author: JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RENEE WALTON, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 89—0219
    Opinion filed October 25, 1991.
    Randolph N. Stone, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William Pistorius, and Joseph P. Roddy, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

The defendant, Renee Walton, was found guilty after a bench trial of possession with intent to deliver cocaine and sentenced to imprisonment for eight years. The principal issue is whether evidence seized from her and a statement she made should have been suppressed. In deciding this question we have considered the evidence heard at trial as well as the evidence heard on the motion to suppress. See People v. Caballero (1984), 102 Ill. 2d 23, 464 N.E.2d 223.

On March 28, 1988, Chicago police officer Steve Martinez was stopped at a traffic light in an unmarked police car facing north in the curb lane on Halsted Street around 111th Street. Officer Richard Brown was a passenger. A car to'Martinez’ left was also stopped at the light. The defendant, who was the passenger in the car, looked in his direction. Martinez and the defendant “made eye contact.” She then looked straight ahead, and her car drove through the red light. Martinez activated his emergency equipment; he waited until it was safe to cross the intersection and sped after the other car, which increased its speed. He pursued the other car for approximately four blocks. The other car was “zigzagging” from lane to lane getting around other vehicles. The driver of the other car lost control and struck a vehicle that was parked at a red light facing westbound on 107th Street. The car struck the intersection control device, knocking that down. It continued until it struck a gas station sign where it came to rest. Martinez saw the driver, later identified as Xavier Foster, who was about 10 feet from the scene of the crash, stumble back to the car and retrieve a sealed package which was leaking a white powder. Martinez believed the white powder was cocaine. It was later established that Foster retrieved the package from behind the driver’s seat.

The defendant was lying on the ground. She was crying, and one of her legs appeared to Martinez to be broken. He approached her with the intention of arresting her for possession of cocaine that had previously been recovered from the driver. Upon approaching the defendant, he noticed she was wearing a security jacket. He said that he was worried about his safety. Because she wore a security guard uniform his primary concern was a weapon. Believing she might have a weapon, Martinez conducted a pat-down search and felt a hard object in one of her pockets. He said it could have been a handle of gun, that it was approximately “three inches” long. The hard object he felt and retrieved was 96 plastic bags which were in a torn paper bag. He also recovered a gram scale from the defendant. He advised her of her Miranda rights twice; once orally and again from a preprinted card. The defendant stated in a “crying voice” that she understood her rights and that the car was hers. The police report indicated that Martinez asked the defendant if the car was hers before administering Miranda warnings.

In denying the motion to suppress the plastic bags and the scale, the judge said the officer had a reasonable basis for patting the defendant down “in light of the attire of the defendant.” He said that it was immaterial whether the object was “hard, soft, big, small, whatever,” because inevitably that object would have been discovered since she was going to be placed under arrest in any event. He accepted the testimony of the officer that he believed it could have been a weapon. The judge concluded that there was a reasonable basis for placing the defendant under arrest before the search. He also said that he believed the officer’s testimony that he advised the defendant of her rights before she made the statement that the car belonged to her. Consequently, he also denied the motion to suppress her statement.

Police officer Richard Brown testified at trial that he was with Martinez when he observed the vehicle in which the defendant was riding start through the red light. At the accident scene, Brown saw Foster stagger toward the vehicle and remove a package wrapped in green tape and leaking white powder. The officers retrieved the package from Foster believing the white powder to be cocaine. As Foster was going to the car, he stated, “That’s my package.” Brown asked, “What was this?” and Foster again said, “That is my package.”

Officer Albert Schultz went to the scene of the accident after receiving a call. He saw Officer Brown standing with Foster. Martinez was approaching the defendant, who was lying on the ground. Schultz observed that the defendant was in a uniform of a security guard. As Martinez was approaching the defendant, Schultz called out to him to be careful, that she might have a gun.

It was stipulated that the package recovered from Foster contained 996.4 grams of cocaine which was 94 % pure.

A reviewing court should not disturb the trial judge’s finding on a motion to suppress unless it is manifestly erroneous. (People v. Galvin (1989), 127 Ill. 2d 153, 535 N.E.2d 837.) Probable cause exists where the police have knowledge of facts which would lead a reasonable person to believe that a crime has occurred and that it has been committed by the defendant. (People v. Wright (1985), 111 Ill. 2d 128, 490 N.E. 640.) The standard for determining whether probable cause exists is not governed by technical, legal rules, but rather by commonsense considerations that are factual and practical. (People v. Bradford (1989), 187 Ill. App. 3d 903, 543 N.E.2d 918.) A reviewing court must consider the totality of the circumstances. Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317.

We cannot say that the trial judge’s determination that probable cause for the arrest existed was clearly erroneous. The police officer could have reasonably concluded that the defendant recognized him and his partner as police officers and passed on that information to the driver of the car, who then attempted to elude the police in a high speed chase, a clear violation of the law, a violation which would be senseless unless the driver or passenger or both were conscious of guilt of a more serious violation of the law. After the accident the officer saw the driver recover a kilogram of a white substance which the officer reasonably believed to be cocaine. Under the totality of the circumstances, it was not unreasonable for the officer to believe that the driver and the defendant were acting in concert.

We are mindful that the driver told the police that the package in the car was his. That evidence impacts both ways, however. It might be considered as proof that the defendant was not involved. It could also be considered an attempt by the driver to divert the police from searching the defendant and discovering the drug paraphernalia which the driver knew the defendant possessed.

Two points must be emphasized: First, a reviewing court, no less than a trial court, must not lose sight of the fact that a police officer is often called upon to make a decision immediately and under stressful conditions. The reports of the decisions of reviewing courts abound with cases involving the sufficiency of evidence in establishing possession. The issue is decided by reviewing courts after careful analysis and with the benefit of reflection and research. It would be unrealistic and unfair for any court to expect a police officer to decide the issue correctly within a few seconds. The crucial question is whether the facts available to the officer at the moment would have caused a reasonable person to proceed in the same manner. (People v. Bradford (1989), 187 Ill. App. 3d 903, 543 N.E.2d 918.) Second, a reviewing court should not gainsay the decision of the trial court simply because the judges of the reviewing court might have come to a different conclusion.

This is a case where the police officer was involved in pursuit of a vehicle traveling at 50 miles per hour in a 35-mile-per-hour zone; the vehicle was weaving through traffic at a high speed and ultimately crashed into another vehicle. The officer, who surely must have been highly agitated, saw the driver retrieve a large package containing what he suspected was cocaine. We repeat that the officer could reasonably conclude that both the driver and the defendant were in joint possession of the narcotics.

Whether the officer did not at that time have sufficient evidence to support the defendant’s conviction is not the issue. Probability of criminal activity, rather than proof beyond a reasonable doubt, is the standard for determining whether probable cause is present. Whether the necessary probability exists is governed not by technical, legal rules, but rather by commonsense considerations that are factual and practical. (Brinegar v. United States (1949), 338 U.S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302; People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147.) We judge that it would be inappropriate for us to substitute our judgment for that of the trial judge, who concluded that the police officer acted reasonably. Consequently, we find no error in the order denying the motion to suppress the evidence recovered from the defendant. In addition, we find no error in the order denying the motion to suppress the defendant’s oral statement made to Officer Martinez that she owned the automobile.

In view of our conclusion that probable cause for the arrest existed, it is unnecessary to determine whether or not the officer conducted a proper pat-down search under the authority of Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.

The defendant also contends that the trial judge erred in denying the admission of evidence at the hearing on the motion to suppress. The judge sustained an objection to the testimony of the officer that Foster said that the package in the car was his. We agree that the evidence was relevant on the motion to suppress, but any error was cured by the admission of the testimony at the trial. As we indicated before, we have considered the evidence heard at trial as well as the evidence heard on the motion to suppress in determining the propriety of the judge’s ruling denying the motion to suppress. See Caballero, 102 Ill. 2d at 35-36.

The defendant next contends that the evidence failed to establish her guilt beyond a reasonable doubt. Possession may be actual or constructive (People v. Scott (1987), 152 Ill. App. 3d 868, 505 N.E.2d 42); it may be joint (People v. Fabing (1976), 42 Ill. App. 3d 379, 355 N.E.2d 719); and it may be proved by circumstantial evidence. (People v. Evans (1986), 143 Ill. App. 3d 236, 492 N.E.2d 1036.) In cases involving joint control of an area, courts generally look for corroborating evidence connecting the defendant to the contraband found. (Fabing, 42 Ill. App. 3d at 384.) We believe the evidence was sufficient to establish joint and constructive possession of the cocaine by the defendant. As we previously noted, a fact finder could conclude that the driver fled from the police after a communication from the defendant. In addition, the car was hers, and her possession of the paraphernalia used in the distribution of narcotics was circumstantial evidence which provided the necessary corroboration. In his decision, the trial judge emphasized the defendant’s possession of the scale and plastic bags.

The principal cases cited by the defendant are People v. Roundtree (1985), 135 Ill. App. 3d 1075, 482 N.E.2d 693, and People v. Gore (1983), 115 Ill. App. 3d 1054, 450 N.E.2d 1342. In Roundtree, the sufficiency of the evidence to establish possession of narcotics was not raised by the defendant. It was raised for the first time by the State in its contention that certain error in the admission of a statement without Miranda warnings was harmless. The court rejected the State’s argument that it had proved possession without the defendant’s statement. The court emphasized the failure of the State to present evidence as to the defendant’s knowledge. As noted, in the case before us the defendant’s possession of the drug paraphernalia was circumstantial proof indicating her knowledge. In Gore, the defendant was driving a car owned by someone else. He had been given permission to drive the car from the owner a few hours before he was arrested. He was accompanied by two other persons who were passengers in the front seat. Marijuana was recovered under the front passenger seat. Gore is factually inapposite here, not only because the car in this case belonged to the defendant but, again, there was no corroborating evidence in Gore as there is here.

The defendant’s last contention is that she is entitled to a new sentencing hearing because, she says, the judge based his sentence on a fact not supported by the evidence. The judge’s remarks included the following statement:

“[I]t sure looks to me like you’re more than the casual user or dealer, because casual users or dealers don’t drive around on the streets of Chicago with a kilo of cocaine, and if they do, it has been stepped on three or four times. It is not ninety-seven percent pure.”

The State maintains that the defendant waived this argument by failing to object during sentencing and failing to file any post-sentencing motion. (See People v. Sperow (1988), 170 Ill. App. 3d 800, 525 N.E.2d 223.) We prefer to address the question. We conclude that the judge’s observation is supported by the evidence, and we find no error in the sentencing procedures.

For these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

RAKOWSKI, P.J., and LaPORTA, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE CERDA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID DOWALIBY, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 90—2029
    Opinion filed October 30, 1991.

      Jenner & Block, of Chicago (Robert L. Byman, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Randall Roberts, David Cuomo, and Brian Clauss, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Following a jury trial, defendant David Dowaliby (David) was convicted of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1) and concealment of a homicide (Ill. Rev. Stat. 1987, ch. 38, par. 9— 3.1) for the death of his seven-year-old daughter, Jaclyn. He was sentenced to consecutive terms of 40 years’ imprisonment for first degree murder and five years’ imprisonment for concealment of a homicide. David contends that (1) the evidence was insufficient to support his convictions and it was error to deny his motion for a directed verdict; (2) the trial court erred in instructing the jury; (3) the trial court erred in excluding evidence that should have been admitted; (4) the trial court erred in allowing prejudicial photographs and slides to be given to the jury for use during its deliberation; (5) the prosecutor committed reversible error during closing argument; (6) the cumulative errors denied him a fair trial; and (7) the judgment should be vacated and the indictment dismissed because the indictment was procured by false testimony before the grand jury. We reverse because as a matter of law the evidence was not sufficient to find David guilty beyond a reasonable doubt and it was error to deny his motion for a directed verdict.

In 1988, David and his wife, Cynthia, lived in a single-family dwelling house in Midlothian, Illinois. David’s mother, Anna Dowaliby (Anna), owned the house and lived in an apartment in the basement. The basement apartment did not have its own doors for ingress and egress to and from the outside. David and Cynthia lived in the house with their daughter, Jaclyn, age seven, and their son, Davey, age four. Jaclyn was the daughter of Cynthia and her first husband, Jim Guess. David adopted Jaclyn after he and Cynthia were married.

Jaclyn was last seen alive on Friday, September 9, 1988. On September 9, 1988, David worked from 8 a.m. to 4 p.m., and arrived home at 5:30 p.m. He left at 6 p.m. to go bowling at the Anchor Bowl in Blue Island. He returned home from bowling around 9:20 p.m. Cynthia, Jaclyn, Davey, Anna and Michelle Goldrick, David’s sister, were home. Goldrick left shortly after David arrived home. Jaclyn went to her room with a Christmas catalog and went to bed around 10:30 p.m. David, Cynthia and Davey sat in the family room watching television. David went to bed around 10:30 p.m. while Cynthia and Davey were still watching television. Cynthia watched television until 11:30 p.m. Before going to bed, she turned off the lights in the living room and checked the children. Jaclyn had fallen asleep with her overhead light on, which Cynthia turned off. Cynthia left the doors to the children’s rooms open and her bedroom door ajar. She then went to sleep.

Anna left home that evening around 10:30 p.m. to go to Papacino’s Restaurant in Oak Forest. Anna stated that she went out the back door of the house and checked to make sure that it was locked. Anna stated that in the past she had used both the front and back doors, but in September 1988, she did not have a key to the front door. Anna did not return home that night.

On September 10, 1988, the Dowalibys’ alarm clock rang at 7:30 a.m. Cynthia looked at the clock and asked David what was the day. When he told her it was Saturday, she turned off the alarm and went back to sleep. David was supposed to play golf that morning, but he also went back to sleep. At around 8 a.m. David was awakened by Davey. David got up and went to the living room, where he saw that the front door was open. He closed the door, sat down, and watched T.Y. cartoons with Davey. When he heard Cynthia awake about 9 a.m., David brought a cup of coffee to her in the bedroom. Shortly after-wards, Cynthia asked if Jaclyn was awake. David told her “No,” and Cynthia said she was going to wake her up. When Cynthia went into Jaclyn’s room and saw that she was not there, Cynthia and David looked for her throughout the house.

David then suggested that Jaclyn may have gone outside, so they looked for her outside. They got in their pickup truck and drove around the neighborhood looking for Jaclyn. In the meantime, Anna came home for the first time since she had left around 10:30 p.m. Friday. When David and Cynthia returned home they discovered that one of the basement windows to Anna’s apartment had been broken. They immediately called the Midlothian police. The transcript of the Midlothian police department tape shows that David made the phone call at 10:26 a.m.

The telephone company phone log indicated the following calls were made from the Dowaliby house on September 10,1988:

9:46 a.m. Sylvia Borelli 1 minute
(Cynthia’s sister-in-law)
9:52 a.m. Susan Haseman home 1 minute
(Jaclyn’s friend)
9:57 a.m. James Guess home 1 minute
(Cynthia’s former husband)
10:06 a.m. Wag’s Restaurant 5 minutes
10:25 a.m. 411-Directory Assistance 1 minute
10:26 a.m. Midlothian Police 1 minute
10:31 a.m. Wag’s Restaurant 1 minute

Donald Woodark, a Midlothian police officer, testified that on September 10, 1988, he made an initial investigation of a possible break-in and missing child. When Woodark arrived at the Dowaliby house, David let him in and told him that he believed that there had been a break-in and that his daughter was missing. Defendant took Woodark outside to show him the broken basement window. The wire screen in front of the basement window had been ripped back, but was partially intact in its frame. Glass was lying around the outside area where the basement window was located.

Woodark also testified that while he was walking down the hall to Jaclyn’s bedroom, he noticed a dresser with its drawers open. Inside Jaclyn’s room, he saw clothes hanging out of the drawers, and clothes on the floor. The bedroom closet light was on and the window blinds were closed. The bed, which had no sheets on it, was pulled out at an angle. David and Cynthia told Woodark that they moved it when they were looking for Jaclyn. On the bed was an open suitcase with clothes in and around it. Cynthia told Woodark that it was one of Jaclyn’s playthings. David and Cynthia said that the only thing missing was Jaclyn’s bedspread.

David told Woodark that he found the front door open when he got up at 8 a.m. He said that he was positive he had closed and latched it before going to bed Friday night. David also told Woodark that he had installed a sliding bolt about three inches from the top of the door to prevent the children from leaving the house early in the morning. After sending out a missing person report, Woodark went back to the basement window area, where he picked up pieces of glass by their edges. He stated that he was looking for any blood or marks to indicate what was used to break the window. After examining the pieces of glass, Woodark put them back in approximately the same place where he had picked them up.

Woodark stated that Anna’s bedroom, where the broken window was located, was dim and disheveled, but not ransacked. There were closed curtains in front of the broken window. Under the window was a metal rack with a cloth basket on top and two boxes underneath. Woodark testified that when he parted the curtains to look at the window, he observed an even layer of dust on the inside window ledge. Nevertheless, on his initial police report dated September 10, 1988, Woodark wrote that the method of entry was the broken basement window. In that report, he stated five times that entry was made through the broken window and he did not report that dust was on the window ledge. The first time Woodark mentioned the presence of dust was in a supplemental report written on September 27, 1988.

Hayden Baldwin, an Illinois State Police crime scene technician, testified that on September 10, 1988, he conducted a cursory exam of the exterior and interior of the Dowaliby house. He testified that Anna’s bedroom was in disarray and unkempt. Inside the basement window that was broken, which was unlocked, he saw two cobwebs on each corner and a layer of dust on the window ledge. The window, however, was unlocked. The curtains in front of the window were pulled back approximately one-third of the distance. Baldwin photographed the curtains, but not the cobwebs. He photographed the basement playroom and Jaclyn’s bedroom, where there were open dresser drawers and a suitcase on the bed. He did not look into any other rooms.

Baldwin testified that there were smear marks on Jaclyn’s bedroom door, but the prints were not suitable for lifting. There was no testimony that there was any attempt to find other fingerprints in Jaclyn’s room. Although there were several smear marks on the front door to the house, none were suitable for lifting. There was no testimony about any fingerprints on the back door or the sliding glass door.

Although Baldwin used a high intensity light to examine the broken window area, no hair or fibers were found. The windows leading into the basement utility room were unlocked and had dust on them. On the outside, Baldwin found no shoe prints in the area around the windows.

On September 11, 1988, FBI Agent Steven Kashirsky examined the Dowaliby house. He found an unlocked basement window that looked toward the backyard. He also saw an unlocked basement window in the laundry-work storage room. Kashirsky also testified that he easily opened one of the unlocked windows. Kashirsky testified that from September 10, 1988, to September 14, 1988, law enforcement officers had complete access to the Dowaliby house. David voluntarily gave blood and urine samples, and written permission to take any and all medical records from the family.

Jaclyn’s decomposed body was found on Wednesday, September 14, 1988, in an area that appears to be a thicket or brush in Blue Island, Illinois, approximately three miles from the Dowalibys’ home. The body was found by Michael Chatman, who lives at the Islander Apartments in Blue Island. When he arrived in the rear parking lot of his home about 5:45 p.m., Chatman smelled a strong foul odor. When he looked in the weeds and bushes, he saw something wrapped in a covering. He took one step in, moved the bush back, and saw what appeared to be a small body, face up, one to two feet from the parking lot. There was a sheet covering most of the body, except for the arm and head. Chatman described the area as heavily overgrown with brush and six-foot weeds along the parking lot pavement.

Jaclyn’s body was wrapped in a multicolored quilt when it was found. Her body was exposed from the upper torso to the top of her head. There was heavy maggot infestation on the upper torso and head areas. There were no bruises to her head or face. She was not gagged. A rope was wound tightly around her neck twice, extending down the body and lying freely between her legs. The rope, which had no noose, was not knotted around her neck. There was no indication that any teeth had been knocked out or forcibly removed. Jaclyn’s nails, which were partially painted with fingernail polish, showed some decomposition. A pair of white cotton panties were lying about one foot from Jaclyn’s feet. They were clean and not rolled inside out. Baldwin testified that there were no visible shoe prints around the body.

On September 14, 1988, at 6:30 p.m., police officers Kashirsky and Eley were at the Dowaliby house when they learned that the body had been discovered. When Cynthia was told that Jaclyn’s body had been found, she burst into tears and collapsed. When David returned home at 7 p.m., and was told what had happened, he sat down and cried.

Jennie Hahn, a forensic scientist at the Illinois State Police crime lab, testified that Jaclyn’s blood type was Type 0, which was the same blood type as Davey and Cynthia. David has Type A blood. Hahn testified that she did not find any bloodstains or semen on the panties found near Jaclyn’s body, and did not test for sperm. On the back panel of the panties, there was a stain that was not blood or semen. No other chemical tests were conducted. There were no cuts or tears in the panties. Swabs taken from the vaginal and rectal cavities were negative, although blood was present. Fingernail clippings had Type 0 blood on them.

Hahn further testified that there were two hairs in the panties, a pubic hair and a head hair that was consistent with Jaclyn’s head hair. The pubic hair could not be Jaclyn’s because she was prepubescent. There were foreign fibers found in the panties. Due to its condition, Hahn was unable to perform chemical tests on the nightgown, which was moist and wet with debris, decomposed material, and maggots.

Hahn further testified that she recovered three hairs from the rope that was around Jaclyn’s neck. Two were consistent with Jaclyn’s hair, and the other was not consistent with Jaclyn’s hair or the hair of any of the Dowalibys. The rope, which was 25 feet 9 inches long, and one-quarter inch in diameter, had frayed ends. Hahn also testified that there were two Type 0 bloodstains on Jaclyn’s pillow. They were different in color intensity, indicating that one was older than the other. There were no bloodstains, sperm, or semen on the mattress pad. Hahn stated that she found five bloodstains on Jaclyn’s bedspread. She could not determine if the stains were human or animal blood or the age of the stains. There were no traces of blood on the two sheets identified as coming from Jaclyn’s bed or on the two pillowcases that were on Jaclyn’s bed.

The Dowalibys owned two vans, a truck and a light blue Chevrolet Malibu automobile. Hahn examined several hairs from the Malibu trunk mat. After visually comparing Jaclyn’s head hair with the hair from the car mat, Hahn could not exclude them as coming from Jaclyn. Hahn testified that she never visually compared the hair from the mat or the hairnet found in the trunk with Cynthia’s hair. Hahn explained that it is not unusual to have hair from another family member on a person’s clothing or other personal articles. Hahn also stated that there were no bloodstains on the Malibu trunk mat.

Ralph Meyer, an Illinois State Police forensic microanalyst, compared fibers from the bedspread found on Jaclyn’s body and the Malibu trunk mat. He observed no fiber transfer between the two objects. Meyer also compared 17 hairs from the trunk mat. Five of the hairs possibly came from Cynthia, one hair possibly from David, and one hair possibly from Jaclyn. Three hairs were inconclusive, and three were not compared (one was from an undetermined body part, and two were common, featureless hairs).

Ralph Meyer testified that based on radial marks, concentric breaks, and stress marks in the glass from the broken window, the force to break the window came from the outside.

Dr. Robert Stein, the Cook County medical examiner, performed an autopsy on Jaclyn’s body on September 15, 1988. Dr. Stein testified that Jaclyn’s body was markedly decomposed, with thousands of maggots present. Considering the temperature and humidity, the decomposition was consistent with being dead for 5Vz days. Due to decomposition, it was difficult to determine whether the body was in the same place for the entire time since death.

Complete body X rays showed no evidence of any bullets or fractures. Dr. Stein testified that he could state unequivocally that there was no injury to her head. There were no bruises on her arms or hands, no rope burns or marks on her wrists, and no signs on her arms that she had been bound. There were no bruises on her torso and no binding or tie down marks on her body. There were no scratches on her buttocks or back. There were no marks on her legs indicating that she had been bound or tied. There were no bruises on her legs, no mud or excess dirt on her feet, and her knees were clean. Dr. Stein testified that the cause of Jaclyn’s death was ligature strangulation. Due to decomposition, Dr. Stein could not rule sexual molestation in or out, but Jaclyn’s nightgown had not been torn.

Holly Deck, the Dowalibys’ next door neighbor, testified that on September 9, 1988, she saw laundry, including a little girl’s sheet with a picture of a girl with long blond hair, hanging on the Dowalibys’ clothesline. Later that evening, Deck was watching television when her four dogs started barking and growling at her side door, which was the closest to the Dowaliby home. They continued barking from about 11 p.m. to midnight, going back and forth to the front and side doors. Deck testified that this was very unusual. The dogs usually barked like that when a stranger was around. Deck also stated that the dogs liked the Dowalibys.

Deck further testified that she went to bed about 1:30 a.m., and got up about 2:10 a.m. to go to the bathroom. After going to the bathroom, she went to the kitchen to get a glass of water. She looked out the window and saw that all the Dowaliby vehicles were gone except for the blue Malibu. She stated that Cynthia usually drove that car, and it was very rare to see David driving it. The car was parked overhanging the Dowaliby driveway approximately one foot, which was unusual.

Brian Anderson, a neighbor, testified that he saw the Dowalibys’ blue Malibu hanging over their driveway at 8 a.m. on September 10, 1988, in the same position he saw it the night before.

It was stipulated that FBI Agent Jonathan Newcombe spoke with Colleen Jones-Godin, the Dowalibys’ neighbor, on September 11, 1988. Newcombe would testify that Jones-Godin told him that she believed Jaclyn had a good family life and never heard her complain of any type of mistreatment from her parents.

Jeffrey Koleczyk, a Dowaliby neighbor, testified that before September 10, 1988, he saw Davey playing -with ropes. He identified the rope found around Jaclyn’s neck as the same type of rope with which Davey played, and about the same length, which was more like a clothesline than a jump rope. He stated that he did not see Davey playing with rope after Jaclyn was missing. Koleczyk, however, could not identify the rope that was found around Jaclyn’s neck as the rope that he saw used by Davey.

Everett Mann testified that he returned to his apartment at the Islander Apartments in Blue Island about 2 a.m. on September 10, 1988. When he arrived, Mann was unable to find a parking space in front of his building so he drove down the east driveway to the rear parking lot. When he reached the rear parking lot, he made a U-turn into the second parking space from the driveway, which was directly behind his building.

To his right, Mann saw a set of headlights go on near the middle driveway, which was close to where Jaclyn’s body was later found. Mann stopped his car and looked at the lights. He observed the car slowly pulling forward, going in a southerly direction, out the middle driveway. It appeared to be a dark-colored, late model mid-size car, possibly a late 1970’s Malibu. Mann saw one head inside the car near the front about where the driver would sit. He saw the profile of a large nose, which appeared to be that of a male. Mann completed his parking, went into his apartment, and went to sleep. Mann stated that a number of the lights in the back of the buildings were not working. On September 16, 1988, Mann told police that there was one street lamp working near his building and nothing in the middle, so that it was dark there. There were lights on the far end of the parking lot near the fire station.

Mann testified that the Malibu was 75 yards away from him when he saw it. Further, Mann testified he saw only a side view of the individual, not a full frontal view. He told police that he saw only a silhouette. Mann also told the police that he was not sure whether the person that he saw was white or African-American.

The evidence at trial consisted of nearly 200 exhibits and over 40 witnesses. At the end of all the evidence, the trial court directed a verdict in favor of Cynthia but denied David’s motion for a directed verdict. We agree with David’s contention that the trial court erred in denying his motion for a directed verdict.

The State’s argument centers on David’s opportunity to murder Jaclyn, his behavior and statements, and the identification of David’s nose structure and the Dowalibys’ Malibu. Specifically, the State contends that David and his wife, Cynthia, were the only people with the opportunity to kill Jaclyn since they, Jaclyn, and their son, Davey, were the only people in the house after Anna left around 10:30 p.m. on September 9, 1988. The State emphasizes that no intruder could have entered the house during the night because there were no credible signs of unlawful entry. Additionally, the State argues that it was not possible that Jaclyn walked out of the house unnoticed during the night and was abducted by a stranger because the front and back doors were locked and there was no excess dirt or mud on the soles of Jaclyn’s feet. Opportunity alone, however, is not sufficient to sustain a conviction unless the State can prove beyond a reasonable doubt that no one else had the opportunity to commit the crime. People v. Jenkins (1983), 117 Ill. App. 3d 33, 37, 452 N.E.2d 867, 873; People v. Howard (1979), 74 Ill. App. 3d 870, 877, 393 N.E.2d 1084, 1090.

Here, Anna Dowaliby had the opportunity to murder Jaclyn. Anna testified that she left her home around 10:30 p.m. on the night in question and went to a local lounge. Michael Healy testified that he saw Anna sometime after midnight “partying with some friends” at the El Dorado Restaurant. Healy further testified that he and Anna left the El Dorado Lounge together “drunk” at approximately 4:30 a.m. and went to Healy’s apartment. Healy and Anna spent the night together at Healy’s apartment. Healy drove Anna to the El Dorado Restaurant at approximately 9:15 a.m. the next morning.

It is plain that Anna’s whereabouts are unaccounted for between 10:30 p.m., the time she left the Dowaliby home, and sometime after midnight, when Healy testified that he saw her at the El Dorado Restaurant. During this unaccounted for time frame, there are no witnesses to Anna’s whereabouts. The record reveals only that Anna told investigators that she left the Dowaliby home around 10:30 p.m. and drove to Papacino’s Restaurant. Accordingly, Anna had the opportunity to murder Jaclyn. In addition, it is clear that Cynthia had the opportunity to commit the crime.

The State argues that defendant and his wife Cynthia were the only individuals with an opportunity to murder their daughter. Therefore, the State contends, one of them must have murdered her. In People v. Lopez (1979), 72 Ill. App. 3d 713, 717, 391 N.E.2d 104, 108, identical twins were observed by eyewitnesses sitting in a parked car. One of the twins got out of the car, crossed the street, and shot the victim. The assailant returned to the auto, and the two brothers left the scene. Both brothers were convicted of attempted murder. On appeal, their convictions were reversed because the State was unable to prove which one of the twin brothers shot the victim. Therefore, neither brother could be convicted as a principal. The court also found there was insufficient evidence to support a conviction under the theory of accountability. The court held that

“mere presence at the scene of a crime coupled with flight from the scene of a crime is insufficient to establish accountability.” Lopez, 72 Ill. App. 3d at 716-17, 391 N.E.2d at 108.

Moreover, an intruder would have had an opportunity to commit the crime. The State claims that the police found no signs of forced entry after they examined all the basement and first-floor windows. The record indicates, however, that the only window police checked for signs of forced entry was the broken basement window. In Officer Woodark’s initial report of September 10, 1988, he did not report that dust was on the broken ledge, and he reported that the method of entry into the house was through the broken basement window. Officer Baldwin testified that the windows in the basement utility room were unlocked and that there were other unlocked basement windows, some of which did not have screens. There is no evidence that Baldwin inspected any of those windows for signs of forced entry. FBI Agent Steven Kashirsky investigated the Dowaliby house on September 11, 1988. He found an unlocked basement window that looked toward the backyard and an open window in the basement laundry room. Kashirsky testified that he easily opened one of the unlocked windows.

Under the circumstances, we conclude that the State’s contention that the record is sufficient to support David’s conviction because he had the opportunity to commit the crime is untenable. There clearly were others who had the opportunity.

The State also argues that several of David’s statements to the police prior to and after the discovery of Jaclyn’s body are crucial admissions of David’s guilt. The State refers to statements reportedly made by David under the following circumstances:

(1) David initially told law enforcement officials that he kissed Jaclyn good-night in the evening of September 9, 1988. David later told other investigating officers that he did not see her that night.
(2) During interrogation by law enforcement officials prior to the discovery of Jaclyn’s body, when David was asked if he could find Jaclyn, he responded: “[G]ive me two days, give me two weeks. I’ll follow the leads. I’ll find her.”
(3) During interrogation by law enforcement officials prior to the discovery of Jaclyn’s body, when David was asked if he knew where Jaclyn was, he responded: “I didn’t do it.”
(4) After being told by law enforcement officials that Jaclyn’s body had been found, David exclaimed, “In a field? *** Is she alive? *** You’re lying? *** I guess you think I ought to cry?” (Parenthetically, we note here that Jaclyn’s body was found in a thicket or brush rather than a field.)
(5) On the day before Jaclyn’s body was found, Colleen Jones-Godin spoke with David. After she gave her condolences, David responded by saying, “Yeah. It was really hard at first, but it gets easier day by day.”
(6) When Godin-Jones spoke to David on September 20, 1988, about the police search at the Dowaliby house, David responded by saying “Only in America. They told me that they ain’t got nothing on me.”

We conclude that when David’s statements are placed in the context of the investigation and given reasonable interpretations they cannot singularly or cumulatively be construed as admissions of guilt. We also conclude that the statements do not corroborate or give credence to any evidence linking David to the crime.

The State next argues that David was identified by Everett Mann as the person he saw at the location where Jaclyn’s body was found. Mann testified that at 2 a.m. on September 10, 1988, from 75 yards away, he saw a dark-colored car in the rear parking lot of the Islander Apartments near the location where Jaclyn’s body was later discovered. When the car’s headlights went on, Mann looked and saw a head inside the car near the front where the driver would sit. Mann stated that he saw the profile of a large nose. He was not sure whether the person was white or African-American.

On September 16, 1988, after being shown five front view and full-faced photographs, including one of David, Mann stated that David’s nose structure looked similar to the profile nose structure of the person he saw on September 10, 1988. We note that for some unexplained reason, David’s photo was 30% larger than the other photos in the array. On September 28, 1988, the police showed Mann photographs of the Dowalibys’ two vans, truck, and light-blue Malibu car. Mann told the police that the Malibu, not the two vans and truck, most resembled the car he saw on September 10, 1988. Although the Dowalibys’ Malibu was light blue and Mann described the car he saw on September 10, 1988, as dark-colored, Mann explained that a light blue car could have appeared dark because the lighting in the parking lot was not very good on September 10, 1988.

A conviction cannot be sustained on doubtful, vague, and unreliable identification testimony. (People v. Wehrwein (1989), 190 Ill. App. 3d 35, 39, 545 N.E.2d 1005, 1008; People v. Ash (1984), 102 Ill. 2d 485, 494, 468 N.E.2d 1152, 1157.) At best, Mann’s identification was a vague identification of a nose profile. Mann, however, was never shown a profile photo of David, but only a frontal and full-faced view. Moreover, Mann never identified David or his nose in court. Mann was unable to state whether the man in the car was white or African-American, young or old, had or did not have a mustache, was bald or had a full head of hair, or wore glasses, or had other identifying characteristics. We, therefore, conclude that Mann’s identification testimony was doubtful, vague, unreliable and of no probative value.

The State also maintains that the series of phone calls on September 10, 1988, were indicative of defendant’s attempts to mislead the police regarding Jaclyn’s disappearance. However, we believe the phone calls could have been reasonable actions on the part of the parents.

Although there are many unanswered questions, after viewing the evidence in a light most favorable to the State, we conclude that the totality of the evidence is not sufficient to prove David guilty of Jaclyn’s murder or concealment of a homicide. The State failed to introduce sufficient evidence to directly or indirectly link David with Jaclyn’s murder. It did not prove that David was the only person who had the opportunity to murder Jaclyn. Either Cynthia or Anna could have murdered Jaclyn without David’s knowledge, or an intruder could have entered the house on the evening of Jaclyn’s disappearance and murdered Jaclyn. Moreover, the State’s only identification testimony was doubtful, vague and unreliable, and cannot reasonably be expected to link David with the crime. In addition, the various statements made by David, giving them their most sinister cast, do not provide the kind of evidence upon which a conviction may be based.

We note that the probative evidence against David is no greater than the probative evidence against codefendant Cynthia. The trial court determined that there was insufficient evidence to convict Cynthia, and directed a verdict in her favor at the close of the evidence. We conclude that the trial court erred in denying David’s motion for a directed verdict which was also heard at the close of the evidence.

Accordingly, David Dowaliby’s convictions of first degree murder and concealment of a homicide are reversed because as a matter of law the evidence was not sufficient to find him guilty beyond a reasonable doubt.

Reversed.

RIZZI AND GREIMAN, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE ex rel. MARGARET (MURCH) STOKELY, Plaintiff-Appellee, v. WILLIAM H. GOODENOW, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0393
    Opinion filed November 27, 1991.

      William H. Goodenow, of Rockford, appellant pro se.

    Thomas J. Difanis, State’s Attorney, of Urbana (Thomas P. Sweeney, Assistant State’s Attorney, of counsel), for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

This is a pro se appeal by the defendant William H. Goodenow from an order of the circuit court of Champaign County modifying a previous order for payment of child support. The Illinois Department of Public Aid on behalf of Margaret Murch, now known as Stokely, plaintiff, mother of Rose Stokely, born February 28, 1983, filed the petition. Defendant had previously been adjudicated the father of Rose, and the determination was affirmed by this court. (People ex rel. Murch v. Goodenow (1984), 125 Ill. App. 3d 1176 (unpublished order under Supreme Court Rule 23).) The primary issue presented for review by this appeal is whether the modification order resulted from an abuse of discretion by the trial court. Defendant contends the trial court erred by ordering him to pay child support of $205, to be paid semimonthly, by finding an arrearage of $1,755, and by directing payment to be withheld from defendant’s paycheck.

The petition to increase child support was filed on November 13, 1990. The petition indicated the previous order of May 6, 1985, set child support payments at $40 per week. Also filed on November 13, 1990, was a copy of a “Notice to Appear and Request to Produce” pursuant to Supreme Court Rule 237(b) (134 Ill. 2d R. 237(b)) sent to defendant indicating a hearing was scheduled for Monday, December 3, 1990, at 3 p.m. in courtroom “G,” Traffic Court Building, in Urbana, Illinois. At the bottom of the notice, the addressee was warned that failure to appear may result in an order of default or issuance of body attachment for his arrest. Defendant failed to appear and body attachment issued with bond set at $2,000. On January 11, 1991, the attachment order was filed showing service by the Winnebago County sheriff’s department on January 10, 1991, that defendant had “Bonded out,” and indicating “court date — 1/30/91 ‘F’ ” at 1:30 p.m. On that date, defendant’s attorney filed an appearance, and the cause was continued until further order. On March 14, 1991, plaintiff again filed a copy of a Rule 237 notice addressed to defendant in care of his attorney and setting a hearing on April 11, 1991, at 10:30 a.m. The docket entry of April 11, 1991, shows plaintiff appeared by attorney, but there was no appearance by defendant. On the court’s motion, the cause was set for hearing on May 6, 1991, at 11:30 a.m. with plaintiff to give notice. On April 19, 1991, plaintiff sent defendant a notice and, on April 24, 1991, an amended notice. The hearing was finally conducted on May 6, 1991.

At the hearing, defendant testified he is an associate professor at Rock Valley College. He receives paychecks amounting to $2,496 per month for nine months of the year and he is paid on a bimonthly basis. Child support payments are not deducted from his paycheck. There were, however, deductions of $1,210 during 1990 as payment to a credit union for an automobile loan and $300 as a contribution to “United Fund.” The only other deductions are for taxes and retirement. His pay stub for the pay period ending December 31, 1990, indicates a year-to-date gross pay of $35,156.30, including $2,812.83 withheld for retirement, $6,244.31 for Federal income tax, $944.23 for State income tax, and $509.79 for social security. Defendant’s 1989 Federal income tax return also shows an application for a refund of $1,380.91. On occasion, defendant has had some projects on which he has worked over the summer. During the nine months he is paid, he saves enough to cover anticipated living expenses of $600 per month for the months of June, July, and August.

Defendant’s financial affidavit indicates he owns assets with a total value of $15,630, including a $5,780 bank account. His liabilities include $4,825 for a car loan, $623 for Mastercard, $310 for Discover Card, $3,500 to William Groenier, and $1,500 to the estate of Alvin Hurst. According to his affidavit, defendant’s monthly debt payment is $487, which includes the $220 deducted from his paycheck for the car loan. He pays $40 per week for child support, and he has additional monthly living expenses for rent ($380), food and cleaning ($320), gas and electric ($55), transportation ($80), clothes (purchase and dry cleaning) ($31), insurance ($35), medical ($66), telephone and postage ($94), professional journals and books ($46), business travel ($55), photography equipment and supplies ($56), entertainment ($108), and gifts ($32).

In paternity actions, the modification of child support orders is governed by section 510 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1989, ch. 40, par. 510). (Ill. Rev. Stat. 1989, ch. 40, par. 2516.) Under section 510 of the Act, modification of child support may be made upon a showing of a substantial change of circumstances as indicated by an examination of the circumstances of the child and the parents. An increase in the child’s needs can be presumed on the basis that the child has grown older and the cost of living has risen. This increase in the child’s needs is balanced against the relative abilities of the parents to provide for those needs.

Once the threshold question of substantial change in circumstances is met, the same factors are considered in setting the amount of modified child support as were considered in formulating the original amount. (Fedun v. Kuczek (1987), 155 Ill. App. 3d 798, 508 N.E.2d 531.) Neither defendant’s appellant brief nor reply brief contests the trial court’s determination of a substantial change in circumstances. Therefore, we conclude the trial court did not err in finding a substantial change in circumstance. At the 1985 hearing, the trial court set the support at $40 per week although defendant’s gross wages were $30,000, less withholding, $5,948; FICA, $2,115.12; and State income tax, $724.08, leaving a net income of more than $22,000. Applying the guideline percentage would have meant a support payment substantially more than $40. At that hearing, the trial court indicated the mother was healthy, able to work, and should also provide financial assistance in support of the child. Without in any way suggesting that such a reason is an appropriate basis for deviating from the statutory child-support guideline, the trial court did not in the instant case consider the mother’s failure to work a factor in determining the amount of support to be paid by defendant. A previous special finding made in a support order which varies from the guideline and which is no longer found to be a factor is a proper consideration in determining a substantial change in circumstances.

The guideline amount for child support for one child is 20% of the supporting parent’s net income. (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(1).) Net income means all income less Federal and State income taxes, social security payments, mandatory retirement contributions, union dues, health insurance premiums, prior obligations for support and maintenance, expenditures to repay debts incurred as reasonable and necessary for the production of income, medical expenses necessary to preserve life and health, and reasonable expenditures for the benefit of the child and the other parent, exclusive of gifts. (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(3).) This guideline must be applied unless, after reviewing all relevant factors, a reason is found to deviate from the guideline. Among the relevant factors to be considered are the child’s financial resources, the financial resources and needs of the custodial parent, the standard of living the child would have enjoyed had the parents been married, the physical, emotional, and educational needs of the child, and the financial resources and needs of the noncustodial parent. Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(2).

Defendant does not argue that the $410-per-month support payments do not conform to the 20% guideline. Nor can he because calculation based on the year-to-date figures on defendant’s December 31, 1991, payroll stub shows compliance with the guideline. Additionally, there was an exhibit indicating a Federal tax refund for 1989, payable in 1990, was applied for.

Defendant argues that there were good reasons not to apply the guideline initially and that those reasons still exist. He contends that if his pay only increased 8% over the years, the child support should also increase only 8%. He further complains that the child’s mother is still unemployed and is not doing enough to contribute to the support of this child.

Even assuming defendant’s net income increased only 8% over the years between child support orders, we do not accept his conclusion that the modification of child support payments was an abuse of discretion. Defendant suggests the reason for the order setting child support payments at $40 per week in 1985, below the guideline, was because the trial court then believed the mother should be working and helping to support the child. The child’s mother’s public-aid status is not a reason to deprive the child of support from the noncustodial parent who certainly has the financial ability to meet the payments. There is nothing in this record which justifies deviation from the statutory guideline, and the trial court did not commit an abuse of discretion in ordering defendant to pay $205, bimonthly, as and for child support. Nor do we find that this award results from bias, prejudice or sexual discrimination against defendant, or from the current budget crisis of the State of Illinois.

Nor was it error for the trial court to issue an order of withholding to take effect immediately. Section 706.1(B) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 706.1(B)(1)) states in relevant part:

“Upon entry of any order for support on or after January 1, 1984, the court shall enter a separate order for withholding which shall not take effect unless the obligor becomes delinquent in paying the order for support or the obligor requests an earlier effective date; except that the court may require the order for withholding to take effect immediately.
On or after January 1, 1989, the court shall require the order for withholding to take effect immediately, unless a written agreement is reached between both parties providing for an alternative arrangement, approved by the court, which insures payment of support. In that case, the court shall enter the order for withholding which will not take effect unless the obligor becomes delinquent in paying the order for support.”

There was no alternative arrangement evidenced by a written agreement approved by the court. Therefore, the order of withholding was proper.

As to the calculation of the arrearage, defendant argued the arrearage based on the increase in child support from December 1, 1990, to the date of the hearing, May 6, 1991, should have been $1,301.67 instead of $1,755 because the trial court failed to take into consideration the payment of child support under the preexisting order during the same period. The plaintiff concedes there was an error in the calculation of the arrearage, indicating the trial court failed to consider the seizure of a Federal income tax refund, which was applied to support payments and for which credit was acknowledged on March 6, 1986. Since the parties agree, although for different reasons, that there was a miscalculation of the arrearage, the determination thereof will be reversed and the cause will be remanded for a recalculation of the arrearage. In doing so, however, we note the trial court did not commit an abuse of discretion in finding that the increase in payment for child support should begin December 1, 1990. Modification of child support payments can be had only as to those installments accruing subsequent to due notice by the moving party of the motion for modification. (Ill. Rev. Stat. 1989, ch. 40, par. 510(a).) On November 13, 1990, plaintiff sent defendant notice of a hearing scheduled for December 3, 1990. Defendant does not argue he did not receive notice, but only that he could not attend the December 3 hearing because of a blizzard and that the State was not ready to proceed then anyway as shown by the continuance of a subsequent hearing.

Routine delays in the judicial process do not alter the fact that the trial court has the discretion to make the modification retroactive to the time of giving due notice of the filing of the motion. (See In re Marriage of Geis (1987), 159 Ill. App. 3d 975, 512 N.E.2d 1354 (applying the prior law allowing retroactive application of the modification order to the date of filing the petition for modification).) We find no abuse of discretion here.

Finally, defendant argues that the trial court should not have issued a contempt of court citation for his failure to appear on December 3, 1990, and asks this court to order the circuit court to refund his $200 bond money. We find nothing in the record which indicates defendant was held in contempt of court for failure to appear. The body attachment directs defendant to appear to show cause why he should not be adjudged in contempt for failure to appear on December 3, 1990. Plaintiff now concedes defendant is entitled to get his bond money back or to have it applied to his support obligation. However, at this time, there is no order for this court to review. On remand, the defendant can move the court to dismiss the rule to show cause and to release the bond money.

For the foregoing reasons, the judgment of the circuit court of Champaign County is reversed as to the arrearage calculation and remanded for a recalculation. In all other respects, the judgment is affirmed.

Affirmed in part; reversed in part, and remanded with directions.

LUND, P.J., and KNECHT, J., concur.


author: PRESIDING JUSTICE LUND

text:
      In re R.S.L., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. R.S.L., a Minor, Respondent-Appellant).
    Fourth District
    No. 4 — 91—0231
    Opinion filed November 21, 1991.
    — Rehearing denied January 9, 1992.

      Kristen H. Fischer, of Champaign, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Following a dispositional hearing on March 21, 1991, under the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 1 et seq.), in the circuit court of Champaign County, respondent minor was placed on 12 months’ probation by the trial court for the offense of theft. (Ill. Rev. Stat. 1989, ch. 38, par. 16 — 1(a)(2)(A).) The respondent minor stipulated to the charge, and the court then made a finding that he was a delinquent minor. At the dispositional hearing, the State objected to the minor’s case being continued under supervision. The court then formally adjudicated the minor to be a ward of the court and placed him on probation because it believed the State’s objection to supervision precluded it from placing the respondent minor on supervision. During the dispositional hearing, the trial judge expressed his desire to place the minor on court supervision, regardless of the State’s Attorney’s objection. However, as noted, he did not find authority for doing so.

For purposes of this opinion, we are treating all mention of “on supervision” with an “order of continuance under supervision,” as provided by sections 5 — 19(1) and (2) of the Act (Ill. Rev. Stat. 1989, ch. 37, pars. 805-19(1), (2)).

On appeal, respondent first contends that supervision can be given after the adjudication of delinquency and issuance of an order making the minor a ward of the court, based upon sections 5 — 23 and 5 — 24 (probation provisions) of the Act (Ill. Rev. Stat. 1989, ch. 37, pars. 805 — 23, 805 — 24). Second, respondent contends the provision allowing the State’s Attorney to limit the power of the court is unconstitutional. Addressing the second contention first, we find the constitutionality of the provision has been upheld. In re T. W. (1984), 101 Ill. 2d 438, 463 N.E.2d703.

The constitutionality having been upheld, we hold that the trial court did not have the authority to grant respondent a continuance under supervision, as envisioned by sections 5 — 19(1) and (2) of the Act. The purpose of section 5 — 19 of the Act is to enable a court to place a minor under its control without an adjudication; thus providing an opportunity, upon successful completion of the controlled supervision, to dismiss the juvenile petition and proceedings; thus avoiding a negative finding. The limitation on the granting of a continuance under supervision by the State’s Attorney’s objection is absolute. The trial court’s determination was correct.

Affirmed.

STEIGMANN and KNECHT, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRUCE LEE McINTYRE, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0249
    Opinion filed November 27, 1991.

      Daniel D. Yuhas and Gloria Ann Morris, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Following a stipulated bench trial conducted in the circuit court of Macon County, defendant Bruce Lee McIntyre was found guilty of violating his bail bond on or about August 2, 1990. (Ill. Rev. Stat. 1989, ch. 38, par. 32 — 10.) Defendant had been admitted to bail on May 10, 1990, while charged with residential burglary (Macon County Case No. 90 — CF—326). He forfeited his bond by failing to appear in court on July 2, 1990, at 9:30 a.m. and he wilfully failed to surrender himself within 30 days thereafter. For the bail bond violation, he was sentenced to a term of imprisonment of three years to be served consecutively to the sentence imposed for residential burglary. Defendant was given credit for 75 days previously served.

In his appeal, defendant raises only one issue. He asks this court to determine whether, since the stipulated bench trial was tantamount to a guilty plea, the trial court failed to properly admonish him pursuant to Illinois Supreme Court Rule 402. (134 Ill. 2d R. 402.) Specifically, he contends the trial court did not tell him that he had a right to plead not guilty, or to persist in that plea, and further failed to determine if his decision to participate in a stipulated trial was voluntary. The State agrees the stipulated bench trial was tantamount to a guilty plea since only the issue of double jeopardy was preserved. (People v. Smith (1974), 59 Ill. 2d 236, 239, 319 N.E.2d 760, 762; see also People v. Horton (1991), 143 Ill. 2d 11, 22, 570 N.E.2d 320, 325.) However, the State contends the trial court substantially complied with Rule 402. Even though the parties concede a stipulated bench trial is tantamount to a guilty plea, it is not argued, nor do we find, that a motion equivalent to a motion to withdraw a guilty plea must first be presented to and considered in the trial court before this court has jurisdiction to address the issues arising from the stipulated bench trial. People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218; see 134 Ill. 2d R. 604(d).

It is not argued by defendant that the admonishments that were given are improper or misleading (see People v. Davis (1991), 145 Ill. 2d 240), but only that they are not sufficiently in compliance with Rule 402. Nor does defendant contend the stipulated facts are insufficient to support a finding of guilt beyond a reasonable doubt. Even more significantly, defendant does not contend the stipulation resulted from force, threats, or undisclosed promises.

Substantial, not literal, compliance with Rule 402 is all that is necessary. (People v. Krantz (1974), 58 Ill. 2d 187, 192, 317 N.E.2d 559, 562.) After defense counsel told the judge defendant was waiving a jury trial, the judge asked defendant if he heard that statement and whether he was willing to give up his right to a trial by jury. Defendant said yes. He was further asked:

“THE COURT: And do you understand what that means?
MR. McINTYRE: Yes, sir I do.
THE COURT: Do you have any questions?
MR. McINTYRE: No.
THE COURT: And are you willing to give up the right to a trial by the jury of your own free will?
MR. McINTYRE: Yes, sir.”

After so responding, defendant signed a written waiver of trial by jury in open court.

Thereafter, the judge explained the pending charge, and defendant stated he understood the allegation. The trial court also explained the possible fines, periods of incarceration, mandatory parole, the mandatory consecutive sentence, and the possibility of an extended term. Defendant said he understood. Defendant also said he understood the court’s admonishments about giving up the right to confront and cross-examine witnesses who might testify against him and the right to subpoena witnesses to testify on his behalf. When asked if he had any questions, the following discussion was had:

“MR. McINTYRE: Essentially what I am pleading is no contest, is that—
[DEFENSE ATTORNEY]: — Well, there isn’t a no contest plea, but we are not contesting the facts; do you understand that[?]
MR. McINTYRE: Yes.
THE COURT: Is that what you want to do?
MR. McINTYRE: Yes.
THE COURT: Do you have any questions?
MR. McINTYRE: No, Your Honor.
THE COURT: We will proceed then with the Bench Trial, and what are the facts in the case?”

After considering the stipulated facts and denying defendant’s motion to dismiss based on an argument of double jeopardy, the trial court found defendant guilty of the bail bond violation.

Defendant complains the trial court failed to admonish him “that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty.” (134 Ill. 2d R. 402(a)(3).) Defendant’s argument misses the subtle difference between a stipulated bench trial and a guilty plea. While a stipulated bench trial is, in many respects, similar to a guilty plea, in one very important respect they differ. Defendant did not plead guilty in this case, but instead persisted in his plea of not guilty and required the trial court to render a finding of guilty or not guilty on the facts which were not disputed. In fact, defense counsel specifically corrected the trial court, indicating defendant was not technically giving up his right to trial. Furthermore, after the assistant State’s Attorney related the facts to the trial court, defendant’s counsel stated, “We agree and stipulate that that evidence would be presented, Your Honor, and we don’t intend to present any evidence, Your Honor.” Defendant did not stipulate or concede that the facts related by the assistant State’s Attorney would be sufficient to warrant a finding of guilt beyond a reasonable doubt. In Horton, the stipulated bench trial was considered tantamount to a guilty plea where defendant stipulated to the “sufficiency” of the evidence. Since no such concession was made by defendant in this case, we do not agree with defendant and the State that the stipulated bench trial was tantamount to a guilty plea. Therefore, even though the trial judge did not advise defendant he had a right to plead guilty or persist in his plea of not guilty, such an admonition is unnecessary in this case. (Horton, 143 Ill. 2d at 22, 570 N.E.2d at 325.) The case of People v. Sutherland (1984), 128 Ill. App. 3d 415, 470 N.E.2d 1210, cited by defendant, is distinguishable because it involved a guilty plea rather than a stipulated bench trial.

Nor does the failure of the trial court to strictly comply with Rule 402(b), requiring the trial court to question defendant concerning any force, threats or undisclosed promises, necessitate that we reverse. Where a review of the record indicates defendant’s acquiescence in the stipulated bench trial was voluntary, the failure to inquire of force, threats and undisclosed promises may be deemed harmless. (See People v. Ellis (1974), 59 Ill. 2d 255, 256-57, 320 N.E.2d 15, 16.) Defendant said he was giving up the right to a jury trial of his own free will and that he wanted to proceed without contesting the facts. Under these circumstances, we conclude the defendant’s stipulation to the facts did not result from force, threats, or undisclosed promises. We find People v. Waldorf (1981), 94 Ill. App. 3d 976, 419 N.E.2d 428, cited by defendant distinguishable. There, the defendant filed a motion to vacate his guilty plea on the ground it was coerced. No such allegation is before this court.

Accordingly, the judgment of the circuit court of Macon County is affirmed.

Affirmed.

LUND, P.J., and STEIGMANN, J., concur.