text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES RIVERS, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—1073
    Opinion filed January 26, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Evelyn G. Baniewicz and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Kenneth T. McCurry, and Martin A. Dolan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, James Rivers, was charged with robbery and aggravated battery. Following a trial without a jury, he was found guilty of theft and sentenced to a term of two years’ imprisonment. On appeal, defendant contends that the conviction for theft is void because he was not charged with that offense, and theft is not a lesser included offense of robbery. In view of the issue presented, it is only necessary to set forth the evidence adduced by the State.

At trial, Eric Clark, age 17, testified that on June 20, 1987, at about 2 a.m., defendant approached him on the street. Defendant put his arm around Clark’s shoulder, and they struggled as Clark pushed the arm away. Defendant asked for “a favor,” and took Clark’s wrist, demanding a couple of dollars. Clark was annoyed, and without speaking, he took out his wallet to remove the money to give defendant a few dollars. Clark and defendant struggled over the wallet, and it tore. Clark asked for the wallet back, but defendant refused and departed. The wallet contained $8. The police later located defendant, and Clark identified him as the man who stole his wallet.

The information specifically charged defendant with robbery: “He, by use of force and by threatening the imminent use of force took a wallet and its contents from the person and presence of Eric Clark * * * ff

The trial court found defendant not guilty of robbery, but guilty of theft from the person.

Defendant filed a motion in arrest of judgment, contending that the trial court lacked jurisdiction to enter judgment on the charge of theft. The court denied the motion.

Defendant contends the theft conviction is void as it was neither charged, nor was it a lesser included offense of robbery. That is the only issue before us.

An accused cannot be convicted of an offense for which he is not charged unless the offense of which he is found guilty is a lesser included offense of the one charged. (People v. Dace (1984), 104 Ill. 2d 96, 470 N.E.2d 993; People v. Lewis (1980), 83 Ill. 2d 296, 415 N.E.2d 319; People v. Harris (1986), 146 Ill. App. 3d 632, 497 N.E.2d 177.) A conviction for robbery requires proof that defendant took property from the person or presence of another by the use of force or by threatening the imminent use of force. (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 1.) A conviction for theft requires proof that defendant knowingly obtained or exerted unauthorized control over property of the owner with the intention to deprive the owner permanently of the use or benefit of the property. (Ill. Rev. Stat. 1987, ch. 38, par. 16— 1(a)(1).) Theft, therefore, requires proof of a specific intent to permanently deprive another person of the property, while robbery requires only a general intent, plus proof of force.

There is a split of authority in Illinois on the question of whether theft is a lesser included offense of robbery.

In People v. Romo (1980), 85 Ill. App. 3d 886, 407 N.E.2d 661, the court offered cogent reasoning for its holding reducing a charge of robbery, for which the conviction could not be upheld due to insufficient evidence of force, to theft, which had not been charged. The court found the evidence proved theft, where defendant had grabbed a wallet from the victim’s hands, removed all the money from it, and left with the money. The court explained that with sufficient proof, a robbery conviction could be reduced to theft, even absent a charge of the specific intent to permanently deprive a victim of property taken. (People v. Romo, 85 Ill. App. 3d at 894, 407 N.E.2d at 668, citing People v. King (1979), 67 Ill. App. 3d 754, 384 N.E.2d 1013; People v. Williams (1976), 42 Ill. App. 3d 134, 355 N.E.2d 597; People v. Tolentino (1966), 68 Ill. App. 2d 480, 216 N.E.2d 191.) The court found the information sufficiently informed defendant of the crime charged so that he could prepare a defense and so that he would be protected against double jeopardy. We agree with the court’s reasoning and its statement:

“ ‘It would be contrary to experience and reason to conclude a stranger would forcefully take money from another stranger without fully intending to permanently deprive the wronged party of the money.’ Since the intent element is logically presumed in the charge of robbery, defendant had sufficient information with which to present his defense.” People v. Romo, 85 Ill. App. 3d at 894, 407 N.E.2d at 668, quoting People v. Beck (1976), 42 Ill. App. 3d 923, 924, 356 N.E.2d 848, 850.

Accord Minano v. State (Alaska App. 1984), 690 P.2d 28, rev’d in part on other grounds (Alaska 1985), 710 P.2d 1013. See generally 67 Am. Jur. 2d Robbery §9, at 61 (1985) (reporting that in most jurisdictions, larceny is an included offense of robbery, and a conviction for larceny may be had under a charge of robbery).

Similarly, in the present case, the evidence clearly showed that defendant intended to permanently deprive Clark of his money. Defendant stopped Clark on the street, struggled over his wallet, grabbed the wallet, ran, took out the money, and abandoned the empty wallet in the street. See also People v. Beck, 42 Ill. App. 3d 923, 356 N.E.2d 848.

Our supreme court’s reasoning in People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413, while addressing different offenses, supports Romo and Beck. In discussing whether or not criminal damage to property was a lesser included offense of attempted burglary, the court listed three methods of determining “ if a particular offense is an included offense of another: the abstract statutory definition of the greater crime; the greater crime as it is alleged in the indictment or other charging document; or the greater crime as its necessary elements are proved at trial.’ ” (People v. Bryant, 113 Ill. 2d at 503, 499 N.E.2d at 415, quoting People v. Mays (1982), 91 Ill. 2d 251, 255, 437 N.E.2d 633.) The court particularly emphasized that the evidence adduced in each case might support a particular conviction. (People v. Bryant, 113 Ill. 2d at 503-04, 499 N.E.2d at 415, citing People v. Dace, 104 Ill. 2d 96, 470 N.E.2d 993; People v. Toolate (1984), 101 Ill. 2d 301, 461 N.E.2d 987; People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151.) The court noted that a defendant’s instruction on a lesser offense should be given “ ‘if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater ***.’ ” People v. Bryant, 113 Ill. 2d at 507, 499 N.E.2d at 417, quoting Keeble v. United States (1973), 412 U.S. 205, 208, 36 L. Ed. 2d 844, 847, 93 S. Ct. 1993, 1995.

In Bryant, the trial court refused to give the included-offense instruction because the indictment did not refer to the value of the damage, an element of the lesser offense of criminal damage to property, and therefore the State would not be required to prove value in proving the charge of attempted burglary. This court disagreed. (People v. Bryant, (1985), 131 Ill. App. 3d 1011, 476 N.E.2d 793.) The supreme court upheld the appellate court, finding that the instruction should have been given. The court stated that the indictment “set out the main outline of the lesser offense proposed by the defendant here. The property damage to the building was the obvious foundation of the charge; that the indictment did not expressly allege all the elements of the lesser offense is not, in our view, fatal under these circumstances.” People v. Bryant, 113 Ill. 2d at 505, 499 N.E.2d at 416-17.

Similarly, in the present case, the lesser offense of theft was outlined in the indictment charging robbery. The goal of permanently depriving the victim of his money was the obvious foundation of the charge, and the indictment’s failure to expressly allege that specific intent is not fatal here, especially where the evidence fully proves that specific intent.

Under the facts here, where the evidence at trial clearly proved the specific intent necessary for theft, we find that defendant’s due process rights were not violated, that the indictment sufficiently informed him of the nature of the offense, and permitted him to prepare a defense. We will not overturn the theft conviction.

Defendant relies on several cases, however, which hold to the contrary. In People v. Kimble (1980), 90 Ill. App. 3d 999, 414 N.E.2d 135, the court held that theft is not a lesser included offense of robbery because of the specific intent required for theft. See also People v. Thomas (1983), 119 Ill. App. 3d 464, 456 N.E.2d 684; People v. Baker (1979), 72 Ill. App. 3d 682, 391 N.E.2d 91; People v. Yanders (1975), 32 Ill. App. 3d 599, 335 N.E.2d 801.

In People v. Thomas, the court held that theft is not a lesser included offense of robbery. Defendant was charged with both crimes, but was found guilty only of robbery. No finding was made on the theft charge. This court reversed the robbery conviction due to insufficient evidence of force.

People v. Thomas, like the case before us, pinpoints the unfair position the trial court is put in under such a holding. The State charges defendant with the most serious offense possible, robbery, and with every potential lesser offense possible, including theft. The trial court is forced to choose robbery or theft. If it finds defendant guilty of robbery, on appeal defendant will argue there was insufficient proof of force and thus he is guilty of no crime. If the trial court, possibly as an act of compassion, finds defendant guilty of theft, on appeal defendant will argue there was no separate charge of theft, and thus he is not guilty of any crime. In the present case, for example, we note that the trial court found defendant guilty only of theft, but commented that “one could have found robbery in this case.”

We decline to adopt the holdings of Kimble, Thomas, Baker and Yanders. Instead, we follow Romo and Beck, based on the reasoning of our supreme court in Bryant.

Defendant also relies heavily upon People v. McCarty (1983), 94 Ill. 2d 28, 445 N.E.2d 298. In McCarty, the issue was whether robbery was a “type of theft” that could be used to enhance a misdemeanor theft to a felony theft under the enhancement statute. (Ill. Rev. Stat. 1977, ch. 38, par. 16 — 1(e)(1).) The court held that robbery is not an aggravated form of theft capable of such enhancement. The court reasoned that theft and robbery are two different crimes because of the specific intent needed for theft. The court never needed to address the question of whether evidence at trial proving theft can permit a theft conviction where theft was not charged. Instead, the court decided a very narrow question involving statutory interpretation of the language of the enhancement statute. Its holding was limited to whether a court could “construe robbery as a ‘type of theft’ for the purposes of enhancement under section 16 — 1(e)(1),” and relied on the principle that “ambiguities in penal statutes, particularly in the case of enhancement provisions, must be resolved in favor of the defendant.” (McCarty, 94 Ill. 2d at 34-35.) The court focused more heavily on whether or not robbery itself required specific intent.

Moreover, the court clearly limited its holding by stating only that “[tjheft is not generally viewed as a lesser included offense of robbery in this State.” (Emphasis added.) (People v. McCarty, 94 Ill. 2d at 35, 445 N.E.2d 298, citing Kimble, 90 Ill. App. 3d 999, 414 N.E.2d 135, Baker, 72 Ill. App. 3d 682, 391 N.E.2d 91, and Yanders, 32 Ill. App. 3d 599, 335 N.E.2d 801.) Since it was unnecessary for its holding, the McCarty court made no comment when it went on to cite the contrary holdings of Romo and Beck.

Thus, we do not find that McCarty precludes our holding here, particularly in light of the later decision in Bryant, where the court held that in certain circumstances, evidence adduced at trial may support a conviction which had not been charged.

Defendant also cites People v. Trotter (1988), 178 Ill. App. 3d 292, 533 N.E.2d 89, where defendant was sentenced to an extended term of 70 years for murdering an 83-year-old woman and 10 years for armed robbery. The naked victim was found with bruises and abrasion's in the neck and upper chest area, a fractured neck, and a bullet wound in the head. A small sum of money and some jewelry had been taken. After resolving several other issues, we briefly addressed defendant’s contention that the jury should have been instructed on theft. We disagreed and stated, without the need for extensive analysis, that under People v. McCarty theft was not a lesser included offense of armed robbery because it required specific intent.

Moreover, any error in failing to instruct the jury on theft in Trotter would have been harmless in view of the overwhelming evidence of armed robbery. Unlike the present case, in Trotter defendant sought a new trial with a theft jury instruction to be given in the hope that the jury would convict him of a lesser crime. Here, defendant asks this court to reduce the theft conviction to no conviction at all. Our holding in Trotter does not alter our decision under the facts before us in the present case. To the extent Trotter is not distinguishable from the present case, we adhere to the holdings in Romo and Beck.

Finally, defendant points to People v. Schmidt (1988), 126 Ill. 2d 179, 533 N.E.2d 898, mainly because that decision cites Kimble and Yanders. However, Schmidt never addressed the question of a greater offense requiring general intent, and a lesser offense requiring specific intent. Instead, Schmidt involved theft, which the court held was not a lesser included offense of burglary. Both of those offenses require proof of specific intent. Schmidt does little more than briefly cite the general principles precluding conviction of an offense that was not charged where it is not a lesser included offense of the one charged, and the well-established rule that theft is not a lesser included offense of burglary. Schmidt has since been cited narrowly for the rule that theft is not a lesser included offense of burglary, and not for any principle applicable here. (See, e.g., People v. Jackson (1989), 181 Ill. App. 3d 1048, 537 N.E.2d 1054.) The Schmidt court referred to Kimble and Yanders merely as examples of “[ojther decisions involving the vacating of convictions for theft when the defendant was not charged with theft.” People v. Schmidt, 126 Ill. 2d at 184, 533 N.E.2d at 900.

For the foregoing reasons, the judgment of the circuit court of Cook County finding defendant guilty of theft is affirmed.

Judgment affirmed.

LaPORTA, P.J., and EGAN, J., concur.


source: Caselaw Access Project

author: JUSTICE RAKOWSKI

license: Public Domain

text:
    MATTHEWS ROOFING COMPANY, Plaintiff-Appellant, v. COMMUNITY BANK & TRUST COMPANY OF EDGEWATER, as Trustee, et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—89—0104
    Opinion filed January 26, 1990.

      William C. Butcher, of Chicago, for appellant.
    Stephen E. Vargo, of Chicago, for appellee William Villaire.
    No brief filed for other appellees.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

This is an appeal from a dismissal pursuant to section 2 — 619(a)(5) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2— 619(a)(5)). The issues presented on appeal are: (1) whether Villaire, as beneficiary to a trust, had a sufficient interest in the land to send a demand for foreclosure pursuant to section 34 of the Mechanics’ Liens Act (Act) (Ill. Rev. Stat. 1987, ch. 82, par. 34); (2) whether the decision of the trial court was in error when it dismissed count I of the plaintiff’s complaint on the grounds that service of a demand letter by certified mail, return receipt requested, addressed to the plaintiff’s attorney complies with the notice provisions of the Mechanics’ Liens Act even if the return receipt is signed by someone other than the attorney; and (3) whether the decision of the trial court was against the manifest weight of the evidence when it found that the person who signed the return receipt for the mailed notice had implied authority to receive the attorney’s mail. We affirm.

This appeal arises out of a two-count action in the mechanics’ lien section of the circuit court of Cook County filed by Matthews Roofing Co. (Matthews) and naming as defendants the Community Bank & Trust Company of Edgewater, as trustee under trust No. 87 — 11— 439, and all beneficiaries thereof; Citicorp Savings; and William Vil-laire. Count I was an action to foreclose on a mechanics’ lien. Count II was in contract for money damages. The defendant William Villaire (Villaire) moved to dismiss count I pursuant to section 2 — 619(a)(5) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(5)) based on Matthews’ alleged failure to file suit within 30 days as provided for by section 34 (Ill. Rev. Stat. 1987, ch. 82, par. 34).

The Act provides:

“Upon written demand of the owner, lienor, or any person interested in the real estate, or their agent or attorney, served on the person claiming the lien, or his agent or attorney, requiring suit to be commenced to enforce the lien or answer to be filed in a pending suit, suit shall be commenced or answer filed within 30 days thereafter, or the lien shall be forfeited. Such service may be by registered or certified mail, return receipt requested, or by personal service.” Ill. Rev. Stat. 1987, ch. 82, par. 34.

The court held an evidentiary hearing pursuant to section 2— 619(c) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(c)) and granted the motion to dismiss count I. The remaining contract count was transferred to the law division for trial. This court has jurisdiction pursuant to the trial court’s express finding under Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)).

The undisputed facts are that on or about May 31, 1988, Matthews filed a claim for a mechanics’ lien with the Cook County Recorder. This lien claimed money due from a contract for roof repairs which the defendant Villaire and Matthews had executed on April 1, 1988. Matthews filed the lien against the Community Bank & Trust Company of Edgewater, as trustee under trust No. 87 — 11—439; all beneficiaries of the trust; Citicorp Savings; and Villaire, who was referred to as the “owner” of the land in subsequent sections of the claim.

On June 21, 1988, in accordance with the Act, Villaire sent a letter demanding that Matthews file suit to enforce the lien within 30 days. This letter was addressed to the plaintiff’s attorney, William C. Butcher (Butcher), and sent by certified mail with a return receipt requested. The letter was delivered at Butcher’s address and signed for by William C. Bender (Bender) on June 23, 1988. Butcher himself did not receive the letter until June 27.

The first business day after the 30-day limit following the letter delivery to Bender was July 25, 1988. Matthews filed its complaint to foreclose on the lien and obtain alternative relief on July 26. Subsequently, Villaire filed a motion to dismiss count I on the grounds that the court did not have jurisdiction for a mechanics’ lien because the complaint was not filed within the statutory limit.

At the evidentiary hearing, the following facts were adduced from Bender: Bender and Butcher shared a storefront office with a common address, a common mail slot, a large open office room, and a single front counter. Bender owned the building and had rented space to Butcher in the single office room for about five years. During that time, Bender had signed for Butcher’s mail and other deliveries about once a year. Bender also routinely took the mail from the delivery person at the front counter and picked it up from the floor in front of the mail slot. Bender did this because the mail was always delivered in the morning and Butcher did not have office hours until the afternoon. Butcher did have a secretary who typed his outgoing mail; but she worked from her home, not the office, and did not handle incoming mail.

Bender also testified that he and Butcher did not have any business relationship other than that of landlord and tenant. Butcher had never expressly authorized Bender to receive his mail. On the other hand, Butcher had never issued any instructions to either Bender or the post office suggesting that Bender could not handle Butcher’s regular mail and sign for certified deliveries.

I

Plaintiff first contends that Villaire did not have sufficient interest in the land to demand foreclosure action by a lien claimant. Plaintiff claims that Villaire, as trust beneficiary, has personal property rights in the trust, not rights to the real estate held in trust and subject to the lien. We disagree.

In this case, Matthews named Villaire as “owner” when it began the present action by recording the mechanics’ lien. Further, Matthews’ complaint listed Villaire as beneficiary under the defendant trust and Villaire admitted this in his answer. So it was not until after Villaire moved to dismiss the foreclosure action that Matthews cited the terms of Villaire’s trust and questioned Villaire’s ownership. The trust defines Villaire’s property rights as rights to personal property only. He has control of the property, including the power to “deal with the title,” but he had no “right, title or interest” in the real estate. Hence, Matthews argues, Villaire does not have an interest in the real estate sufficient for a demand letter under section 34.

Illinois courts, however, have repeatedly and consistently held that the beneficiary of a land trust is an “owner” under the Act. (See, e.g., Dunlop v. McAtee (1975), 31 Ill. App. 3d 56, 59, 333 N.E.2d 76, 78; Hill Behan Lumber Co. v. American National Bank & Trust Co. (1981), 101 Ill. App. 3d 268, 270, 427 N.E.2d 1325, 1327.) This holding needs no further comment. Hill Behan Lumber, 101 Ill. App. 3d at 270, 427 N.E.2d at 1327.

II

Plaintiff contends as a second issue that the trial court was in error when it held that service of a demand letter by certified mail, return receipt requested, addressed to the plaintiff’s attorney complies with the notice provisions of the Act even if the return receipt is signed by someone other than the attorney. Plaintiff argues that only the attorney addressee and not an agent of the attorney can receive mailed notices under the Act. We disagree.

Matthews contends that the legislature wrote section 34 with the case law on personal services in mind. His position is that even though the legislature allowed certified mail delivery, it intended the benefits of personal service. Thus, he argues, the legislature intended that the return receipt should bear the signature of the attorney being notified. We will review three points to consider Matthews’ argument.

First, Matthews cites several cases to show the strict requirements of personal service. (Wilson v. Lowmaster (1899), 181 Ill. 170, 172, 54 N.E. 922, 922; South Side Lumber Co. v. Date (1910), 156 Ill. App. 430, 438-39; Throgmorton v. Mosak (1925), 245 Ill. App. 330, 332-33; Capital Plumbing & Heating Supply Co. v. Snyder (1971), 2 Ill. App. 3d 660, 665, 275 N.E.2d 663, 666.) All of these cases, however, are distinguishable from the situation here. All involve personal service, yet this case involves service by certified mail. In addition, all involve different statutory provisions which serve to protect a defendant for whom the notice might be the first warning of any legal problem. In section 34 liens, by contrast, the potential defendant is asking for action from a party who has already claimed interest in a lien. The owner or lienor or other person interested in the real estate serves a demand notice on the lien claimant requiring action within 30 days. Ill. Rev. Stat. 1987, ch. 82, par. 34.

Second, section 34 does not specify “delivery limited to addressee only” even though such a limit does appear in section 24 on notice provisions for subcontractors' liens. (Ill. Rev. Stat. 1987, ch. 82, par. 24.) We may presume, since the legislature placed a limited-delivery provision in section 24, that it could have placed a similar provision in section 34 if such had been the legislative intent. Furthermore, section 34 does not require a return receipt signed by the addressee only even though the post office can provide return receipts with restricted delivery for certified and registered mail.

Third, Matthews also cites cases which show that the Act creates substantial rights in derogation of common law, it should be strictly construed, and its notice provisions effect a statute of limitations for the lien holder’s claims. (M.L. Ensminger Co. v. Chicago Title & Trust Co. (1979), 74 Ill. App. 3d 677, 678, 393 N.E.2d 627, 628; Lundy v. Boyle Industries, Inc. (1977), 46 Ill. App. 3d 809, 811-12, 361 N.E.2d 321, 323, quoting United Cork Cos. v. Volland (1937), 365 Ill. 564, 572, 7 N.E.2d 301, 305; see also 53 Am. Jur. 2d Mechanics’ Liens §354 (1970).) We agree.

However, Illinois courts have interpreted the strict requirements of notice by examining how effectively a party did in fact notify the other side rather than simply basing rights solely on whether every phrase of the statute was followed in exact detail. For example, in Watson v. Auburn Iron Works, Inc. (1974), 23 Ill. App. 3d 265, 273, 318 N.E.2d 508, 514, an Illinois court found adequate notice when a subcontractor mailed section 24 notices to two trusts held by the same bank for the same beneficiaries. One notice was properly placed in the trust file. Another was not addressed “delivery limited to addressee only” as required by section 24 and not placed in the trust file after receipt by the bank. Even so the court held that “the omission of the limited delivery language did not result in a lack of notification and should not be the basis for invalidating plaintiff’s claim. This rule of strict construction is meant to apply only to requirements upon which the right to a lien depends.” (Watson, 23 Ill. App. 3d at 272-73, 318 N.E.2d at 514.) Watson and the cases cited by Matthews have all favored the party who followed the statute in good faith and did, in fact, provide adequate notice for the other side.

In this case, Villaire mailed the notice to attorney Butcher as the statute requires. Butcher admits having the notice by June 27. Thus, he had effective notice of the demand and its date well ahead of the 80-day filing deadline.

Ill

The last issue is whether the trial court was in error when it ruled that Bender had implied authority to receive certified mail for Butcher. Butcher argues that because he never expressly told Bender to accept his mail agency cannot exist. We disagree.

The existence of an agency relationship is a question for the trier of fact. (Swartzberg v. Dresner (1982), 107 Ill. App. 3d 318, 325, 437 N.E.2d 860, 865.) The agent’s authority can only come from his principal. (Swartzberg, 107 Ill. App. 3d at 325, 437 N.E.2d at 865.) The party alleging an agency relationship has the burden of proving it by a preponderance of the evidence. (Swartzberg, 107 Ill. App. 3d at 325, 437 N.E.2d at 865.) However, this relationship need not depend on an express appointment, but may be found in the situation of the parties, their actions, and other relevant circumstances. (St. Ann’s Home for the Aged v. Daniels (1981), 95 Ill. App. 3d 576, 579, 420 N.E.2d 478, 481.) The Illinois Supreme Court has stated:

“Agency may be established and its nature and extent shown by parol evidence, whether direct or circumstantial, and reference may be had to the situations of parties and property, acts of parties, and other circumstances germane to the question, and if the evidence shows one acting for another under circumstances implying knowledge on the part of the supposed principal of such acts, a prima facie case of agency is established.” (Emphasis in original.) (City of Evanston v. Piotrowicz (1960), 20 Ill. 2d 512, 518, 170 N.E.2d 569, 573.)

Finally, a trial court’s findings about agency should be disturbed only if they are clearly against the manifest weight of the evidence. Tomaso v. Plum Grove Bank (1985), 130 Ill. App. 3d 18, 23, 473 N.E.2d 588, 592.

The undisputed facts in this case are that Bender signed a return receipt for Butcher’s demand letter from the defendant. Both men agree that Butcher never expressly authorized Bender to receive this mail. On the other hand, Bender routinely handled Butcher’s mail. The mail for both men was either slipped through the mail slot in the common front door or was placed on the common counter. This occurred in the morning when Bender was often present but Butcher never was. Consequently, when someone had to sign for Butcher’s mail, Bender was the person there to do this. Bender has, in fact, signed for mail and other deliveries about once a year during the five years of Butcher’s tenancy in the office.

Given these facts, we do not find that the trial court’s finding of an implied agency relationship was against the manifest weight of the evidence.

For the reasons stated, the judgment of the trial court is affirmed.

Judgment affirmed.

McNAMARA and EGAN, JJ., concur.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN HAEPP, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—1145
    Opinion filed January 29, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Marilyn Martin, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Patricia Y. Brown, and Laura J. Diamant, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant, John Haepp, appeals from the trial court’s resenten-cing order which sentenced him to concurrent prison terms of nine years for attempted armed robbery and 18 years for attempted murder. On appeal, defendant contends that, in determining his re-sentence, the trial court violated the Illinois Constitution by failing to accord proper weight to evidence of defendant’s rehabilitation and by failing to consider rehabilitation as an objective of the sentence. For the following reasons, we affirm the judgment of the trial court.

On December 9, 1982, defendant was convicted of attempted murder, aggravated battery, attempted armed robbery and armed violence based on attempted armed robbery. The trial court merged the aggravated battery conviction into the attempted murder conviction and the attempted armed robbery conviction into the armed violence conviction. Defendant was then sentenced to concurrent terms of 18 years’ imprisonment for attempted murder and armed violence. Defendant appealed his sentence on the ground that an armed violence conviction predicated on attempted armed robbery was impermissible double enhancement. The appellate court rejected defendant’s contention and affirmed the trial court. Subsequently, in People v. Del Percio (1985), 105 Ill. 2d 372, 475 N.E.2d 528, the Illinois Supreme Court held that an armed violence conviction based on attempted armed robbery did constitute double enhancement. As a result, defendant moved for leave to appeal to the Illinois Supreme Court. His motion was granted and, in a supervisory order, the supreme court reversed the armed violence conviction, vacated the attempted murder sentence and remanded the cause for sentencing on defendant’s attempted armed robbery conviction and for resentencing on defendant’s attempted murder conviction.

At the new sentencing hearing on December 20, 1985, the State described the crime as a “senseless, meaningless” act, and argued that there was no justifiable basis for a sentence reduction. In mitigation, defendant’s mother and his aunt testified that defendant had been rehabilitated while in prison and was a much better person than he had been prior to being incarcerated. In addition, defendant submitted a letter from his uncle which stated that he would employ defendant as a truck driver for his company upon defendant’s release from prison. Defendant also submitted a letter from the prison chaplain which stated that defendant had been an active volunteer in the chaplain’s office, and that defendant had been sincere and cooperative, was respected by other inmates as well as by corrections officers and had been living in an honor dormitory where he was given trustworthy assignments.

Following testimony and arguments, the trial court stated:

“I’m now ready to resentence. I have taken into consideration the nature of the crime, I have taken [into] consideration the social investigation report, which I went over from the prior sentencing. I’ve also carefully read the letters from the Chaplain in Joliet. I believe it was Father Gordon Kniece. I read that carefully. Of course, Father Kniece calls what happened a few years [ago] foolishness. He merely considers this crime as an act of foolishness. I don’t and didn’t at the time I sentenced.
When I sentenced before, I took into consideration Mr. Haepp’s rehabilitative potential and [I’ve] taken into consideration Mr. Haepp’s rehabilitative potential now.
I wonder if those who are sitting in the courtroom here who of course didn’t hear the trial and heard the very eloquent remarks of Defense Counsel, heard the, should I say the really very sincere thoughts that come from a mother and aunt of this defendant.
I wonder, however, if no one else here remembers the trial other than me. I wonder what Jenner Evans would have to say were he back in this courtroom today.
But, I have fully taken into consideration the nature of this crime. I fully have taken into consideration what I have heard in aggravation and mitigation. The social investigation report. I have re-reviewed this case. I have digested the letter from Father Kniece and the letter from the gentleman from Cushing Trucking Company. I have taken into consideration the rehabilitative potential. I have taken it [into] consideration now. And, I’m ready to sentence.
And, I sentence John Haepp to nine years for attempted armed robbery to be served concurrently with [the] crime of attempted murder, which I sentence again at 18 years. Recap on my sentence, 18 years, attempt murder; 9 years, attempt armed robbery, to be served concurrently.”

Defendant’s appeal followed.

Defendant contends that the trial court’s comments about the evidence he had presented in mitigation at the resentencing hearing indicate the trial court’s predisposition toward imposing the same sentence previously imposed, and that the trial court’s failure to “act upon” the rehabilitative goal of sentencing indicates the “perfunctory consideration” the court gave to defendant’s rehabilitative potential. In response, the State argues that the trial court’s statement expressly indicates that it had considered defendant’s rehabilitative potential, as well as the nature of the crime, and determined that concurrent prison terms of 9 years and 18 years were appropriate. The State further notes that the original 18-year sentence imposed for armed violence was reduced on resentencing to nine years for attempted armed robbery, which is well under the statutory maximum of 15 years for that crime, and that the resentence of 18 years for attempted murder was within the statutory guideline of 6 years to 30 years for that crime.

With respect to sentencing, article I, section 11, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §11) provides, in pertinent part, that: “All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” Rehabilitation must be an actual objective of the sentence (People v. Gibbs (1977), 49 Ill. App. 3d 644, 364 N.E.2d 491), and be clearly stated by the trial court as a consideration (People v. Johnson (1975), 29 Ill. App. 3d 763, 331 N.E.2d 306). On appeal, the reviewing court must find that the punishment clearly departs from the spirit and the purpose of fundamental law and from the State Constitution, which requires that the sentence be proportionate to the nature of the offense and the possibilities of rehabilitation, before the court modifies the sentence. (People v. Treadway (1985), 138 Ill. App. 3d 899, 486 N.E.2d 929.) Because it is not a reviewing court’s function to serve as a sentencing court (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541), the reviewing court will not substitute its judgment for that of the trial court merely because it might have imposed a different sentence. People v. Lykins (1979), 77 Ill. 2d 35, 394 N.E.2d 1182.

In the present case, although defendant relies extensively on article I, section 11, of the State Constitution and on cases that have interpreted that section, he focuses solely on the “objective of restoring” element of section 11 and completely ignores the “seriousness of the offense” element. In adopting this narrow view of article I, section 11, defendant argues that the trial court’s failure to reduce his sentence is conclusive evidence that it had failed to properly consider his rehabilitative potential. In support of his argument, defendant relied on People v. Odom (1972), 8 Ill. App. 3d 227, 289 N.E.2d 663, People v. Treadway (1985), 138 Ill. App. 3d 899, 486 N.E.2d 929, and People v. Johnson (1975), 29 Ill. App. 3d 763, 331 N.E.2d 306.

Contrary to defendant’s argument, Odom and Treadway support the reasonableness of the trial court’s sentencing decision. Although, on resentencing, both the Odom court and the Treadway court reduced the original sentence imposed by the respective trial courts, the original sentences in each case were for substantially longer terms than the original sentence imposed in the present case. In relying on Odom and Treadway, defendant focuses only on the fact that the sentences were reduced. However, this fact cannot be viewed outside the context of the reasonableness of the sentence imposed. In Odom, defendant was convicted of rape and burglary and sentenced to an indeterminate sentence of 25 to 50 years. The appellate court affirmed the conviction, but vacated the sentence and remanded the cause for a hearing in aggravation and mitigation. After the hearing, the trial court imposed the same sentence. On appeal, the reviewing court noted defendant’s lack of prior convictions, the fact he voluntarily supports his ex-wife and children, his honorable discharge from the service, and his participation in the penitentiary choir and reduced defendant’s sentence to 8 to 25 years.

In Treadway, defendant was sentenced to concurrent prison terms of 60 years for attempted murder and armed violence as well as to one year for aggravated assault. Defendant appealed from the convictions and from the extended-term sentence. The reviewing court affirmed the convictions and reduced the sentence for attempted murder and armed violence to 30 years. In reducing the sentence, the Treadway court held that, although the heinous and brutal conduct of the crime warranted an extended-term sentence, the 60-year sentence would not serve defendant’s rehabilitative potential. Instead, a shorter sentence of 30 years would allow defendant “the possibility of being restored to a meaningful, productive life, and at the same time [would] be adequate retribution for his offenses, provide protection for society and serve as a deterrent.” Treadway, 138 Ill. App. 3d at 905.

In the present case, similar to Treadway, defendant was convicted of attempted murder and attempted armed robbery. In sentencing defendant, the trial court followed the dictates of article I, section 11, of the State Constitution and considered both the heinousness of the crime and defendant’s rehabilitative potential and sentenced him to concurrent terms of 9 years and 18 years, respectively. In our view, the sentence imposed in the present case satisfies the sentencing goals enunciated in Treadway by allowing defendant “the possibility of being restored to a meaningful, productive life” (People v. Treadway (1985), 138 Ill. App. 3d 899, 905, 486 N.E.2d 929), while also providing the necessary protection to society.

Further, we find that People v. Johnson (1975), 29 Ill. App. 3d 763, 331 N.E.2d 306, also relied upon by defendant, is factually distinguishable and unpersuasive. In Johnson, defendant was convicted of murder and three armed robberies. He was subsequently sentenced to death on the murder conviction and to three concurrent terms of 50 to 100 years for the three armed robbery convictions. Upon review, the court affirmed the convictions, vacated the sentence and remanded the cause for a new hearing in aggravation and mitigation. Following the hearing, defendant was resentenced to four indeterminate concurrent prison terms of 40 to 60 years. Defendant appealed, and the reviewing court affirmed the maximum term of 60 years, but remanded the cause for resentencing as to the minimum term on the grounds that there had been “no express indication that the *** rehabilitation factor was considered and possible indication that it was not considered.” (29 Ill. App. 3d at 769.) Unlike Johnson, the trial court in the present case expressly stated that it had considered the rehabilitative evidence.

Based on the aforementioned, we find that defendant’s attempt to equate the trial court’s failure to reduce his sentence with a failure to consider his rehabilitative potential is unfounded. Contrary to defendant’s position, we find that the resentence imposed by the trial court follows the constitutional mandate of article I, section 11, which requires courts to consider the nature of the offense as well as the defendant’s rehabilitative potential, and that the trial court did not abuse its discretion. Therefore, we affirm the judgment of the trial court.

Affirmed.

MANNING and O’CONNOR, JJ., concur.

      The Johnson court’s decision was predicated on the general rule for indeterminate sentences that “the minimum sentence imposed upon a particular defendant must not be such as to frustrate the effectiveness of the parole system, by making mandatory his incarceration long after effective rehabilitation may have been accomplished.” 29 Ill. App. 3d at 765-66.


author: PRESIDING JUSTICE BUCKLEY

text:
    HYO K. CHA, Petitioner-Appellant, v. THE CITY OF CHICAGO et al., Respondents-Appellees.
    First District (1st Division)
    No. 1—88—1147
    Opinion filed January 29, 1990.

      Law Offices of Joseph V. Roddy, of Chicago, for appellant.
    Judson H. Miner, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Nina Puglia, Assistant Corporation Counsel, of counsel), for appellees.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

The mayor’s License Commission of the City of Chicago (the Commission) suspended the hotel/motel license of the licensee, Hyo K. Cha (petitioner), for the premises located at 5440 North Sheridan Road in Chicago, Illinois, known as the Lakeside Motel (Lakeside). The 15-day suspension order as to transient guests was based upon the Commission’s finding that petitioner knowingly permitted Lakeside to be used for purposes of prostitution, violative of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 17(a)).

Petitioner subsequently filed a petition for writ of certiorari in the circuit court of Cook County, alleging that the Commission’s final order was against the manifest weight of the evidence. The circuit court affirmed the Commission’s finding, and thereafter petitioner filed the instant appeal. We affirm.

The following testimony was adduced at the Commission’s hearing, despite petitioner’s numerous hearsay objections throughout the proceedings: Chicago police officer Arthur Smith testified that he was approached by Rachelle Plummer to engage in a sexual act with her for $35. Smith agreed to the $35 fee, and Plummer suggested they proceed to Lakeside, where she had an “arrangement.”

Smith testified that upon their arrival at the motel, he observed petitioner in the office and informed petitioner that he was carrying a large sum of money and that he was “paying a prostitute $35.” He asked petitioner “if this whore was safe to be with.” Petitioner responded that she was okay, and that he had never had any trouble with her before. Petitioner also told him that he would have to come up with an additional $31.50 for the next day’s rent for Plummer. After Smith tendered petitioner $31.50, Plummer objected, stating, “That’s not our deal. Our deal is that I pay you after I turn a trick like I always have.”

Smith further testified that once he and Plummer entered the motel room, Plummer telephoned the front desk, at which time she told Smith that she was calling an individual for some “smoke.” Upon reaching petitioner, she gave petitioner the telephone number to dial because the only means by which a motel guest at Lakeside could obtain an outside telephone line was through the motel’s switchboard. Approximately five minutes later, the telephone rang, and Plummer answered it and turned to Smith and stated, “[I]t’s him at the front desk. He’s saying there is a policeman in front and we cannot leave the room.” After hanging up the telephone and five minutes later, Plum-mer telephoned the front desk and inquired into whether the delivery of marijuana had arrived. She then asked that petitioner dial the drug dealer’s telephone number again. Smith was able to hear the conversation because Plummer, who was standing three feet away from him, turned the receiver towards Smith, but he did not recognize the voice on the other end of the telephone. The voice on the other end of the telephone asked Plummer, “[D]id you make sure that no one was following you?” to which Plummer replied that “I did exactly as you told me.” The voice also asked her whether “the policemen [could] have followed [her].” She informed Smith that “it’s just [petitioner] *** being worried that the police are going to get the both of us.”

The telephone rang again, and Plummer told Smith that “it’s the gentleman from the front office.” Petitioner instructed her not to leave the room because the police officer was parked directly in front of the motel. Smith suggested to Plummer that, since the marijuana had not yet arrived, perhaps he and Plummer should go directly to the drug dealer. As Smith and Plummer exited the motel room, petitioner was motioning to Plummer to go back into the room. Smith then identified himself as a police officer and arrested Plummer and petitioner.

Plummer testified that she is a prostitute and has an “arrangement” with petitioner which permits her and some 20 other prostitutes to work at Lakeside. If a prostitute does not have money to pay for a motel room, petitioner gives her a room at the motel. When the prostitutes bring their “dates” to the motel, the date must pay the petitioner the motel room rental fee. Plummer never personally gave petitioner money for a room because he charges the “guys” the rental fee up front before he rents them a room. This business relationship with petitioner began in January 1987, and since that time Plummer has brought 25 or 30 dates to the motel.

Plummer testified to the events that occurred in the motel room on April 16, 1987, consistent with Smith’s testimony set forth above. On cross-examination, she testified that she approached Smith at Winona Avenue, approximately three blocks from Lakeside, and offered to have sex with him for $35, and Smith gave her $100. Smith did not arrest her at that time. She identified and acknowledged her signature on a registration “sign-in” card for Lakeside, which states “I HEREBY CERTIFY THAT I HAVE NOT RENTED THIS ROOM FOR ANY ILLEGAL PURPOSE: GAMBLING, PROSTITUTION OR SOLICITATION OF OTHERS.”

Petitioner testified that he was unaware that Plummer was a prostitute when he rented her the motel room. He further testified that he rented the room to Plummer for the period from April 13, 1987, to April 16, 1987, but later testified that Plummer had remained in her room for three weeks and that he thought she was very sick.

Petitioner testified as follows to the April 16, 1987, events: Plum-mer arrived on April 16, 1987, with Smith and attempted to proceed to her motel room without paying. Smith paid for the motel room, and Plummer and Smith left together. He did not observe them proceed to the room, but he telephoned Plummer’s motel room and informed her that since the registration card was solely in her name, two people could not occupy the motel room. He telephoned Plummer twice more to notify her of this policy prior to her arrest.

In considering petitioner’s contentions on appeal, we are mindful of the well-established principles of administrative review that the agency’s findings and conclusions are prima facie true and correct (Ill. Rev. Stat. 1987, ch. 110, par. 3—110; see also Russell v. License Appeal Comm’n (1971), 133 Ill. App. 2d 594, 598, 273 N.E.2d 650, 653) and that a reviewing court is limited to ascertaining whether the findings and decisions of the agency are against the manifest weight of the evidence (Cox v. Daley (1981), 93 Ill. App. 3d 593, 417 N.E.2d 745; Kessell v. Illinois Liquor Comm’n (1978), 56 Ill. App. 3d 485, 371 N.E.2d 1210; Daley v. Jack’s Tivoli Liquor Lounge, Inc. (1969), 118 Ill. App. 2d 264, 254 N.E.2d 814 (and cases cited therein); see also Dot son v. Bowling (1981), 102 Ill. App. 3d 340, 430 N.E.2d 44; Giampa v. Illinois Civil Service Comm’n (1980), 89 Ill. App. 3d 606, 411 N.E.2d 1110). A finding is against the manifest weight of the evidence if an opposite conclusion is clearly evident (Burke v. Board of Review (1985), 132 Ill. App. 3d 1094, 477 N.E.2d 1351; Meyers v. Illinois Department of Public Aid (1983), 114 Ill. App. 3d 288, 448 N.E.2d 1176; Spiros Lounge, Inc. v. Illinois Liquor Control Comm’n (1981), 98 Ill. App. 3d 280, 423 N.E.2d 1366), and, if the issue is merely one of conflicting testimony and credibility of witnesses, the agency’s determination should be sustained. Keen v. Police Board (1979), 73 Ill. App. 3d 65, 391 N.E.2d 190; Schoenbeck v. Board of Fire & Police Commissioners (1979), 69 Ill. App. 3d 366, 387 N.E.2d 738.

Initially, petitioner asserts that the Commission’s finding of suspension failed to set forth a specific basis for suspending his license. A review of the record leads us to the conclusion that a sufficient basis was given for suspending petitioner’s license.

The Commission clearly set forth section 11 — 17(a) of the Code (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 17(a)) as a basis for suspending petitioner’s license in its “Order of Suspension.” The order states the following, in pertinent part:

“1. That on April 16, 1987, the Licensee, Hyo Kil Cha, who was exercising control over the licensed premises, knowingly permitted the licensed premises to be used for purposes of prostitution, contrary to Chap. 38, §11 — 17(a), I.R.S. (1983).”

We believe that petitioner’s assertion is not well-grounded in fact, as the record dictates to the contrary.

Petitioner also argues that the record is devoid of any evidence supporting the charge that he knowingly arranged or offered to arrange a meeting of persons for purposes of prostitution, violative of section 11 — 15(a)(2) of the Code (Ill. Rev. Stat. 1983, ch. 38, par. 11— 15(a)(2)). No mention is made of section 11 — 15(a)(2) in the “Order of Suspension.” Hence, we need not address this argument, as section 11 — 15(a)(2) was not the basis for the suspension here.

Petitioner next contends that the Commission’s finding cannot stand because it was based upon inadmissible hearsay testimony. He argues that the Commission improperly admitted portions of Officer Smith’s testimony, wherein Smith testified to conversations he had with Plummer, which was the only evidence supportive of the Commission’s decision to suspend petitioner’s license.

While we acknowledge that hearsay testimony is inadmissible in an administrative hearing (Russell v. License Appeal Comm’n (1971), 133 Ill. App. 2d 594, 598, 273 N.E.2d 650, 653), this does not prevent a finding to be based upon other sufficient competent evidence (La Grange State Bank No. 1713 v. Du Page County Board of Review (1979), 79 Ill. App. 3d 474, 481, 398 N.E.2d 992, 998; Schwartz v. Civil Service Comm’n (1954), 1 Ill. App. 2d 522, 527, 117 N.E.2d 874, 876). We find it unnecessary to address whether the testimony referred to by petitioner was improperly admitted here because the record demonstrates that even without this testimony, sufficient competent evidence was presented to support the Commission’s finding that petitioner knowingly permitted the licensed premises to be utilized for purposes of prostitution. The unchallenged evidence indicated that Plummer was a prostitute and offered to have sex with Smith for $35. She had a business “arrangement” with petitioner, which entitled her and other prostitutes to “work out of [petitioner’s] motel.” Smith informed petitioner that he was paying Plummer $35 to have sex with him. He tendered $31.50 to petitioner for the motel room, and petitioner accepted the money.

Petitioner, however, argues that the registration “sign-in” card demonstrates Plummer’s intent not to use the motel premises for acts of prostitution because it shows that petitioner did not knowingly permit Lakeside to be utilized for purposes of prostitution. In light of the above evidence, we find this piece of evidence unpersuasive. Plum-mer’s signature was a mere formality to her obtaining the motel room and presumably petitioner’s maintenance of proper business records. Plummer’s and petitioner’s real intent is more properly extracted from the testimony given at the hearing. Moreover, it is wholly within the Commission’s authority to assess the credibility of the witnesses, weigh the evidence, and to reconcile conflicting evidence (Kessell, 56 Ill. App. 3d at 491, 371 N.E.2d at 1214; see also Nechi v. Daley (1963), 40 Ill. App. 2d 326, 188 N.E.2d 243), and we will not substitute our judgment for that of the Commission (see Stringer v. Rowe (1980), 91 Ill. App. 3d 134, 414 N.E.2d 466; Canady v. Northern Illinois Gas Co. (1963), 43 Ill. App. 2d 112, 193 N.E.2d 48).

Accordingly, we find that the circuit court of Cook County correctly determined that the finding of the Commission to suspend petitioner’s license for a 150-day period as to transient guests was not against the manifest weight of the evidence, as an opposite conclusion is not plainly evident.

Affirmed.

O’CONNOR and MANNING, JJ., concur.


text:
      In re ESTATE OF BESSIE STRONG, Deceased (Earsie Greenlaw et al., Respondents-Appellants, v. Arthur Greenlaw, Petitioner-Appellee).
    First District (1st Division)
    No. 1—88—1553
    Opinion filed January 29, 1990

      Diane Ainsworth & Associates, of Chicago, for appellants.
    Abelski & Associates, Ltd., of Chicago (Sidney Abelski and Scott Bagnall, of counsel), for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Following Bessie Strong’s (decedent’s) death on July 17, 1986, Ethel McCoy filed a "Petition for Letters of Administration” in the circuit court of Cook County, alleging that her sister died intestate. In response, Arthur Greenlaw (petitioner), decedent’s nephew, filed a “Petition for Probate of Missing Will and for Letters Testamentary,” attaching thereto a purported copy of decedent’s will.

Following a hearing, pursuant to section 6 — 4 of the Probate Act of 1975 (the Act) (Ill. Rev. Stat. 1987, ch. 110x/2, par. 6 — 4), the circuit court entered an order admitting a copy of decedent’s will to probate and denying McCoy’s “Petition for Letters of Administration.” In so doing, the circuit court concluded that petitioner offered sufficient competent evidence to overcome the presumption of revocation.

Decedent’s brothers, nephew, and other heirs at law (respondents) appeal from the judgment admitting the will to probate as decedent’s last will and testament, contending that the evidence was insufficient to rebut the presumption of revocation. For the reasons set forth below, we affirm.

Decedent’s estate consisted of her home and a nine-unit apartment building, both of which were valued at $75,000, $2,000 in personal property and $10,000 in annual income from the rental building. The will offered by petitioner devised and bequeathed all of decedent’s property to petitioner and designated him as executor.

The following testimony was adduced at the hearing on the admission of the missing will to probate. Louise Marchman, who had been involved in the management of decedent’s rental building since 1955, testified as follows: She had contact with decedent one or two times each month up until her husband’s death in “1980 or 1981,” and up until decedent’s death in 1986 spoke to decedent one to two times each week and would visit her at least once each month. Decedent sought Marchman’s opinion regarding both financial and personal matters and telephoned Marchman whenever she was lonely. Decedent would mention petitioner during their conversations and would say “nice things about him,” such as “the only one that cares *** about me is Arthur” and that “Arthur’s the closest thing I have to a son.” Decedent relied upon petitioner up until the time of her death. On one occasion decedent informed Marchman that her “business” was in order, and that “[petitioner] knew all her business.”

Marchman further testified that throughout her 34-year relationship with decedent, decedent did not discuss family members other than petitioner. Marchman was aware that decedent had brothers, but not that she also had sisters. The first time Marchman met decedent’s brothers was during the week preceding decedent’s death.

Marchman testified that she visited decedent on the Wednesday prior to her death at decedent’s request. Marchman stated that Ear-sie Greenlaw, decedent’s brother, followed her into the bedroom where the decedent was lying down on the bed and created a tense atmosphere. She was never left alone with decedent. Marchman further testified that she was permitted to read a copy of decedent’s unsigned will.

Decedent’s attorney, Robert Snow, testified that subsequent to William Strong’s death, decedent expressed a desire to place her real estate in joint tenancy with petitioner. He advised against a joint tenancy arrangement and instead recommended that she dispose of her property by will or a land trust with a remainder beneficiary. He informed decedent that if she died intestate her relatives would inherit her estate.

Robert Snow and Martin Snow, his father, testified that they prepared a will naming decedent’s nephew, Arthur Greenlaw, as sole beneficiary. Robert testified that her decision to name petitioner as sole beneficiary was based upon the fact that she had estranged relatives whom she did not even know and other relatives that she saw only minimally over long periods of years.

Attorney Martin Snow testified that decedent told him that her brothers were no help to her and that her sisters did not come and visit her. Martin and Robert also testified to the events surrounding the execution of the will on February 4, 1982. The will was executed in Robert’s, Martin’s and their secretary’s presence. They observed decedent sign the will. Both Robert and Martin signed as witnesses to her signature in the presence of one another, decedent, and their secretary. Robert offered to retain the executed will in a safe deposit box, but decedent opted to take the -will home with her. Martin and Robert testified to the authenticity of a copy of the will attached to petitioner’s petition to admit the will to probate as a copy of the will drafted for decedent. Robert further testified that the copy of the will at the hearing was the same will executed by decedent. Martin stated that decedent requested that he send a copy of the will to Marchman, but that he sent a draft copy directly to decedent due to ethical considerations relating to client confidentiality. Robert and Martin testified that decedent never contacted them again regarding the February 4, 1982, will or any other will.

Petitioner testified to the following: He visited decedent two to four times each month, on Christmas, and six to seven other holidays each year. He had driven decedent’s brothers, Otis, Earsie and Timothy Greenlaw, back and forth from their home in Gary, Indiana, to decedent’s home in Chicago, Illinois, on numerous occasions. When decedent was hospitalized at Jackson Park Hospital in 1982, he visited her regularly. He further testified that in 1984, he visited decedent four times during her four-day admission to South Community Hospital. He also transported decedent’s brothers Earsie and Timothy Greenlaw to the hospital, and in 1985 or 1986, he picked up Ear-sie on three occasions when he again visited decedent in South Community Hospital. He frequently took decedent to visit his father, Sir Carter Greenlaw, who lived in Gary, Indiana.

Petitioner further testified that he signed all necessary documents for the decedent’s funeral arrangements and that the day after decedent’s death he searched for a sewing basket in decedent’s bedroom because this is where decedent told him she had left her will. Although he had seen the sewing basket approximately two weeks prior to decedent’s death, he was now unable to locate the sewing basket or the will. The sewing basket reappeared in the closet after decedent’s funeral, absent any will or a copy of a will.

Petitioner testified that various household items, including linen, a telephone with a radio, and a small television set were missing from decedent’s home. Decedent’s rings, diamond watch and mink coat were also missing.

Jennifer McWilliams, decedent’s next-door neighbor for 12 years, provided the following testimony: Decedent introduced petitioner to McWilliams, but never introduced or mentioned any other relatives. She conversed with decedent on a daily basis. She testified that decedent told her that the petitioner was always there for her and that she could count on him. Decedent always had a smile on her face when she talked about petitioner. She also had the opportunity to observe petitioner and decedent, and noticed them talking and laughing in the yard. She was aware that petitioner cut decedent’s grass and shoveled her snow. She believed decedent loved petitioner and that there was never a change in these feelings.

Yolanda Greenlaw, petitioner’s ex-wife, testified that decedent indicated to her that petitioner was a “very good person.” She further testified that decedent relied upon petitioner in numerous matters.

Bessie Challón Greenlaw (Challón), decedent’s niece, testified that she lived with decedent for approximately 18 months beginning in February 1983. Decedent told her that petitioner, at one time, refused to make a household repair at decedent’s home and that decedent on one occasion told petitioner not to cry over his father’s death because “he had did his father so dirty” when he was living. She did not notice a will while residing with decedent, and decedent never mentioned a will. Challon’s testimony also disclosed that a Mr. Coleman cut “the grass *** and fixjed] things around the house.”

Katie Mosley, decedent’s former co-worker, testified that she first became acquainted with decedent in 1965. She moved into decedent’s house approximately two to three weeks after Challón moved in and remained there for nine months. She never became aware of decedent’s business papers or a will and was not familiar with McWil-liams, decedent’s next-door neighbor. She was very good friends with Earsie Greenlaw, decedent’s brother. Subsequent to her moving from decedent’s house, she visited decedent on a daily basis. Decedent told her that she wished to change her will and was going to call her lawyer regarding the change. Mosley first testified that the conversation initiated in 1987. After the circuit court noted for the record that decedent died in 1986, Mosley contradicted her testimony on three occasions by testifying that the conversation took place in 1988, 1985 and 1986.

Mosley stated that no one else lived with decedent. Decedent informed her that petitioner was not going to “get her property and stuff,” and that decedent “thought [petitioner] was trying to do something slick.” Decedent never had a nice thing to say about petitioner, although petitioner talked with decedent everyday and visited decedent more than any other family member. She further testified that decedent had telephoned petitioner, and on several occasions, petitioner had hung up on her.

Mosley’s testimony further provided that decedent owned a mink coat, a television, two rings and a watch. She testified that these items were missing subsequent to decedent's death, but she never inquired as to their whereabouts.

Monique Greenlaw, petitioner’s daughter, testified that decedent informed her in 1985 that she kept her will in a wicker sewing basket located in the middle bedroom of her home. She went to decedent’s home after the funeral to locate the decedent’s will and found a copy of the will in the sewing basket and in a drawer in the dining room.

She further testified that she accompanied Earsie and Timothy Greenlaw, Ethel McCoy and her daughter, Tobiatha, and Katie Mosley to area banks following decedent’s death to determine their interest in the four or five bank books that were said to exist. She testified that one account containing $4,000 named petitioner and decedent as joint tenants. Two accounts in the amounts of $37,000 and $26,000 named Earsie and Timothy Greenlaw, along with decedent, as joint tenants. Another account containing $35,000 named Earsie and decedent as joint tenants. They searched for a safety deposit box, but one was not located. Monique testified that she overheard Katie Mosley state that “[she] want[ed] the house.” Monique’s testimony also disclosed that decedent made loans to Timothy Greenlaw and petitioner and these loans were never repaid.

Ethel McCoy testified that three days prior to decedent being admitted to the hospital, she was the only person living with decedent. She further testified, in contradiction of earlier deposition testimony wherein she stated that she received decedent’s bank books while the decedent was lying in bed, that decedent handed her some door keys and bank books while decedent was being carried out on the stretcher to the ambulance. Thereafter, McCoy testified that decedent gave her the bank book and keys inside the house.

Earsie Greenlaw, decedent’s brother, testified that he was frequently in decedent’s home prior to her death. He also testified that he resided in decedent’s house subsequent to her death, and that petitioner, Timothy Greenlaw and Katie Mosley all had keys to decedent’s house. He testified that he never took anything from decedent’s home.

Initially, we address petitioner’s first procedural contention that respondents have not invoked the jurisdiction of this court under Supreme Court Rule 304(b)(1).(107 Ill. 2d R. 304(b)(1)). Rule 304(b)(1) provides:

“Judgments and Orders Appealable Without Special Finding. The following judgments and orders are appealable ***:
(1) A judgment or order entered in the administration of an estate, guardianship, or similar proceeding which finally determines a right or status of a party.” (107 Ill. 2d R. 304(b)(1).)

Committee Comments on Rule 304(b)(1) provide:

“Subparagraph (1) applies to orders that are final in character although entered in comprehensive proceedings that include other matters. Examples are an order admitting or refusing to admit a will to probate ***.” (107 Ill. 2d R. 304, Committee Comments, at 399.)

We believe that our jurisdiction has been properly invoked here under Supreme Court Rule 304(b)(1) (107 Ill. 2d R. 304(b)(1)). Under Rule 304(b)(1) (107 Ill. 2d R. 304(b)(1)), orders admitting wills to probate subsequent to a section 6 — 4 hearing under the Act (Ill. Rev. Stat. 1987, ch. IIOV2, par. 6 — 4) are appealable. See In re Estate of Millsap (1979), 75 Ill. 2d 247, 388 N.E.2d 374; In re Estate of Marcucci (1973), 54 Ill. 2d 266, 296 N.E.2d 849; In re Estate of Lynch (1982), 103 Ill. App. 3d 506, 431 N.E.2d 734.

Petitioner next argues that Larguster Jones, decedent’s nephew, lacks standing to bring this appeal on the grounds that he was not a party to the action in the circuit court. We disagree.

The fact that Jones was not a party to the action in the circuit court does not prevent his joining in this appeal. Supreme Court Rule 301 (107 Ill. 2d R. 301) provides that “[a]ll rights that could have been asserted by appeal or writ of error may be asserted by appeal.” A nonparty has standing to appeal if he has a direct, immediate and substantial interest in the subject matter, which would be prejudiced by the judgment or benefited by its reversal. In re Estate of Tomlinson (1976), 65 Ill. 2d 382, 387, 359 N.E.2d 109, 111; Flanagan v. Hulman (1970), 121 Ill. App. 2d 382, 387, 257 N.E.2d 599, 601.

Jones’ interest in this litigation is sufficient to meet the above test. If the order admitting decedent’s will to probate is reversed, Jones may inherit a portion of decedent’s estate under the rules of intestate succession. Since Jones has a direct, immediate and substantial interest in the subject matter, which would be prejudiced by the circuit court’s order or benefited by its reversal, he is a proper party to the instant appeal.

We now turn to respondents’ contention on appeal that the circuit court erred in its finding that the presumption of revocation, arising from nonproduction of the original February 1982 will, was overcome by the evidence presented by petitioner. We find that the circuit court’s conclusion was amply supported by the evidence.

The law is well established regarding lost or missing wills. It is established:

“Where a last will and testament, after its execution, is retained by the testator and cannot be found upon his death, it is the well-settled rule of this and of the majority of jurisdictions that it will be presumed to have been destroyed by him animo revocandi. [Citations.] The same cases establish that the presumption is subject to being rebutted by circumstances which tend to show a contrary conclusion, and that the burden is on one seeking to probate such a will to prove that it was unrevoked at the testator’s death.” (In re Estate of Moos (1953), 414 Ill. 54, 57, 110 N.E.2d 194, 195, noted in In re Estate of Millsap (1979), 75 Ill. 2d 247, 250, 388 N.E.2d 374, 376-77.)

(See also In re Estate of Weir (1983), 120 Ill. App. 3d 18, 20, 458 N.E.2d 134, 136; In re Estate of Netherton (1978), 62 Ill. App. 3d 55, 57-58, 378 N.E.2d 800, 802.) Factors to be considered in addressing the rebuttal of the presumption include evidence as to statements from the testator that he did not intend to revoke the will, evidence that he entertained a kind and loving attitude toward the proposed beneficiary under the will up to the time of death, and evidence of other individuals’ access to the will prior to death. (See Moos, 414 Ill. 54, 110 N.E.2d 194; In re Estate of Morgan (1945), 389 Ill. 484, 59 N.E.2d 800; Holler v. Holler (1921), 298 Ill. 418, 131 N.E. 663; In re Estate of Deskins (1984), 128 Ill. App. 3d 942, 471 N.E.2d 1018; Jackson v. Jackson (1971), 132 Ill. App. 2d 66, 268 N.E.2d 62.) In cases where the issue is raised whether some person has unlawfully destroyed a missing will, however, it will not be presumed that a missing will has been destroyed by any other person, without the knowledge of or authority of the testator, although such person may have had the motive and the opportunity, as that would be presuming a crime. Moos, 414 Ill. at 60, 110 N.E.2d at 197; Holler, 298 Ill. at 432, 131 N.E. at 669; St. Mary’s Home for Children v. Dodge (1913), 257 Ill. 518, 526, 101 N.E. 46, 49.

Our supreme court has noted that because the evidence with respect to any rebuttal will vary from case to case, other cases “constitute little assistance in [making] the determination” whether the presumption has been overcome. (Morgan, 389 Ill. at 487, 59 N.E.2d at 801; see also Moos, 414 Ill. at 60-61, 110 N.E.2d at 197.) We therefore determine the instant case on its own facts, in light of the above rules.

Based on a review of the evidence, we find that petitioner presented sufficient evidence to overcome the presumption of revocation. The record indicates that decedent directed the preparation of the February 4, 1982, will, and the will was executed and attested to on that date. The original of decedent’s will, along with unexecuted copies of the will, was retained by decedent and placed in a wicker sewing basket at her residence. Both petitioner and his daughter were informed of the will’s location. Before decedent’s death, petitioner searched decedent’s house for the will, but was unable to locate the will. After decedent’s funeral he returned to decedent’s home and found the wicker sewing basket, absent any will or a copy of a will. Subsequent to decedent’s death, Monique Greenlaw, petitioner’s daughter, located a copy of the will in the sewing basket and an additional copy in a drawer in decedent’s dining room. The original will was never found.

Testimony disclosed that decedent expressed a strong desire to make a will for fear that her estranged relatives would inherit under the laws of intestate succession. She informed her attorneys that she did not want relatives whom she barely knew, others she did not know, brothers that were of no help to her and sisters who never visited her, to receive any portion of her estate. Decedent not only intended the petitioner to be the sole beneficiary under the will, but also named him as joint tenant on a $4,000 bank account. Decedent never removed petitioner’s name from the bank account, nor was there any evidence offered to show that she was dissatisfied with the joint tenancy arrangement.

Decedent never contacted her attorneys regarding any modification to the February 1982 will and never expressed to her attorneys any displeasure with the will’s provisions. Her attorneys both testified that she was aware of the effect of the will and that she understood it to be her “last will and testament.”

Marchman testified that she read the February 1982 will and that at no time did decedent indicate an intent to change this will. She spoke to decedent in the hospital just prior to her death, and decedent informed her that “everything [was] in order,” and that petitioner was aware of her business. We find it significant that decedent never informed Marchman, her close friend and business advisor, of any revocatory intention.

Decedent’s next-door neighbor described a loving relationship between decedent and petitioner. She testified that petitioner aided decedent with housework and other chores. Decedent relied on petitioner for transportation, and decedent viewed petitioner as if he were the son she never had. Additional testimony disclosed that decedent characterized petitioner as a “very nice person.”

Petitioner visited decedent frequently, both at home and during her many hospital admissions and transported decedent’s relatives to and from the hospitals where decedent was admitted. He provided comfort and cheer to decedent’s life. Lastly, we note the evidence that many individuals had unrestricted access to decedent’s home and that several items of personalty were missing after decedent’s death.

While none of the above evidence taken alone would be sufficient to rebut the presumption of revocation, taken together, in its entirety, we believe the evidence sufficiently establishes decedent’s continuing unchanged attitude of love and affection toward petitioner and the disposition of the property in her February 4, 1982, will. Given the harmonious relations between decedent and petitioner,. supplemented by the evidence that decedent wished to disinherit her relatives, it is unlikely that decedent revoked her will here. See Moos, 414 Ill. 54, 110 N.E.2d 194; Deskins, 128 Ill. App. 3d 942, 471 N.E.2d 1018; In re Estate of Babcock (1983), 119 Ill. App. 3d 482, 456 N.E.2d 671.

While we are cognizant of the contradicting testimony that decedent intended to change her will and did not want petitioner to “get her property and stuff,” it is within the province of the circuit court to determine questions of credibility and the weight to be given evidence, and its findings will not be disturbed unless contrary to the manifest weight of the evidence, (Weir, 120 Ill. App. 3d at 21, 458 N.E.2d at 136-37; Netherton, 62 Ill. App. 3d at 57, 378 N.E.2d at 802.) We find no basis to substitute our judgment for that of the circuit court.

For the reasons stated, we affirm the order of the circuit court of Cook County admitting decedent’s will to probate.

Affirmed.

CAMPBELL and MANNING, JJ., concur.


author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LONNIE WARD, Defendant-Appellant.
    First District (2nd Division)
    No. 1—86—3169
    Opinion filed January 30, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Vicki Rogers, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, David Butzen, and Eileen Rubin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant Lonnie Ward appeals from his convictions following a trial for armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2) and possession of a stolen motor vehicle (Ill. Rev. Stat. 1985, ch. 95/2, par. 4 — 103) and from the imposition of concurrent sentences of eight and seven years’ imprisonment, respectively.

In August 1985, defendant and codefendant Rose Richmond were indicted for armed robbery, possession of a stolen motor vehicle, theft and two counts of armed violence. During their joint bench trial on July 30,1986, the court heard the following evidence.

Daniel Ramos testified that on July 29, 1985, at about 8 p.m., he was on his way to visit a friend at 1800 North Lawndale in Chicago. As Ramos stepped out of his car, a yellow 1976 Cadillac, defendant and Richmond walked up to him and asked him for help with defendant’s car. When Ramos went to open his trunk, defendant put a knife to his throat and said, “You move, I’ll kill you.” He then took over $150 from Ramos’ pocket and the keys from his hand.

Continuing to hold the knife at Ramos’ throat, defendant ordered him to sit down on the street behind Ramos’ car and to remove his clothing. After Ramos sat down, defendant forced him to take off his shoes and to lie down on his stomach. Defendant then told Richmond to get into the car and, still holding the knife, backed up to the car himself, got inside and drove away.

Ramos testified further that on August 13, 1985, he was in the vicinity of Grand Avenue and Pulaski Road at about 5:30 p.m., when he saw his car parked next to a hot dog stand. Immediately he called the police, but before the police could arrive, defendant and Richmond came out from the hot dog stand. Ramos told them the car was his and that they should not move it because he had just called the police. Without speaking to Ramos, defendant and Richmond got into the car and drove away.

The next day Ramos was again in the vicinity of Grand and Pulaski at about 5 p.m., when he saw his car in the parking lot of a hardware store. Again Ramos called the police, who arrived in five minutes. Soon thereafter defendant walked out of the store, and the police apprehended him. Richmond was apprehended after Ramos recognized her at the police station while he was filling out a report.

Officer Gregory Salvi, one of the two officers who responded to Ramos’ call on August 14, 1985, essentially corroborated Ramos’ testimony about the events which transpired that day.

Defendant presented the testimony of codefendant Richmond and himself. Richmond claimed that on the day of the alleged robbery she was at her new apartment at 4101 Camerling together with defendant and two other men. She also testified that in July 1985 neither she nor defendant owned a car. Defendant planned to buy one some time after the day of the alleged robbery, however, and Richmond gave him $150 toward its purchase. She claimed that defendant got the new car about August 10,1985.

Testifying on his own behalf, defendant stated that on the evening of the alleged robbery, at about 6:30 or 7 p.m. he, Richmond and two others arrived at the apartment on Camerling to paint the walls and did not leave until the next day. He also stated that on August 10, 1985, he bought a 1976 Cadillac Eldorado from a stranger named Tyrone Malones, who took $200 and promised to return the next day to hand over the title and to collect the balance of $600. According to defendant, Malones never returned.

Defendant testified next that on August 13, 1985, he remembered hearing a man further away on the street complaining about a car. Because he did not think the man was talking to him, defendant drove away. He could not identify that man as Ramos at trial.

The circuit court found defendant guilty of armed robbery and possession of a stolen motor vehicle. On September 3, 1986, defendant received concurrent sentences of eight years’ and seven years’ imprisonment for the two crimes, respectively.

Defendant initially urges this court to reverse his conviction for possession of a stolen motor vehicle, maintaining that the statute, as amended in 1985, is constitutionally infirm. (See Pub. Act 83 — 1473, eff. Jan. 1, 1985 (amending Ill. Rev. Stat. 1983, ch. 95V2, par. 4— 103).) Next he argues that the circuit judge abused his discretion when he imposed concurrent sentences of seven and eight years’ imprisonment. We will address the constitutional issues first.

I

The relevant provisions of section 4 — 103 of the Illinois Vehicle Code (Vehicle Code) are as follows:

“§4 — 103. Offenses relating to motor vehicles and other vehicles — felonies. (a) It is a violation of this Chapter for:
(1) A person not entitled to the possession of a vehicle or part of a vehicle to receive, possess, conceal, sell, dispose, or transfer it, knowing it to have been stolen or converted; additionally the General Assembly finds that the acquisition and disposition of vehicles and their essential parts are strictly controlled by law and that such acquisition and disposition are reflected by documents of title, uniform invoices, and bills of sale. It may be inferred, therefore that a person exercising exclusive unexplained possession over a stolen or converted vehicle or an essential part of a stolen or converted vehicle has knowledge that such vehicle or essential part is stolen or converted, regardless of whether the date on which such vehicle or essential part was stolen is recent or remote;
(b) Sentence. A person convicted of a violation of this Section shall be guilty of a Class 2 felony.” Ill. Rev. Stat. 1985, ch. 95V2, par. 4 — 103.

Defendant advances three arguments against the validity of the statute. First, he maintains the statute is unconstitutional because it punishes possession more severely than theft, a greater included offense of possession. Second, he argues that the enhanced penalty provision of the statute bears no reasonable relation to the legislative goal of preventing automobile theft and chop shop operations. Finally, he contends that the statute is unconstitutionally vague because it embodies conflicting mental states.

A

After defendant filed the instant appeal, the Illinois Supreme Court handed down its decision in People v. Bryant (1989), 128 Ill. 2d 448, 539 N.E.2d 1221, in which it upheld the validity of the current possession of a stolen motor vehicle statute as against the first two arguments advanced by defendant in this case. In Bryant, the defendant argued that the statute violated the due process and proportional penalty provisions of the Illinois Constitution (Ill. Const. 1970, art. I, §§2, 11), because (1) by making possession a Class 2 felony and retaining theft as a Class 3 felony (see Ill. Rev. Stat. 1985, ch. 38, par. 16— 1), the legislature sought to punish mere possessors of stolen automobiles more harshly than organized automobile thieves; and (2) the legislature sought to punish the lesser included offense of possession more harshly than the greater offense of theft.

The supreme court found that the plain meaning of the statute clearly indicated an intent to punish all possessors of stolen automobiles, including organized thieves. Thus the appellate court’s examination of the legislative debates to determine the legislative purpose motivating the amendment was error. Accordingly, the court held that the statute made no impermissible distinction between classes of violators.

The court also determined that by elevating possession of a stolen motor vehicle from a Class 3 to a Class 2 felony, the legislature removed it from the confines of the theft statute, indicating a legislative desire to make possession a more serious offense than theft. Noting that the legislature has steadily increased the penalty for possession of a stolen motor vehicle from a Class 4 felony in 1977 to a Class 2 felony in 1985, the court stated:

“We believe that the legislature’s decision [to amend the statute] was designed to distinguish possession of a stolen motor vehicle from theft in order to remedy the increasing frequency of the offense of possession of a stolen motor vehicle and its related activities. Therefore, we hold that section 4 — 103(b) of the Vehicle Code is reasonably designed to protect the public from the evils of the offense of possession of a stolen motor vehicle and its related activities. As such, section 4 — 103(b) of the Vehicle Code does not violate sections 2 and 11 of article I of the Illinois Constitution.” (Bryant, 128 Ill. 2d at 457-58, 539 N.E.2d at 1226.)

Thus, by reason of the enhanced penalty, possession of a stolen motor vehicle is no longer a lesser included offense of theft; accordingly, the proportional penalty analysis is no longer relevant in comparing the two statutes.

B

Second, defendant argues that by striking at simple possession of a stolen automobile, section 4 — 103 of the Vehicle Code does not bear a reasonable relation to the goal of preventing automobile theft and in particular organized theft operations. According to defendant, a rational connection is missing, because a conviction for possession does not necessarily punish the thief. As the supreme court stated in Bryant, however, a court may not look beyond the plain language of a statute if its meaning is unambiguous. (Bryant, 128 Ill. 2d at 454-55, 539 N.E.2d at 1224.) Because the language of section 4— 103 clearly seeks to punish the crime of possession of a stolen motor vehicle, defendant’s concern about the relationship between that goal and other goals which the statute does not articulate is irrelevant. As the foregoing quotation from Bryant indicates, section 4 — 103 of the Vehicle Code is a reasonable legislative response to the evils of the crime of possession of a stolen automobile and its related harms, and therefore passes constitutional muster with respect to defendant’s substantive due process argument.

C

What remains is defendant’s contention that section 4 — 103(a) of the Vehicle Code embodies two conflicting mental states and is therefore unconstitutionally vague, an argument which the court in Bryant did not address. There is no response to this contention in the State’s brief. Defendant points out that the first clause of subsection (a) allows conviction based on actual knowledge by prohibiting “possession of a vehicle *** knowing it to have been stolen,” whereas the third clause allows conviction based on what defendant dubs “constructive knowledge” by permitting an inference of knowledge from a person’s “exercising exclusive unexplained possession of a stolen vehicle.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 95%, par. 4 — 103(a).) It is defendant’s position that the reasonable person reading the statute would be confused about whether it imposes merely a subjective or also a higher, objective knowledge standard and would consequently fail to receive fair notice of what conduct the statute prohibits.

Defendant relies primarily on People v. Monroe (1987), 118 Ill. 2d 298, 515 N.E.2d 42, in which the supreme court struck down the Drug Paraphernalia Control Act (Act) (Ill. Rev. Stat. 1985, ch. 56%, pars. 2102, 2103) because it contained contradictory mental states. Specifically, the Act required scienter in its definition section (Ill. Rev. Stat. 1985, ch. 56x/2, par. 2102 (“ ‘Drug Paraphernalia’ means all equipment, products and materials of any kind which are peculiar to and marketed for use in *** manufacturing *** cannabis or a controlled substance ***”) (emphasis added)) and constructive knowledge in its penalty section (Ill. Rev. Stat. 1985, ch. 56%, par. 2103 (punishing sale of drug paraphernalia by person who “knows, or under all of the circumstances reasonably should have known” that the,item is drug paraphernalia) (emphasis added)).

Defendant’s reliance on Monroe is unwarranted, however, because even a most cursory reading of the recent supreme court case of People v. Hester (1989), 131 Ill. 2d 91, 544 N.E.2d 797, makes it readily apparent that what defendant labels a “constructive knowledge” requirement in section 4 — 103(a) is really an evidentiary presumption. Thus, by contrast to the statute in Monroe, section 4 — 103(a) of the Vehicle Code requires proof of only one mental state — actual knowledge — and thereby obviates the need to consider defendant’s vagueness attack altogether.

One of the issues in Hester was whether a modified version of Illinois Pattern Jury Instructions, Criminal, No. 23.06 (2d ed. 1981) (IPI Criminal 2d No. 23.06), concerning a finding of intoxication, contained a mandatory presumption or a permissive presumption. The court defined a mandatory presumption as one in which the trier of fact is not free to reject the suggested finding. (131 Ill. 2d at 99, 544 N.E.2d at 801.) The strength of the connection between the ultimate fact presumed and the evidentiary fact is subject to the “beyond a reasonable doubt” test. (131 Ill. 2d at 99, 544 N.E.2d at 801.) A permissive presumption, on the other hand, operates as an inference and is one which the trier of fact is free to accept or reject. (131 Ill. 2d at 99, 544 N.E.2d at 801.) Unless the presumption is uncorroborated by other evidence, its validity is subject to a less stringent analysis which requires only a rational connection between the ultimate fact presumed and the evidentiary fact. 131 Ill. 2d at 100, 544 N.E.2d at 802.

The Hester court noted further that certain expressions such as “may presume” and “may infer” are indicative of permissive presumptions. (131 Ill. 2d at 101, 544 N.E.2d at 802.) The instruction at issue in that case stated that if the jurors found defendant’s blood-alcohol level to be at least .10%, they “may presume that the defendant was under the influence of [alcohol]” and that “this presumption is not binding.” (Emphasis added.) (131 Ill. 2d at 97, 544 N.E.2d at 800.) The court found that from this language any reasonable juror could conclude that he or she was free to accept or reject the presumption of intoxication, and thus the presumption was permissive. 131 Ill. 2d at 100-01, 544 N.E.2d at 802.

Similarly, in using the phrase “may be inferred,” section 4 — 103(a) of the Vehicle Code creates a permissive presumption, i.e., one which allows the fact finder to draw an inference of knowledge that a vehicle has been stolen from evidence adduced at trial that defendant had exclusive and unexplained possession over the stolen vehicle. Supplying a “rational connection” between knowledge and the inability to explain possession of a stolen automobile, the legislature notes “that the acquisition and disposition of vehicles *** are strictly controlled by law and *** are reflected by documents of title, uniform invoices, and bills of sale.” (Ill. Rev. Stat. 1985, ch. 951/2, par. 4 — 103(a).) By this language, the legislature signifies that the trier of fact may properly infer that someone in possession of a stolen vehicle who cannot produce a document of ownership or reasonably explain its absence knows that the vehicle is stolen.

Since it is clear that what defendant characterizes as an objective mental state requirement is no more than an evidentiary presumption, his due process attack on section 4 — 103(a) of the Vehicle Code based on vagueness is entirely without merit and must fail along with his other constitutional objections.

II

Defendant’s final argument concerns the reasonableness of his sentence. He claims that in passing the eight-year sentence, the circuit court failed to consider his potential for rehabilitation and generally abused its discretion.

At sentencing, the judge considered the evidence received at trial, the pretrial investigation report, evidence in aggravation and mitigation and defendant’s own statement. Thus the judge was aware of factors favoring defendant, such as his age of 23 years, the fact that the victim of the armed robbery was not injured and defendant’s own statement that he is not a violent person. He was also aware of elements favoring the State, such as defendant’s two prior convictions for burglary and residential burglary, his current convictions for armed robbery and possession of a stolen motor vehicle, his perjurious testimony and lack of remorse and the circumstances of the two latest crimes. The State specifically drew the judge’s attention to defendant’s violent use of a knife during the armed robbery and his “audacity” in driving the stolen car around the community in the weeks that followed. Whereas the State recommended a sentence of 12 years, defendant requested between six and eight years. Also, defendant apprised the judge that during a pretrial conference before another judge the State had asked for a sentence of only eight years.

The Unified Code of Corrections provides that the sentence for a Class X felony, including armed robbery, shall not be less than 6 years’ and not greater than 30 years’ imprisonment. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(3).) It also states that the sentence for a Class 2 felony, including possession of a stolen motor vehicle, shall not be less than three years’ and not more than seven years’, imprisonment. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(5).) As we indicated earlier, defendant received a sentence of eight years for the crime of armed robbery and seven years for the crime of possession of a stolen motor vehicle.

Relying on People v. Rickard (1981), 99 Ill. App. 3d 914, 425 N.E.2d 1317, and People v. Crews (1969), 42 Ill. 2d 60, 244 N.E.2d 593, defendant contends that the trial judge did not adequately take into account his relatively young age and potential for rehabilitation. The State accurately notes the unpersuasive nature of both cited cases. The trial court in Rickard imposed a 100- to 300-year sentence on a 32-year-old defendant, and in Crews a death sentence on a 34-year-old defendant, both for the crime of murder. The sentences were reversed in view of the overwhelming amount of mitigating circumstances, including defendant’s potential for rehabilitation. The Rick-ard opinion recognized that in different circumstances, such as where the defendant has an extensive prior felony record, the rehabilitation factor may not deserve as much weight. (Rickard, 99 Ill. App. 3d at 919, 425 N.E.2d at 1320.) In the present case, it would be entirely inappropriate to draw an analogy between the life and death sentences in those cases and defendant’s eight-year sentence, which contemplates his release and restoration to useful citizenship at the latest when he reaches the age of 31.

The law is firmly established in Illinois that, absent a clear abuse of discretion, a reviewing court may not substitute its own sentence merely because it disagrees with the sentence imposed by the trial court. (People v. Younger (1986), 112 Ill. 2d 422, 494 N.E.2d 145; People v. Emery (1989), 190 Ill. App. 3d 171, 546 N.E.2d 658.) In the present case, the court made a fully informed decision based on a plenary record and its consideration of the aggravating and mitigating factors offered by both sides. Furthermore, the defendant’s eight-year sentence was not only within legislative limits and on the very low end of the range permitted for armed robbery, but also coincided with defendant’s own maximum request. Accordingly, there was no abuse of discretion, and the sentence should be affirmed.

Affirmed.

HARTMAN and BILANDIC, JJ., concur.

      Citing People v. Lang (1984), 127 Ill. App. 3d 313, 317, 468 N.E.2d 1303, 1306-07, affd in part & rev’d in part on other grounds (1986), 113 Ill. 2d 407, 498 N.E.2d 1105, the State responds that defendant may not raise questions concerning the constitutionality of a statute for the first time on review because it is “fundamental” that the trial court must have had the initial opportunity to rule upon such questions. Although the waiver rule has had a confusing history in Illinois law, most recently in People v. Bryant (1989), 128 Ill. 2d 448, 453-54, 539 N.E.2d 1221, 1223-24, citing People v. Frey (1973), 54 Ill. 2d 28, 29-33, 294 N.E.2d 257, 257-59, the supreme court emphatically held that a party may raise a constitutional challenge to a statute at any time. In Bryant, the court addressed a constitutional issue not raised in the circuit court, namely the validity of section 4 — 103 of the Illinois Vehicle Code, which is also the subject of the instant appeal.