author: PRESIDING JUSTICE McMORROW

text:
    WALTER E. TRITTIPO, Plaintiff-Appellee, v. DONALD V. O’BRIEN et al., Defendants-Appellants.
    First District (4th Division)
    No. 1 — 88—2455
    Opinion filed September 27, 1990.
    Rehearing denied October 30, 1990.

      Jeffrey Cole and Andrew T. Staes, both of Jeffrey Neal Cole, Ltd., of Chicago, for appellants.

      Walter E. Trittipo, of Chicago, appellee pro se.

   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

This is an appeal from the order of the trial court granting judgment for plaintiff in an action to compel the corporate defendant and the individual defendants to purchase plaintiff’s shares of stock in a professional corporation following the termination of plaintiff’s association with the corporation. Defendants contend on appeal that the act governing professional corporations, Professional Service Corporation Act (Ill. Rev. Stat. 1987, ch. 32, par. 415 — 1 et seq.) (the Act), does not require the redemption or purchase of the shares of a stockholder who has voluntarily withdrawn from the corporation, and that the trial court did not possess the power to grant judgment for plaintiff on the basis of equitable principles.

In 1971, plaintiff, Walter Trittipo, and one of the defendants, Donald O’Brien, formed a law partnership in which O’Brien, as senior member, held a 621/2% interest and plaintiff held the remaining 371/2% interest. In 1972, they incorporated the law practice, retaining the same percentage interests in the shares of the corporation as they held in the partnership. O’Brien was the corporation’s president, and Trittipo served as secretary-treasurer. Between 1973 and 1975, defendants Carey and McNamara joined the firm and became shareholders in the corporation. The firm became known as O’Brien, Trittipo, Carey & McNamara, with each of the four principals owning a 25% interest in the corporation.

Differences arose among the parties, and on or about May 1, 1976, plaintiff advised O’Brien of his intention to immediately withdraw from the firm and begin his own law practice. He tendered his shares, which were then cancelled. Between May 1 and September 1976, plaintiff remained as a tenant in his office in the firm’s suite.

At the time of his withdrawal from the firm, plaintiff proposed that the corporation purchase his shares with personal guarantees of the corporate obligation by the remaining shareholders. In the course of meetings following his withdrawal from the firm, the parties concurred that if an agreement could be reached on a price for plaintiff’s shares, the corporation would purchase the shares. No provision had been included in the articles of incorporation, the corporate bylaws or in any separate agreement of the parties regarding the redemption or purchase of a withdrawing shareholder’s stock.

Plaintiff’s demand of $35,000 for his shares was rejected by the other shareholders. Plaintiff did, however, receive reimbursement for accounts receivable from his clients prior to and following his withdrawal from the firm. Plaintiffs equity as computed by defendants was debited for amounts owed by plaintiff for office expenses and miscellaneous draws from the firm, following which defendants tendered to plaintiff a check for $234.43 as full settlement of his equity.

Plaintiff disputed the amount paid to him for his interest in the corporation. The parties continued negotiations over the next few years but were unable to agree on a valuation of the shares. On April 19, 1979, plaintiff filed a complaint in the chancery division of the circuit court pursuant to section 11 of the Act (Ill. Rev. Stat. 1977, ch. 32, par. 415 — 11). Plaintiff sought an accounting and specific performance in the form of an order compelling the individual defendants and the corporation to pay him the fair value of his 25% of the shares of the corporation.

Following a trial, the trial court entered judgment for plaintiff and against all the defendants, jointly and severally, in the amount of $33,028.59. The court also entered judgments of $7,512.80 and $2,073.64, respectively, against Carey and McNamara personally, amounts alleged to have been owed to plaintiff for the purchase of stock from him when they became shareholders. In announcing his decision, the trial judge remarked that the corporation was “special” in that ownership was restricted to duly licensed members of the legal profession. The court further noted that the transfer of ownership was further complicated “since no agreement or by-law provides for a buy-out at a predetermined rate.” The court held that “equitable considerations require that the plaintiff be fairly compensated by the professional corporation and, by necessity, the individual defendants who succeeded or continue[d] to control it after April 30, 1976.” The remainder of the court’s remarks prior to entry of its order were addressed to the valuation of the shares and the amount of the judgment. Judgment was entered for plaintiff, and defendants filed a timely notice of appeal. Plaintiff cross-appeals, contending that the damages awarded by the court were inadequate and also that he should have been awarded prejudgment interest.

Opinion

The briefs and record in this case are extensive, and the parties present numerous issues and arguments. Plaintiff argues several bases upon which the trial court’s judgment should be affirmed. He urges that the terms of the Act allow for a mandated redemption of his shares, and that the court’s judgment, predicated on equitable principles of equitable estoppel, the trust fund doctrine, or construetive trust doctrine, was appropriate. He also argues that the judgment should be affirmed on principles of contract law. In our view, however, disposition of this case is governed by interpretation of the relevant provisions in the Act.

The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature (Kozak v. Retirement Board of the Firemen’s Annuity & Benefit Fund (1983), 95 Ill. 2d 211, 447 N.E.2d 394; Local 143 International Union of Operating Engineers v. Board of Education (1987), 156 Ill. App. 3d 431, 509 N.E.2d 512). In determining such intent, the statute should be read as a whole and all material parts of the legislation should be considered together. (Castaneda v. Illinois Human Rights Comm’n (1988), 132 Ill. 2d 304, 547 N.E.2d 43.) The statute should be interpreted on the basis of what was written, and courts should not search for any subtle or not readily apparent intention of the legislature (Kozak, 95 Ill. 2d 211, 447 N.E.2d 394). It is not the function of the courts to determine what the law ought to be, but to declare what it is (Kozak, 95 Ill. 2d 211, 447 N.E.2d 394) and to enforce it is as enacted. (Local 143 International Union of Operating Engineers, 156 Ill. App. 3d 431, 509 N.E.2d 512.) In addition to the language of the statute, the evils sought to be remedied and/or the objectives sought to be attained by the legislature in enacting the statute are relevant considerations. Castaneda, 132 Ill. 2d 304, 530 N.E.2d 1005.

Section 11 of the Act, pursuant to which plaintiff brought this action, provides in relevant part:

“No corporation organized under this Act may issue any of its capital stock to anyone other than an individual who is duly licensed or otherwise legally authorized to render the same specific professional services or related professional services as those for which the corporation was organized. ***
The articles of incorporation shall provide for purchase or redemption of the shares of any shareholder upon his death or disqualification, or the same may be provided for in the bylaws of the corporation or in a separate agreement of the interested parties.
If the articles of incorporation, by-laws or separate agreement fail to state a price or method of determining a fixed price at which the corporation or its shareholders may purchase the shares of a deceased shareholder, or a shareholder no longer qualified to own shares in the corporation, then the price for such shares shall be the book value as of the end of the month immediately preceding the death or disqualification of the shareholder. Book value shall be determined from the books and records of the corporation in accordance with the accounting methods used by the corporation.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 32, par. 415 — 11.

Defendants contend that the trial court erred in granting judgment for plaintiff. They assert that section 11 of the Act (Ill. Rev. Stat. 1987, ch. 32, par. 415 — 11) does not mandate the purchase or redemption of the shares of a shareholder who voluntarily withdraws from the corporation. They maintain that, as used in the Act, the term “disqualification” means the loss of the license required to render the professional services the corporation performs. They argue that because the statute does not mandate the redemption or purchase of the shares of a licensed shareholder who voluntarily withdraws from the corporation, the trial court lacked power to compel either the corporation or the individual defendants to purchase plaintiff’s shares on the basis of “equitable considerations.”

It is plaintiff’s position that the term “disqualification” in the Act encompasses the voluntary termination of his employment association with the corporation and that section 11 therefore requires the defendants to purchase his shares in the corporation. He contends that the Act refers to licensed professionals as “authorized” rather than “qualified” and, therefore, the word “disqualified” has a different and broader meaning than the mere loss of license.

In support thereof, plaintiff points to section 7 of the Act, which provides:

“No corporation organized *** under this Act may render professional services, except through its officers, employees and agents who are duly licensed or otherwise legally authorized to render such professional services within this State.” (Ill. Rev. Stat. 1989, ch. 32, par. 415 — 7.)

Plaintiff argues that “by clear implication” this section requires that in order to “qualify” the corporation to engage in the practice of law, the licensed or otherwise legally authorized lawyers who render legal services through the corporation must either be officers, employees or agents of the corporation, rather than mere shareholders. Plaintiff reasons that a shareholder who ceases to be an officer, employee or agent of the corporation is, himself, “disqualified” to practice law through that corporation; and, if he practices law outside the corporation without first returning his shares, he causes the corporation to practice law in violation of the prohibition in section 7 that the corporation may not render professional services except through its officers, employees or agents. Plaintiff then concludes that the word “disqualified” in section 11 is intended to mean one who severs his employment relationship with the corporation. We cannot agree with plaintiff’s reasoning or conclusions.

The first paragraph of section 11 limits the issuance of stock in a professional corporation to persons who are duly licensed or otherwise legally authorized to render the specific type of services which the corporation was organized to perform. Nothing in that paragraph requires that the right to be a shareholder is dependent upon the existence of an employment relationship between the shareholder and the corporation. In the context of this case, section 11 merely requires all shareholders of the corporation to be licensed to practice law. It does not require that shareholders actually practice law through the corporation, or even that they practice law at all. Indeed, section 4 expressly provides that “[njothing contained in this Act shall alter the right of persons licensed to engage in the rendering of a professional service from doing so in any other business form permitted them by law.” (Ill. Rev. Stat. 1989, ch. 32, par. 415 — 4.) Since licensure or other legal authorization to render the same services the corporation performs is the only qualification stated in the Act to become a shareholder in a professional corporation, a shareholder becomes “disqualified” under the second paragraph of section 11 only when he is no longer licensed to practice the profession of the corporation.

We see no inconsistency between our reading of section 11 and section 7, which plaintiff erroneously interprets. Contrary to plaintiff’s assertion, 7 does not mandate that shareholders must be officers, employees or agents of the corporation or that each shareholder practice law solely through the corporation. That section merely prohibits the rendering of professional services by officers, employees or agents of the corporation who are not licensed or legally authorized by the appropriate regulatory authority to render such services.

We do not agree with plaintiff that the term “legally authorized” means the same as “licensed.” Section 1 states that the legislative intent of the Act is to allow individuals who are required by law to be licensed or to obtain other legal authorization to render professional services to organize a corporation through which those services are rendered. The granting of a license or other legal authorization is performed by the “regulatory authority” which is defined in section 3.2 (Ill. Rev. Stat. 1989, ch. 32, par. 415 — 3.2) as “the State board, department, agency or the Supreme Court of Illinois (in the cases of attorneys at law) having jurisdiction to grant a license to render the category of professional service for which a professional corporation has been organized or the United States Patent Office or the Internal Revenue Service of the United States Treasury Department.” Section 3.3 (Ill. Rev. Stat. 1989, ch. 32, par. 415 — 3.3) states the term “license” “includes a license, certifícate of registration or any other evidence of the satisfaction of the requirements of this State, or of the United States Patent Office or the Internal Revenue Service *** for the practice of a professional service.”

The Act governs all corporations rendering professional services, not all of which may require a license of the types required, for example, to practice law or medicine. From a reading of the Act as a whole, we believe the use of the disjunctive “or” in the term “or otherwise legally authorized” was used to encompass the various forms of certificates and “other evidence of satisfaction of the requirements” of the authority which regulates the practice of a given profession referred to in section 3.3.

There is no dispute that plaintiff is licensed to render the same specific professional services, i.e., legal services, as the subject corporation. Therefore, under section 11, he is qualified to hold shares in that corporation. Since the shareholders did not provide in the articles of incorporation, bylaws or a separate agreement for the mandatory purchase or redemption of the shares of an employee who voluntarily terminates his employment by the corporation, there is no obligation on the part of the corporation to do so until, as the second and third paragraphs of section 11 state, his death or “disqualification” (paragraph 2) or when he is “no longer qualified” (paragraph 3) to own shares in the corporation. Ill. Rev. Stat. 1989, ch. 32, par. 415 — 11.

We believe that our interpretation of the Act is consistent with Supreme Court Rule 721 (107 Ill. 2d R. 721), “Professional Service Corporations and Associations for the Practice of Law.” That rule provides, in pertinent part,

“(1) each shareholder, officer, director of the [professional] corporation (except the secretary of the corporation) *** and each of its employees engaged in the practice of law shall be licensed to practice; and
(2) one or more shareholders of the corporation *** permitted to engage in the practice of law in Illinois hereunder shall be members of the bar of Illinois, residents of the State of Illinois and engaged in the practice of law in Illinois ***; and
* * *
(4) no shareholder, officer, director of the corporation *** or any employee *** who is not a member of the bar in Illinois or is not specially admitted by court order to practice in Illinois shall be permitted to practice in Illinois.” (Emphasis in original.) 107 Ill. 2d Rules 721(a)(1), (a)(2), (a)(4).

Under Rule 721(a)(1), like the Act, all shareholders of an Illinois professional corporation must be licensed to practice law; but not all shareholders need be members of the Illinois bar, residents of Illinois or even actively engaged in the practice of law in Illinois or anywhere else. It is also clear from paragraph 2 in Rule 721(a), which requires that at least one or more shareholders be members of the Illinois bar, that not all shareholders must necessarily be licensed to practice in Illinois or that they practice only through the professional corporation in which they are shareholders. Paragraph 4, which prohibits a shareholder who is not a member of the Illinois bar from practicing in Illinois unless specially admitted by court order, is significant in that, like paragraphs 1 and 2, it makes clear that shareholders need not be actively engaged in the practice of law through the corporation in which they hold shares, but also provides an example of a situation which, under the Act, would constitute being “otherwise legally authorized.”

Further, sections (c) and (f) of Rule 721 provide, respectively, that “[n]o corporation *** shall engage in the practice of law in Illinois *** without a certificate of registration issued by this court” (107 Ill. 2d R. 721(c)), and that “[a] certificate of registration *** shall certify that each shareholder or member, director and officer (except for the secretary of the corporation) is a member of the bar of each jurisdiction in which such person practices law” (107 Ill. 2d R. 721(f)).

As explained in the historical and practice notes to Rule 721:

“[Pjaragraphs (a) and (f) of the rule were also amended to permit professional corporations *** formed in other states to practice law in Illinois. The former requirement that all shareholders, officers and directors of a professional service corporation *** be members of the bar of Illinois was eliminated. Instead, the rule now requires only that one or more shareholders * * * be a member of the Illinois bar and engaged in the practice of law in Illinois, and that each of the shareholders, officers [and] directors *** be licensed to practice law in each jurisdiction in which they practice law. A requirement was also added that at least one person who is a practicing member of the Illinois bar be a resident of Illinois.” Ill. Ann. Stat., ch. 110A, Rule 721, Historical and Practice Notes (Smith-Hurd 1985).

Defendants cite to numerous statutes in other jurisdictions, as well as the Professional Corporation Supplement to the Model Business Corporation Act (Model Professional Corporation Supplement (1984), at 1887 (1989 Supp.) (Prentice Hall)), which have construed the term “disqualification” in statutes similar to the Illinois Act to mean the loss or suspension of a license. Although these authorities are instructive and lend additional support to defendants’ position, we rely on the language of the Act itself and Supreme Court Rule 721, specifically governing professional corporations organized to render legal services, in finding that there is no statutory requirement that a shareholder be an employee of the corporation. Since the only qualification a person must possess to be a shareholder of the professional corporation under both the Act and Rule 721 is a license to render the same professional services as provided by the corporation, the term “disqualification” as used in the Act necessarily means the loss of that license, or “other legal authorization” allowing the shareholder to practice the profession of the corporation. (Accord O’Neill v. United States (6th Cir. 1969), 410 F.2d 888 (the section of the Ohio statute providing that “[a] professional association may issue its capital stock only to persons who are duly licensed or otherwise legally authorized to render the same professional service as that for which the association was organized” (Ohio Rev. Code Annot. par. 1785.05 (Page 1985)) held not to preclude ownership of shares by a person who is not an employee of the corporation and the statute imposes no such limitation on such transferability).) “The only limitation which it imposes is that the shareholders must be licensed to practice the profession.” O’Neill, 410 F.2d at 898.

In interpreting a similar statute, the court in Corlett, Killian, Hardeman, McIntosh & Levi, P.A. v. Merritt (Fla. App. 1985), 478 So. 828, 831, stated,

“Of course, this does not mean that the articles of incorporation cannot provide or the shareholders cannot agree that shares shall be redeemed or not be sold to or retained by non-employees of the corporation. [Citation.] In fact, [quoting O’Neill] ‘[agreements and provisions to this effect are not at all uncommon with respect to small corporations whose stock is closely held’ ***. *** But, whether in the setting of a close corporation or a professional corporation, if, as here, there is no statutory requirement of redemption, the obligation and authority of a for-profit corporation to redeem its stock must be found either in its articles of incorporation [citation], or in some agreement [citation]. Absent such provision for redemption, courts will not write such an agreement for the parties [citation].”

In the instant case, there is nothing in the articles of incorporation, the bylaws or in a separate agreement among the parties for the redemption or purchase oí the shares of a shareholder who is neither deceased nor disqualified by reason of the loss of his or her license. There being no such provision or agreement, the trial court was not empowered to impose an obligation, on the basis of “equitable principles” to compel the corporation or its remaining individual shareholders to purchase plaintiffs shares in the corporation upon the voluntary termination of his employment with the corporation.

Plaintiff maintains that an enforceable agreement was reached shortly after his resignation from the firm for redemption of his shares in the corporation. However, plaintiff acknowledges that the parties were not able to agree on the purchase price. His complaint states, “nothing in the articles of incorporation or the by-laws or any separate agreement set forth a price or method of determining a fixed price for [his] shares.” The trial court also found that there was “no agreement or by-law providpng] for a buy-out at a pre-determined rate.”

Basic contract law requires that in order for an oral contract to be binding and enforceable, its terms must be definite and certain. When it appears that the language used or the terms proposed are understood differently by the parties, there is no meeting of the minds and no contract exists between the parties. (Vandevier v. Mulay Plastics, Inc. (1985), 135 Ill. App. 3d 787, 482 N.E.2d 377.) One of the elements essential to the formation of a contract is a manifestation of agreement or mutual assent by the parties to its terms. Some terms may be missing or left to be agreed upon, but failure of the parties to agree upon an essential term of a contract indicates that the mutual assent required to make or modify a contract is lacking, and that there is no enforceable contract. (Delcon Group, Inc. v. Northern Trust Corp. (1989), 187 Ill. App. 3d 635, 543 N.E.2d 595.) The record in the instant case does not disclose that the parties reached an agreement on terms sufficient to constitute an enforceable contract.

Plaintiff also argues that failure to compel purchase by defendants of his interest in the corporation may create ethical and conflict of interest problems. For example, plaintiff argues that, despite his withdrawal from the firm, in his capacity as a shareholder, he would continue to have the right to attend stockholders’ meetings where confidential firm and client matters are discussed, and he would have access to corporate books and records. He suggests that conflicts of interest may arise where his and the corporation’s clients have adverse interests, that he may be subjected to liability in a malpractice action against the corporation, and that dividends paid out by the corporation would constitute improper fee splitting.

The Florida Court of Appeals in Corlett, Killian, Hardeman, McIntosh & Levi, P.A. v. Merritt (Fla. App. 1985), 478 So. 2d 828, addressed nearly identical arguments. It was the Florida court’s view that while these matters might justify action by the Florida bar, none of the potential ethical dilemmas was so compelling as to warrant a court-ordered redemption obligation on the corporation.

Plaintiff also asserts that a failure to compel redemption of his shares produces many harsh results, including the ownership by him of shares over which he will have no control, from which he would likely receive no dividends and which he could not sell, i.e., “an interest that has no value.” The Corlett court also addressed a similar argument. The court stated:

“That a professional who resigns from the corporation could well be left in the unfortunate position of owning unmarketable shares of stock is generally true of the minority shareholders in all close corporations. But rather than being a compelling reason in favor of a court intervening, the distinct probability of this unfortunate state of affairs arising is a compelling reason why parties must agree in advance on a redemption provision. Where an employee who purchases such shares for valuable consideration either lacks the foresight or the bargaining power to insist upon a redemption agreement in the event of his resignation, it is not incumbent upon the courts to protect him from his own improvidence or lack of strength.” 478 So. 2d at 834.

We, like the Corlett court, recognize that the failure to compel the redemption of his shares may produce harsh results and the potential for ethical problems. It is our belief, however, that these concerns do not justify unauthorized judicial intervention.

Because we reverse the order in this case on the basis of our determination that the plaintiff does not come within the category of the persons entitled to the purchase or redemption of his shares under section 11 of the Act, we need not consider the cross-appeal and other issues raised and argued by the parties.

For the reasons stated, the order of the trial court is reversed and the cause is remanded to the trial court to enter judgment for defendants.

Reversed and remanded.

JOHNSON and JIGANTI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    REICHHOLD CHEMICALS, INC., Petitioner-Appellant, v. THE POLLUTION CONTROL BOARD et al., Respondents-Appellees.
    Third District
    No. 3 — 89—0393
    Opinion filed October 12, 1990.

      John L. Parker & Associates, Ltd., of Chicago (John L. Parker, of counsel), for petitioner.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Renee Cipriano, Matthew J. Dunn, and Michelle D. Jordan, Assistant Attorneys General, of Chicago, of counsel), for respondents.
   JUSTICE BARRY

delivered the opinion of the court:

The Illinois Environmental Protection Agency (Agency) denied an operating permit to Reichhold Chemicals, Inc., operator of a polyester resin manufacturing plant in Morris, Illinois. Reichhold appeals from an order of the Illinois Pollution Control Board (Board) dismissing its petition for review of the Agency’s permit denial.

The sequence of events leading up to the present appeal is as follows:

October 9, 1987 — the Agency issued a construction permit to Reichhold for an addition to its continuous polyester plant which would convert the plant to a batch polyester resin manufacturing plant.

January 20, 1988 — Reichhold applied to the Agency for an operating permit for the batch polyester plant.

May 18, 1988 — the Agency denied the operating permit because of specified deficiencies in a required stack test on the fume incinerator but offered to reevaluate the permit application upon Reich-hold’s request and submission of the necessary information and documentation to correct or clarify the deficiencies.

November 9, 1988 — Reichhold experienced an accidental release of “Dowtherm” vapor which allegedly caused air pollution, drifted off the plant site and caused personal injuries.

November 15, 1988 — Reichhold had an additional test conducted on the fume incinerator in compliance with Agency requests and regulations, the results of which were submitted to the Agency on January 23, 1989.

December 23, 1988 — Agency sent an “Enforcement Notice Letter” to Reichhold advising that the violations of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1987, ch. lll1^, par. 1001 et seq.) had been referred to the Attorney General for preparation of a formal enforcement complaint. The letter also provided Reich-hold with an opportunity to meet with Agency representatives to avoid the filing of a formal complaint.

February through April 1989 — Reichhold provided information, data, and tours for representatives of the Attorney General’s office and the Agency relating to the accident.

April 25, 1989 — Agency notified Reichhold that its application for operating permit, received January 25, 1989, was denied, “because Section 9 of the Illinois Environmental Protection Act, and 35 Ill. Adm. Code 201.131 might be violated.” The denial letter gave as specific reasons for denial the air pollution occurring on November 9, 1988, and failure to provide proof that the operation of the batch polyester resin plant will not cause a violation of the Act. The April 25, 1989, letter concluded with the same language as had been contained in the denial letter dated May 18, 1988, and which was as follows:

“The Agency will be pleased to re-evaluate your permit application on receipt of your written request and the necessary information and documentation to correct or clarify the deficiencies noted above. Two copies of this information must be submitted and should reference the application and I.D. numbers assigned above. The revised application will be considered filed on the date that the Agency receives your written request.”

May 11, 1989 — Reichhold requested in writing that the Agency reconsider the permit denial based upon the Dowtherm release accident and stated that all available information concerning the Dowtherm system had already been submitted to the Agency and the Attorney General’s office and that all questions had been answered.

May 30, 1989 — Reichhold filed with the Illinois Pollution Control Board a petition for review of the operating permit denial, stating in the petition that the Agency had not replied to its letter requesting reconsideration of the denial.

June 8, 1989 — Board granted the Agency’s motion to dismiss Reichhold’s petition on the ground that Reichhold’s request for reconsideration was pending with the Agency.

On appeal, Reichhold contends that its letter of May 11, 1989, was not a “revised application” within the terms of the Agency denial letter since no new documentation or information was submitted. At most the letter requested a reconsideration of the April 25, 1989, denial order, and neither the Act nor the rules adopted by the Board give the Agency authority to allow a rehearing or otherwise reconsider an order. Hence, it is argued, the Board erred in finding that the Agency had retained jurisdiction of this permit proceeding by reason of its undertaking to reconsider its denial action.

The Agency, on the other hand, argues that Reichhold’s May 11 letter called attention to additional data previously submitted to the Attorney General’s office and the enforcement department of the agency but never seen by the permit department and that, according to Agency custom and policy, the letter amounted to a reapplication for an operating permit upon which no final action had been taken. The Agency position is predicated upon its view that a request to reconsider accompanied by new information is in reality a reapplication, and when Reichhold chose to seek Agency reconsideration, it had to forego review by the Board until the Agency completed its review and entered a final order.

The Agency admits that there are no formally adopted rules or regulations to govern reconsideration or reapplication procedures but instead that its procedure is based on “policy and longstanding practice.”

The Illinois Supreme Court has held that an administrative agency has no inherent authority to amend or change a decision and may undertake a reconsideration of a decision only where authorized by statute. (Pearce Hospital Foundation v. Illinois Public Aid Comm’n (1958) 15 Ill. 2d 301, 154 N.E.2d 691; see also Caldwell v. Nolan (1988), 167 Ill. App. 3d 1057, 522 N.E.2d 175.) The court more recently stated:

“It has been consistently held that an administrative agency may allow a rehearing, or modify and alter its decisions only when authorized to do so by statute. [Citation.] The unlimited scheme of reconsideration of determinations of eligibility set forth by the Department [of Labor], no matter how logical or desirable it may seem, is simply not authorized by the Act and is found nowhere within the clear and common meaning of its language.” Weingart v. Department of Labor (1988), 122 Ill. 2d 1, 15, 521 N.E.2d 913.

The Environmental Protection Act has been held to authorize the Pollution Control Board to conduct rehearings by virtue of its authority to conduct “such other hearings as may be provided by rule” (Ill. Rev. Stat. 1987, ch. lll1^, par. 1005(d)), as implemented by specific rules providing for motions for rehearing or modification of orders. (Modine Manufacturing Co. v. Pollution Control Board (1976), 40 Ill. App. 3d 498, 351 N.E.2d 875.) However, no such authority to modify or reconsider its decisions has been granted by statute to the Agency, and no such procedures have been provided by rule.

The Agency relies on one sentence in section 39(a) of the Act, which states: “The Agency shall adopt such procedures as are necessary to carry out its duties under this Section.” (Ill. Rev. Stat. 1987, ch. lll1^, par. 1039(a).) This sentence does not purport to broaden the authority of the Agency, as does the grant of authority to the Board quoted above, but merely allows the Agency to adopt procedures for the conduct of the business it was otherwise empowered to conduct. Furthermore, no rules establishing a rehearing procedure with time limits, notice requirements, and other customary provisions have been cited to us.

In view of the case law denying administrative agencies the authority to change or modify decisions once announced, we conclude that the Agency here had no authority to reconsider or modify the decision handed down on April 25, 1989. Under the statute, the Board had a duty to review that permit denial once Reichhold filed its petition for review within the 35-day period allowed by law. (Cf. Jurcak v. Environmental Protection Agency (1987), 161 Ill. App. 3d 48, 513 N.E.2d 1007.) The Board’s dismissal of Reichhold’s petition was error.

While this appeal has been pending, a decision has been published, Wells Manufacturing Co. v. Environmental Protection Agency (1990), 195 Ill. App. 3d 593, where the Agency denied an application for renewal of an operating permit on the ground that the applicant may be violating the Act. In Wells the Agency had received some complaints concerning odors connected with Wells’ operation, but no enforcement proceedings had been filed. The Agency’s letter denying the renewal permit contained an offer “to reevaluate” the denial if Wells so requested and if it submitted nine categories of information. Some of the information requested by the Agency had been submitted with the original construction permit application and was available to the Agency in its own files. Wells did not request a reevaluation of the denial but instead filed an appeal to the Pollution Control Board. The Board affirmed the Agency’s denial, and the appellate court reversed, holding that the applicant was entitled to submit evidence that it is not polluting the air before the permit was denied, not after. In Wells, the court noted that the applicant’s property interest in the renewal of an operating permit is analogous to the property interest at stake when an applicant sought its initial operating permit after constructing new landfill trenches under a development permit, as was the case in Martell v. Mauzy (N.D. Ill. 1981), 511 F. Supp. 729, where it was held that the failure to hold a “predenial hearing” deprived the applicant of due process of law.

In the case at bar, the Agency similarly denied a permit on April 25, 1989, because Reichhold might violate the Act without giving Reichhold the opportunity to submit more information before denying the permit. Like the court in the Wells case, we have concerns as to the fundamental fairness of such proceeding.

We note that the Board relied upon its earlier decision in Caterpillar Tractor Co. v. Environmental Protection Agency (1983), PCB 83-86, 54 PCB 259, where Caterpillar’s letter to the Agency requesting reconsideration of the denial of its permit application was treated by the Agency as a permit reapplication. This procedure was approved by the Board with the comment that to do otherwise would mean that the Agency failed in its statutory duty to deny or issue a permit within 90 days. The Board dismissed Caterpillar’s appeal on the ground that a permit application for the same permit was pending. Upon administrative review, a reviewing court is not bound by an agency’s interpretation of statutory provisions though that interpretation should be given great weight. Reynolds Metals Co. v. Pollution Control Board (1982), 108 Ill. App. 3d 156, 438 N.E.2d 1263.

The Board’s ruling in the Caterpillar case did not take into account any limitation on the Agency’s power to alter or modify its decision. We hold that the administrative decision in Caterpillar is not binding precedent in the case at bar.

We recognize the problem confronting the Agency in these cases. Under the Act, if the Agency does not either grant or deny a permit within 90 days of receipt of the application, the permit will issue by operation of law. The statute thus contemplates prompt action by the Agency followed by a 35-day period in which the applicant may seek review before the Board. When the Agency denies an application, the applicant’s only options are to start over with a new application or file a petition for review. Requests to modify or reconsider are not permissible under the present statutory scheme. Any hardships resulting from this arrangement should be redressed by the Illinois legislature.

Reichhold has asked this court to order the permit to issue retroactively since irreparable harm would result from a failure to have a permit. The public interest would be better served, however, by a remand to the Board for consideration of the merits of Reich-hold’s petition for a review of the Agency’s denial.

The Agency has filed a motion in this court seeking a dismissal of this appeal on the ground that the appeal is now moot because Reichhold has filed another appeal to the Board in a subsequent proceeding involving a later denial of this same permit. The Agency contends that the hearing before the Board which Reichhold seeks here is now available to it in the subsequent appeal. Reichhold responds that the issues are not identical in the two appeals.

We appreciate the Agency’s quandary when confronted with overlapping proceedings. However, we conclude that the instant case is not moot and that Reichhold is entitled to a hearing on his petition for review in this cause, regardless of what action may be taken on subsequent reapplications. To hold otherwise is to deprive Reichhold of the right to review of the ruling here in dispute. Reichhold is entitled to a review of the decision denying it a permit in this proceeding. We, therefore, deny the motion to dismiss this appeal.

We reverse the order of the Board and remand this cause for review in accordance with this decision.

Reversed and remanded.

HEIPLE, P.J., and STOUDER, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PETER J. KENNEDY, Defendant-Appellant.
    Third District
    No. 3 — 89—0250
    Opinion filed October 12, 1990.

      .Rita K. Peterson, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield, and Donald D. Knuckey, State’s Attorney, of Lacón (Nathan P. Maddox and Terence M. Madsen, Assistant Attorneys General, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant Peter J. Kennedy appeals from his conviction for murder for which he was sentenced to 20 years in the penitentiary. This is the fourth appeal to this court involving this crime.

Defendant and a friend spent the evening of October 14, 1983, drinking in various bars in Henry, Illinois. At closing time, while walking to his car, defendant had an argument and altercation with some of the people standing on the sidewalk. Defendant proceeded to his car and drove it the wrong way down a one way street toward the group of people he had been arguing with. He drove up onto the sidewalk, striking Jacqueline Lou. She was thrown into the air, landed on top of the car, and fell to the ground, where the car came to a stop on top of her body. She died at the scene of the accident.

Defendant was tried and convicted on one count of murder, two counts of reckless homicide, and one count of voluntary manslaughter. Upon appeal, this court reversed and remanded the cause for a new trial because of inconsistent verdicts under People v. Hoffer (1985), 106 Ill. 2d 186, 478 N.E.2d 335. (People v. Kennedy (1985), 132 Ill. App. 3d 1166 (unpublished order under Supreme Court Rule 23).) After remand, defendant appealed from a ruling denying his motion for discharge on double jeopardy grounds, and we affirmed the trial court. (People v. Kennedy (1987), 161 Ill. App. 3d 175.) In a related appeal by the State, we affirmed the trial court’s order dismissing certain additional charges which had been filed against defendant. People v. Kennedy (1987), 161 Ill. App. 3d 197.

At issue here is whether defendant was denied his right to counsel upon retrial of this cause. After this cause was remanded for a new trial in 1985, defendant initially expressed a desire to represent himself, but subsequently Michael Cohen, a privately retained attorney, entered his appearance for defendant. Later, Cohen was allowed to withdraw, and following defendant’s request for court-appointed counsel, Public Defender Kevin Galley was named.

According to the record, Galley advised defendant of certain potential conflicts of interest, including his representation of certain members of the Marshall County Board of Supervisors, the Marshall County Airport Board, and his wife’s employment with the Attorney General’s office. With the advice of Cohen, defendant expressly waived those potential conflicts in open court. After a trial date of August 22, 1988, had been set by the court, defendant on July 28, 1988, filed a motion to dismiss Galley because of certain conflicts of interest, i.e., representation of the Marshall County Board and his wife’s employment. The trial court found that any conflicts of interest had been waived previously and were again waived when defendant waited until one month before trial to raise these claims. The court denied the motion. Thereafter, trial had to be postponed when defendant filed a notice of appeal from a ruling on a double jeopardy motion. That appeal was dismissed by this court on August 16,1988.

Next, defendant asked to be allowed to serve as co-counsel with Galley, and when Galley opposed that, the trial court advised defendant he would have to choose between proceeding with Galley as his appointed counsel or proceeding pro se. At that time the court questioned and admonished defendant, pursuant to Supreme Court Rule 401(a) (107 Ill. 2d R. 401(a)), concerning waiver of counsel. Trial was rescheduled for November 14, 1988. On October 27, 1988, defendant filed a complaint against Galley with the Attorney Registration and Disciplinary Committee (ARDC), after which the trial court allowed Galley to withdraw but named him back-up counsel with defendant representing himself pro se. Next, defendant filed a Federal suit against Galley, and Galley was allowed to withdraw entirely. The court ruled that defendant had waived his right to court-appointed counsel by his conduct and that he would have to proceed to trial without counsel. A new trial date of February 14, 1989, was set to allow defendant time to prepare for trial. Defendant represented himself throughout the trial.

On appeal defendant contends that the trial court erred in finding that he had waived his right to counsel when he filed a complaint against Galley with the ARDC. Defendant says that the trial court did not give him the admonishments required under Rule 401(a) prior to that waiver and that the court failed to provide him with conflict-free representation as guaranteed by the sixth amendment to the United States Constitution. We conclude that the trial court did not err.

The applicable law was set down by the Illinois Supreme Court in a similar factual situation in People v. Myles (1981), 86 Ill. 2d 260, 268, 427 N.E.2d 59, as follows:

“This record presents a situation which required the circuit court to consider a number of competing interests. Defendant was entitled to the effective assistance of counsel in presenting his defense [citation], and ordinarily would be entitled to counsel of his choice. [Citation.] An indigent defendant is entitled to have counsel appointed for him [citation] or, should he choose to do so, may conduct his defense without benefit of counsel [citation]. In affording a defendant these rights, however, the circuit court is charged with the responsibility to administer justice without needless delay. In recognition of this principle, the right to counsel of a defendant’s own choosing may not be employed as a weapon to indefinitely thwart the administration of justice or to otherwise embarrass the effective prosecution of crime. [Citations.]”

The trial court in the instant case was confronted with an intelligent and concerted effort to postpone indefinitely defendant’s trial. After the remand from this court in 1985, defendant filed, in addition to numerous motions for a continuance, six motions to substitute judge, four motions to dismiss on double jeopardy grounds, four interlocutory appeals, a Federal habeas corpus petition, and four Federal civil lawsuits against judges and prosecutors. The record clearly reveals that the trial court carefully weighed defendant’s right to effective assistance of counsel as well as its responsibility to administer justice effectively and expeditiously.

After the court refused to provide different court-appointed counsel, defendant filed a disciplinary complaint and a Federal suit against Galley in a forthright effort to circumvent the trial court’s ruling. Given the nearly two-year delay in bringing this prosecution to trial, the court was justified in finding that defendant’s conduct operated as a waiver. (See People v. Rivers (1978), 61 Ill. App. 3d 376, 377 N.E.2d 1245.) The ruling was within the sound judicial discretion of the trial court and was not error.

At the request of the State, after ruling that defendant had waived his right to counsel by his conduct, the trial court also reconsidered defendant’s status as an indigent. Defendant testified before the court that he was employed and earning $1,815 per month plus overtime, that his gross salary was expected to be $24,000 per year, that he lived with his parents and paid $200 rent monthly, that he owed $10,000 on a car purchased during the pendency of these proceedings, that he owed $5,000 on various accounts and $22,000 to relatives for expenses related to his first trial, and that he had posted a $2,000 bond in this cause. Defendant also stated that he had attempted to retain private counsel but, after approaching eight different attorneys, had been unable to provide sufficient advance retainer fees to obtain representation. The trial court ruled that defendant’s income was sufficient to allow him to obtain private counsel and that he was not indigent.

Defendant contends that the trial court erred in this ruling. Given the view we take of the waiver issue discussed above, it is not necessary to review the indigency ruling. However, we choose to consider this issue and to hold that this determination was also within the sound discretion of the trial court. The rule has been stated as follows:

“[I]n cases where defendant has some assets available and, like defendant here, has some funds *** indigency for such persons becomes a matter of degree within the sound discretion of the trial court. We find no abuse of that discretion here.” (People v. Maretti (1978), 61 Ill. App. 3d 762, 763, 378 N.E.2d 342, 344.)

We, too, find no abuse of discretion on the part of the trial court in finding defendant not indigent.

Defendant argues that the fact that, for purposes of this appeal, we found him to be indigent and appointed appellate counsel indicates that the trial court erred. Needless to say, defendant’s imprisonment during this appeal terminated his employment income and materially changed his financial ability to retain private counsel. This does not invalidate the earlier determination made prior to trial when different conditions existed.

Defendant asserts several alleged trial errors including prosecutorial misconduct in the questioning of witnesses and closing argument to the jury. We have carefully examined the record pertaining to all of these contentions, and we find that they have no merit. All of the alleged errors were waived by failure to object in the trial court. The evidence that defendant drove his car onto a sidewalk at a high rate of speed directly at pedestrians, thereby causing the victim’s death, was uncontradicted. The evidence of guilt was so overwhelming that the alleged errors were harmless beyond a reasonable doubt and did not affect the jury’s verdict.

Finally, defendant claims it was error to fail to instruct the jury that, in order to find defendant guilty of murder they must find that he did not act recklessly. In making this argument, defendant relies upon People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141. However, the Illinois Supreme Court has rejected that position. (People v. Lucas (1989), 132 Ill. 2d 399, 548 N.E.2d 1003.) We conclude that the jury instruction was not error.

The judgment of conviction and sentence of the circuit court of Marshall County are affirmed.

Affirmed.

HEIPLE,.P.J., and SCOTT, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT MONIGAN, Defendant-Appellant.
    Third District
    No. 3 — 90—0060
    Opinion filed October 15, 1990.

      Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Gary E 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 court convicted defendant, Robert Monigan, of home invasion, residential burglary, and aggravated battery (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 11(a)(2), 19 — 3(a), 12— 4(b)(10)). The court thereafter sentenced him to concurrent prison terms of 30, 15, and 5 years, respectively. Defendant appeals.

The record shows that on September 2, 1988, 87-year-old Edna Pares was awakened early in the morning. She testified that she did not know what caused her to awaken but that when she did she moved to the foot of the bed. She was then struck in the face, knocking her back into bed unconscious. After regaining consciousness, she tried to use her phone to call the police. However, she was bleeding so badly that the phone became clogged with blood. She then went to a neighbor’s home and the police were called. Ms. Pares also testified that she did not see who hit her or what she was hit with.

Investigating officers testified that Ms. Pares’ face was cut and swollen and she was bleeding from the nose and lips. Crime scene technician Gary Siebenthal testified that his search of Ms. Pares’ home revealed an open window with a cut screen in a utility room. A latent fingerprint was found on the windowsill and a palm print was found on top of a washing machine. Outside the home, he found a shoe print in the mud under the victim’s bedroom window and a palm print on that window.

Siebenthal also testified as an expert fingerprint and shoe-impression examiner. He stated that he had conducted tests on the evidence collected and concluded that defendant’s prints matched those found on the window, the windowsill, and the washing machine. By comparing the impressions from defendant’s shoes with a cast of the shoe print found in the mud, he also found that defendant’s right shoe had made the impression in the mud.

Other evidence showed that on the night of the incident defendant was picked up by the police about 10 blocks from Ms. Pares’ home. He was carrying a broomstick at the time. Following the admission of this evidence the State rested. Defendant did not present any evidence.

During closing arguments, the State argued that defendant had committed residential burglary when he entered Ms. Pares’ home with the intent to commit an aggravated battery. The trial court agreed and thereafter convicted defendant on all three counts.

On appeal, defendant first argues that his conviction for residential burglary should be reversed. Specifically, he contends that the State failed to prove him guilty beyond a reasonable doubt, since it failed to show he entered the home with the intent to commit aggravated battery.

To sustain a conviction for residential burglary, the State is required to prove that the defendant unlawfully entered the victim’s home with the intent to commit either a felony or theft therein. (People v. Sehr (1986), 150 Ill. App. 3d 118, 501 N.E.2d 848.) Because evidence of intent is usually not direct, it may be proved circumstantially by inferences reasonably drawn from the circumstances of the defendant’s conduct. (People v. Snow (1984), 124 Ill. App. 3d 955, 464 N.E.2d 1262.) “In the absence of inconsistent circumstances, proof of unlawful entry into a budding which contains personal property that could be the subject of larceny gives rise to an inference that will sustain a conviction of burglary. (People v. Loden (1975), 27 Ill. App. 3d 761, 762, 327 N.E.2d 58, 60.) The inference is grounded in human experience which justifies the assumption that the unlawful entry was not purposeless, and in the absence of other proof, indicates theft as the most likely purpose. People v. Rossi (1969), 112 Ill. App. 2d 208, 212, 250 N.E.2d 528, 530.” (People v. Collins (1977), 53 Ill. App. 3d 114, 119, 368 N.E.2d 685, 688.) Furthermore, whether the requisite intent existed is a question for the trier of fact, and the decision of the fact finder will not be overturned on appeal unless the evidence is contrary to the verdict or so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of guilt. People v. Sehr (1986), 150 Ill. App. 3d 118, 501 N.E.2d 848.

In Collins, defendant entered a residence and appeared in the living room with a nylon stocking over his head and a metal object in his hand. He unsuccessfully attempted to prevent the escape of one of the residents and then fled without having taken any property. The evidence further established that a person believed to have been defendant had burglarized the residents a week before and taken from them $80. Lacking any contradictory circumstances, the court ruled that the evidence of defendant’s intent to commit a felony (theft) was sufficient to support the jury’s finding of guilt beyond a reasonable doubt on the charge of burglary. Collins, 53 Ill. App. 3d at 119-20, 368 N.E.2d at 688-89.

Similarly, we find that the evidence presented to the court here was sufficient to support defendant’s conviction for residential burglary. In this case, the felony actually committed was aggravated battery committed upon a person over the age of 60 (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(10)). While the evidence showed that defendant stood outside the victim’s bedroom window and might have seen her, no evidence was presented proving that he actually saw her prior to entering her home. Defendant argues that this weakness in the evidence entitles him to an acquittal. Were simple battery upon a person over age 60 the sole theory for the trial court’s determination that defendant entered the residence with the intent to commit a felony, we might agree. In fact, however, the trial court, viewing the totality of the circumstances, concluded that defendant entered with the intent to cause great bodily harm to Ms. Pares, a woman in fact in her late 80’s. Thus, even if defendant did not actually see his elderly victim before entering her home, the court’s finding that he intended to cause her “great bodily harm” (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(a)) is an inference amply supported by the evidence of record. As in Collins, it is not essential to a burglary conviction that the State prove the actual commission of the felony intended at the time of entry. Just as a burglary conviction will stand if the evidence establishes that defendant intended to commit a theft but his efforts were aborted once inside (Collins, 53 Ill. App. 3d 114, 368 N.E.2d 685), it will stand as well upon satisfactory proof that he intended to commit one felony (e.g., to cause his victim great bodily harm) and succeeded in committing another (e.g., battery upon a person over age 60), as here. We therefore affirm defendant’s conviction for residential burglary.

Defendant next argues that his conviction for aggravated battery should be vacated since it violates the principles of “one act, one crime.” Specifically, he argues that the aggravated battery conviction should be reversed because it was based on the same physical acts underlying the home invasion conviction.

We note that in People v. Gorney (1985), 136 Ill. App. 3d 878, 483 N.E.2d 1298, we held that a conviction for aggravated battery could not stand where it was based upon the same act as that involved in the injury element of home invasion. Here, the two convictions were based upon the same act. Accordingly, pursuant to our authority under Supreme Court Rule 615(b) (107 Ill. 2d R. 615(b)), we reverse defendant’s conviction for aggravated battery.

Defendant also argues that the cause must be remanded since the aggravated battery conviction may have improperly influenced the trial court’s sentencing decision.

We do not agree. The court sentenced defendant to the maximum prison terms for residential burglary and home invasion based on the presence of numerous aggravating factors, particularly his extensive history of criminality, which was recited in detail, and the total lack of any mitigating factors. It is clear from this record that the inclusion of the aggravated battery conviction did not influence the court’s sentencing decision on the other offenses.

Accordingly, defendant’s conviction for aggravated battery is reversed and the five-year sentence imposed for that offense is vacated. Defendant’s convictions and sentences for residential burglary and home invasion are affirmed.

Affirmed in part; reversed in part; vacated in part.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE STOUDER

text:
    DANIEL McCARTHY, Plaintiff-Appellant, v. CLARICE M. BACH, Defendant-Appellee.
    Third District
    No. 3 — 90—0008
    Opinion filed October 23, 1990.
    Law Offices of Naughton & Markese, of Joliet (Thomas P. Naughton, of counsel), for appellant.
    Francis A. Spina, of Tressler, Soderstrom, Maloney & Priess, of Wheaton (Edmund J. Siegert, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiff, Daniel McCarthy, brought a negligence action against the defendant, Clarice Bach, for injuries he sustained in an auto collision. Following a trial, the jury found that both parties were 50% at fault, but found total damages to be zero. Consequently, no damages were awarded to plaintiff. The plaintiff moved for a new trial on the issue of damages only. This motion was denied and the plaintiff appeals. Plaintiff did not move for a new trial on all issues.

On September 21, 1988, the plaintiff was travelling northbound on Route 45 in Mokena. The plaintiff testified that as he approached 191st Street he pulled into the left-turn lane and entered the intersection. The plaintiff testified that he never came to a stop and that his speed never fell below 20 miles per hour. He glanced at the light and saw that it was yellow. He also glanced at the traffic southbound on 45. He noted the defendant’s car and another car approaching the intersection. The vehicles appeared to be slowing down. As the plaintiff executed the turn, the defendant’s car collided with the passenger side of plaintiff’s vehicle.

The defendant testified that she had a clear, unobstructed view as she approached the intersection. She did not see the plaintiff’s car until she noticed a glare moments before impact. She testified that the light turned yellow as she entered the intersection and that she was travelling 40 to 45 miles per hour.

Brian Corkery was driving in the right southbound lane of 45 and was about 500 feet from the intersection at the time he witnessed the collision. He testified that he was travelling at about 55 miles per hour when the defendant passed him in the left lane. Corkery estimated that the defendant was travelling 65 miles per hour. He did not see the defendant’s brake lights go on prior to impact. He first noticed the plaintiff when he was 600 to 700 feet from the intersection. He observed the plaintiff come to a complete stop, then proceed to turn when the light turned yellow. Corkery told an investigating officer that the defendant had “passed the point of no return” when the signal turned yellow and could not have stopped at the intersection. According to Corkery, the defendant was 100 to 200 feet from the intersection when the light turned yellow.

Cheryl Villa was stopped at the intersection in the eastbound lane of 191st. She saw the plaintiff slow as he approached the intersection, but she could not recall if he came to a complete stop. Villa did not see defendant’s vehicle prior to the collision.

On appeal, the plaintiff contends the trial court abused its discretion in denying his motion for a new trial on the issue of damages only. According to the plaintiff a new trial should have been awarded on the issue of total damages, leaving the percentage of liability of each party undisturbed.

The decision of the trial court on a motion for a new trial will not be reversed on appeal unless it affirmatively appears from the record that the trial court abused its discretion. (Herington v. Smith (1985), 138 Ill. App. 3d 28, 485 N.E.2d 500.) A new trial on the question of damages only is appropriately granted where (1) the jury’s verdict on the question of liability is amply supported by the evidence: (2) the questions of damages and liability are so separate and distinct that a trial limited to the question of damages is not unfair to the defendant; and (3) the record suggests neither that the jury reached a compromise verdict, nor that, in some other identifiable manner, the error which resulted in the jury’s awarding inadequate damages also affected its verdict on the question of liability. (Balestri v. Terminal Freight Cooperative Association (1979), 76 Ill. 2d 451, 394 N.E.2d 391.) Since in this case the record suggests the jury compromised on the verdict, we find the trial court was correct in denying the motion for a new trial on the issue of damages.

It cannot be said that, in the instant case, the issues of liability and damages were so separate and distinct that a trial on damages only would not be unfair to the defendant. Nor was the evidence of liability so clear that it can be said there is no real issue on this point to be tried by a second jury. The record reflects contradictions in testimony and a difference over the facts. The jury found both parties to be equally at fault. The plaintiff does not challenge that determination. In our view the jury compromised in reaching a verdict, and the plaintiff has failed to satisfy the requirements for the granting of a new trial on the issue of damages only.

Therefore, the judgment of the circuit court of Will County is affirmed.

Affirmed.

BARRY and SCOTT, JJ., concur.


author: PRESIDING JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOIS MOORE, Defendant-Appellant.
    Third District
    No. 3 — 89—0265
    Opinion filed October 24, 1990.

      Kenneth D. Brown, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court;

A jury convicted the defendant, Lois Moore, of attempt (second degree murder) and two counts of aggravated assault (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 4, 9 — 2, 12 — 2). The trial court vacated the aggravated assault convictions and imposed a seven-year sentence for the attempt (second degree murder) conviction. The defendant appeals.

According to the record, Brenda Jones testified that on September 29, 1988, she was living with Eugene Pitchford. That evening, Jones visited her sister, Eartha Hyson. As they sat outside Hyson’s apartment, the defendant approached Jones and asked to talk about Pitchford. When Jones said she did not want to talk, the defendant became angry, threatened to harm her, and then put her hand in her purse. Jones jumped up and hit the defendant’s arm with a chair. At the same time, Hyson tried to grab the defendant’s purse.

As this occurred, a car pulled into the driveway next to the apartment house. After the defendant got into the car, Jones and Hyson began walking back to the apartment. The defendant then stated that she was going to shoot Jones. Jones turned around and saw the defendant standing about seven feet away holding a handgun. The defendant fired a shot, missing Jones, who ran around the house to the back door of Hyson’s apartment. As Jones ran, she heard a second shot. After she entered the apartment, she called the police.

Eartha Hyson testified that the defendant used to live with Pitch-ford. Additionally, she stated that the defendant aimed at Jones when she fired the first shot. She also said that the defendant’s second shot went through her screen door and lodged in the front door.

Margaret Jo Davis testified that on the night of the incident, she was riding in a car with Annie Simms when she saw Jones and Hyson fighting with the defendant. Davis pulled up, and Simms told the defendant to get into the car. Jones followed the defendant as she walked toward the car. Jones appeared to be ready to throw a chair, but Davis told her not to. The defendant then ran after Jones and Hyson. Davis did not hear any shots fired. After the defendant returned, the three drove away together.

Annie Simms’ testimony was in substantial agreement with Davis’ testimony.

The defendant testified that on the night of the incident, she had gone shopping in a grocery store next to Hyson’s apartment building. When she came out of the store, Jones and Hyson were standing outside. The defendant and Jones then began arguing about Pitchford. Jones picked up a chair and hit the defendant four or five times. At the same time, Hyson grabbed the defendant’s hair.

The defendant further testified that, while they were struggling, she heard someone call to her. She turned and saw Davis’ car. After she went to the car, she saw Jones advancing with the chair. The defendant pulled a handgun out of her purse and pointed it at Jones. When Jones was about four feet away, the defendant raised the gun and fired in the air. She said that she did not intend to shoot Jones.

The defendant further testified that Jones ran around the apartment building and Hyson ran into the apartment. Since she was still angry, she fired a shot into the door. No one was standing behind the door when she fired.

Following closing arguments, the jurors retired to deliberate. Initially, they found the defendant not guilty of attempt (first degree murder) but guilty of attempt (second degree murder) and two counts of aggravated assault. The trial court told the jurors that their verdicts were inconsistent and did not conform with the instructions. After discussing the matter with counsel, the court told the jurors that if they found the defendant not guilty of attempt (first degree murder), they should put an “X” through the attempt (second degree murder) verdict form and return it to the court. If they found, however, that the State had proved the elements of attempt (first degree murder), they should then consider whether the defendant was guilty of attempt (second degree murder). The court told them that if they found the defendant guilty of that offense, they should return that verdict form and place an “X” through the attempt (first degree murder) form. The court then returned the signed verdict forms for the murder counts and sent the jurors back to deliberate.

While the jurors were deliberating, they sent out a note with the following question:

“If we intend to find the defendant guilty of first degree attempt murder (including guilty of second degree attempt murder), should we cross out the signed form stating that the defendant is not guilty of attempt first degree murder?”

By agreement of the parties, the court answered “Yes.” Thereafter, the jury returned the not guilty form for attempt (first degree murder) with an “X” through it. They also returned a verdict form finding the defendant guilty of attempt (second degree murder).

At the sentencing hearing, the trial court vacated the aggravated assault convictions. It then sentenced the defendant to a seven-year term of imprisonment for attempt (second degree murder).

The defendant first argues on appeal that her conviction for attempt (second degree murder) should be reversed because there is no such offense under Illinois law. She states that in order to have attempted a crime, she must have intended to commit a specific offense. (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4(a).) She also notes that to be convicted of second degree murder, she must have acted under a sudden and intense passion resulting from serious provocation by the victim. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a)(1).) The defendant concludes that her conviction should be reversed because it is impossible to specifically intend a sudden and intense passion.

The defendant relies on People v. Weeks (1967), 86 Ill. App. 2d 480, 230 N.E.2d 12, where the court held that there was no crime of attempt (voluntary manslaughter) based on a sudden and intense passion. The basis for the court’s opinion was that it is impossible to specifically intend a sudden and intense passion.

The voluntary manslaughter provision construed in Weeks defined the offense as follows:

“A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation ***.” Ill. Rev. Stat. 1965, ch. 38, par. 9 — 2.

By contrast, under the present law, to find a defendant guilty of second degree murder based on a sudden and intense passion, the jury must first find that all of the elements of first degree murder apply. (See Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a).) After finding the existence of those elements, the jury must then consider whether the defendant acted under a sudden and intense passion resulting from serious provocation. (See Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a)(1).) Consequently, a finding of guilty of attempt (second degree murder) now requires a finding that the defendant had the specific intent to kill, but that her conduct was mitigated by provocation. The intent element is unrelated to the mitigating factor of provocation. We therefore find that the defendant could be convicted of attempt (second degree murder).

The defendant next argues that she was not proved guilty beyond a reasonable doubt, because the State failed to show that she had the intent to kill Jones. She contends that if she had intended to kill Jones, she would have done so, because they were standing at close range.

The intent to kill may be inferred from the character of the assault, the use of a deadly weapon, the issuance of threats, and the circumstances surrounding the incident. (People v. Anderson (1982), 108 Ill. App. 3d 563, 439 N.E.2d 65.) Moreover, the question of intent is for the trier of fact. (People v. Migliore (1988), 170 Ill. App. 3d 581, 525 N.E.2d 182.) On review of a conviction, this court will examine all of the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the. defendant guilty beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

The State presented evidence establishing that the defendant had a motive to harm Jones. It also presented testimony showing that at close range the defendant aimed a gun at the victim and fired it. Viewing the evidence in the light most favorable to the State, we find that a rational trier of fact could have found that the defendant intended to kill Jones.

The defendant next argues that her conviction should be reversed because the jurors initially found her not guilty of attempt (first degree murder). Relying on People v. Frias (1983), 99 Ill. 2d 193, 457 N.E.2d 1233, she argues that this finding constituted an acquittal of attempt (second degree murder) and, therefore, the trial court should have ended deliberations at that point.

A trial court has a duty to review the verdict and determine if it is proper in form and substance. (People v. Almo (1985), 108 Ill. 2d 54, 483 N.E.2d 203.) Where the verdicts are inconsistent, a court may properly refuse them and send the jury back to deliberate after clarifying the instructions. Almo, 108 Ill. 2d at 64, 483 N.E.2d at 207.

We do not read Frias as barring the actions taken by the trial court. Rather, we find that the court acted properly in refusing to accept the initial verdicts and in sending the jury back with clarified instructions. The first verdict was legally inconsistent because the jury had to find all of the elements of attempt (first degree murder) present in order to find the defendant guilty of attempt (second degree murder). (See Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 4, 9 — 2(a).) The instructions failed to state, however, what should be done with the attempt (first degree murder) verdict form if the jury found the defendant guilty of attempt (second degree murder). The court’s further instructions properly clarified the jurors’ apparent confusion. Consequently, we find no error.

The defendant further argues that the trial court erred in instructing the jury on the justifiable use of force. At the instructions conference, the State submitted the standard IPI jury instruction on justification, which read as follows:

“A person is justified in the use of force when and to the extent that she reasonably believes that such conduct is necessary to defend herself against the imminent use of unlawful force.
However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to herself or another.” (IIlinois Pattern Jury Instructions, Criminal, No. 24 — 25.06 (2d ed. 1981).)

The defendant submitted a modified form of the instruction, omitting the word “reasonably” before the word “believes” in both paragraphs. The trial court gave the State’s version of the instruction.

The defendant contends that under the authority of People v. Reagan (1983), 99 Ill. 2d 238, 457 N.E.2d 1260, the trial court should have given her version of the instruction. In Reagan, the supreme court held that there was no crime of attempt (voluntary manslaughter) based on an unreasonable belief of self-defense. The defendant submits that Reagan holds that a person who attempts to kill with the belief that she is acting in self-defense, even if the belief is unreasonable, does not have a specific criminal intent. Consequently, the defendant further argues, such a person cannot be convicted of either attempt (first degree murder) or attempt (second degree murder). She therefore concludes that to reflect the state of the law, the instruction should have excluded the word “reasonably.”

Initially, we note that the trial court should give the IPI instruction unless it finds that it does not accurately state the law. (People v. Glass (1984), 128 Ill. App. 3d 869, 471 N.E.2d 597.) Moreover, the decision to give a pattern instruction is within the trial court’s discretion. People v. Finley (1977), 49 Ill. App. 3d 26, 363 N.E.2d 871.

Reagan dealt specifically with the question of whether there was such an offense as attempt (voluntary manslaughter) based on an unreasonable belief of self-defense. The opinion did not address the instant issue, and we do not interpret its reasoning to apply to this case. (See People v. Powell (1989), 180 Ill. App. 3d 315, 535 N.E.2d 1008.) Additionally, we note that the statutory definition of the justifiable use of force requires that the person reasonably believe that force was necessary to defend herself. (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 1.) The trial court’s instruction reflected this definition. Accordingly, we find the court did not abuse its discretion in refusing the defendant’s instruction.

In her final argument, the defendant notes that the trial court considered as an aggravating sentencing factor that her conduct was the result of a “mild” form of provocation. She contends that this was error because her offense, by definition, was the result of serious provocation.

It is unnecessary to remand for resentencing where it can be determined that the weight placed on an allegedly improper aggravating factor was so insignificant that it did not result in a harsher sentence. (People v. White (1986), 114 Ill. 2d 61, 499 N.E.2d 467.) In the instant case, the trial court stated that the most serious aggravating factor was the defendant’s 20 previous convictions. It only referred to the “mild” provocation in passing. Although we do not agree with this characterization, we find that the court placed such little weight on it that it is not necessary to remand for resentencing.

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

Affirmed.

BARRY and STOUDER, JJ., concur.


author: JUSTICE STOUDER PRESIDING JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIC JAMES ILLGEN, Defendant-Appellant.
    Third District
    No. 3 — 89—0768
    Opinion filed October 23, 1990.

      HEIPLE, P.J., dissenting.
    Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, State’s Attorney, of Joliet (Nancy Rink Carter, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Following a jury trial, the defendant, Eric Illgen, was convicted of murdering his wife, Linda Illgen. The trial court sentenced the defendant to 30 years’ imprisonment. The defendant appeals.

The incident that gave rise to the murder charge against the defendant took place on April 14, 1989.-Sally and Lisa Illgen, Eric and Linda’s children, testified for the State. Sally and Lisa testified that on the evening of April 14, 1989, they watched a movie on television with their parents. At some point during the evening, their mother told them to play in a back room of the house because their father, the defendant, had a loaded gun. The children played in a back room until their mother asked them to come back into the living room. As they walked towards the living room, they heard a gunshot. When they entered the living room, they saw their now bleeding mother slumped on the couch. Sally testified that she saw her father holding a gun and standing in front of her mother. She heard him say that it was an accident. Lisa testified that her father said “Oh my God, Linda,” and put the gun on the kitchen table.

The children further agreed that their parents had not argued on the night of the incident. Sally also stated that her father often played with guns and their mother always ushered them out of the room whenever he had a loaded gun.

Bolingbrook police detective Joseph Andalina testified that he went to the Illgen home at about 9 p.m. to investigate the scene. When he arrived, he found the defendant sobbing. When asked what happened, the defendant stated that “Lester was here.” It was later determined that the defendant’s father was named Lester. The defendant asked Andalina to shoot him. When asked whether the shooting was an accident, the defendant stated “these things are never an accident.” The defendant was subsequently taken to the police station, where he was questioned further by Andalina and another police officer. The defendant told the officers that he had been cleaning his gun while sitting on the couch and that his wife had been sitting to his left on the couch watching television. At some point, he heard the gun discharge and saw blood on his wife’s face. The defendant wished he knew what happened “because these things are never accidents.” Andalina further testified that during the interrogation, the defendant made bizarre, irrational statements, and at other times, gave responsive answers.

Over defense counsel’s objections, Carol Svarz testified that she had known Linda and the defendant since 1970 and 1969, respectively. Svarz testified as to several incidents in which the defendant physically abused his wife. These incidents purportedly occurred between 1972 and 1989. In particular, Svarz testified that Linda enrolled in the Glen Ellyn Abuse Center for Women for six months in January 1982. In October 1982, after Linda and the defendant had reconciled, the defendant purportedly told Linda that he would kill himself, Linda, and the children if she ever left him again.

The defendant testified that on the night his wife was killed, he watched a movie, drank vodka and soda and cleaned his gun. The gun was not pointed at his wife while they were seated on the couch. The defendant stated that he remembered hearing a loud noise like a boom. He could otherwise not remember what happened or how the shooting occurred. The defendant also averred that he did not remember making any statements to the police.

We initially address the defendant’s contention that he was denied his right to a fair trial when the trial court allowed Svarz to testify to prior incidents of physical abuse purportedly inflicted upon Linda by the defendant. The defendant asserts that the incidents were too remote in time to have any relevance to the defendant’s state of mind on the night of the shooting and that the testimony was extremely prejudicial.

It is well settled that evidence of offenses other than those for which a defendant is being tried is not admissible if relevant merely to establish the defendant’s propensity to commit a crime. (People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821.) In the instant case, the State contends that the applicable exception to this rule is where the evidence is relevant to the main issue and tends to prove the defendant’s motive or intent. See People v. Groleau (1987), 156 Ill. App. 3d 742, 509 N.E.2d 1337.

In People v. Durso (1968), 40 Ill. 2d 242, 239 N.E.2d 842, evidence of the defendant’s sales, possession, and use of narcotics was held admissible to explain his motive for killing the victim, who had failed to account for proceeds of drug sales and who was suspected of being an informant. In Durso, the evidence of other crimes tended to explain why the victim was killed. In the instant case, however, the defendant’s prior physical abuse of his wife did not explain her death. This past physical abuse did not give the defendant a reason to kill his wife. This other crimes evidence merely portrayed the defendant as a person who acts violently towards his wife.

The State also argues that Svarz’s testimony also explains the defendant’s intent in killing his wife. We find no merit in this argument. The incidents related by Svarz occurred seven years prior to this incident. No evidence was adduced that Linda was planning to leave the defendant nor was any evidence adduced that Linda’s death was the result of a quarrel that had gotten out of hand. Therefore, because the evidence failed to establish motive or intent, we conclude that the trial court committed error by allowing Svarz’s testimony into evidence.

Further, we hold that this error was not harmless. It is our opinion that the substantial prejudicial impact of this testimony on the jury outweighed any possible probative value it may have had. (See People v. Mitchell (1984), 129 Ill. App. 3d 189, 472 N.E.2d 114.) The instant case centered on the credibility of the defendant’s testimony. The record shows that Svarz’s testimony, without question, influenced the jurors. During deliberations, the jury requested the transcript of Svarz’s testimony and asked for the dates of the incidents of abuse about which she testified. When questioned, the jury foreman specifically asked for the date on which the defendant threatened to kill himself, Linda, and the children. Accordingly, we find Svarz’s testimony to be extremely prejudicial.

The defendant next asserts that the evidence in the instant case was insufficient to prove him guilty beyond a reasonable doubt. We disagree.

A criminal conviction will not be set aside unless the evidence is so improbable or "unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671.) The relevant question for this court to address is whether, after reviewing 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, 478 N.E.2d 267.) We find that a rational trier of fact could infer from the admissible evidence adduced that the defendant committed murder in the instant case.

For these reasons, we reverse the judgment of the circuit court of Will County and remand this case for a new trial consistent with this opinion.

Reversed and remanded.

SCOTT, J., concurs.

PRESIDING JUSTICE HEIPLE,

dissenting:

Defendant, Eric James Illgen, was charged with first degree murder in connection with the shooting death of his wife, Linda, on April 14, 1989. Following a jury trial, defendant was found guilty and sentenced to 30 years in prison. The trial court subsequently denied defendant’s motion for a new trial. Defendant appeals.

At trial, defendant’s daughters, Lisa and Sally, testified that on the afternoon of April 14, 1989, they arrived home from school as usual. Their father came home from work between 4 and 5 p.m. The family ate dinner together and then watched a movie in the living room. Later, the girls’ mother, Linda, told them to go play in the back of the house because defendant had his loaded gun out. The girls obeyed and played in another part of the house until they heard their mother call them into the living room. As they approached the living room, the girls heard a single shot, then saw their mother sitting on the couch bleeding and their father holding the gun. Both girls testified that their father said, “Oh my God, Linda,” and put the gun down on the kitchen table. Sally testified that defendant often played with guns and their mother always had them leave the room when he did so.

Defendant testified that he was cleaning and working the gun mechanism while drinking and watching television with his wife. He then testified that he remembered nothing else until he heard a shot and realized his wife had been shot. He denied any intention of killing his wife.

Finally, the jury heard the testimony of Carol Svarz over the objection of the defense. Svarz, an acquaintance of defendant and the victim for many years, testified that defendant had physically abused his wife several times from 1972 to 1989 and that she had sought refuge at a women’s shelter. Svarz further testified that defendant had threatened to kill himself, if his wife left him and had mentioned killing his wife and pleading insanity.

Following presentation of the foregoing evidence, the jury found defendant guilty of first degree murder. Defendant moved for a new trial, contending that he was denied his right to a fair trial when the trial court allowed Svarz to testify to incidents of alleged physical abuse inflicted upon the victim by defendant. Specifically, defendant asserted that the events were too remote in time to have any relevance to defendant’s state of mind and that the testimony was highly prejudicial. The trial court denied defendant’s motion, remarking that in the case of an alleged homicide involving a husband and wife, “the conduct of the parties themselves and the treatment of one by the other is a relevant consideration.” The majority reverses the trial court decision, stating that Svarz’s testimony failed to establish motive or intent and was therefore erroneously allowed into evidence. I disagree.

While evidence of other acts of misconduct committed by a defendant is not generally admissible as proof of the defendant’s propensity to commit crime, it is well established that evidence of a defendant’s prior misconduct may be admitted if offered for a purpose other than to show the defendant’s propensity to commit, crime. (People v. McCarthy (1989), 132 Ill. 2d 331.) Evidence of a defendant’s prior acts of violence toward a victim has been deemed admissible as proof of the defendant’s intent at the time of the commission of the offense. (People v. Manzella (1973), 56 Ill. 2d 187, 306 N.E.2d 16.) In the instant case, defendant’s intent or state of mind when he shot his wife was at issue. Svarz’s testimony regarding defendant’s prior acts of violence toward his wife established a history of abusive acts throughout the marriage and tends to show defendant’s intent to harm her.

With respect to defendant’s contentions that the incidents Svarz testified to were too remote in time to have any relevance, it is well settled that the issue of remoteness is a question which goes to the weight of the evidence and not its admissibility. (People v. Barber (1983), 116 Ill. App. 3d 767, 452 N.E.2d 558.) The probative value of such evidence is weighted against its prejudicial effect and the trial judge’s decision to admit such evidence will not be overturned absent an abuse of that discretion. (People v. Whitehead (1988), 171 Ill. App. 3d 900, 525 N.E.2d 1084.) The pattern of abuse described by Svarz is of significant probative value. There is no indication that the trial court abused its discretion in determining that the probative value outweighed any prejudicial effect of the testimony. Additionally, the jury in this case was instructed that the evidence regarding other occurrences could be considered for the sole and limited purpose of establishing defendant’s intent, substantially reducing any prejudicial impact which may have resulted by virtue of the admission of other acts of evidence. People v. Wolfbrandt (1984), 127 Ill. App. 3d 836, 467 N.E.2d 1134.

The majority also concludes that defendant’s additional argument that the evidence in the case is insufficient to prove him guilty beyond a reasonable doubt is without merit. With that much I agree. However, reversal and remand of this matter for new trial is inappropriate. I would affirm the trial court in this case.