grabbed her head and forced it down to his penis. Afterwards, she went to the bathroom and vomited. She then went to the bedroom to try to wake up her sister. When she was unable to do so, she went to bed. The night after it happened, she told her mother that “Terry made me suck his thing.”

The victim’s mother testified that on the evening in question, she went out drinking with Debra Sturgis and the defendant’s sister. She left her oldest daughter in charge of the other children. The defendant and Derwin Popple were in the house when she left. She returned home to find the defendant sleeping on the couch. At that time, he got up and left. Around 1 a.m. on October 5, the victim’s mother heard the victim crying. She asked her why she was crying, and the victim replied that she did something bad. She then told her mother that something happened with the defendant.

At that point in the trial, the defendant objected on hearsay grounds to testimony regarding the substance of the conversation between the victim and her mother. The court mentioned the hearsay exception provided under section 115 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 115—10). The defendant responded that the exception did not apply because no hearing was held to determine if the statements were sufficiently reliable. Additionally, the defendant argued that the State did not comply with the statute because it failed to give the defendant both reasonable notice of its intention to offer the statement at trial and the particulars of the statement.

The State responded that it included the victim’s mother’s name in its list of possible witnesses and that police reports provided in discovery referred to the statements. The State then argued that a reasonable attorney could deduce that the prosecution would call the witness to testify about the statements.

The court agreed with the defendant’s assertion that the State did not strictly comply with the statute. Nevertheless, it overruled the defendant’s objection, finding that there was substantial compliance with the law.

The questioning of the victim’s mother resumed, and she testified that the victim told her that the defendant “pulled her hair and made her suck his thing.”

Police officer Dave Nelson then testified that he interviewed the victim. The defendant objected to Nelson testifying regarding the substance of the interview. This objection was also premised on the State’s failure to comply with section 115 — 10, and was again overruled. Nelson subsequently testified that the victim told him that while the defendant was babysitting, she came out of the bathroom and went downstairs. The defendant asked her to put a tape in the VCR and then “suck his thing.” The victim told Nelson that she said “No,” but the defendant grabbed her and pushed her head towards his groin. She said that the defendant then told her to bite it. When she did, the defendant let her go. The victim told Nelson that the incident lasted 30 seconds and then she went upstairs.

Nelson testified that he also interviewed the defendant. The defendant denied any sexual involvement with the victim. He told Nelson that the victim took a bath, put a tape in the VCR, got him a pillow and blanket, and went to bed. Nelson stated that he did not check the defendant for bite marks.

Following the close of the State’s case, the defendant testified on his own behalf. He stated that he arrived at the victim’s home around 3 p.m. on October 3, 1990. Both Derwin Popple and Steve Popple were already at the house. Sometime later, the victim’s mother left with his sister and Debbie Sturgis. Steve Popple left shortly thereafter, and the defendant went to the home of his aunt, Kimmi Burnett. The defendant returned to the victim’s house at 9:30 p.m. Shortly thereafter, the victim came out of the bathroom. The defendant asked her to put in a tape. She brought him a pillow and blanket and then went to bed. The defendant stated that he did not see her again until the next day. He claimed that he never asked her to do anything of a sexual nature and that he never did anything of a sexual nature with her.

Two of the defendant’s aunts, Nancy Burnett and Kimmi Burnett, testified that he had a reputation for being law abiding. Kimmi Burnett stated that the defendant stopped by her house on October 3, 1990, with Shane Burnett.

Shane Burnett testified that he and the defendant went to Kimmi’s house on October 3, 1990, and returned to the victim’s house at about 8:30 or 9 p.m. He left shortly thereafter because he had to work the next day.

In rebuttal, the State entered into evidence the defendant’s previous convictions for theft.

Based upon the foregoing evidence, the court found the defendant guilty and sentenced him to a six-year term of imprisonment.

On appeal, the defendant argues that the trial court erred in admitting into evidence the testimony of the victim’s mother and Officer Nelson regarding what the victim had told them. The defendant contends that this testimony should have been inadmissible hearsay because section 115 — 10 of the Code of Criminal Procedure (Ill. Rev. Stat. 1991, ch. 38, par. 115—10) was not complied with. Specifically, the defendant contends that no notice of the testimony was given to the defendant prior to trial, and no pretrial hearing was held to consider the reliability of the statements.

Section 115 — 10 deals with the admissibility of “testimony of an out of court statement made by [the complainant 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. 1991, ch. 38, par. 115—10(a)(2).

The statute provides:

“(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.” Ill. Rev. Stat. 1991, ch. 38, pars. 115-10(b)(1), (b)(2).

It is undisputed that no hearing was held in the instant case. However, while the requirement of a “hearing outside the presence of the jury” is not wholly inapplicable to bench trials, the trial judge is presumed to have considered only admissible evidence. Accordingly, he may be presumed to have considered the time, content, and circumstances under which the statement was made in determining the reliability of the statement. People v. Roy (1990), 201 Ill. App. 3d 166, 558 N.E.2d 1208.

In Roy, a case tried before the court, the failure to hold a hearing was not plain error even though the trial court never specifically articulated its findings as to the reliability of the statements. The appellate court said, “The requirement the hearing be held ‘outside the presence of the jury’ does not render the requirement inapplicable to bench trials. However, it is a well-established rule that the trial court, as a trier of fact, is presumed to have only considered admissible evidence in reaching its determination. (People v. Finn (1978), 68 Ill. App. 3d 126, 385 N.E.2d 103.) Accordingly, we find that in admitting Gremmels’ statements into evidence, the trial court appropriately considered the time, content, and circumstances of the statements were sufficient to establish their reliability even though it did not articulate such a finding. While the trial court should have made such a specific finding, its absence does not constitute plain error under these circumstances.” Roy, 201 Ill. App. 3d at 183.

In People v. Hart (1991), 214 Ill. App. 3d 512, 573 N.E.2d 1288, also a bench trial, following Roy the appellate court said: “In Roy, the failure to conduct a hearing was not held to be error even though the trial court never specifically articulated its findings as to the reliability of the statements. In the present case, however, the court noted, when making its determination regarding the admissibility of the statements, that it believed that there were sufficient safeguards of reliability. Again, at the close of the trial, when determining defendant’s guilt, the court once again noted that it admitted M.T.’s statements because it believed that she did not have time to fabricate the story concerning the sexual encounter. We find that under these circumstances, the fact that no separate hearing was held was harmless error.” Hart, 214 Ill. App. 3d at 524-25. See also People v. Morton (1989), 188 Ill. App. 3d 95, 543 N.E.2d 1336 (harmless error to admit testimony of deputy sheriff in regard to statements made to him even though court denied defendant’s request for hearing to determine reliability).

Here, the court went further than in Roy and Hart and specifically noted, “The court is of the opinion that the evidence, that I find to have been credible, was clear and convincing. And especially the evidence of [the victim].” Under these circumstances, and the case law, we cannot say the failure to hold a separate hearing constituted reversible error.

Turning our attention to the notification requirement of section 115 — 10, we note that the proponent of the statement is supposed to “give the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.” Ill. Rev. Stat. 1991, ch. 38, par. 115—10(d).

The defendant contends that no such notice was given and that he was “taken completely by surprise when the State offered and the court allowed the hearsay testimony.” However, as the trial court noted, the State included both the victim’s mother and Officer Nelson in the list of witnesses it provided to the defendant. Additionally, the substance of their testimony was contained in the police reports. Accordingly, the trial court properly concluded that there was certainly no surprise as to what their testimony might be. We conclude that the State substantially complied with the statute and that no reversible error occurred.

For the forgoing reasons, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

McCUSKEY, P.J., and SLATER, J., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD J. KUNTZ, Defendant-Appellant.
    Third District
    No. 3—92—0300
    Opinion filed January 15, 1993.

      Kalian & Grnacek, of Joliet (Kenneth A. Grnaeek, of counsel), for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Defendant Donald Kuntz was arrested on March 5, 1992, and charged with improper lane usage and driving under the influence of alcohol. Defendant submitted to a breathalyzer test which indicated a blood-alcohol concentration of 0.23 and his driver’s license was summarily suspended (see Ill. Rev. Stat. 1991, ch. 95½, pars. 11—501.1(d), (e)). Defendant filed a petition to rescind the summary suspension (see Ill. Rev. Stat. 1991, ch. 95½, par. 2—118.1) which was denied. Defendant appeals from the denial of his petition, contending that: (1) the trial court abused its discretion in sua sponte granting a continuance and allowing the State to reopen its case; and (2) the court erred in admitting certain evidence without a proper foundation and in violation of the best evidence rule. We reverse.

The 56-year-old defendant testified that he left work around 10:15 p.m. on March 5, 1992, and stopped in a tavern on the way home where he had two beers. Defendant also admitted taking “a couple of sips” from a pint bottle of vodka prior to starting work at 2:45 p.m. Defendant was subsequently stopped by Officer Patrick Murphy of the Braidwood police department at approximately 11:30 p.m. Defendant stated that he successfully completed one field sobriety test (the alphabet test) but he was unable to perform the one-leg stand test because of weakness in his ankles. Defendant denied that he was under the influence of alcohol. Defendant was first taken to the Braidwood police department and then to the Wilmington police department for a breathalyzer test. Defendant testified that he was not given any warnings prior to the breathalyzer test, nor was he issued any traffic citations until after the test was completed.

After defendant rested his case, the State moved for a directed finding with respect to paragraph five of defendant’s petition to rescind. Paragraph five alleged that the results of the breathalyzer test did not indicate a blood-alcohol concentration of 0.10 or more. The trial court denied the State’s motion, finding that the defendant had established a prima facie case with regard to this allegation.

Officer Murphy testified for the State that he stopped the defendant’s van at 11:25 p.m. after it twice crossed the center line of the road. Defendant had no problem producing his driver’s license and proof of insurance, but he smelled strongly of alcohol. Murphy testified that the defendant was unable to perform the field sobriety tests and defendant stated, “that I [Murphy] knew that he [defendant] was drunk, so why should we go on with any other of the tests?” Defendant was arrested, taken to the Braidwood police department, and issued citations for improper lane usage and driving under the influence of alcohol. Defendant was then transported to the Wilmington police department because there was no breathalyzer machine at Braidwood.

Murphy further testified that he was a certified breathalyzer operator, that defendant agreed to a breathalyzer test after receiving the statutory warning (see Ill. Rev. Stat. 1991, ch. 95½, par. 11—501.1(c)), and that he observed the defendant for 20 minutes prior to administering the test. Murphy turned on the breathalyzer machine and changed the mouthpiece, but he did not calibrate it or run any kind of check on it. Murphy identified the printout containing the results of the defendant’s breathalyzer test and indicated that it read 0.23. The printout was admitted into evidence over defendant's objection.

The State rested its case after Murphy’s testimony and the parties presented their closing arguments. The defendant argued that no evidence, such as log books, had been introduced to show that the breathalyzer machine had been tested for accuracy, nor was there any evidence that the machine was working properly at the time the test was administered. After the State’s closing argument, defense counsel again emphasized the lack of proof concerning the accuracy and certification of the breathalyzer machine, at which time the trial court interrupted and asked the assistant State’s Attorney if he “want[ed] time to bring in the log books.” Although the defendant objected, the court then granted a continuance until the next day to allow the State to reopen its case and present additional evidence.

The following day, again over defendant’s objection, Officer Murphy testified that prior to administering the breathalyzer test to the defendant the machine was “purged” by taking an air sample from the room. Copies of a log book showing that the breathalyzer machine had been calibrated on February 18, 1992, were later admitted into evidence over defendant’s objection. The defendant’s petition to rescind the statutory summary suspension was subsequently denied.

’ The defendant contends that the trial court abused its discretion in sua sponte granting a continuance and allowing the State to reopen its case. The State responds that this issue is moot because the trial court erred in initially finding that defendant had established a prima facie case for rescission. Alternatively, the State argues that the court properly allowed the State to reopen its case.

A summary suspension hearing is a civil proceeding at which the suspended motorist bears the burden of proof. (People v. Orth (1988), 124 Ill. 2d 326, 530 N.E.2d 210.) Once a motorist has made a prima facie case that the breathalyzer test result did not accurately reflect his blood-alcohol concentration, the State can only avoid rescission by moving for admission of the test into evidence and laying the. necessary foundation, which includes evidence that the machine was regularly tested for accuracy and was working properly. (Orth, 124 Ill. 2d 326, 530 N.E.2d 210.) A prima facie case for rescission “may consist of any circumstance which tends to cast doubt on the test’s accuracy, including, but not limited to, credible testimony by the motorist that he was not in fact under the influence of alcohol.” (Orth, 124 Ill. 2d at 341, 530 N.E.2d at 217.) The trial court’s determination of a prima facie case will not be disturbed on appeal unless it is against the manifest weight of the evidence. Orth, 124 Ill. 2d 326, 530 N.E.2d 210; People v. Graney (1992), 234 Ill. App. 3d 497, 599 N.E.2d 574.

In this case the defendant testified that his alcohol consumption was minimal, that he was able to perform a field sobriety test, and that he was not under the influence of alcohol. “[I]f the trial judge finds such testimony credible *** the burden shift[s] to the State to lay a proper foundation for the admission of the test results.” (Orth, 124 Ill. 2d at 341, 530 N.E.2d at 217.) Where the trial court’s findings are based on the credibility of the witnesses, we may not substitute our judgment for that of the court. (Graney, 234 Ill. App. 3d 497, 599 N.E.2d 574.) The trial court’s determination that defendant established a prima facie case for rescission was not against the manifest weight of the evidence.

We next consider defendant’s claim that the trial court abused its discretion by sua sponte granting a continuance and allowing the State to reopen its case. As our supreme coúrt has noted, it is generally never improper for a judge to aid in bringing out the truth in a fair and impartial manner, although no inflexible rule can be applied in such matters. (People v. Franceschini (1960), 20 Ill. 2d 126, 169 N.E.2d 244.)

“ ‘It is the judge’s duty to see that justice is done, and where justice is liable to fail because a certain fact has not been developed or a certain line of inquiry has not been pursued it is his duty to interpose and either by suggestions to counsel or an examination conducted by himself avoid the miscarriage of justice, but in so doing he must not forget the function of the judge and assume that of the advocate.’ ” Franceschini, 20 Ill. 2d at 132, quoting People v. Lurie (1917), 276 Ill. 630, 641, 115 N.E. 130.

See also People v. Murray (1990), 194 Ill. App. 3d 653, 551 N.E.2d 283 (no error by court in questioning witness); People v. Hicks (1989), 183 Ill. App. 3d 636, 539 N.E.2d 756 (no error where trial court sua sponte raised issue of inevitable discovery); People v. Walter (1980), 90 Ill. App. 3d 687, 413 N.E.2d 542 (no error in court reminding prosecutor regarding identification of defendant and establishing venue).

A trial court has discretion to permit the State to reopen its case to present additional proof (People v. Faulkner (1978), 64 Ill. App. 3d 453, 381 N.E.2d 321), including proof establishing the very facts necessary for a conviction (People v. Henderson (1991), 223 Ill. App. 3d 131, 583 N.E.2d 1187). Moreover, while motions to reopen are usually made by one of the parties, the court may take such action on its own motion where a sound basis for the action appears in the record. (Bank of Illmo v. Simmons (1986), 142 Ill. App. 3d 741, 492 N.E.2d 207.) The discretion of the trial judge is not unlimited, however, and he may never depart from his function as judge and assume the role of an advocate. Franceschini, 20 Ill. 2d 126, 169 N.E.2d 244; In re R.S. (1983), 117 Ill. App. 3d 698, 453 N.E.2d 139, aff’d on other grounds (1984), 104 Ill. 2d 1, 470 N.E.2d 297; People v. Cofield (1973), 9 Ill. App. 3d 1048, 293 N.E.2d 692; People v. McGrath (1967), 80 Ill. App. 2d 229, 224 N.E.2d 660.

In this case, after presentation of all the evidence, defense counsel argued for a ruling in his client’s favor and pointed out that the State had failed to present evidence that the breathalyzer machine had been regularly tested and was working properly. Nevertheless, the assistant State’s Attorney did not ask for a continuance or move to reopen the case, but instead chose to rely on the testimony of Officer Murphy, stating, “I have nothing beyond that.” Under the circumstances, we believe that the trial judge impermissibly acted as an advocate when he prompted the State to seek a continuance and present additional evidence the following day. (Cf. In re R.S., 117 Ill. App. 3d 698, 453 N.E.2d 139 (court abused its discretion in calling and questioning a witness and thereby helping to establish the State’s case).) It is clear that but for the court’s intervention, the State would have failed to rebut the defendant’s prima facie case and the petition to rescind the summary suspension would had to have been granted. We find that the trial court abused its discretion in sua sponte granting a continuance and allowing the State to reopen its case. In view of our disposition, we need not address the second issue raised by defendant.

For the reasons stated above, the judgment of the circuit court is reversed. This cause is remanded and the court is directed to grant the defendant’s petition to rescind the summary suspension.

Reversed and remanded with directions.

BARRY and STOUDER, JJ., concur.