author: PRESIDING JUSTICE McCULLOUGH

text:
    THE FIRST NATIONAL BANK AND TRUST COMPANY IN GIBSON CITY, Plaintiff-Appellee, v. CLAYETTA WISSMILLER, Defendant-Appellant.
    Fourth District
    No. 4—88—0756
    Opinion filed April 28, 1989.
    George L. Chesley, of Chesley, Wilson & Prall, of Bloomington, for appellant.
    Joseph M. Ambrose, of Saint & Ambrose, P.C., of Bloomington, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

After defendant defaulted on a loan, on August 11, 1986, plaintiff obtained a judgment for $150,497.41. The trial court’s order reserved for later hearing a determination of the reasonable collection costs and attorney fees, though the order found defendant was responsible for them. Plaintiff recorded a memorandum of the judgment and filed a citation to discover assets. Defendant filed a motion to vacate the memorandum of judgment and quash the citation to discover assets, which the trial court denied. Defendant appeals the denial of her motion to quash the citation to discover assets and to vacate the memorandum of judgment, arguing the judgment was not enforceable because of the reservation of fees and costs. In light of our determination that no appellate jurisdiction exists at this point in the proceedings, we dismiss the appeal. Therefore, we need not address the merits of the appeal.

The parties agree that the propriety of the denial of the motion to quash the citation to discover assets is no longer before the court.

On August 7, 1986, First National Bank and Trust Company, plaintiff, filed a complaint in which it alleged that on December 9, 1983, it loaned defendant $185,000, as evidenced by an attached mortgage note. The note matured on February 1, 1985. Plaintiff demanded payment and defendant refused to pay. The complaint further alleged defendant, pursuant to the note, had authorized any attorney to appear and confess judgment. Plaintiff then alleged $150,497.41 was due under the note and that it had incurred collection costs including attorney fees. Plaintiff requested the court: enter judgment for $150,497.41, plus costs; find defendant liable to plaintiff for collections costs, including reasonable attorney fees; and reserve for later hearing the issue of the amount of collection costs and the amount of attorney fees. A cognovit and warrant of attorney were filed on August 11,1986.

On August 11, 1986, the trial court entered an order for confession of judgment. The court entered judgment in plaintiffs favor, found defendant was liable to plaintiff for collection costs, including reasonable attorney fees incurred in the collection of the note and judgment. The order reserved for later determination the amount of the attorney fees and costs.

On August 12, 1986, the plaintiff filed a memorandum of judgment in the McLean County recorder’s office. On October 6, 1986, a warranty deed in trust was recorded whereby defendant conveyed property to a trust and named several persons co-trustees.

On February 27, 1987, plaintiff filed a citation to discover assets. Plaintiff also filed a petition for a rule to show cause. On July 22, 1987, at a combined hearing on the rule to show cause motion and the citation to discover assets, defendant filed a motion to quash the citation to discover assets and to vacate the memorandum of judgment. The motion asserted the August 11, 1986, judgment was not final, appealable, or enforceable because it reserved the issue of attorney fees. Since the judgment was not final, appealable, or enforceable, defendant contended it could not be enforced by a citation to discover assets or a judgment lien. Therefore, it was appropriate for her to bring motions to quash and vacate those pleadings.

On October 22, 1987, the trial court denied defendant’s motion to vacate the memorandum of judgment and quash the citation to discover assets. The court found the August 11, 1986, order was enforceable and final and that Supreme Court Rule 304(a) was inapplicable. (107 Ill. 2d R. 304(a).) Alternatively, the court found attorney fees issue was not a separate claim but was incidental to the claim for judgment on the note. The court denied defendant’s motion to vacate the memorandum of judgment and quash the citation to discover assets. Defendant filed a motion for reconsideration of the October 22, 1987, order.

On September 16, 1988, the trial court denied defendant’s motion for reconsideration of the October 22, 1987, order denying her motion to vacate the memorandum of judgment and quash the citation to discover assets. The court found the August 11, 1986, judgment was enforceable. Several other motions were filed in the trial court which are not salient to this appeal.

Defendant filed a timely notice of appeal from the denial of her motion for reconsideration of the October 22,1987, order.

Initially, this court must address the appealability of preliminary orders which occur during supplemental proceedings to enforce judgments. Under section 2 — 1402 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1402) and Supreme Court Rule 277 (107 Ill. 2d R. 277), a judgment creditor may begin supplemental proceedings against the debtor by service of a citation to discover assets. The citation to discover assets does not adjudicate rights in the property but aids in the discovery of assets. It also may prohibit the party holding the asset from transferring it until further order of the court. (Bank of Aspen v. Fox Cartage, Inc. (1989), 126 Ill. 2d 307, 533 N.E.2d 1080.) The denial of a motion to quash a citation to discover assets is not appealable (Aspen, 126 Ill. 2d at 323, 533 N.E.2d at 1087), since it is considered an interlocutory order (First State Bank v. Leffelman (1987), 160 Ill. App. 3d 394, 513 N.E.2d 610; Danville Teachers Federal Credit Union v. Burell (1972), 6 Ill. App. 3d 94, 284 N.E.2d 729).

The creditor may also file a memorandum of judgment. Section 85 of “An Act concerning conveyances” states no judgment or order shall be a lien upon or affect registered land until a memorandum of the judgment is filed in the registrar’s office and a memorial of the same is entered on the last certificate of title. (Ill. Rev. Stat. 1987, ch. 30, par. 122.) The filing of the memorandum of judgment in essence attaches the lien upon the property to the extent of the debtor’s ownership in it. (Cochran v. Cutler (1976), 39 Ill. App. 3d 602, 350 N.E.2d 59.) However, the memorandum of judgment in and of itself does not enforce the judgment lien or enable the sale of the premises. Further proceedings are necessary to do this. It, like a citation to discover assets, is a notice document. Therefore, denial of a motion to vacate the filing of the memorandum of judgment is interlocutory in nature and not appealable. (Aspen, 126 Ill. 2d 307, 533 N.E.2d 1080.) The memorandum of judgment is a preliminary step in the enforcement proceedings.

Defendant contends this court has jurisdiction because a motion to quash and vacate is a proper means of attacking a trial court’s orders executing judgments. The cases cited by defendant, however, deal with orders enforcing the court’s judgment, not with preliminary matters. Brown v. Nelson (1942), 379 Ill. 371, 41 N.E.2d 499; Easter v. Holcomb (1921), 221 Ill. App. 485.

Further support for the position that these rulings were interlocutory may be found in the parties’ actions below. Defendant filed a motion to vacate the August 11, 1986, judgment by confession and plaintiff continued enforcement procedures. Several motions in the supplemental proceedings were still pending at the time defendant filed her notice of appeal. Since defendant essentially attacks the enforceability of the August 11, 1986, order, she should have obtained a ruling on her motion to vacate it pursuant to supreme court rules. This motion was pending when she filed her notice of appeal. However, the instant ruling on the preliminary supplemental proceedings is not appealable.

Therefore, the instant appeal is dismissed.

Appeal dismissed.

LUND and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    BRUCE SHAWGO, Petitioner-Appellee, v. THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Respondent-Appellant.
    Fourth District
    No. 4-88-0779
    Opinion filed May 4, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Patrick J. O’Hara and Samuel S. Blane, both of Petersburg, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

Section 4 of the Abused and Neglected Child Reporting Act (Act) (Ill. Rev. Stat. 1987, ch. 23, par. 2054) requires various persons, most of whom work in the fields of providing (1) health care; (2) personal counseling; or (3) educational services, to report suspected cases of child neglect or abuse to the Department of Children and Family Services (DCFS). Section 7.4(b)(2) of the Act requires that, upon receipt of such a report, DCFS is to “make an initial investigation and an initial determination whether the report is a good faith indication of alleged child abuse or neglect.” (Ill. Rev. Stat. 1987, ch. 23, par. 2057.4(b)(2).) Section 7.4(b)(3) of the Act then provides that, if such a “good faith” determination is made, DCFS shall make a formal investigation and advise “subjects” of the report as to their rights under the Act. (Ill. Rev. Stat. 1987, ch. 23, par. 2057.4(b)(3).) One of the rights of such “subjects” is to request, under section 7.16 of the Act, an expungement of the report and, if DCFS refuses to do so, to obtain a hearing to determine whether the report shall be expunged because it is “inaccurate” or not properly “maintained.” Ill. Rev. Stat. 1987, ch. 23, par. 2057.16.

On July 8, 1988, petitioner Bruce Shawgo filed a pleading in the circuit court of Sangamon County entitled “Petition for Administrative Review to Expunge Indicated Report.” The document appeared to seek review of a decision made under the Act by DCFS, which was named as a respondent, refusing to expunge a report naming petitioner as a “subject.” DCFS moved to dismiss, contending only final administrative decisions were subject to such review (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 104), and the petition showed on its face no final decision had been made. After a hearing, the court entered an order on October 4, 1988, denying the motion to dismiss and ordering DCFS to expunge a report in which petitioner was a “subject.” DCFS has appealed (1) continuing to contend the circuit court had no jurisdiction in administrative review because of the lack of a final administrative decision; and (2) in any event, maintaining the petitioner had not shown grounds for obtaining expungement of the report.

As we will explain, the operation of the Act here resulted in a procedural morass. An able and experienced circuit judge apparently concluded that, despite technical difficulties, the only way to enable the petitioner to obtain justice without undue delay was to give a broad interpretation to the concept of a final administrative determination and proceeded accordingly. We recognize the frustration apparently suffered by the petitioner and the extra effort and expense which our decision will require of him to receive the hearing to which he is entitled. Nevertheless, we must conclude no final DCFS decision was shown by the record, and, thus, the circuit court had no jurisdiction to entertain an administrative review. For that reason, we must reverse the decision of the circuit court and remand the cause to that court with directions to dismiss the petition of the petitioner.

The petition filed by the petitioner in the circuit court alleged that (1) on October 13, 1987, he received notice from DCFS stating he had been “indicated” in an abuse report all pursuant to section 7.12 of the Act (Ill. Rev. Stat. 1987, ch. 23, par. 2057.12); (2) on October 20, 1987, petitioner requested an immediate hearing and furnished DCFS with all “pertinent” information it had requested; (3) DCFS denied petitioner a hearing while it conducted its investigation; (4) on January 6, 1988, pursuant to DCFS’s direction, petitioner filed a written request to amend his original request for hearing; (5) on April 29, 1988, DCFS responded to petitioner’s latest request stating his request for expungement was denied, and petitioner was entitled to a hearing under sections 7.16 and 7.17 of the Act (Ill. Rev. Stat. 1987, ch. 23, pars. 2057.16, 2057.17); (6) on April 30, 1988, he mailed to DCFS a request for hearing; and (7) more than 30 days had elapsed since his request for a hearing, and he had been denied a hearing. Petitioner requested (1) a review “to determine [his] rights” according to DCFS rules; (2) an order requiring DCFS to expunge the “indicated report”; and (3) an order ruling “that continued maintenance of” the report was in “bad faith.”

The parties do not seriously dispute that the tenor of the petition was a request for review under the Administrative Review Law, section 3 — 106 of which requires the respondent agency to appear by “filing an answer consisting of a record of the proceedings had before it” or by filing either a motion or merely an appearance. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 106.) Here, DCFS appeared by filing both an appearance and a motion but did not have an opportunity to file any record of proceedings before it because the court proceeded to decide the case on the merits while ruling on the motion to dismiss. As no objection has been raised as to this proceeding, we assume the parties tacitly agreed the DCFS record may be deemed to be that which was alleged in the petition.

The basis of the ruling by the circuit court and the position of the petitioner on appeal seem to be very similar. Both focus on the provision of section 7.16 of the Act which states that, if DCFS refuses a request to expunge a report, a “subject” of a report is entitled to a hearing which “shall be held within a reasonable time after the subject’s request.” (Ill. Rev. Stat. 1987, ch. 23, par. 2057.16.) Petitioner and the court have also relied on section 309.16 of DCFS’s own rules, which requires a hearing on a request to expunge to be granted within 30 days of request. (89 Ill. Adm. Code §309.16(a) (1985).) DCFS and the circuit court deemed the foregoing to constitute a mandatory requirement that a hearing on the question of expungement be held within the 30 days of “a subject’s” request for such a hearing or, in any event, that a hearing be held within a reasonable time. Petitioner and the circuit court maintain that, upon the failure of DCFS to conform to the mandatory requirement to set a hearing within the stated time, DCFS lost jurisdiction and its power to proceed further. The circuit court held, and petitioner agrees, that, when DCFS lost jurisdiction, its action in denying expungement on April 29, 1988, constituted a final decision by DCFS denying the relief requested.

Much of the argument between the parties concerns the question of whether the requirements placed on DCFS to hold a hearing within a prescribed time were “mandatory” or “discretionary.” The theory expressed is that, if they were “mandatory,” DCFS lost jurisdiction because of its delay in granting a hearing, but, if the requirements were only “discretionary,” no loss of jurisdiction occurred. We do not deem that question to be dispositive.

We cannot interpret the action of DCFS on April 29, 1988, as a final decision. Section 7.16 of the Act begins by describing the right of a “subject” to request expungement. The section provides that, if the department refuses or fails to “act within 30 days, the subject shall have a right to a hearing” to determine whether expungement shall be required. (Ill. Rev. Stat. 1987, ch. 23, par. 2057.16.) Clearly, this denial of expungement is not deemed to be a final but a preliminary step in the procedure of ultimately determining a “subject’s” right to expungement.

Petitioner correctly points out an administrative agency occasionally loses jurisdiction at a preliminary stage of proceedings because of administrative delay, and this loss of jurisdiction creates a result favorable to a party adverse to the agency. Petitioner cites McReynolds v. Civil Service Comm’n (1974), 18 Ill. App. 3d 1062, 311 N.E.2d 308. There, an action was brought before a governmental civil service agency to discharge a State employee. The administrative agency did not grant a hearing within a statutorily required 30-day period. (Ill. Rev. Stat. 1971, ch. 127, par. 63b111.) After a subsequent hearing and order of discharge, the case came before the circuit court on administrative review. That court reversed on the basis the agency had lost jurisdiction to proceed, and the discharge was a nullity. The appellate court affirmed. A similar ruling was made in Jackson v. Civil Service Comm’n (1976), 41 Ill. App. 3d 87, 353 N.E.2d 331. In these cases the party obtaining the benefit was a party respondent to the proceedings and gained the benefit because the agency no longer had power to impose a burden, such as a discharge from civil service employment, upon the respondent.

Here, petitioner sought relief from the agency, and, if the agency lost the power to act, ordinarily the result of that loss of power would prevent the party seeking relief from getting it. The only cases called to our attention where a petitioner before an administrative agency has been held to be entitled to affirmative relief by the agency because of its failure to proceed with dispatch involve statutes which expressly provide for the granting of the relief upon the failure of the agency to act. For instance, section 40(a)(2) of the Environmental Protection Act states that a failure of the Environmental Protection Agency to act within a stated time on an application for a permit for a facility subject to pollution control operates as a granting of the permit. (Ill. Rev. Stat. 1987, ch. 111½, par. 1040(a)(2); Illinois Power Co. v. Pollution Control Board (1983), 112 Ill. App. 3d 457, 445 N.E.2d 820.) We see no indication here of a legislative intent that a “subject” is to be entitled to expungement upon any failure to act by DCFS.

Moreover, even if loss of jurisdiction by DCFS rendered the denial to expunge issued April 29, 1988, a final decision, we cannot say on this record that the decision was in error because the petition presents no record upon which we can find error. Petitioner maintains the lack of a record requires a determination in favor of the petitioner because section 7.16 of the Act places the burden of establishing the “accuracy and consistency of the record” sought to be expunged upon DCFS. (Ill. Rev. Stat. 1987, ch. 23, par. 2057.16.) However, that burden arises at the later hearing which was never held here. It is not a burden placed upon DCFS in determining whether to deny an initial request for expungement which is the decision petitioner deems to be on administrative review. We cannot say DCFS erred in making that order.

Lastly, although our decision is not based primarily on a determination as to whether DCFS lost jurisdiction, we hold it did not lose jurisdiction by its apparently dilatory conduct in affording petitioner a hearing. The parties cite cases containing various rules used to determine legislative intent. We recognize a dual policy in the Act. One purpose is to protect children from neglect and abuse. The Act is also intended to protect subjects from the detrimental effect of inaccurate reports. However, we note the legislature did not prescribe a definite time for the holding of the hearing, after demand has been made for one. No case has been called to our attention where a court has found a legislative intent to deprive an agency of jurisdiction for failure to proceed when the legislation did not specify an exact time in which the action must take place.

When an agency loses jurisdiction and later purports to act, that purported action is subject to collateral attack. A most uncertain situation would exist if, on collateral attack, a later determination of the validity of action depended upon whether the agency proceeded within a reasonable time. Here, DCFS properly enacted rules requiring a hearing within 30 days of demand, but we cannot assume that action was in the minds of the members of the General Assembly when section 7.16 was enacted. We hold the legislature did not intend that the provision requiring DCFS to hold a hearing within a reasonable time after request limit the jurisdiction of the agency.

As we have mentioned earlier, the record indicated substantial delay on the part of DCFS which would appear to have been very detrimental to petitioner. Nothing we have said in regard to our determination that DCFS did not lose jurisdiction should be taken to indicate DCFS can properly refuse to proceed beyond the time frame of its rules. We share the obvious concerns of the circuit court as to the prejudice to plaintiff. We differ as to remedy. We conclude the proper remedy for a petitioner before an administrative agency when the agency refuses a clear right to a hearing is to proceed in mandamus. People ex rel. Abner v. Kinney (1964), 30 Ill. 2d 201, 195 N.E.2d 651.

Accordingly, we reverse the judgment of the circuit court and remand to the circuit court with directions to dismiss the petition before that court.

Reversed and remanded with directions.

McCULLOUGH, P.J., and LUND, J., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM ARTHUR BROWN, a/k/a Derricke Brewer, Defendant-Appellant.
    Fourth District
    No. 4—88—0666
    Opinion filed April 28, 1989.
    Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On May 24, 1988, defendant William Brown, having pleaded guilty to felony theft, was sentenced to two years’ imprisonment, to run consecutively to a five-year sentence he is currently serving. He now appeals alleging the imposition of a consecutive sentence is improper. We affirm.

On August 19, 1986, defendant was convicted for the offense of burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1). While on bond, he failed to appear for his sentencing hearing on September 26, 1986, and was, therefore, sentenced in absentia to five years’ imprisonment. On September 27, he was apprehended committing the instant offense, which involved his stealing a compact stereo worth $130. This theft was enhanced to a felony based on the burglary conviction. (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1(e)(1).) On March 23, 1988, defendant pleaded guilty.

At the sentencing hearing, the State argued for a three-year consecutive sentence based on defendant’s criminal record and the fact the offense was committed while on bond. Defendant argued section 5 — 8—4(i) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(i)), which mandates consecutive sentences if the offense is committed while the defendant is free on bond, does not apply. The court disagreed and imposed a two-year consecutive sentence.

Initially, the State argues the consecutive sentence is justified by defendant’s criminal record alone. We agree. The presentence report establishes defendant has used 17 aliases. Between the courts of Illinois, North Carolina, New York, and the Federal system, he has been sentenced to prison four times, for a total of 15 years. He also has numerous offenses for which he has spent time in county or city facilities. However, the record is clear the court did not sentence defendant on this basis. Rather, the court relied on section 5 — 8—4(i), and we must review the propriety of that decision.

Defendant insists this section is inapplicable to his current situation. Section 5 — 8—4(i) provides:

“If a person admitted to bail following conviction of a felony commits a separate felony while free on bond, any sentence following conviction of the separate felony shall be consecutive to that of the original sentence for which the defendant was on bond.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(i).)

Defendant contends he was not free on bond at the time of the commission of the offense since he was sentenced in absentia and his bond forfeited the day before the offense occurred.

However, we do not read this section so restrictively. It is apparent the legislative intent was to punish those people who abuse the privilege of being free on bond following a felony conviction by committing another felony offense during that time. It is also apparent that the sole reason defendant was free to commit the instant offense was because he was free on bond following his burglary conviction. To hold that this section is applicable only until a defendant, who has failed to appear for his sentencing, has his bond forfeited, and is sentenced in absentia, tortures common sense and logic, and perverts the clear intent of the statute. Accordingly, we refuse to do so. Instead, we hold that as long as a defendant is free, based on being admitted to bail following a felony conviction, this section applies to any felony committed during that time regardless of whether the defendant is sentenced in absentia or the bail forfeited.

Defendant’s second assertion is that the sentence is an improper double enhancement. He argues that the theft was made a felony due to the burglary conviction, and he is receiving a consecutive sentence due to that conviction. He relies on, by analogy, People v. Hobbs (1981), 86 Ill. 2d 242, 427 N.E.2d 558, and its progeny. There, the court held that an extended-term sentence is not possible where the sentencing offense is a misdemeanor enhanced to a felony by the same prior conviction which would allow the extended-term sentence.

We fail to see the relevant analogy. Hobbs dealt with the extended-term provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b)) and based its holding on construction of that statutory language. The instant case deals with a different section which does not contain the same language. Therefore, any reliance on the language or analysis contained in Hobbs is misplaced.

Further, the factor which authorized the extended term in Hobbs was the prior conviction. Thus, the factor which elevated the misdemeanor to a felony was the same factor which resulted in the extended-term sentence. However, in the present case, the factor which mandated the consecutive sentence was the commission of a criminal offense while out on bond, not the prior burglary conviction. The factor which elevated the misdemeanor to a felony was not the same factor which resulted in the consecutive sentence. It is evident then that no double enhancement exists, and the sentence imposed is proper.

Affirmed.

McCULLOUGH, P.J., and GREEN, J., concur.


author: JUSTICE KNECHT

text:
    STEVEN K. GENTRY, Plaintiff-Appellant, v. THE ILLINOIS MUNICIPAL RETIREMENT FUND, Defendant-Appellee.
    Fourth District
    No. 4—88—0873
    Opinion filed April 28, 1989.
    Wendy L. Morthland, of Willoughby & Latshaw, P.C., of Decatur, for appellant.
    Kathleen O’Brien, of Illinois Municipal Retirement Fund, of Chicago, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

The issue presented is whether an injured municipal employee receiving permanent disability benefits from the Illinois Municipal Retirement Fund (Retirement Fund) (Ill. Rev. Stat. 1987, ch. 108½, par. 7 — 101 et seq.) and benefits under the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) must reimburse the Retirement Fund for temporary disability benefits received during the period immediately following the injury.

The plaintiff was employed by the City of Decatur and was covered under the Retirement Fund. On March 21, 1986, while working for the city, plaintiff suffered a myocardial infarction. The Retirement Fund paid plaintiff temporary benefits of $721.06 per month from April 24, 1986, to October 31, 1986. The total amount of temporary benefits from the Retirement Fund was $4,094.60.

On November 1, 1986, the Retirement Fund terminated plaintiffs temporary benefits and awarded him total and permanent disability benefits. On December 2, 1986, plaintiff entered into a settlement contract with the City of Decatur for workers’ compensation benefits totaling $37,077.28. On June 16, 1987, the Retirement Fund ordered plaintiff to reimburse the fund the amount of the temporary benefits; this appeal involves only that sum. Plaintiff sought an administrative hearing. On April 22, 1988, the board of trustees of the Retirement Fund (Ill. Rev. Stat. 1987, ch. 108½, par. 7 — 120) notified plaintiff the board had rejected his appeal. Plaintiff then sought administrative review (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.) of the board’s decision (Ill. Rev. Stat. 1987, ch. 108½, par. 7 — 220) by filing a complaint in Macon County circuit court. The circuit court affirmed the decision of the Retirement Fund and dismissed the complaint. Plaintiff appeals.

Section 7 — 222 of the Illinois Pension Code (Pension Code) states:

“Whenever any person is entitled to a disability or survivors benefit under this Article and to benefits under the Workers’ Compensation Act or the Workers’ Occupational Diseases Act in relation to the same injury or disease, the monthly benefits payable under this Article shall be reduced by the amount of any such benefits payable under either of those Acts ***.” (Ill. Rev. Stat. 1987, ch. 108½, par. 7 — 222.)

The plaintiff attempts to distinguish between temporary and permanent disability benefits under the Pension Code. Plaintiff asserts the reference in section 7 — 222 to “any such benefits” is to permanent, not temporary benefits. Thus, plaintiff argues, if he had received temporary workers’ compensation benefits, he would have received “such benefits,” or corresponding benefits, and would be obligated to repay the Retirement Fund benefits. We reject plaintiff’s argument. As the Retirement Fund notes, there is no statutory basis for a distinction between permanent and temporary benefits.

“In construing a statutory enactment, the primary purpose is to ascertain the legislature’s intention, not only from the language which it has used, but also from the reason and necessity for the act, the evils sought to be remedied, and the objects and purposes sought to be obtained.” (Eckman v. Board of Trustees for the Police Pension Fund (1986), 143 Ill. App. 3d 757, 763, 493 N.E.2d 671, 676, citing Cloninger v. National General Insurance Co. (1985), 109 Ill. 2d 419, 424, 488 N.E.2d 548, 549.) An examination of the legislative history of section 7 — 222 of the Pension Code reveals the deduction clause was intended to apply to temporary disability benefits. Public Act 80 — 903, effective September 21, 1977, amended statutes relating to five of the State’s pension systems, including the Retirement Fund (1977 Ill. Laws 2602). The purpose of the act was to avoid the double benefits then possible under the pension system and the Workers’ Compensation Act. (80th Ill. Gen. Assem., Senate Proceedings, June 22,1977, at 327 (statements of Senator Glass).)

“[The Bill] would provide for a reduction of disability or survivors benefits under five of the State pension systems when an individual has already received Workmen's Compensation or Workmen’s Occupational Disease benefits for the same injury. In other words, this prevents a windfall or a double recovery of benefits, and, thereby, would save the pension system some money. It brings these five pension systems in line with the other pension systems of the State.” (80th Ill. Gen. Assem., Senate Proceedings, June 27, 1977, at 104 (statements of Senator Glass).)

Most revealing, however, are the comments of Representative Mugalian:

“It [the Bill] covers the situation of temporary disability where somebody can receive a benefit under his pension plan and also workmen’s compensation and thereby receive up to 135 to 140% of his gross wages.” 80th Ill. Gen. Assem., House Proceedings, May 11, 1977, at 149 (statements of Representative Mugalian).

We find no basis, either in the language of the statute or in its history, for drawing a distinction between temporary and permanent disability benefits. Benefits received from the Retirement Fund, whether temporary or permanent, are to be reduced by the amount of the workers’ compensation award.

Judgment of the circuit court of Macon County is affirmed.

Affirmed.

LUND and GREEN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BERNARD WILLIAM FAIRMAN, Defendant-Appellant.
    Fourth District
    No. 4 — 88—0471
    Opinion filed May 4, 1989.
    Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and James Overholt, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Following a stipulated bench trial, the circuit court of Champaign County found defendant Bernard Fairman guilty of the offenses of unlawful possession of heroin and unlawful possession with the intent to deliver cocaine (Ill. Rev. Stat. 1987, ch. 56V2, pars. 1402(b), 1401(b)(2)). Defendant appeals contending the trial court erred in denying his pretrial motion to suppress evidence seized at the time of his arrest. We affirm.

At the hearing on the motion to suppress, defendant called Officer Albert Morgan of the City of Champaign police department. Morgan testified before his shift began late on October 3, 1987, Sergeant Jerry Gamble advised him to be on the lookout for a car suspected to have been involved in a series of area shootings that occurred within the past week. Gamble gave Morgan a description of the car, a red and white Oldsmobile Cutlass (Oldsmobile), and its license number. Gamble indicated one of the occupants of the vehicle may be an individual known as “Mr. X.” Gamble had information that Mr. X, a black male about 5 feet 10 inches in height, had murdered a man less than 24 hours earlier. Mr. X was thought to be a member of a gang out of Chicago that was registered at the Red Roof Inn in Champaign.

Morgan testified on October 4, 1987, he observed two individuals leave from the Red Roof Inn and enter the exact vehicle described by Sergeant Gamble. Morgan observed the Oldsmobile twice change parking spaces within the motel parking lot. Morgan followed the car as it exited the lot and immediately radioed Gamble advising him of the location of the Oldsmobile. Morgan tailed the vehicle to a parking lot at 1402 North Market Street. The car parked and its occupants emerged. Morgan again advised Gamble of his location and beckoned the suspects to approach the squad car. The Oldsmobile had not violated any traffic laws and no sirens, lights or weapons were utilized by the police. When the suspects complied with Morgan’s request, he instructed them to place their hands on the hood of the squad car while he conducted a pat-down search for weapons. No weapons were found. The officer proceeded to ask for identification and learned the driver was Jerry Lee Fairman and the passenger was his brother, the defendant.

At that point, Officers Eaton and Gamble arrived on the scene. A warrant check was conducted and the radio dispatch advised the officers there was an outstanding warrant out on defendant. Officer Eaton placed defendant under arrest while advising him of the outstanding warrant. Defendant immediately opened his right hand and dropped a clear plastic tube that was seized as evidence.

The State called Officers Eaton and Gamble. Officer Eaton testified he accompanied Sergeant Gamble to the scene of the arrest after Morgan radioed in his location to the station. Eaton said he had recently learned there was an outstanding arrest warrant out on defendant when a computerized investigation was conducted which compiled information on all known occupants of the suspected Oldsmobile. Upon arriving at the scene at 1402 North Market, Eaton inquired as to the identity of the car’s occupants. When he learned Morgan was questioning defendant, Eaton remembered the outstanding warrant and radioed into the station to confirm that knowledge. Defendant dropped the evidence in question when Eaton placed him under arrest.

Sergeant Gary Gamble testified the Oldsmobile was seen in the vicinity of where a stabbing had occurred on September 27, 1987. The victim identified his assailant as Mr. X, a gang member from Chicago. The police had information the gang was staying at the Red Roof Inn. The victim later suffered a fatal gunshot wound on October 3, 1987. The suspected killer was Mr. X, whose mode of transportation was thought to be the Oldsmobile. At a briefing on October 3, 1987, at 11 p.m., Gamble relayed this information to Morgan and others, along with a description of the Oldsmobile, its license number, and a description of Mr. X as a black male with close-cropped hair in his early twenties, around 6 feet tall and weighing 180 pounds. The trial court found the stop was justified based on Officer Morgan’s articulable suspicion that one of the occupants of the Oldsmobile may have been Mr. X, who was thought to be involved in the recent criminal activities. Having found nothing the police did on the date and time in question was improper, the court denied the motion to suppress evidence and the case proceeded to a stipulated bench trial.

On a motion to suppress evidence, the defendant has the burden to make a prima facie showing the evidence was obtained by an illegal search and seizure. (People v. Neal (1985), 109 Ill. 2d 216, 218, 486 N.E.2d 898, 899.) A reviewing court will not reverse the trial court’s finding on a motion to suppress evidence unless it is determined to be manifestly erroneous. (People v. Holloway (1981), 86 Ill. 2d 78, 426 N.E.2d 871; People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766.) The only question before us is whether the contraband seized as evidence after defendant’s arrest on an outstanding warrant was the fruit of an illegal stop. The State contends it was a reasonable investigatory stop pursuant to Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, and the Illinois codification of that case by section 107 — 14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 107 — 14). We agree.

Section 107 — 14 provides a police officer may stop a person in a public place for a reasonable amount of time when the officer reasonably infers from the circumstances the person has committed, is committing, or is about to commit an offense. (Ill. Rev. Stat. 1987, ch. 38, par. 107 — 14.) A reasonable stop is based on objective, articulable facts coupled with rational inferences, rather than an officer’s subjective, nonspecific hunch. (Terry, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; People v. McGowan (1977), 69 Ill. 2d 73, 370 N.E.2d 537.) It is proper for a police officer to rely on information received through official police communication channels to justify an investigatory stop. (People v. Brown (1980), 88 Ill. App. 3d 514, 410 N.E.2d 505; Village of Gurnee v. Gross (1988), 174 Ill. App. 3d 66, 528 N.E.2d 411.) Once an individual is stopped for questioning, an immediate but limited search of the person for weapons may be conducted if it is reasonable for the officer to suspect he or someone else is in danger of attack. (Ill. Rev. Stat. 1987, ch. 38, par. 108-1.01; McGowan, 69 Ill. 2d 73, 370 N.E.2d 537; People v. Roberts (1981), 96 Ill. App. 3d 930, 422 N.E.2d 154.) Probable cause to arrest or search is not required of a stop and frisk. People v. Smithers (1980), 83 Ill. 2d 430, 434, 415 N.E.2d 327, 330.

Here, we believe the initial stop of defendant by Officer Morgan was for investigative purposes in accord with Terry and the Illinois “stop and frisk” statutes. Officer Morgan testified he stopped defendant and his brother for questioning after they had exited the Oldsmobile on their own accord. The decision to question the men was based on the information gleaned from Sergeant Gamble at the October 3, 1987, briefing. In addition, Morgan articulated several facts justifying the stop, namely that the Oldsmobile under investigation exhibited suspicious behavior in the parking lot of the Red Roof Inn where the gang thought to be responsible for the recent shootings was registered. We find there were specific and articulable facts stated by Officer Morgan which warranted the initial stop. See People v. Solis (1985), 135 Ill. App. 3d 991, 482 N.E.2d 207.

Morgan’s decision to pat down the suspects for weapons before questioning them was explained by his testimony he thought at least one of the men was armed and somehow related to the Oldsmobile in question and the recent shootings. When no weapons were found, Morgan began questioning the suspects pursuant to the statutory directive. (Ill. Rev. Stat. 1987, ch. 38, par. 107 — 14.) Immediately Officers Eaton and Gamble arrived on the scene and Eaton recognized defendant’s name in relation to an outstanding arrest warrant. This knowledge was confirmed via radio dispatch. The evidence at issue in the motion to suppress was not recovered by the police until defendant dropped the vial from his hand when he was arrested by Officer Eaton on the valid warrant. We conclude the contraband seized was the fruit of a lawful arrest which timely followed a valid investigatory stop.

The judgment of the circuit court of Champaign County denying defendant’s motion to suppress evidence is affirmed.

Affirmed.

LUND and GREEN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY L. KING, Defendant-Appellant.
    Fourth District
    No. 4—88—0048
    Opinion filed May 4, 1989.

      Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald D. Bernardi, State’s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

A Livingston County grand jury issued a 52-count indictment charging the defendant, Terry L. King, with one count of aggravated kidnapping (Ill. Rev. Stat. 1985, ch. 38, par. 10 — 2(a)(5)), one count of aggravated unlawful restraint (Ill. Rev. Stat. 1985, ch. 38, par. 10— 3.1(a)), 20 counts of criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 13(a)(1)), 16 counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(a)(1)), five counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12— 16(d)), and nine counts of armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A — 2). Two of the criminal sexual assault counts and four of the armed violence counts were nol-prossed by the State prior to trial. Following a jury trial, defendant was convicted of aggravated unlawful restraint (one count), aggravated criminal sexual assault (16 counts) and criminal sexual assault (18 counts). Having heard evidence in mitigation and aggravation, the trial court entered judgments of conviction and sentenced defendant to concurrent terms of five years’ imprisonment for aggravated criminal sexual assault (one count), 14 years for aggravated criminal sexual assault (seven counts), and seven years for criminal sexual assault (two counts).

The sole issue on appeal is whether defendant was denied a fair trial when during closing argument the prosecutor stated: “[Defendant’s] defense consists of nothing more than lies, misrepresentations, innuendo, [and] character assassination.” Before we decide that question, a brief recitation of the facts is necessary.

The offenses charged were alleged to have been committed on or about July 7, 1987. At that time defendant was 39 years old, married, and a long-time employee of Caterpillar Tractor Company. Defendant testified as follows.

On July 6, 1987, defendant drove to his home in Fairbury, Illinois, from Ohio where he left his family with relatives. At around 11 p.m. he drove into Pontiac, where he drank several beers at a local bar until 1 a.m. the next morning. While on his way to a restaurant, defendant encountered two women walking down the middle of the street. The women were later identified as the victims M.D. and N.J. Defendant stopped his van and one of the women asked him what he wanted. When defendant asked, “You girls want to party?” they approached his van and said, “Well, what do you have?” Defendant told them the party would be in Fairbury, where he had some beer and marijuana. The women then climbed into the van. Defendant denied he threatened them with force or a weapon. Defendant opined his guests were both at least 18 years old.

Defendant drove to his house in Fairbury and escorted the women inside where they drank beer, listened to music, and smoked a marijuana cigarette. Later, defendant asked the women if they wanted to engage in sex with him and they agreed. The women participated in these activities voluntarily. Defendant then retrieved a paper sack from upstairs, which contained a rope, a pair of handcuffs, and two bandannas. After the trio undressed, defendant inquired of M.D. if she wanted to put on the handcuffs. She did not object. He then wrapped the rope around N.J.’s wrists and tied her to the coffee table. N.J. was reticent at first, but agreed to be bound when defendant told her he would only wrap the rope around the table leg and they would “see how it goes from there.” Neither woman screamed or demanded to be set free.

The sexual activity was limited by defendant’s inability to maintain an erection. Both women agreed to perform fellatio. Defendant denied that a vibrator or a knife was utilized at any time during his contact with the victims. After they had been in Fairbury for about two hours, defendant drove the women directly back to Pontiac, where they exited at a stop sign on a street unknown to defendant. Defendant denied he threatened the women or detained them against their will at any time during the evening.

N.J. testified she was 15 years old at the time she and M.D. were accosted by defendant on July 7, 1987. According to N.J., she and M.D. were walking down the street early that morning when defendant drove up in his mini-van and grabbed M.D. by the neck while holding a large knife to her throat. Defendant told N.J. to get in the van or he would kill M.D. Both women complied and defendant drove them to his house in Fairbury. Once inside the house, defendant forced them to drink beer and smoke some marijuana. Defendant threatened to kill them if they resisted or tried to escape. Defendant then forced them at knifepoint to undress and engage in vaginal, anal, and oral intercourse. Subsequently, defendant gagged and handcuffed M. D. and bound N.J.’s wrists with rope, which he attached to a coffee table. Defendant then inserted a vibrator in the vagina and rectum of N. J., after which he again engaged in anal, vaginal, and oral intercourse. Defendant handcuffed N.J. for the drive back to Pontiac. While en route, he stopped the van and placed his finger in her vagina. Defendant then dropped both the women off on a street in Pontiac and threatened to kill them if they told anyone what happened. At no time did N.J. consent to the sexual activities described.

M.D., who was 17 years old on July 7, 1987, gave testimony that substantially corroborated that of N.J. Like N.J., M.D. testified defendant brandished a knife and forced them to accompany him to his home in Fairbury, where he engaged in nonconsensual oral, anal, and vaginal intercourse. M.D. said defendant handcuffed her behind her back, gagged her with a bandanna, and tied N.J. with rope to a coffee table. Defendant also tied his victims’ legs together and inserted his finger and penis into the vagina and rectum of M.D. After defendant threatened the women and ordered them to get dressed, he drove them back to Pontiac. Defendant stopped in the country on the way and inserted his finger into the vagina of M.D. It was about four or five in the morning when defendant finally dropped them off in Pontiac. M.D. denied she consented to any of the sexual activities described.

The evidence revealed after defendant’s arrest the police recovered from his master bedroom a paper bag containing two bandannas, some rags, a fishing fillet knife and sheath, two pieces of clothesline, and a pair of handcuffs.

Medical evidence showed when N.J. was examined on July 7, 1987, she had blood in the crotch of her pants, a bruise on her breast, superficial scratches on her chest, and a bruise on the back of her head and left wrist. Her labia was bruised, the inside of her vagina was tom, and her rectum was lacerated and bruised. An examination of M.D. revealed recent rectal lacerations, scratches on her back, and bruises around her wrist. There was no vaginal damage. Vaginal, oral, and anal swabs from M.D. and N.J. showed no evidence of semen. Experts concluded the medical examinations of N.J. and M.D. corroborated their complaints they had been recently vaginally and rectally raped.

During closing argument, the prosecutor made the following remark:

“Ladies and gentlemen, I would submit to you that the evidence establishes that the defendant’s version of the activities that evening is ridiculous and that it belies common sense, his defense consists of nothing more than lies, misrepresentations, innuendo, [and] character assassination.”

On appeal, defendant argues the prosecutor’s argument improperly characterized defendant as a liar. The record reveals defense counsel objected to the prosecutor’s comment at trial, but failed to include a similar objection in a post-trial motion. In fact, defendant neglected altogether to file a post-trial motion as required by the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 116 — 1). The State claims this omission results in a waiver of any claimed error on appeal. We agree.

Absent plain error, the failure by a defendant to make timely objections at trial and in a post-trial motion waives any alleged error, including that caused by prosecutorial remarks during closing argument. (People v. Lucas (1981), 88 Ill. 2d 245, 430 N.E.2d 1091; People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988),_U.S_, 102 L. Ed. 2d 263, 109 S. Ct. 274.) The plain error exception to the waiver rule provides:

“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” (107 Ill. 2d R. 615(a).)

This doctrine may be applied in criminal cases where the evidence is closely balanced or if the claimed error was so prejudicial that defendant was denied a fair trial. (Lucas, 88 Ill. 2d 245, 430 N.E.2d 1091; People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739.) We cannot conclude an error affecting substantial rights was committed in this case so as to justify a circumvention of the waiver rule. Jackson, 84 Ill. 2d at 359, 418 N.E.2d at 743.

Generally it is prejudicial error for a prosecutor during argument to refer to the defendant as a “liar” if the evidence does not support such an accusation. (People v. Strange (1984), 125 Ill. App. 3d 43, 46, 465 N.E.2d 616, 619-20; People v. Steffens (1985), 131 Ill. App. 3d 141, 150, 475 N.E.2d 606, 614.) Here, the statement complained of did not directly attack defendant; rather, it stated his defense consisted of “lies, misrepresentations, innuendo, [and] character assassination.” If considered in isolation, this comment could be interpreted as an improper attack on defendant’s character and his attorney. (See People v. Emerson (1983), 97 Ill. 2d 487, 455 N.E.2d 41.) However, when examined in the context of closing arguments from both sides and the evidence before the jury, we find the remark was merely a comment on the quality and strength of defendant’s case and thus did not create the type of prejudice that would have denied defendant a fair trial. People v. Lee (1986), 151 Ill. App. 3d 510, 502 N.E.2d 399.

A remark may be considered harmless error if it does not materially contribute to the conviction. (People v. Lyles (1985), 106 Ill. 2d 373, 391, 478 N.E.2d 291, 298.) Here, even if we were to view the remark complained of as improper, we would not disturb the verdict when the prosecutor made a comment in isolation which we believe did not affect the jury’s verdict. (People v. Whitecotton (1987), 162 Ill. App. 3d 173, 514 N.E.2d 1160.) Although defendant does not challenge the sufficiency of the evidence, we find it was the overwhelming evidence against him, rather than an isolated remark by the prosecutor, that resulted in defendant’s conviction. See People v. Medley (1983), 111 Ill. App. 3d 444, 444 N.E.2d 269.

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

Affirmed.

McCULLOUGH, P.J., and GREEN, J., concur.


text:
    BRENDA TEMPLAR, as Next Friend of Aja Templar, a Minor, Plaintiff-Appellant, v. DECATUR PUBLIC SCHOOL DISTRICT NO. 61, Defendant-Appellee.
    Fourth District
    No. 4—88—0593
    Opinion filed April 28, 1989.

      Kenneth E. Baughman, of Monticello, for appellant.
    Samuels, Miller, Schroeder, Jackson & Sly, of Decatur (Nicholas J. Neiers and Martin D. Hoke, of counsel), for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

The circuit court of Macon County granted defendant’s motion for directed verdict on the question of wilful and wanton misconduct at the close of plaintiff’s case. On appeal, plaintiff argues the circuit court erred in granting the directed verdict and in refusing to allow evidence of two out-of-court statements allegedly made by a principal of the defendant school district.

Aja Templar was a nine-year-old girl in third grade during the 1986-87 school year at Johns Hill Magnet School, Decatur, Illinois. Johns Hill Magnet School, which educates children in kindergarten through the fourth grade, is directly adjacent to Washington School, which educates ESP children. ESP refers to Educational Stabilizing Program and is designed for students whose families move their residences frequently. Both schools accepted students from school buses which dropped them off at the north side of Johns Hill Magnet School on John Street. Approximately 13 buses discharged at this location.

Kenya Sayles is a member of a family which moved frequently throughout the Decatur community. Kenya was in fourth grade at Washington School during the 1986-87 school year. At some point after the 1986 Christmas vacation, Kenya moved into Aja’s neighborhood. At that time Kenya, his brothers, and a friend first appeared at Aja’s bus stop near her home. The time period concerned here is the last week, December 1986, to the incident, giving rise to the suit February 6, 1987. The school district employees first received complaints on behalf of plaintiff the middle of January 1987.

After Kenya began using the bus stop near Aja’s home, incidents between Aja and Kenya began. Alleged incidents included rock throwing, hitting, hair pulling, and name calling. Kenya was also allegedly involved in rock throwing and name calling of Aja and her sisters, and pulling of the girls’ hair at the bus discharge area. Aja’s twin sister testified that the difficulties occurred on the bus as well, but Aja testified that Kenya did not bother her and her sisters while they rode the bus to school. Kenya had disciplinary problems before moving to his new home in Aja’s neighborhood.

Aja’s father, Robyrtt Templar, complained to several school officials by telephone concerning the harassment of his daughters. Plaintiff, Aja’s mother, claims she listened to the conversations from a speakerphone. The school officials who were telephoned were Mary Polite, the principal of Aja’s school, Barry Buttz, the Washington School principal, and Lawrence Reed, defendant’s employee in charge of bus pickup points. Mary Polite was also in charge of two teachers who supervised the bus discharge area, Muriel Sumpter and John Henry.

The telephone calls allegedly made by Robyrtt include the following. On January 14, 1987, Robyrtt telephoned Reed, told him the problem his daughters were experiencing with Kenya and his brothers, and complained that the Sayles boys should not be let off the bus at the point where the Templar girls waited until their school doors were opened in the morning. On January 21, Robyrtt telephoned Buttz and told him that Kenya had slapped, shoved, hit, and threw snowballs at Aja and her sisters on school property. Robyrtt telephoned Polite on January 29 and complained about the same incidents that he spoke to Buttz about. Robyrtt telephoned Buttz again on February 5 and claimed the harassment by Kenya had not stopped. That same day Robyrtt telephoned Reed, explained the problem to him again, and complained that the problem had not changed since their first conversation.

Buttz testified that the first conversation with Robyrtt concerned only verbal harassment by Kenya. Buttz also said that after his first conversation with Robyrtt in late January he called Kenya and the other boys involved in the incidents to his office to talk to them about the problem. Buttz stated that it was not within his area of responsibility to control bus drop-off and pickup points at his school. Buttz also stated he did not tell Robyrtt that he had done all he could do about the problems experienced by the Templar girls, contrary to plaintiff’s claim. Buttz further stated that in his second telephone conversation with Robyrtt, Kenya was not specifically identified as the source of any problem. Buttz finally stated that after the telephone conversations he had with Robyrtt, he discussed the matter with Larry Reed in an effort to eliminate the problem. The bus stop for Kenya was changed on February 5 so that he would not wait for the bus with Aja and her sisters. In addition, the bus driver was instructed to keep Kenya and his brothers off the bus if they were not at their proper bus stop.

As Aja waited in front of her school for the doors to open on February 6, Kenya hit her in the right eye with his fist with sufficient force that knocked her to the ground. According to the testimony of Aja’s twin sister, Kenya muttered something to the effect that he hit Aja in the eye because she caused the change of his bus pickup point. John Henry testified that the school did not notify him of the problem between Kenya and the Templar girls. Muriel Sumpter also testified that she was not informed of the problems between Kenya and Aja.

As a result of her injury, Aja lost partial vision in her right eye caused by a blind spot in the central viewing area. Dr. John Randolph of the Gailey Eye Clinic in Bloomington testified that this condition was permanent and that it might have been caused by the hit from Kenya on February 6,1987.

At the close of plaintiff’s evidence, defendant presented a motion for a directed verdict, claiming plaintiff failed to present any facts which could show the defendant school district was guilty of wilful and wanton misconduct. The circuit court granted defendant’s motion.

Plaintiff alleged in her post-trial motion, filed on June 27, 1988, that the trial court misapplied the rule for wilful and wanton misconduct to the facts of her case. The post-trial motion also alleged that the court erred by refusing to allow into evidence the telephone conversations between Robyrtt and Buttz where plaintiff claims Buttz stated there was nothing he could do to alleviate the problem experienced by the Templar girls. The circuit court denied the post-trial motion on August 12, 1988, and notice of appeal was filed that same day.

The standard governing defendant’s motion for a directed verdict is set forth in Pedrick v. Peoria & Eastern Ry. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14. Our supreme court stated that verdicts should be directed only where all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. (Pedrick, 37 Ill. 2d at 510, 229 N.E.2d at 513-14.) The Pedrick court also stated that a verdict may be directed even though some slight evidence to the contrary exists. (Pedrick, 37 Ill. 2d at 505, 229 N.E.2d at 510.) Furthermore, the trial judge must view the evidence in its light most favorable to the nonmovant but need not accept all of the nonmovant’s evidence as true when deciding whether there is any credible evidence to allow the case to go to the jury. Belleville National Savings Bank v. General Motors Corp. (1974), 20 Ill. App. 3d 707, 712, 313 N.E.2d 631, 635.

Of importance to this case is section 24 — 24 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 24 — 24), which states in pertinent part:

“Teachers and other certificated educational employees shall maintain discipline in the schools, including school grounds which are owned or leased by the board and used for school purposes and activities. In all matters relating to the discipline in and conduct of the schools and the school children, they stand in the relation of parents and guardians to the pupils. This relationship shall extend to all activities connected with the school program *** and may be exercised at any time for the safety and supervision of the pupils in the absence of their parents or guardians.”

Our supreme court has interpreted section 24 — 24 to confer upon educators the status of in loco parentis in nondisciplinary and disciplinary matters; therefore, teachers should not be subjected to any greater liability than parents, who are liable to their children for wilful and wanton misconduct but are not liable for mere negligence. (O’Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, 466-67, 415 N.E.2d 1015, 1017.) The supreme court has defined an injury which results from wilful and wanton conduct as one that is the result of conduct which is either intentional or committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent the injury or a failure to discover the danger through recklessness or carelessness when it could have been discovered by ordinary care. Lynch v. Board of Education of Collins-ville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 429, 412 N.E.2d 447, 457.

This court decided a case similar to the one before us in Holsapple v. Casey Community Unit School District C-1 (1987), 157 Ill. App. 3d 391, 510 N.E.2d 499. In Holsapple, we concluded that allegations of a failure to supervise student activities are not sufficient to state a cause of action for wilful and wanton misconduct. A showing of actual or constructive notice of a high probability of serious harm occurring is necessary to state a cause of action for wilful and wanton misconduct. Holsapple, 157 Ill. App. 3d at 393, 510 N.E.2d at 500.

The holding that a school district’s failure to provide supervision rises to a level of wilful and wanton misconduct where the defendant had actual or constructive knowledge of a high probability of serious physical harm occurring was also the conclusion reached in several other cases, including Albers, Weiss v. Collinsville Community Unit School District No. 10 (1983), 119 Ill. App. 3d 68, 456 N.E.2d 614, and Pomrehn v. Crete-Monee High School District (1981), 101 Ill. App. 3d 331, 427 N.E.2d 1387. Plaintiff states that this finding should be disregarded as misstating the law as indicated in O’Brien and in the Restatement (Second) of Torts. Holsapple, Albers, Weiss, and Pomrehn do not conflict with O’Brien, they merely clarify the definition of wilful and wanton misconduct. The Restatement (Second) of Torts section which plaintiff refers to is section 316, which states:

“Duty of Parent to Control Conduct of Child A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent
(a) knows or has reason to know that he has the ability to control his child, and
(b) knows or should know of the necessity and opportunity for exercising such control.” Restatement (Second) of Torts §316, at 123-24 (1965).

Plaintiff claims section 316 is an exception to the general rule that parents are not liable for the torts of their children merely because of their relationship. Plaintiff contends Williams v. McCoy (1987), 152 Ill. App. 3d 912, 505 N.E.2d 46, accepts the section 316 exception in Illinois. Plaintiff’s contention is not accurate. In Williams, the court found that section 316 did not apply to the facts of that case, and it did not decide whether section 316 is accepted in Illinois. (Williams, 152 Ill. App. 3d at 914, 505 N.E.2d at 48.) We conclude that any section 316 exception, if it even exists in Illinois, is not applicable to the facts of the case before us.

Plaintiff urges us to follow the holding in Gammon v. Edwards- ville Community Unit School District No. 7 (1980), 82 Ill. App. 3d 586, 403 N.E.2d 43, where the court found that supervision necessary to avoid a confrontation was not provided when the school district had knowledge of prior misconduct by the offending student. Gammon is easily distinguished from the case before us because here the school district made efforts to alleviate the problem between plaintiff and the offending student.

Plaintiff urges us to follow the holding in Goka v. Bobbitt (7th Cir. 1988), 862 F.2d 646. Goka, unlike this case, involved a constitutional question. Additionally, Goka was in the Federal forum involving a Federal question. The school district did not ignore the complaints. From the time of Robyrtt’s first telephone call, January 14, 1987, to the school district to February 6, 1987, the district did take action. Kenya was called into the office concerning the problem, and on February 5, 1987, Kenya’s pickup point was changed in an effort to resolve the difficulty. The trial court’s finding there was no wilful and wanton misconduct was correct.

In summary, we find no evidence of wilful and wanton misconduct by defendant which could support a verdict for plaintiff. Therefore, we find, according to Pedrick, that after considering all the evidence in its aspect most favorable to plaintiff, it so overwhelmingly favors defendant that no contrary verdict based on the evidence could ever stand.

We turn now to plaintiff’s contention that the trial court improperly refused to allow evidence of two out-of-court statements allegedly made by a principal of the defendant school district. During the trial, plaintiff’s counsel asked plaintiff on direct examination whether she overheard a telephone conversation between Robyrtt and principal Buttz. Defendant’s counsel objected and the court sustained the objection. Plaintiff’s counsel then presented an offer of proof in which plaintiff stated Buttz told Robyrtt “there was really nothing he could do” in relation to the problem between Kenya and the Templar girls. In addition, plaintiff stated that she overheard a second telephone conversation during which Buttz indicated to Robyrtt “there wasn’t anything more he could do,” referring again to the problem between Kenya and the Templar girls. Plaintiff’s counsel also presented an offer of proof in which he claimed Robyrtt would testify to the same statements allegedly made by Buttz which plaintiff testified to in the previous offer of proof. The court then instructed plaintiff’s counsel to avoid the conversations Robyrtt engaged in with Buttz.

Plaintiff’s counsel called Buttz as an adverse witness and asked Buttz whether he told Robyrtt during a telephone conversation on January 21, 1987, that there was nothing he could do to help Robyrtt with his problem. Buttz answered: “No, not at all.” Plaintiffs counsel then asked Buttz whether he told Robyrtt on January 21, 1987, that he had done all he could do with Kenya. Buttz answered: “No, sir.” Plaintiff’s counsel also asked Buttz whether he told Robyrtt during a telephone conversation on February 5, 1987, that there was nothing he could do to help Robyrtt with his problem. Buttz answered: “I do not recall making that statement.” Finally, plaintiff’s counsel asked Buttz whether he told Robyrtt on February 5, 1987, that he had done all he could do with Kenya. Buttz answered: “I do not recall making that statement, sir.”

Robyrtt was called later to impeach Buttz’ previous testimony. Plaintiff’s counsel asked Robyrtt whether Buttz told him during a telephone conversation on February 5, 1987, what he could do for Robyrtt. Robyrtt answered: “Yes, he told me specifically that there was nothing he could do.”

The parties argue the correctness of the trial court’s ruling on the basis of hearsay. Hearsay is “an out-of-court statement offered to establish the truth of the matter asserted therein, and resting for its value upon the credibility of the out-of-court asserter.” (People v. Rogers (1980), 81 Ill. 2d 571, 577, 411 N.E.2d 223, 226.) Equally obvious, testimony introduced for a purpose other than to prove the truth of the matter asserted is admissible. (People v. Canity (1981), 100 Ill. App. 3d 135, 151, 426 N.E.2d 591, 602-03.) Plaintiff argues that the hearsay statements allegedly made by Buttz fall into one of three exceptions to the hearsay rule: as knowledge on the part of the defendant’s supervising agents, or state of mind; as an admission; or as part of the res gestae.

We question the issue as being one of hearsay.

The plaintiff was called to testify before Buttz. The objections to plaintiff’s testimony and the offers of proof followed. Buttz was then called as an adverse witness. Robyrtt’s impeachment testimony followed. The record does not show plaintiff sought to also testify in impeachment. The testimony concerned telephone communications between Robyrtt and Buttz; plaintiff was in a position to hear the conversation of both. The trial court’s rulings as to the testimony of plaintiff and Robyrtt on this matter was incorrect. The trial court did allow Robyrtt to testify as to the conversation, mooting the trial court’s original ruling as to his testimony. Plaintiff should have been allowed to testify but any trial court error was harmless.

Exclusion of admissible evidence is harmless error if substantial rights are not affected by its exclusion. (107 Ill. 2d R. 615(a); Dayan v. Dayan (1967), 86 Ill. App. 2d 358, 229 N.E.2d 568.) The evidence for the directed verdict is overwhelming, and the trial court’s ruling on Buttz’ statements does not affect substantial rights of the plaintiff and amounts to harmless error.

For the above reasons, we affirm the circuit court’s order which granted defendant’s directed verdict.

Affirmed.

KNECHT and SPITZ, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH SCHWARTZ III, Defendant-Appellant.
    Fourth District
    No. 4—88—0459
    Opinion filed April 28, 1989.

      Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

The defendant, Kenneth Schwartz III, appeals from an order revoking his probation and resentencing him to the maximum term of imprisonment with 98 days’ credit for time served in jail on the offenses, but without expressly indicating whether the defendant was also entitled to credit for time otherwise served while on probation.

On March 28, 1986, the defendant was charged by information in Vermilion County with aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(b)(6)), criminal damage to property (over $300) (Ill. Rev. Stat. 1987, ch. 38, par. 21 — 1(a)), and driving while under the influence of alcohol (DUI) (Ill. Rev. Stat. 1987, ch. 95V2, par. 11-501(a)(2)). Pursuant to a plea agreement, the State dismissed the first charge and the defendant pleaded guilty to the remaining charges. On March 23, 1987, the circuit court sentenced the defendant to a 30-month term of probation on the second charge and to a concurrent 12-month term of probation on the third charge. As a condition of probation, the circuit court ordered the defendant to serve alternate weekends in the county jail on an 18-month term of periodic imprisonment. On March 10, 1988, due in part to the alleged failure of the defendant to fulfill the condition of periodic imprisonment, the State filed a petition to revoke the probation of the defendant. On May 4, 1988, the circuit court found the State had proved its petition by a preponderance of the evidence and revoked the probation of the defendant. On June 22, 1988, the circuit court resentenced the defendant to a three-year term of imprisonment for criminal damage to property and to a concurrent 364-day term of imprisonment for DUI, with credit as stated above.

The sole issue presented for review is whether the defendant may elect the applicable sentencing statute on revocation of probation where the statute is amended during the pendency of the action.

Probation revocation proceedings are governed by section 5 — 6— 4(h) of the Unified Code of Corrections. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—4(h).) As amended on January 1, 1988, section 5 — 6—4(h) now provides:

“(h) Resentencing after revocation of probation, conditional discharge or supervision shall be under Article 4. Time served on probation, conditional discharge or supervision shall not be credited by the court against a sentence of imprisonment or periodic imprisonment unless the court orders otherwise.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—4(h).

In People v. Kauffman (1988), 172 Ill. App. 3d 1040, 1043, 527 N.E.2d 645, 647, this court explained the effect of the amendment on probation revocation proceedings:

“This statute affects sentencing procedures and is effective for all sentences imposed after December 31, 1987, regardless of the date of conviction. It is procedural and not substantive in nature. The trial court’s failure to comment about defendant’s probation means defendant will not receive credit for that time.”

In the instant action, the circuit court did not expressly indicate whether the defendant is entitled to credit for time served while on probation. Under the former sentencing statute, in effect at the time of the underlying offenses, the silence of the circuit court was taken to mean an automatic award of such credit to the defendant. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 6—4(h).) Under the amended sentencing statute, in effect at the time the defendant was resentenced on revocation of probation, however, the silence of the circuit court is taken to mean an automatic denial of such credit to the defendant. Ill. Rev. Stat. 1987, ch. 38, par. 1005-6-4(h).

The defendant contends he should have been allowed to elect the applicable sentencing statute on revocation of probation as the statute was amended during the pendency of the action. He requests this court reconsider Kauffman in light of cases permitting the defendant to make such an election. We find his contention is without merit.

“[Ejection is crucial in avoiding the prohibition against ex post facto laws because it allows the defendant to [subjectively] determine which option [is] most favorable to him.” (People v. Finley (1980), 82 Ill. App. 3d 307, 310, 402 N.E.2d 769, 772.) Under Illinois law, a criminal defendant may elect the applicable sentencing statute only when a substantive amendment is enacted during the pendency of the action. (See People v. Hollins (1972), 51 Ill. 2d 68, 280 N.E.2d 710; People v. Andrews (1981), 95 Ill. App. 3d 595, 420 N.E.2d 509.) Absent such an amendment, however, the defendant may not elect the applicable sentencing statute.

The decision whether to award the defendant credit for time served while on probation is a matter of discretion for the circuit court. (People v. Chumbley (1982), 106 Ill. App. 3d 72, 76, 435 N.E.2d 811, 814.) This discretion is not affected by the amended sentencing statute. Rather, the amended sentencing statute only directs the effect to be accorded where the circuit court does not expressly indicate its credit decision. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—4(h).) Accordingly, the amended sentencing statute is without ex post facto implications, and the defendant is not entitled to election.

In a probation revocation proceeding, the circuit court may re-sentence defendant to any sentence appropriate for the original offense. (People v. Horton (1987), 160 Ill. App. 3d 513, 516, 513 N.E.2d 502, 503.) Criminal damage to property (over $300) is a Class 4 felony. (Ill. Rev. Stat. 1987, ch. 38, par. 21 — 1.) A sentence of imprisonment for a Class 4 felony shall be not less than one year nor. more than three years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(7).) DUI is a Class A misdemeanor. (Ill. Rev. Stat. 1987, ch. 9572, par. 11 — 501(c).) A sentence of imprisonment for a Class A misdemeanor shall be for any period of less than one year. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—3(a)(1).) The sentence imposed is within the statutory limits.

Absent an abuse of discretion, the credit decision of the circuit court will not be altered on review. (Chumbley, 106 Ill. App. 3d at 76, 435 N.E.2d at 814.) In the instant action, the record reveals the defendant has an extensive history of criminal conduct. The record also reveals the defendant has repeatedly failed to comply with the conditions of probation. Given the recurrent nature of criminal conduct and probation noncompliance, the circuit court did not abuse its discretion in resentencing the defendant to the maximum term of imprisonment without credit for time served while on probation.

The judgment of the circuit court is affirmed.

Affirmed.

SPITZ and GREEN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RONALD GALBREATH, Defendant-Appellee.
    Fourth District
    No. 4—88—0484
    Opinion filed April 28, 1989.
    Nancy Owen, State’s Attorney, of Charleston (Kenneth R. Boyle, Robert J. Biderman, and Michael K. Blazicek, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant Ronald Galbreath was charged July 31, 1987, with driving under the influence of alcohol in violation of section 11 — 501(a) of the Illinois Vehicle Code (Vehicle Code) (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501(a)). Prior to trial on June 21, 1988, the defendant’s attorney filed a motion in limine requesting no testimony be permitted as to the defendant’s blood-alcohol test. After an offer of proof by the State, the trial court granted the motion in limine. The State subsequently moved to terminate trial and filed a certificate of substantial impairment.

The State appeals pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(aXl)) and People v. Flatt (1980), 82 Ill. 2d 250, 257, 412 N.E.2d 509, which allows the State to appeal an “order *** the substantive effect of which results in dismissing a charge ***, suppressing evidence.” Here the State alleges an abuse of discretion by the trial court in granting the motion in limine since foundation for the admission of blood-alcohol tests was adequate.

Although the defendant did not file a brief on appeal, an automatic reversal is not required. The trial record is simple, and we are able to decide the case on the basis of the merits in the State’s argument. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128,133, 345 N.E.2d 493, 495.) We reverse.

At around 3 a.m. on July 31, 1987, defendant was cited for driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501(a)) by City of Charleston police officer Brenda Arnold. After a one-vehicle motorcycle accident, the defendant was taken to Sarah Bush Lincoln Hospital for treatment of injuries. At the hospital, Debra Wildes, a medical technician, took blood samples from the defendant in the presence of the arresting officer. The officer placed the samples in an evidence kit and later took them to a police evidence locker. Charleston police officer John Paddock removed the blood samples from the evidence locker and sent them by certified mail to the Illinois State Police Forensics Lab in Springfield, Illinois. There a forensic toxicologist examined the samples to determine blood-alcohol content.

Prior to trial, defendant filed a motion in limine to prevent the State from referring to the results of the blood tests. The defendant alleged a lack of foundation since the State did not follow proper procedures outlined in the Department of Public Health’s “Standards and Procedures For Withdrawal of Blood and/or Urine Samples for Chemical Analysis of Alcohol or other Drug Content” (77 Ill. Adm. Code §510.110 (1985)). Before ruling on the motion, the trial judge requested an offer of proof by the State. At hearing, the State presented testimony of the arresting officer, the medical technician who drew the blood samples, the officer who mailed the samples to the forensics lab, and the forensic toxicologist who received and analyzed the defendant’s blood samples. The defendant claimed a proper foundation was not established for the admission of the blood sample into evidence. The trial judge agreed and granted the motion stating, “I don’t think the evidence I have heard is satisfactory. I don’t think her (the medical technician’s) statement in a general way about the procedure she generally followed standing alone is sufficient foundation.”

The primary issue in this case is whether blood-sampling procedures were properly followed according to Illinois Department of Public Health standards (77 Ill. Adm. Code §510.110 (1985)). The record shows the medical technician adhered to these standards.

The samples were “collected in the presence of the arresting officer.” (77 Ill. Adm. Code §510.110(a)(1) (1985).) A trained and authorized phlebotomist collected the blood sample. (77 Ill. Adm. Code §510.110(a)(2) (1985).) The blood samples were properly labeled. (77 Ill. Adm. Code §510.110(a)(4)(D)(i) (1985).) The blood samples were “delivered to a laboratory certified by the Department.” (77 Ill. Adm. Code §510.110(a)(4)(E) (1985).) Two blood samples were retained. 77 Ill. Adm. Code §§510.110(a)(3), (a)(4)(A) through (a)(4)(C) (1985).

Sections 510.110(aX3) and (a)(4XA) through (aX4XC) of the Illinois Administrative Code (Code) require special procedures to be followed so nothing interferes with the integrity of the blood samples. This in- • eludes cleaning the skin with disinfectants containing no alcohol and storing the blood samples in containers with anticoagulants and preservatives which would not interfere with the alcohol-content analysis.

At the hearing, the medical technician testified she did not specifically remember performing these special procedures on the defendant, as she draws around 100 samples a week. However, she testified she was familiar with these procedures and had never deviated from them. The trial court ruled her testimony insufficient to prove these special procedures were carried out. We disagree.

Evidence of the routine practice of an organization is admissible to prove an action was committed, but only if corroborated. (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §406.4, at 179 (4th ed. 1984).) In this case, the testimony of the arresting officer, who was familiar with the special procedures, and the forensic toxicologist corroborated the medical technician’s testimony.

People v. Miller (1988), 166 Ill. App. 3d 155, 159, 519 N.E.2d 717, 720, held a nurse’s testimony of procedures was sufficient to determine whether an act was committed if (1) the nurse performed the action often enough that the procedure is “habit,” and (2) the procedure is similar enough to the alleged conduct. “[H]abit evidence of an individual or custom *** must be sufficiently detailed and specific, and the situations involved must be similar enough to give rise to a reliable inference and not to speculation or conjecture.” M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §406.4, at 55 (4th ed. Supp. 1989).

The record shows the standards outlined in Miller were met. First, the medical technician’s drawing blood samples 100 times a week was sufficient to constitute “habit.” The technician’s corroborated testimony had no inconsistencies indicating the procedures were not properly followed. The second requirement of Miller was met since the alleged conduct was the same as the conduct testified to. Thus, the medical technician’s testimony adequately proved the special procedures were followed.

The “Standards and Procedures for Withdrawal of Blood and/ or Urine Samples for Chemical Analysis of Alcohol or other Drug Content,” section 510.110(a)(D)(ii), of the Code requires the identity and integrity of the sample to be “maintained through collection to analysis and reporting.” (77 Ill. Admin. Code §510.110(a)(D)(ii) (1985).) Since it is impossible for one to identify a blood sample by mere inspection, the State must show a chain of custody of “sufficient completeness to render it improbable that the item has been tampered [with], exchanged or contaminated.” (People v. Slaughter (1986), 149 Ill. App. 3d 183, 186, 500 N.E.2d 662, 664.) The State must demonstrate the evidence has not been altered or substituted with a reasonable degree of probability. “[T]he State is not required to exclude all possibility of tampering ***, alteration or substitution^] it is sufficient if the State proves a reasonable probability that the article has not been altered.” People v. Ryan (1984), 129 Ill. App. 3d 915, 919, 473 N.E.2d 461, 464.

Although the State’s offer of proof could have better established a chain of custody, no evidence was submitted to show the chain of custody was insufficient. The record shows the blood samples of the defendant went from the arresting officer’s evidence kit to an evidence locker, and were mailed to the forensics lab. There was a “reasonable probability” the samples were not altered. The chain of custody maintained the identity and integrity of the blood samples.

The record shows the Illinois Department of Public Health’s standards, set forth in the Administrative Code, were followed. This, along with other evidence presented in the State’s offer of proof, provided sufficient foundation for the results of the defendant’s blood test. The trial court abused its discretion in granting the motion in limine. We reverse the trial court’s ruling.

Reversed and remanded.

LUND and SPITZ, JJ., concur.