author: JUSTICE HAASE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JUAN BOLAR, Defendant-Appellant.
    Third District
    No. 3—90—0867
    Opinion filed May 22, 1992.

      Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.
    William Herzog, State’s Attorney, of Kankakee, and Robert S. O’Shea, of Springfield (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

Following a bench trial the defendant, Juan Bolar, was convicted of unlawful possession of a controlled substance (Ill. Rev. Stat. 1989, ch. 56V2, par. 1402(b)). He was subsequently sentenced to a two-year term of imprisonment. He appeals, and we reverse.

The record shows that the defendant was convicted of possession based on his accountability for a codefendant’s possession of drugs. At trial, police officer Jeffery Powell testified that he was on surveillance in the area of 100 East Mulberry in Kankakee. At 11 p.m. he observed a car with two people in the front seat stop in the vicinity. The passenger, Anthony Hill, got out of the car and walked at a fast pace into a huge field. Hill was carrying a walkie-talkie in his left hand and was speaking into it. Powell also stated that Hill was carrying something in his right hand but he was unable to see what it was.

Powell testified that after Hill was about 30 to 50 feet away from him, he saw Hill bend down. He could not see Hill’s hands and did not see him set anything down or pick anything up. Hill then returned to the car and left. Powell radioed other police officers to stop the car.

The car, driven by the defendant, was stopped and the defendant and Hill were arrested. In searching the car, police officers found two sets of working walkie-talkies.

Powell searched the area where Hill had been and found a plastic bag partially hidden underneath an old stove. The parties stipulated that the bag contained cocaine and that no fingerprints were found on the bag. In addition, it was shown that the area had not been checked for drugs prior to Hill’s arrival.

On appeal, the defendant argues that he was not proven guilty beyond a reasonable doubt of possession of drugs based on an accountability theory. He bases this contention on two grounds. First, he argues that the evidence was insufficient to show that his codefendant possessed the drugs. Second, he argues that the evidence was insufficient to show that he had any plan to commit the offense or that he intended to promote or facilitate the commission of the offense. Since we agree with the defendant’s second contention, we need not address the issue of whether the evidence showed that his codefendant possessed the drugs.

Criminal responsibility may not be imposed simply through guilt by association, nor by the defendant’s mere presence at the scene, nor even by the defendant’s knowledge that the offense is being committed. (People v. Walker (1976), 44 Ill. App. 3d 494, 358 N.E.2d 672.) Rather, to convict a person of an offense on a theory of accountability, the State must prove beyond a reasonable doubt that: (1) the defendant solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense; (2) this participation took place either before or during the commission of the offense; and (3) the defendant had the concurrent, specific intent to promote or facilitate the commission of the offense. People v. Schlig (1983), 120 Ill. App. 3d 561, 458 N.E.2d 544.

A defendant’s accountability may be proven by circumstantial evidence. (People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520.) In reviewing cases involving only circumstantial evidence, the reviewing court will preserve the trier of fact’s role as a weigher of the evidence by viewing the evidence in the light most favorable to the prosecution. The relevant question is whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. See People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344.

Here, the evidence showed that the defendant was driving the car in which Hill rode to a lot on East Mulberry and that he had walkie-talkies in his car. Other evidence showed that Hill had a walkie-talkie in his hand and that the two men may have conversed while Hill walked across the lot. Finally, it was shown that the defendant drove away with Hill as a passenger after Hill returned from the lot.

Importantly, it was not shown that the defendant and Hill were anything but friends or acquaintances. Further, the bag of cocaine supposedly deposited by Hill was not a large one since Powell could not even see it in Hill’s hand. Thus, there was no showing that the defendant knew or had to have known that Hill was carrying contraband. Although Powell saw Hill talking into the walkie-talkie, he could not discern any words which linked the defendant to what Hill was doing. Nor was there a positive link between the defendant and the bag allegedly dumped by Hill, since neither the defendant’s nor Hill’s prints were on it. Then, too, neither the defendant nor Hill made any admissions linking themselves in any misconduct.

Based on the above, we find that the State failed to prove beyond a reasonable doubt that the defendant intended to promote or facilitate the commission of the alleged crime. We conclude that the evidence is insufficient to sustain the defendant’s conviction for unlawful possession on an accountability theory.

Our decision renders moot the defendant’s argument regarding his fine.

The judgment of the circuit court of Kankakee County is reversed.

Reversed.

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


source: Caselaw Access Project

author: JUSTICE McCUSKEY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JUAN BOLAR, Defendant-Appellant.
    Third District
    No. 3—91—0231
    Opinion filed June 2, 1992.

      Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.

      William Herzog, State’s Attorney, of Kankakee, and Robert S. O’Shea, of Springfield (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The trial court initially granted defendant Juan Bolar’s motion to suppress evidence seized by the police. The State appealed, and this court reversed the trial court’s decision. (People v. Bolar (1990), 205 Ill. App. 3d 597, 563 N.E.2d 1225) (Bolar I). On remand, the trial court convicted the defendant of unlawful possession of a controlled substance with the intent to deliver and unlawful possession of a controlled substance (Ill. Rev. Stat. 1989, ch. 56½, pars. 1401, 1402). Thereafter, the court sentenced him to an eight-year term of imprisonment for the possession with intent to deliver charge. No sentence was entered on the unlawful possession conviction. He appeals. We affirm the conviction for unlawful possession of a controlled substance with intent to deliver and vacate the conviction for unlawful possession. For reasons which follow, we remand for resentencing.

The record shows that at Bolar’s trial, Officer Robert Bodemer testified that on March 21, 1989, around 9 p.m., he observed a gray Pontiac with tinted front side windows traveling on Illinois Route 57. Since vehicles made after 1982 could not have tinted windows, he requested a computer check to determine the year of the car’s manufacture. The check revealed the car was a 1984 Pontiac registered to Rodney Wallace.

Officer Bodemer then stopped the vehicle. He noted two people sat in the front seat and one person sat in the back seat. The officer told the driver that his windows were illegal and asked to see his license. The driver did not have his license with him, but identified himself as Rodney Wallace.

Officer Bodemer further testified that the defendant sat in the front passenger seat. As Bodemer spoke to the driver, the defendant shifted in his seat and looked directly ahead. He then picked up some food scraps and placed them in a Kentucky Fried Chicken box.

After the officer issued a warning ticket to Wallace for illegal windows, he asked Wallace if he had any stolen property, weapons, or narcotics in his vehicle. The defendant leaned over and whispered something to Wallace. Wallace said he did not have any illegal items in his car and agreed to let the officer search his vehicle.

Officer Bodemer asked all three persons to exit the vehicle. Before exiting, the defendant placed the Kentucky Fried Chicken box in an open paper sack standing on the floorboard at his feet. Wallace then signed a consent form authorizing the search of his vehicle and its contents.

The officer took the chicken box out of the sack and noted inside it were chicken bones, food scraps, and paper. He also noted the sack contained a cheese ball canister, a lemonade mix canister, and a receipt. The receipt recorded the purchase of two cans at a price of $35.98 each from Jimmy’s Record and Variety Shop in Chicago. When he shook the cheese ball canister, it did not feel like it had cheese balls inside. The officer then opened the canister, removed some cheese balls, and saw an opaque plastic container in the bottom half of the can. Inside the container there appeared to be two white round objects.

When Office Bodemer walked over to the three occupants and asked them what was in the sack, the defendant said that it contained groceries. Bodemer then radioed for a canine unit to be sent to the scene and resumed the search. Under the back passenger seat the officer found a hand-rolled cigarette that smelled like cannabis.

After the police dog arrived, the dog indicated that narcotics were inside the cheese ball canister. Officer Bodemer unscrewed the bottom of the canister and saw two plastic baggies containing a white chunky substance. The lemonade mix canister also had a false bottom, but it was empty. Bodemer subsequently arrested Bolar. Another officer searched the defendant and found $1,294.99 in his pocket.

A forensic scientist testified one of the baggies contained 27.89 grams of a substance that was 94.8% cocaine. The other bag contained 27.65 grams of a substance which, according to preliminary tests, contained cocaine.

On appeal, the defendant first argues that he was not proven guilty beyond a reasonable doubt. Specifically, he contends the State failed to show that he had actual or constructive possession of the cocaine. The defendant states that in analyzing the evidence, this court must first begin by noting its prior decision in this case.

In Bolar I, we reversed the trial court’s suppression order, based upon our finding that the defendant lacked standing to challenge the search of the bag and the two canisters. The defendant acknowledges that a finding of a lack of standing is not equivalent to a finding of lack of possession. (See United States v. Salvucci (1980), 448 U.S. 83, 65 L. Ed. 2d 619, 100 S. Ct. 2547.) Nonetheless, he argues that our holding in Bolar I called into question the strength of the State’s case regarding possession. While we agree with the defendant that an analysis of one’s standing involves a consideration of a defendant’s possessory interest in the item searched, we disagree that our decision in Bolar I called into question the strength of the State’s case regarding possession.

Bolar I involved a question of whether the defendant’s fourth amendment rights were violated. In finding that his rights were not violated, this court noted:

“The uncontroverted evidence established that Wallace, the driver and owner of the vehicle, consented to a search of the car and its contents. The sack was open and standing in plain view. Moreover, the defendant did not assert a possessory interest in the sack or its contents.” (Bolar, 205 Ill. App. 3d at 599, 563 N.E.2d at 1227.)

Consequently, we found in Bolar I that the defendant did not have a legitimate expectation of privacy in the sack and therefore lacked standing to challenge the search.

Contrary to the defendant’s contention on appeal, our analysis in Bolar I involved possession only as it related to his rights under the fourth amendment. It did not involve an analysis of the strength of the State’s case regarding his possession of the cocaine. We now turn to the evidence in the instant appeal to determine whether it is sufficient to support the trial court’s finding that the defendant was guilty beyond a reasonable doubt of the elements of possession.

To support a conviction for unlawful possession of a controlled substance, the State must prove that the defendant had knowledge of the substance and that it was under his immediate and exclusive control. (People v. Strong (1986), 151 Ill. App. 3d 28, 502 N.E.2d 744.) However, the defendant’s possession of a controlled substance may also be constructive. Additionally, the rule that possession must be exclusive does not mean that possession may not be joint. (People v. Burke (1985), 136 Ill. App. 3d 593, 483 N.E.2d 674.) Constructive possession of a controlled substance exists without the defendant’s actual personal present dominion over the controlled substance when the defendant has the intent and capability to maintain control and dominion over it. People v. Scott (1987), 152 Ill. App. 3d 868, 505 N.E.2d 42.

When presented with a challenge to the sufficiency of the evidence, the relevant question is whether, when reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. (Pceople v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267; People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344.) Proof beyond a reasonable doubt does not require the exclusion of every possible doubt. When the entire chain of circumstances leads to a reasonable certainty that the accused committed the crime, the judgment must be upheld. People v. Stepteau (1986), 142 Ill. App. 3d 400, 491 N.E.2d 821.

Based upon our review of the evidence, we conclude that a rational trier of fact could have found the defendant guilty as charged. The State presented sufficient evidence establishing the defendant’s possession of the cocaine. The record shows the sack was between the defendant’s feet and that he placed his dinner refuse in the sack. In addition, we note that it was the defendant who responded to the officer’s inquiry concerning the sack’s contents. We need not discuss the intent to deliver element since the defendant is not contesting it.

The defendant next argues that this court should vacate his conviction for possession of a controlled substance. He contends, and the State agrees, that under People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1, it is error to permit a bare conviction to stand in a “one act, one crime” situation. It is well-settled law that multiple convictions based upon the same physical act cannot stand. (People v. Ellis (1986), 143 Ill. App. 3d 892, 493 N.E.2d 739.) Because we have now affirmed the defendant’s conviction for unlawful possession of a controlled substance with intent to deliver, we must, under the “one act, one crime” rule, vacate the defendant’s conviction for unlawful possession of a controlled substance.

The defendant next argues that this cause should be remanded for resentencing in the event we reverse the defendant’s prior conviction in a companion case because the trial court relied on that conviction in sentencing him to an eight-year term of imprisonment. (People v. Bolar (1992), 229 Ill. App. 3d 560.) (Bolar II). The State agrees that a conviction overturned on appeal cannot be considered as a factor in sentencing.

In the instant appeal, the record shows that the trial court in the case at hand did in fact consider the defendant’s prior conviction. We further note the defendant’s prior conviction was reversed in Bolar II, which was decided May 22, 1992 (229 Ill. App. 3d 560). Our holding in Bolar II now requires us to remand this cause for resentencing. See People v. Burnside (1991), 212 Ill. App. 3d 605, 571 N.E.2d 487.

Finally, the defendant argues that remandment is also necessary for a calculation and clarification of his time credit and fine credit. The State does not disagree. We find the trial court to be in the best position to determine what credits the defendant is entitled to. We agree with both parties that remandment for such calculations is necessary. Accordingly, on remand, the trial court is directed to calculate the defendant’s time credit against his sentence and also to calculate his monetary credit against his street-value fine.

The judgment of the circuit court of Kankakee County is affirmed in part, vacated in part, and remanded for proceedings consistent with our decision.

Affirmed in part; vacated in part and remanded.

HAASE and STOUDER, JJ., concur.


author: JUSTICE WOODWARD

text:
      In re J.K., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. J.K., Respondent-Appellant).
    Second District
    No. 2—90—0780
    Opinion filed June 12, 1992.
    Rehearing denied July 7, 1992.

      G. Joseph Weller and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Respondent, J.K., appeals the order of the circuit court committing him to the Department of Corrections. He contends that the trial court erred when it directed the State to file a petition to revoke his probation and that the trial court abused its discretion when it sentenced him to the Department of Corrections when there were less restrictive alternatives available.

These proceedings commenced when respondent’s parents brought him to the Du Page sheriff’s office to discuss the burglaries he committed; he had bragged about his misdeeds. The State filed a petition to adjudicate him a delinquent minor. He was initially detained in the youth home for 15 days. At the adjudicatory hearing on July 17, 1989, the day before his fourteenth birthday, he admitted to two counts of residential burglary and a count of theft. He remained at the youth home prior to the dispositional hearing. A psychological evaluation stated he had a severe antisocial personality formation; the interviewer recommended direct and intensive intervention. The Department of Probation and Court Services determined he had serious problems but deserved a chance to try to change.

At the dispositional hearing, on August 4, the State recommended residential placement. The court noted that burglary was a serious charge but that respondent had not previously been in the juvenile court system. The court placed respondent on two years’ probation with residential placement to be reviewed every six months. The court ordered that respondent make restitution at the rate of 50% of his earnings at the program because the court thought it to be the best solution for respondent and for society. The court stated that if respondent did well, it would relax the restrictions and possibly release him to a home detention. The court warned him that the alternative to residential placement when more security is needed is a detention at the Department of Corrections. The court did not believe respondent should be sent there and hoped such a day would never arrive.

On February 1, 1990, the probation officer reported that respondent was doing fine and that residential placement was appropriate for him. She considered moving him to the extended-day program. He was doing well despite the disruption a change in personnel had caused. The two months he spent in the youth home had made a lasting impression on him.

On March 30, the State filed supplemental petition No. I, a petition for a rule to show cause why respondent should not be held in contempt of court for violating the rules of probation. The State alleged respondent punched a chair and yelled at an extended-day staff member. Respondent admitted the petition, and the court found him in contempt. He was sentenced to 10 days’ detention in the Du Page County Youth Home. The court stated that, from all the reports, respondent had been making a good effort and was doing well. For this reason, he had been made one of the pioneers at the extended-day program. However, the court warned him to maintain appropriate behavior as the court did not want to be asked to send him to a more restrictive program.

On May 29, 1990, the State filed supplemental petition No. II, a second petition for a rule to show cause. The State alleged that respondent violated the terms of his probation when he was terminated from the extended-day program for undermining the program and for not dealing directly with his problems. Respondent admitted that he had been terminated but that he was confused by the program. The probation officer explained that respondent had been given a second chance to prove that he could stay at the program but he failed his 30-day trial period for various acts such as threatening another person. The staff thought he was not owning up to his problems. The State sought a 30-day detention as a sanction for respondent’s behavior, after which he would reapply for the extended-day program. The trial court entered the 30-day sanction and continued the cause for the probation officer to make a recommendation for continued placement in the extended-day program or any alternative. The court then stated that, at the original dispositional hearing, it gave serious consideration to a commitment to the Department of Corrections, but decided residential placement was the better alternative; it also stated that later it allowed the extended-day program as a relaxation of that placement.

On June 21, the cause came before the court for a new dispositional hearing. The court noted there was no new petition before it. The court stated:

"I’m not going to proceed on the disposition this morning. I’m now directing the State’s Attorney’s Office to file what I presume will be Supplemental No. Ill, a Petition to Revoke.
I believe at least one substantive paragraph will be the termination from the Aura Extended Day program. The matter warrants consideration on that basis.”

On the State’s request, the parties then went off the record for a moment. When they returned, the court repeated that "I’ll have your office file the Petition to Revoke as promptly as may be.” The court asked respondent’s counsel only if he had any objection to the seven-day time frame, and counsel complained that he might not have enough time to get the petition, discuss it and do discovery before the hearing. When respondent’s mother expressed confusion over the delay and the procedure, the court explained that respondent’s failure to satisfy the program was serious and the court had to consider a placement with the Department of Corrections. The court stated that because it was uncertain whether it could make such an order without a petition to revoke probation, it “ordered” the State’s Attorney’s office to file the petition.

On June 26, 1990, the State filed supplemental petition No. Ill, a petition to revoke probation, in which it alleged that respondent willfully and contumaciously was suspended from the extended-day program on May 3, 1990, and was unsatisfactorily terminated from the program on May 22, 1990. Respondent admitted that he was suspended and terminated.

Respondent also expressed that he was confused about what was happening in court. While in the extended-day program, he was told he was doing well before he was suspended. He was told to express his feelings, and when he told a staff member that sometimes he felt like wringing her skinny little neck, he was rebuked. He was removed from the previous residential program because he was doing well, not poorly. The probation officer was discussing placing him at three different residential programs. Respondent could not understand why he was being considered for the Department of Corrections when he was trying so hard and had really changed.

The State recommended commitment to the Department of Corrections. The trial court noted the unusual number of reports filed in the cause and stated it had read and reread every one. The records contained mainly vague references in psychological jargon to his behavior or alleged lack of cooperation; however, there were also a few concrete examples of instances where respondent took a cassette tape, mimicked gang symbols, refused to attend school, intimidated other students, committed horseplay, broke pencils during class and failed to complete a math assignment. The court stated that it was ruling out the possibility of residential placement because there was insufficient evidence that the effort would succeed. Respondent had been terminated because of his conduct, not his misunderstanding of the program. Respondent was not emotionally capable of being released to a home placement or similar program. The court saw no other alternative to the Department of Corrections and revoked his probation. Respondent appeals.

Respondent first argues that the trial court improperly ordered the State to file the petition to revoke probation. Although respondent’s trial counsel failed to object to the order, respondent asks us to consider the matter as one of plain error or of the ineffective assistance of trial counsel, who failed to object. Respondent argues that he was denied a fair dispositional hearing and denied substantial rights because the commitment to the Department of Corrections is for an indefinite term. Ill. Rev. Stat. 1989, eh. 37, par. 805 — 33(b).

The plain error doctrine permits courts of review to take notice of plain errors and defects affecting substantial rights in instances where the evidence is closely balanced or where the error affected the fundamental fairness of the proceeding. (People v. Hope (1990), 137 Ill. 2d 430, 475.) Respondent claims that the trial court’s initiation of the revocation proceedings placed it in the role of the prosecutor and destroyed its ability to remain objective and impartial. Where the court sets into motion a revocation proceeding, it should not rule on the proceeding because it is impossible to be impartial. (People v. Pifer (1979), 80 Ill. App. 3d 24, 27.) The duty of impartiality applies to revocation of probation proceedings. (People v. Bullard (1977), 52 Ill. App. 3d 712, 717.) Respondents in juvenile proceedings are entitled to the due process of law. (In re S.R.H. (1983), 96 Ill. 2d 138, 144; In re J.C. (1987), 163 Ill. App. 3d 877, 891.) Because a defendant has a right to an impartial tribunal and the court has a duty to avoid the appearance of impropriety, the waiver rule may be relaxed. People v. Austin (1983), 116 Ill. App. 3d 95, 101.

We first note that the circuit court could not revoke probation without a petition to revoke probation being filed. (In re R.R. (1978), 64 Ill. App. 3d 818, 819; see In re D.P. (1988), 165 Ill. App. 3d 346, 347-48.) A court is without authority to revoke a minor’s probation when there is no timely filed petition. (R.R., 64 Ill. App. 3d at 819.) Section 5 — 25 of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1989, ch. 37, par. 805 — 25) authorizes the court to revoke probation if a petition is filed. The order of a court exceeding its authority is void. (People v. Wade (1987), 116 Ill. 2d 1, 5-7; In re J.S.L. (1990), 197 Ill. App. 3d 148, 152-54.) Thus, the circuit court was correct when it stated that it could not revoke probation or commit respondent to the Department of Corrections before the State filed a petition to revoke probation.

However, the trial court had no authority to order the State’s Attorney’s office to file the petition to revoke. Besides violating impartiality (Pifer, 80 Ill. App. 3d at 27), the court’s directive violated the principle of separation of powers between the executive and judicial branches of the government (People v. Dinger (1988), 177 Ill. App. 3d 174, 176, aff’d in part (1990), 136 Ill. 2d 248, 254-55). Only the prosecutor may initiate the proceeding. (136 Ill. 2d at 255-56; see Ill. Rev. Stat. 1989, ch. 34, par. 3 — 9001 (powers of State’s Attorney).) The trial judge cannot assume the role of the prosecutor and determine which criminal offenses shall be charged, and the court has no authority to direct that the charging instrument be filed. People ex rel. Daley v. Moran (1983), 94 Ill. 2d 41, 46.

The State cites People v. Jimenez (1989), 191 Ill. App. 3d 13, 27, as an example where the trial court ordered charges be filed against a defendant. However, in Jimenez, an incident occurred off the record which caused the trial judge to order the prosecutors to file charges. The appellate court affirmed the denial of the defendant’s motion for substitution of judges. The court could not allow a defendant to obtain a substitution based on an incident created by his own misconduct because such a rule would provoke intentional misconduct. By contrast, respondent committed no act against his trial judge. There was no countervailing public policy dictating that respondent should not obtain a substitution of judges.

Thus, the trial court committed plain error of constitutional proportions when it ordered that the State file a petition to revoke probation. The court’s position affected the fundamental fairness of the proceeding. The error was prejudicial because respondent could not have been committed to the Department of Corrections without the filing of the petition. Prior to the hearing, the assistant State’s Attorney had stated that the proposed disposition would be a reapplication to the extended-day program or a different program of residential placement. The parties and witnesses were ready for a disposition based on the pleadings then before the court. Not until the trial court continued the proceedings and directed the State to file the petition did the State request commitment. The other placement alternatives, mentioned by respondent, were no longer discussed, and the trial court did not consider them. See Ill. Rev. Stat. 1989, ch. 37, par. 805-29; In re B.S. (1989), 192 Ill. App. 3d 886, 891.

While the adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his own initiative, at appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial (ABA Standards Relating to Criminal Justice, the Function of the Trial Judge §l.l(a) (1974)), the record shows the judge went beyond the suggestion of a procedure which he deemed expeditious when he ordered the prosecutor to do something beyond the judge’s control. We recognize that trial judges often increase the fairness of trials and of the administration of justice by making suggestions to trial counsel. However, the trial court may not order discretionary acts by the prosecutor.

Because we determine that the trial court improperly ordered the State to file the petition, we do not reach respondent’s second issue whether it abused its discretion in committing him to the Department of Corrections. In any event, because a further dispositional hearing must be conducted regarding supplemental petition No. II, we remand the cause for said hearing. Because of the nature of the error, the dis-positional hearing should be conducted before a different judge. See Austin, 116 Ill. App. 3d at 101.

For the above reasons, the order of the circuit court committing respondent to the Department of Corrections is vacated, and the cause is remanded for further proceedings.

Reversed and remanded.

UNVERZAGT and McLAREN, JJ., concur.


author: JUSTICE SLATER

text:
    BOUGHTON TRUCKING AND MATERIALS, INC., et al., Plaintiffs-Appellants, v. THE COUNTY OF WILL et al., Defendants-Appellees.
    Third District
    Nos. 3—91—0738, 3—91—0739 cons.
    Opinion filed May 29, 1992.
    Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet (Thomas R. Wilson, of counsel), for appellant Boughton Trucking and Materials, Inc.
    John A. Urban, Assistant State’s Attorney, of Joliet, for appellees County of Will, Board of Review of Will County, Richard Loading, Herman Olivo, Teresa Stinnett, and Norman Beaton.
    Michael Martin, of Dunn, Martin & Miller, of Joliet, for appellees Wheatland Town Road District and Andy Angelos.
    Michael J. Duggan, of Klein, Thorpe & Jenkins, Ltd., of Chicago (Nicholas Sakellariou and Richard Kavanagh, of counsel), for appellee Plainfield Community Consolidated School District No. 202.
   JUSTICE SLATER

delivered the opinion of the court:

These consolidated appeals present a single substantive issue: must a plaintiff exhaust his administrative remedies prior to filing a complaint in State court alleging Federal civil rights violations arising out of a purportedly unfair assessed valuation of real estate? We hold that exhaustion of remedies is required in cases of this nature and we affirm the dismissal of plaintiffs’ complaints.

Plaintiffs are taxpayers owning real estate in Wheatland Township, Will County, which is used in part for farming and in part for mining and quarrying. Plaintiffs’ complaints alleged that the defendants conspired to unlawfully increase the assessed valuation of plaintiffs’ land and certain other parcels of real estate used for mining and quarrying located in Wheatland Township while similar properties used for mining and quarrying in other townships within Will County were not reassessed. Plaintiffs alleged that defendants’ actions constituted an intentional deprivation of their civil rights (42 U.S.C. §§1983, 1985(3) (1982)) and violated plaintiffs’ right to equal protection of the law guaranteed by the fourteenth amendment. The trial court dismissed plaintiffs’ complaints for failure to allege exhaustion of administrative remedies, relying primarily on Fair Assessment in Real Estate Association, Inc. v. McNary (1981), 454 U.S. 100, 70 L. Ed. 2d 271, 102 S. Ct. 177, and this court’s decision in Raschke v. Blancher (1986), 141 Ill. App. 3d 813, 491 N.E.2d 1171.

Before discussing the merits of these appeals, we first address the defendants’ contention that plaintiffs’ appeals are untimely. The initial judgment dismissing plaintiffs’ complaints was entered on August 20, 1991. At that time, two of the named defendants (Andy Angelos and Wheatland Town Road District) had not filed motions to dismiss, nor had they entered their appearance in the case. Those defendants filed a joint motion to dismiss on September 4, 1991. The trial court’s order of September 4, 1991, stated that the August 20 order “dismissed both matters as to all defendants including the defendants now before this court.” The September 4 order further stated that the August 20 order “applied to the Defendants Andy Angelos and the Wheatland Town Road District as of August 20, 1991, the date of its entry.” Plaintiffs filed their notices of appeal on September 24, 1991. Defendants now argue that the August 20 order was a final order as to all defendants and therefore plaintiffs’ notices of appeal were not timely. We disagree.

A judgment disposing of the rights and liabilities of fewer than all the parties is not enforceable or appealable absent the express written finding required by Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a); St. Clair v. Sisters of the Third Order of St. Francis (1979), 72 Ill. App. 3d 421, 390 N.E.2d 966). Clearly, the August 20 order did not adjudicate the rights and liabilities of all the parties since no motion to dismiss had been filed by Andy Angelos or Wheatland Town Road District at that time. The August 20 order did not contain a Rule 304(a) finding and therefore was not immediately appealable. Although the September 4 dismissal order purported to relate back to the order of August 20, this was not a valid nunc pro tunc order.

A court may modify its judgment nunc pro tunc at any time to correct a clerical error or matter of form so that the record conforms to the judgment rendered by the court. (Beck v. Stepp (1991), 144 Ill. 2d 232, 579 N.E.2d 824.)

“The purpose of a nunc pro tunc order is to correct the record of judgment, not to alter the actual judgment of the court. A nunc pro tunc order may not be used to supply omitted judicial action, to correct judicial errors under the pretense of correcting clerical errors, or to cure a jurisdictional defect. [Citation.] Judgments may be modified nunc pro tunc only when the correcting order is based upon evidence such as a ‘note, memorandum or memorial paper remaining in the files or upon the records of the court.’ [Citation.] The evidence supporting a nunc pro tunc modification must clearly demonstrate that the order being modified fails to conform to the decree actually rendered by the court.” (Beck, 144 Ill. 2d at 238, 579 N.E.2d 827.)

It is clear from the record in this case that the August 20 order of dismissal did not apply to Andy Angelos and the Wheatland Town Road District since those defendants did not enter their appearance until August 22 and did not file a motion to dismiss until September 4. The order of September 4 did not correct or modify the August order to conform it to the judgment. There was, therefore, no appealable order until September 4 when all defendants were dismissed. The plaintiffs’ notices of appeal were timely filed.

Turning to the substantive issue presented by these cases, plaintiffs contend that exhaustion of administrative remedies is not required in a civil rights action brought pursuant to section 1983, citing Patsy v. Board of Regents (1982), 457 U.S. 496, 73 L. Ed. 2d 172, 102 S. Ct. 2557. Patsy held that exhaustion of State administrative remedies is not a prerequisite to a section 1983 claim brought in Federal court. As this court has previously held, however, the general rule of nonexhaustion set forth in Monroe v. Pape (1961), 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473, and McNeese v. Board of Education for School District 187 (1963), 373 U.S. 668, 10 L. Ed. 2d 622, 83 S. Ct. 1433, and reaffirmed in Patsy does not apply where the basis of the section 1983 claim is an allegedly unfair and improper reassessment of property. Raschke v. Blancher (1986), 141 Ill. App. 3d 813, 491 N.E.2d 1171.

In Raschke we examined the Supreme Court’s decision in Fair Assessment in Real Estate Association, Inc. v. McNary (1981), 454 U.S. 100, 70 L. Ed. 2d 271, 102 S. Ct. 177, in which the plaintiffs sought damages under section 1983 for alleged unconstitutional reassessment of their property. The majority opinion in McNary noted the two divergent lines of authority regarding access to Federal courts for adjudication of the constitutionality of State law. On one hand the Tax Injunction Act (28 U.S.C. §1341 (1982)) and the principle of comity bar Federal injunctive challenges to State tax laws. “On the other hand is the doctrine originating in Monroe v. Pape, supra, that comity does not apply where §1983 is involved, and that a litigant challenging the constitutionality of any state action may proceed directly to federal court.” (McNary, 454 U.S. at 105, 70 L. Ed. 2d at 276, 102 S. Ct. at 180.) The majority opinion held that despite Monroe and its progeny, taxpayers are barred by the principle of comity from asserting section 1983 actions in Federal courts. “Such taxpayers must seek protection of their federal rights by state remedies, provided of course that those remedies are plain, adequate, and complete, and may ultimately seek review of the state decisions in this Court.” McNary, 454 U.S. at 116, 70 L. Ed. 2d at 283, 102 S. Ct. at 186.

In a separate concurring opinion, four members of the Court did not agree that comity was a proper basis for refusing to allow the case to proceed in Federal court. The concurring justices also did not believe that the Tax Injunction Act evidenced a congressional intent to bar claims for damages under section 1983 in State tax cases. Instead, the four-member minority felt that the Tax Injunction Act was evidence of a congressional policy to defer the exercise of Federal jurisdiction until State administrative remedies had been exhausted. “Where administrative remedies are a precondition to suit for monetary relief in state court *** those remedies should be deemed a precondition to suit in federal court as well.” McNary, 454 U.S. at 137, 70 L. Ed. 2d at 296, 102 S. Ct. at 192 (Brennan, J., concurring, joined by Marshall, Stevens and O’Connor, JJ.).

Relying primarily on McNary, this court stated in Raschke:

“If section 1983 actions based on alleged unconstitutional reassessments such as those in the instant case may not be maintained in Federal courts, there is even more reason for requiring and applying our own principles of administrative and judicial review which have been held to be a ‘plain, speedy and efficient remedy’. Rosewell v. LaSalle National Bank (1981), 450 U.S. 503, 512, 67 L. Ed. 2d 464, 473, 101 S. Ct. 1221, 1228.” (Raschke, 141 Ill. App. 3d at 817, 491 N.E.2d at 1174.)

While we find that our decision in Raschke is dispositive of the issue presented by the consolidated appeals in this case, we briefly reexamine Raschke in light of subsequent developments.

Although not cited by the parties, we note that the Supreme Court has extended the nonexhaustion doctrine by holding, in essence, that exhaustion requirements may not be imposed on plaintiffs bringing section 1983 actions in State courts. (Felder v. Casey (1988), 487 U.S. 131, 101 L. Ed. 2d 123, 108 S. Ct. 2302.) In Felder the petitioner filed a section 1983 claim in a Wisconsin court alleging that he was beaten and arrested by police because of his race. Petitioner’s claim was dismissed for failure to comply with a notice-of-claim statute which required, inter alia, that a party filing suit against a State agency or officer must first submit a statement of the relief sought, after which the agency had 120 days to grant or deny the relief. The Supreme Court found that the notice-of-claim provision was preempted by Federal law because it conflicted with the remedial objectives of section 1983. Such a notice provision forces those filing civil rights claims in State court to comply with a requirement that is entirely absent from Federal litigation. Moreover, its enforcement would frequently and predictably produce different outcomes in section 1983 cases based solely on whether the claim was asserted in State or Federal court. The Court also noted that the Wisconsin statute imposed an exhaustion requirement on persons choosing to assert their Federal rights in State court. The Court rejected the argument that the nonexhaustion principle explained in Patsy did not apply to section 1983 actions brought in State courts. While States retain the authority to prescribe rules and procedures governing suits in their courts, “that authority does not extend so far as to permit States to place conditions on the vindication of a federal right” (Felder, 487 U.S. at 147, 101 L. Ed. 2d at 143, 108 S. Ct. at 2311). As the Court later pointed out, “the Supremacy Clause imposes on state courts a constitutional duty ‘to proceed in such manner that all the substantial rights of the parties under controlling federal law [are] protected.’ ” Felder, 487 U.S. at 151, 101 L. Ed. 2d at 146, 108 S. Ct. at 2313-14, quoting Garrett v. Moore-McCormack Co. (1942), 317 U.S. 239, 245, 87 L. Ed. 239, 244, 63 S. Ct. 246, 251.

We believe that our decision in Raschke remains undisturbed by Felder. The central tenet of Felder is that States may place no greater burden upon. section 1983 claimants than that imposed by Federal law. The Wisconsin notice-of-claim statute disapproved in Felder erected barriers that would not be faced by a person filing an identical claim in Federal court. The exhaustion requirement placed on the plaintiffs in the instant cases, however, is essentially the same precondition plaintiffs would have to fulfill before gaining access to a Federal court under McNary. While we recognize that the majority opinion in McNary was based upon the principle of comity, rather than exhaustion of administrative remedies, we agree with the Wisconsin Supreme Court that McNary indicates that the United States Supreme Court “is equally concerned that tax challenges be conducted according to state remedies as it is that they be conducted in a state forum” (emphasis added) (Hogan v. Musolf (1991), 163 Wis. 2d 1,18, 471 N.W.2d 216, 222). As the Hogan court explained:

“The Supreme Court’s primary interest in McNary was to avoid interference with state taxing practices by permitting states to have the opportunity to apply their remedies and procedures in tax matters before federal remedies are sought by a sec. 1983 action. *** It would be no less disruptive of the state’s internal economy and administrative tax procedures for a state court to act under sec. 1983 and suspend the usual tax collection and refund procedures of the state than it would be for a federal court to do so. In addition, regardless of which court interferes with the state’s fiscal operations, tax officials would be improperly denied the opportunity to rectify any alleged impropriety before being subject to a sec. 1983 action. Accordingly, we conclude that the policies which motivated the Court’s decision in McNary are equally applicable to sec. 1983 actions in state court.” Hogan, 163 Wis. 2d at 18, 471 N.W.2d at 222.

Accordingly, we reaffirm our decision in Raschke and find that the trial court properly dismissed plaintiffs’ complaints for failure to allege exhaustion of the “plain, speedy and efficient remedy” available to them. (Raschke, 141 Ill. App. 3d at 817, 491 N.E.2d at 1174.) We note that in addition to the supreme court of Wisconsin, the Oregon Supreme Court has reached a similar conclusion. Nutbrown v. Munn (1991), 311 Or. 328, 811 P.2d 131; see also Dean v. State (1992), 250 Kan. 417, 826 P.2d 1372 (taxpayers must exhaust administrative remedies before seeking recovery of motor vehicle taxes); Linderkamp v. Bismark School District No. 1 (N.D. 1986), 397 N.W.2d 76 (taxpayer may not bring a section 1983 action in State court to enjoin or suspend the assessment or collection of any tax under State law where an adequate State remedy is available).

For the reasons stated above, we affirm the judgment of the circuit court.

Affirmed.

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


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOUGLAS P. KEEFER, Defendant-Appellant.
    Third District
    No. 3—91—0161
    Opinion filed May 29, 1992.

      Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Gary L. Spencer, State’s Attorney, of Morrison (John X. Breslin and Gary E Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Douglas P. Keefer, was charged by information with aggravated battery and resisting a peace officer (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 4(bX6), 31 — 1). The trial court found the defendant guilty of both charges and imposed concurrent 2-year and 30-day sentences. The defendant appeals.

At trial, Officer Paul Lindow testified that on April 20, 1990, Keefer was brought to the police station following his arrest for driving under the influence of alcohol. At the police station, Lindow asked Keefer to go into an interview room. Keefer backed against the wall and told Lindow that he was not going to go any farther. Lindow informed Keefer that he was tired of Keefer giving him a hard time and warned Keefer that if he did not start cooperating, he would be charged with resisting arrest. Lindow then reached out to take Keefer by the elbow. Keefer pulled away, and the two men began wrestling. Despite the fact that Lindow had applied a full nelson hold on Keefer, Keefer was able to push Officer Lindow into the wall with enough force to put a hole in it. Keefer then broke free of Lindow by pulling back on his fingers. Once free, he began swinging at Lindow. At that time, two other officers arrived and helped take Keefer back to a jail cell.

Keefer testified on his own behalf that on the day in question, he was taken to the police station. Once there, he walked toward the interview room because there was a telephone in it he wanted to use. Officer Lindow grabbed him from behind and the two started struggling. Lindow did not say anything or make any demand of Keefer. During cross-examination, he admitted that because he was drunk at the time the incident occurred, he did not remember much of what happened until he read the police report.

The trial court found that Keefer knew Lindow was a police officer and that he still resisted him. Additionally, the court concluded that the defendant threw Lindow’s elbow against the wall and bent his fingers back. Accordingly, the trial court found the defendant guilty of both charges.

On appeal, the defendant contends that his conviction for resisting a peace officer should be vacated. Specifically, he contends that the conviction is barred by the principle of “one act, one crime.” That is, both convictions were based on the single act of struggling with Officer Lindow.

The State initially contends that this claim is waived. Alternatively, the State suggests that even if this claim has not been waived, it is ill-founded. In support of this contention, the State argues that the convictions stemmed from two separate acts.

We note that the defendant has waived any claim of error based upon the one-act-one-crime principle by failing to object at the sentencing hearing to the entry of judgment on both counts. (People v. Gray (1988), 171 Ill. App. 3d 860, 525 N.E.2d 1033.) This court, however, finds this to be an appropriate issue to address as plain error. See People v. Varela (1990), 194 Ill. App. 3d 357, 551 N.E.2d 318; People v. Jackson (1978), 64 Ill. App. 3d 159, 380 N.E.2d 1210.

It is well-settled law that multiple convictions based upon the same physical act cannot stand. (People v. Ellis (1986), 143 Ill. App. 3d 892, 493 N.E.2d 739.) Among the factors which courts are to consider when determining whether the defendant’s conduct constituted a single act or several separate acts are (1) the time interval between successive parts of the defendant’s conduct; (2) the existence of an intervening act or event; and (3) whether the conduct occurred at the same location. People v. Varela (1990), 194 Ill. App. 3d 357, 551 N.E.2d 318.

In the instant case, the information charged the defendant with committing aggravated battery by knowingly making “physical contact of an insulting or provoking nature with Officer Paul Lindow in that he grabbed and bent Officer Lindow’s fingers, grabbed Officer Lindow around the neck, and slammed Officer Lindow against a wall.” The resisting a peace officer charge was based on the fact that the defendant “resisted and struggled” with Lindow.

It is abundantly clear in this case that the struggle upon which the resisting a peace officer charge was premised was precisely the same struggle in which the defendant bent Officer Lindow’s fingers and slammed him against the wall. There was no stoppage and resumption of the struggle which would indicate that two separate struggles occurred. Nor was there evidence of any intervening act occurring between parts of the struggle. Accordingly, we find that the struggle constituted a single act. We therefore vacate the resisting a peace officer charge.

The judgment of the circuit court of Whiteside County convicting the defendant of resisting a peace officer is vacated (30-day sentence). The remainder of the court’s judgment is affirmed.

Vacated in part; affirmed in part.

BARRY, P.J., and McCUSKEY, J., concur,


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER MAKOWSKI, Defendant-Appellant.
    Second District
    No. 2—90—0579
    Opinion filed May 22, 1992.
    Rehearing denied June 25, 1992.
   The above-captioned opinion, filed May 22, 1992, was withdawn June 25,1992.


text:
    DOLORES D. PERINO et al., Plaintiffs-Appellants, v. KRISTINE ELDERT et al., Defendants-Appellees.
    Third District
    No. 3—91—0651
    Opinion filed May 22, 1992.

      Robert D. Gaubas, of Robert D. Gaubas, Ltd., of Peoria, for appellants.
    Jonathon T. Schlake and Bill Butts, both of Bill Butts Barrister, Ltd., of Galesburg, for appellees.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiffs, Dolores D. Perino and Wallace E. Prince, filed a complaint against the defendants, Kristine Eldert and the estate of Bernice Guardalabene, seeking to enforce the provisions of the 1961 joint will of Bernice Guardalabene. The trial court granted the defendants’ motion for summary judgment. The plaintiffs appeal. We affirm.

Bernice and C.L. Prince were married in 1944. In 1961, the two jointly executed a will whereby they left all of their property to each other and with a further provision that the surviving testator shall give his or her entire estate to C.L. Prince’s children from a former marriage: Dolores D. Perino and Wallace E. Prince.

C.L. died in 1964. His property then passed to Bernice. Sometime in 1965, Bernice married Edward Guardalabene. In 1982, Edward died.

In 1988, Bernice executed a new will leaving her property to her nieces and nephews and naming Kristine Eldert as executrix. After Bernice’s death in 1990, Kristine presented the 1988 will for probate and it was admitted. Plaintiffs Perino and Prince subsequently petitioned in probate to substitute the 1961 will on the theory that the latter will was a joint and mutual will which became irrevocable upon the death of the first testator, C.L. Prince. The trial court dismissed the petition and this court affirmed on appeal, finding that the probate court was not the proper forum for the plaintiffs to raise a claim about a contract not to revoke the 1961 will. Perino v. Eldert (1991), 217 Ill. App. 3d 582, 577 N.E.2d 807.

Thereafter, the plaintiffs filed a two-count complaint in the chancery court of Knox County seeking enforcement of the 1961 will and an injunction preventing the distribution of Bernice’s property under the terms of the 1988 will.

The trial court granted the defendants’ motion for summary judgment. In so doing, the court found that the 1961 will was not a joint and mutual will and, therefore, did not create a contract between C.L. and Bernice not to revoke the will.

On appeal, the plaintiffs argue that the 1961 will was a joint and mutual will which became irrevocable upon C.L.’s death in 1964. A party asserting that a particular will is a joint and mutual will has the burden of establishing that by clear and convincing evidence. In re Estate of Signore (1986), 149 Ill. App. 3d 904, 501 N.E .2d 282.

The contract embodied in a joint and mutual will becomes irrevocable after the death of one of the testators. (In re Estate of Edwards (1954), 3 Ill. 2d 116, 120 N.E.2d 10.) In the past, Illinois case law provided that a joint will of a husband and wife created a presumption that such a will was executed pursuant to a contract between the testators not to revoke the will. (Frazier v. Patterson (1909), 243 Ill. 80, 90 N.E. 216.) However, this presumption has been eroded. (See In re Estate of Schwebel (1985), 133 Ill. App. 3d 777, 479 N.E.2d 500.) More recently, courts have been reluctant to permit the fact of joint execution between husband and wife to be conclusive and have looked to the provisions of the will itself and to other proof to adduce the testators’ intentions. (In re Estate of Edwards (1954), 3 Ill. 2d 116, 120 N.E.2d 10; Bonczkowski v. Kucharski (1958), 13 Ill. 2d 443, 150 N.E.2d 144; King v. Travis (1988), 170 Ill. App. 3d 1036, 524 N.E.2d 974.) Accordingly, we will look to the document itself to determine the testators’ intentions.

There are five common characteristics of a “joint and mutual will” that have been repeatedly recognized by Illinois courts. (Rauch v. Rauch (1983), 112 Ill. App. 3d 198, 445 N.E.2d 77; In re Estate of Schwebel (1985), 133 Ill. App. 3d 777, 479 N.E.2d 500.) Those characteristics are: (1) the label the testators have assigned to the will— whether they refer to it as a joint and mutual will; (2) the use by the testators of common plural terms such as “we” and “our”; (3) the pooling of the testators’ interests into one joint fund whether previously owned jointly, in common, or severally; (4) reciprocal provisions in the will — whether the testators made a disposition of the entire estate in favor of the survivor of them; and (5) a common dispositive scheme under which the parties dispose of the common fund by bequeathing it to their heirs in approximately equal shares. In re Estate of Kaplan (1991), 219 Ill. App. 3d 448, 579 N.E.2d 963.

Examining the above-mentioned characteristics, we note that the testators labeled their will “LAST WILL AND TESTAMENT” and in the first paragraph stated that “[w]e *** declare this to be jointly as well as severally, our Last Will and Testament.” The testators did not use the word “mutual” in referring to the instrument. Instead, they used the word “severally,” which is completely opposite of “mutual.” Thus, the first characteristic courts look at is absent in this case.

We are aware that a court is not precluded from finding an instrument to be a joint and mutual will because it lacks such a label. (See In re Estate of Kaplan (1991), 219 Ill. App. 3d 448, 579 N.E.2d 963; In re Estate of Arnold (1986), 142 Ill. App. 3d 258, 491 N.E.2d 458.) Moreover, courts have found wills to be joint and mutual even though the first paragraph defined the will as “jointly as well as severally our last will and testament.” However, in those cases where the courts have found a joint and mutual will despite the absence of the proper label, the courts have further found that the other four characteristics of a mutual will were satisfied.

In the present case, the will also lacked the fifth characteristic of a common dispositive scheme under which the parties dispose of the fund by bequeathing it to their heirs in approximately equal shares. Here, the testators bequeathed and devised all their property to C.L.’s heirs. Bernice’s heirs did not receive any shares, let alone equal shares.

In King v. Travis (1988), 170 Ill. App. 3d 1036, 524 N.E.2d 974, the will in question gave the survivor all property in “Fee Simple Absolute Forever.” The will then provided that upon the death of both testators, only the husband’s heirs, namely his son and daughter by women other than the testator’s wife, could inherit the estate. The King court found that the document did not create a common dispositive scheme and, therefore, it was not a joint and mutual will.

Similarly, the will in the case at bar provided that the survivor became the beneficiary of “all real and personal property of the deceased testator, to have and to hold as said surviving testator’s own absolute property forever.” The will then provided that the survivor’s only legatees were the husband’s heirs. As in King, the will in the instant case did not create a common dispositive scheme.

Accordingly, we find that since the 1961 will lacked two important characteristics for creating a joint and mutual will, the trial court properly granted the defendants’ motion for summary judgment.

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

Affirmed.

GORMAN and SLATER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY THOMPSON, Defendant-Appellant.
    Third District
    No. 3—91—0229
    Opinion filed May 22, 1992.

      Kenneth D. Brown, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

The defendant, Anthony Thompson, pled guilty to aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(6)) and was sentenced to a four-year term of imprisonment. The term was to be served consecutive to the defendant’s previous commitment as a juvenile. He appeals. We modify and affirm.

The record shows that on November 28, 1989, the 16-year-old defendant was incarcerated in the juvenile division of the Department of Corrections (DOC) at the Illinois Youth Center in Joliet. On that date correctional officer Yves Elysee attempted to lock the defendant in his room. An argument ensued, and the defendant struck Elysee in the face, causing Elysee to suffer an injury to his left cheek.

Thereafter, the defendant, as an adult, entered a blind plea of guilty to the aggravated battery charge. Prior to accepting the plea, the trial court advised the defendant that he could be sentenced to a term of two to five years of imprisonment. However, the court did not advise the defendant that a consecutive sentence could be imposed.

The record from the sentencing hearing shows that on December 31, 1987, the defendant was adjudicated delinquent and committed for an indeterminate term to the juvenile division of the DOC. Following extensive arguments regarding the propriety of imposing a consecutive sentence, the trial court found that such a sentence could be imposed. As such, pursuant to section 5 — 8—4(f) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(f)), it sentenced the defendant to a consecutive four-year term of imprisonment.

On appeal, the defendant argues that the trial court erred in imposing a consecutive sentence. Specifically, he contends that the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 1 et seq.) does not provide for a felony conviction to run consecutively to a noncriminal, nonfelony juvenile disposition.

The defendant notes that all statutory provisions defining situations where consecutive sentences may be imposed require that a defendant have more than one criminal conviction and sentence. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(f).) Therefore, he argues that since adjudications of delinquency under the Juvenile Court Act are not criminal proceedings (see In re Beasley (1977), 66 Ill. 2d 385, 362 N.E.2d 1024; In re B.S. (1979), 73 Ill. App. 3d 507, 392 N.E.2d 62), a consecutive sentence could not be imposed in the case at hand.

In response, the State argues that the juvenile defendant in this case committed the aggravated battery while committed to the DOC. It notes that the Unified Code of Corrections provides that the “sentence of an offender committed to the Department of Corrections at the time of the commission of the offense shall be served consecutive to the sentence under which he is held by the Department of Corrections.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(f).) As such, since the defendant was committed to the DOC and he committed a crime while incarcerated there, the imposition of a consecutive sentence was proper.

We note that the issue presented in this case appears to be one of first impression, although a similar issue was addressed in People v. Bridges (1989), 188 Ill. App. 3d 961, 545 N.E.2d 367. In Bridges, the defendant was convicted of committing an aggravated battery while incarcerated in the juvenile division of the Department of Corrections, and his sentence was made consecutive to his juvenile term of confinement. In affirming the sentence, the court specifically stated that the controlling factor was the underlying basis of the defendant’s sentence to the juvenile division of the Department of Corrections.

The court found the underlying bases for the original confinement were the defendant’s felony convictions for attempted murder and voluntary manslaughter. It rejected the defendant’s argument that the underlying basis was the defendant’s adjudication as a delinquent. As such, the court apparently found that since the defendant’s original “sentence” was for a felony conviction, his second felony conviction sentence could properly be made consecutive to his first “sentence.”

However, in the case at hand, we are not presented with a situation where the defendant’s underlying basis of confinement to the juvenile division of the Department of Corrections was a conviction for a felony. Rather, the basis of the defendant’s confinement was his adjudication as a delinquent. As such, we find that Bridges is inapplicable to the case at hand.

The issue presented in this case is whether a sentence imposed on a juvenile who commits a felony while in the juvenile division of the DOC can be made consecutive to the original terms of confinement, when the underlying basis of the commitment was an adjudication of delinquency. We find that it cannot.

By well-settled principles of law, a criminal or penal statute is to be strictly construed in favor of an accused, and nothing is to be taken by intendment or implication against him beyond the obvious or literal meaning of such statutes. As such, if a statute creating or increasing a penalty or punishment is capable of two constructions, that which operates in favor of the accused is to be adopted. People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 357 N.E.2d 1180.

In the case at hand, we have not found any language in the Juvenile Court Act (Act) which states that an adjudication of delinquency amounts to a criminal conviction. In addition, nothing in the Act suggests that the disposition of a juvenile case is equivalent to an adult “sentence.” In fact, the Act carefully avoids the terms “criminal convictions” and “sentence” and instead uses the terms “adjudication” and “disposition.” See Ill. Rev. Stat. 1989, ch. 37, pars. 805— 20, 805-22.

Moreover, the purpose and policy of the Act make it clear that the avoidance of terms such as criminal “conviction” and “sentence” is not merely a formal distinction, since the Act is designed to serve the best interest of the minor and is not necessarily designed to be punitive. (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 2.) In comparison, the purpose and policy of the Unified Code of Corrections are designed to be punitive as well as rehabilitative. See Ill. Rev. Stat. 1989, ch. 38, par. 1001-1-2.

In a further comparison between treatment under the Act and treatment as an adult criminal, we note that except in limited circumstances, the Act specifically precludes minors from being prosecuted under the Criminal Code. Ill. Rev. Stat. 1989, ch. 37, par. 805 — 4.

Based on the foregoing, we find that a juvenile adjudication and disposition are not equivalent to a criminal conviction and sentence. As such, since a felony sentence can only be made to run consecutive to another criminal felony sentence, we find that it was statutorily improper to make the defendant’s felony sentence consecutive to his noncriminal, nonfelony juvenile disposition.

The State asks this court to expand the definition of “sentence” to include individuals committed under the Juvenile Court Act. It contends that to follow the defendant’s argument would be to allow juvenile offenders to commit serious crimes while incarcerated in the Juvenile Department without fear of serious consequences in adult court. It further argues that this result is contrary to the legislative intent and leads to the absurd result that any juvenile 16 years old or less could commit an aggravated battery on correctional officers without fear of an extended punishment.

While we agree with the State that our disposition of this case allows juveniles 16 years old and under to commit felonious acts while incarcerated in the juvenile division of the Department of Corrections without the threat of a consecutive sentence against them, we must, nonetheless, strictly construe the statutes in question in favor of the defendant. The result which the State desires in this case can only be achieved by action of the people acting through the General Assembly. We invite the legislature to review the Juvenile Court Act in light of this decision and make whatever changes it finds necessary to protect correctional officers from attacks by juvenile inmates.

We note that our decision in this case renders moot the defendant’s remaining issue.

Accordingly, we modify the defendant’s sentence to run concurrently with his juvenile incarceration and otherwise affirm the decision of the circuit court of Will County.

Affirmed as modified.

GORMAN and STOUDER, JJ., concur.


author: JUSTICE GORMAN

text:
    STEVE HICKS, Plaintiff-Appellant, v. METHODIST MEDICAL CENTER, Defendant-Appellee.
    Third District
    No. 3—91—0593
    Opinion filed May 18, 1992.

      Marcia F. Straub, of Peoria, for appellant.
    Ross Canterbury and Kevin L. Elder, both of Westervelt, Johnson, Ni-coll & Keller, of Peoria, for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

This action was brought by plaintiff Steven Hicks for breach of an employment contract. Following a bench trial, the court rendered judgment for defendant Methodist Medical Center. Plaintiff appeals. We affirm.

Plaintiff Steven Hicks was first employed by defendant in 1983 in its dietary department. After three months, he was terminated because of unsatisfactory performance. In 1984, plaintiff was hired by defendant into its housekeeping department.

During plaintiff’s orientation, defendant gave plaintiff a copy of its personnel handbook. Defendant told plaintiff to read the book, which was 39 pages in length, and to sign the acknowledgment form. Plaintiff read the handbook. The handbook contained the following language regarding defendant’s grievance procedure, which was set forth as follows:

“Grievance Procedure
Step 1. First the problem should be discussed with the immediate supervisor. If a solution cannot be reached through this discussion, the employee should state the problem on a ‘Grievance Form'. *** The form should be completed and given to the respective department head and vice president no more than seven calendar days after the affected employee’s awareness of the facts giving rise to the grievance. The department head and respective vice president will review the facts. They will provide the employee with a written decision no later than seven calendar days of receipt of the Grievance Form.
Step 2. If the matter is not resolved at Step 1, the' affected employee should submit the grievance to the Grievance Committee within seven calendar days of receiving the written decision.
The Grievance Committee will be composed of five of the most recent 12 ‘Employees of the Month.’ Either party to the grievance may bring before the Committee any fellow employee he or she feels can support the case. The Committee will make a decision on the grievance through a majority vote. The decision of the Grievance Committee is final and binding on all parties.” (Emphasis in original.)

The handbook also contained the following provision concerning transfers:

“Transfer Period:
If you accept another position with the MMCI as a result of a job transfer, you will be placed on a 60-day job transfer period. During this time you will be eligible to continue use of all benefits as specified by your job status. Should you fail to meet your job expectations during the transfer period, the MMCI will make a reasonable effort to return you to your previously held job classification or to a reasonably comparable position.”

Defendant alleged that though it was not written in the handbook, it was policy that only employees with fully competent rankings and clean disciplinary records were considered qualified for transfer.

On page 38, defendant’s handbook contained a disclaimer, which read as follows:

“Revisions:
This employee handbook is subject to revision at any time. It is not the intent of this statement or the Personnel Handbook to establish contractual agreement between the MMCI and employees.”

Plaintiff alleged that he did not notice the disclaimer.

Plaintiff worked in the housekeeping department from 1984 until September 1987. In 1986-87, he unsuccessfully filed nine requests for transfers out of housekeeping. In his six performance evaluations, his score steadily declined from a “3/5” in September 1984 to “1.8/5” in September 1987. In March, April, and July 1987, plaintiff was disciplined. He filed a grievance against his supervisor. The grievance committee recommended that plaintiff be transferred out of housekeeping, based on his behavior at the grievance meeting (cursing, muttering under his breath, dropping papers, sighing loudly, and loud speech). In September 1987, plaintiff was transferred to the parking department.

In the parking department, plaintiff’s duties included handling money, making change, and computing charges. He had difficulty performing these tasks. Even when trained employees were supervising him, he was often either over or under the amount he was supposed to have in his cash drawer. Plaintiff was given two written warnings for making incorrect change and, later, a one-day suspension. Plaintiff’s probation was extended due to his poor performance in the parking deck.

Plaintiff did not file a transfer request form out of the parking department during this time, although plaintiff alleged that he did orally request transfer out. In February 1991, defendant terminated plaintiff.

Plaintiff did not file a grievance regarding the failure to transfer him during the 60-day grace period. Plaintiff did file a grievance when he was fired and requested he be given back his job in the parking department.

Plaintiff sued defendant for breach of contract and claimed $13,795 for lost wages. After a bench trial, the trial court rendered judgment for defendant. It ruled that the disclaimer contained in the handbook was valid and conspicuous. Also, the court stated that defendant’s handbook provided a framework of fairness and due process.

Plaintiff appeals, raising two issues for review.

The first issue is whether the trial court erred in finding that the disclaimer was valid and therefore that no contract existed.

Whether a contract exists is a question of law to be determined by the court. (Habighurst v. Edlong Corp. (1991), 209 Ill. App. 3d 426, 568 N.E.2d 226.) The correctness of ruling on a question of law may be determined independently of the trial court’s judgment. (People ex rel. Edgar v. Curley (1989), 188 Ill. App. 3d 37, 543 N.E.2d 1088.) An enforceable contract is created if (1) the language of the policy statement contains a promise clear enough that an employee would reasonably believe that an offer has been made; (2) the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer; and (3) the employee must accept the offer by commencing or continuing to work after learning of the policy statement. Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314.

Defendant gave plaintiff the handbook at his orientation and told plaintiff to read the contents, which plaintiff did. Plaintiff could have reasonably believed that the statements in the handbook constituted, promises clear and certain enough to become a part of an offer of employment. The language used in the handbook was not vague, but was precise and unequivocal. By way of contrast, the language in Lee v. Canuteson (1991), 214 Ill. App. 3d 137, 573 N.E.2d 318, that “[i]t is the sincere intent of [employer] to be fair and reasonable with all employees at all times” was found not to be clear enough to constitute an offer.

The final condition set forth in Duldulao was also present. Plaintiff commenced work after being given the handbook.

Defendant’s handbook also contained a disclaimer. In order to negate any promises made in contract provisions, a disclaimer must be conspicuous. (Nettles v. Teehplan (1988), 3 IER 1262.) The disclaimer itself was located at page 38 of the handbook. It was not highlighted, printed in capital letters, or in any way prominently displayed. Furthermore, the disclaimer was not entitled “Disclaimer,” but was located under a section headed “Revisions.” This disclaimer was not conspicuous and so did not negate the promises made in the handbook’s provisions. We hold that a contract existed.

The second issue is whether defendant breached the contract with plaintiff.

After plaintiff filed a grievance against his supervisor in housekeeping, the grievance committee recommended that plaintiff be transferred out of that department. At that time, plaintiff was not qualified for transfer to any other location or position because of his substandard performance review and his discipline problems. The record shows no admission by defendant that plaintiff was qualified for another job. Because plaintiff was not qualified for transfer, defendant was not required under the grievance procedure to transfer plaintiff to parking. The grievance committee’s suggestion that plaintiff be transferred to another department was beyond the remedy rights that it had and was an accommodation of the employee.

Once in parking, if plaintiff had wanted to transfer out, it was his duty to initiate the transfer process by completing a transfer request form. Plaintiff had filled out many requests for transfer in the past and was aware of how to invoke the process. Plaintiff in fact did not complete a transfer request form. Unfortunately he could not perform the duties required of him in parking and was terminated. Any job action remedy he had then was to go back to the grievance procedure. He did file a grievance when he was terminated and the grievance committee upheld the termination.

Under these circumstances, the remedies available to plaintiff under the handbook were satisfied and we find no breach of contract by defendant.

Affirmed.

BARRY, P.J., and HAASE, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHILTON DePUE II, Defendant-Appellant.
    Third District
    No. 3—91—0521
    Opinion filed May 29, 1992.

      John L. Stainthorp, of Chicago, for appellant.
    David W. Neal, State’s Attorney, of Morris (John X. Breslin and Judith Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

Following a bench trial, the defendant, Chilton DePue II, was found guilty of felony theft (Ill. Rev. Stat. 1989, ch. 38, par. 16— 1(a)(2)(A)). The trial court subsequently sentenced him to serve 30 months’ probation, perform 300 hours of community service, and pay $2,000 in restitution. He appeals.

The defendant argues on appeal that he was not identified beyond a reasonable doubt as the perpetrator of the crime. He notes that there were inconsistencies between the victim’s testimony at a pretrial hearing on a motion to quash arrest and suppress identification and his testimony at trial. He further notes that a second witness, Michelle Ultis, also had inconsistencies between her testimony at the pretrial hearing and at trial. Taking into account these inconsistencies, the defendant contends that the identification testimony was simply too weak to support a conviction.

In the following factual summary, we have included the relevant testimony from the suppression hearing at the points where it differs from the testimony given at trial. Except where noted, the evidence from the suppression hearing was properly brought out at trial during cross-examination.

The record shows that 78-year-old John Severson was the victim of a scam in which a team of con artists stole $2,000 from him. At trial, Severson testified that on the morning of May 24, 1990, he received a phone call from a man who identified himself as "Mr. Miller” and claimed he worked at the bank where Severson had an account. “Miller” told Severson that he was investigating wrongdoing at the bank. He asked Severson to help him by withdrawing $2,000 from the bank, taking it home, and waiting for a bank security guard to come and pick it up. Severson complied with “Miller’s” request. When Severson returned home from the bank, the telephone was ringing. It was “Miller” again. He asked Severson to read the first three serial numbers of the currency he had obtained. As Severson was doing this, his door bell rang and “Miller” said it was probably the security guard. Severson finished giving the numbers and then answered the door while “Miller” remained on the phone.

Severson opened the door, left the storm door shut, and asked the man his name. The man replied, “Mr. Wright.” “Wright” remained at the door for about five minutes while Severson took an envelope from him, spoke with him, placed the $2,000 in the envelope, sealed it, wrote his name on it, and talked to him about meeting again at the bank. “Wright” then left without ever having come inside. Severson stated that this was his only visitor that day. Following “Wright’s” departure, Severson continued his phone call with “Miller,” who told him they would meet him at the bank the next week. A few days later, Severson called his bank and was told they had no one there named Miller.

Police officer Doug Hayes interviewed Severson about a week after the incident. Severson described “Wright” as 5 feet 9 inches, 160 pounds, and wearing a three piece suit and glasses.

Officer Tom Bednarik testified that he subsequently showed Severson six photographs arranged in a file folder. All the photographs were of men with mustaches and two were wearing suits. Bednarik testified that the defendant’s photograph was number two. Severson said the suspect looked like numbers two and six, but more like two.

At the suppression hearing, Severson first testified that he was shown only four photographs and had picked number six as the offender. However, when shown a photograph of the defendant that the State’s Attorney described as “clearer,” Severson stated that he was the offender. Severson further testified that he thought he would be able to identify the offender if he saw him again. Although the defendant was present when Severson testified at the suppression hearing, Severson stated that he did not see the offender there that day.

At trial, Severson described the offender as a man in his fifties, a little under six feet tall, with brown hair that was not unusual and did not appear to be a wig. He was wearing a dark, navy blue suit, possibly a vest, and a dark tie. Severson was not sure whether the offender had a mustache. When asked if he saw the person who had come to his door in court, Severson responded, “Well, I — he doesn’t look like him. *** I mean he might have had a mustache on him, and that would be the difference on him.” Severson further stated that he was not paying close attention to the man who came to his door, did not study him that well, and was more concerned with ascertaining his name.

Michelle Ultis, Severson’s next-door neighbor, testified that upon learning that he had been the victim of a scam a week earlier, she contacted the police. She stated that on the day of the incident, she had been sitting outside her home, watching her two young daughters play, when she saw a stranger walking down the street towards her and Severson’s homes. She kept a close eye on him since her daughters were playing near the street. As he passed in front of her home, Ultis’ dog ran toward him and Ultis went to collar the dog. She reached out, collared her large dog and, from about two feet away, spoke directly to the man, apologizing for the dog’s barking. He did not respond, but simply smiled and continued toward Severson’s house.

The defendant notes on appeal that at the suppression hearing, Ultis testified that she watched the man until he “disappeared into [Severson’s] house.” At trial, she stated that she saw him go up Severson’s front walk, and walk up the steps to Severson’s front door. We find, however, that this alleged inconsistency was not brought out at trial.

Ultis described the man she saw as six feet tall with a large build and “a bigger stomach.” He wore a blue sport coat, tan slacks, tennis shoes, a canvas hat with the brim down, and possibly rimless or wire-rimmed glasses. Ultis further testified that he had unusually long, very dark hair that looked like a wig. She initially thought he was a salesman because he was carrying a briefcase. As he came closer and she observed his strange combination of clothes, she decided he did not look like a salesman and she became leery because her children were out near the street. She identified the defendant as the man she had seen.

Officer Bednarik testified that he interviewed Ultis about two weeks after the incident. She described the offender as being in his early to mid 40’s, heavyset, with thick dark hair, a mustache, a smirk, and wearing a suit. He did not recall her mentioning a hat. Within about 20 seconds of viewing his picture in a photo lineup, she positively identified the defendant as the man she had seen.

Dennis Neary, the police chief of Coal City, testified that on May 30, 1990, he investigated a scam very similar to the instant one, in which a telephone caller who had identified himself as “Mr. Miller” had induced an elderly man to withdraw $3,000 from the bank. The money had been picked up by a well-dressed man in his 40’s wearing a funny hat. The defendant’s photograph was shown to the victim, who made no identification.

Glen Shumate, an insurance salesman, testified that he was a colleague of the defendant. He had written several insurance policies for Severson since 1986 or 1987 and had been to his house 12 to 14 times, including at least six times in the last year and a half. In January 1990, Shumate introduced the defendant to Severson at a McDonald’s. They talked for about two minutes, and Shumate told Severson that if he were transferred, the defendant would be his insurance man. Shumate also testified that he and the defendant kept their files containing the names, addresses, and ages of their clients at their company office, and that the defendant would have had access to Shumate’s files since they were not secret.

The defendant testified that he had been a very successful insurance salesman for about eight years. At the time of trial he was six feet tall and weighed 225 pounds. He denied any involvement in the instant offense. He stated that he had never been to Severson’s home and had met him only once at a McDonald’s. He also stated that he had been arrested and photographed in 1988 based on a complaint that he was misrepresenting himself as a person from medicare, but no criminal charges were filed against him. He noted that he formerly wore a mustache but had shaved it off in March or April of 1989.

The trial judge noted that he found Severson’s testimony confused, because of his age or circumstances, and therefore did not attach much weight to it. He also noted, however, that he was satisfied with the identification of the defendant by Ultis, who was a disinterested State’s witness. He then found the defendant guilty.

As noted, the defendant is contending on appeal that he was not proven guilty beyond a reasonable doubt. He asserts that he and the victim unequivocally testified that he was not the person at the victim’s door and therefore the State’s evidence was insufficient for a conviction.

It is well settled that a criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. The relevant question for a reviewing court is whether, when the evidence is viewed in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) When evidence is merely conflicting, a court of review will not substitute its judgment for that of the trier of fact. (People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733.) A single witness’ identification of the accused is sufficient to sustain a conviction if the witness viewed the accused under circumstances permitting a positive identification. (People v. Slim (1989), 127 Ill. 2d 302, 537 N.E.2d 317.) The sufficiency of identification evidence is a question for the trier of fact, and a reviewing court will not substitute its judgment for that of the trier of fact. People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1355.

Initially, we note that we disagree with the defendant’s characterization of the victim’s testimony as unequivocally stating that the defendant was not the man at his door. A careful reading of all of Severson’s testimony reveals the following: At the suppression hearing, Severson initially testified that he viewed four photos and chose number six (which was not the defendant) as the offender. However, after viewing a clearer picture of the defendant, Severson stated that he was the offender. While Severson stated that he thought he would be able to identify the offender if he saw him again, he was unable to pick out the defendant that day. At trial, when asked if he saw the offender, Severson responded that the defendant did not look like him, but the mustache may have accounted for the difference. This is a far cry from unequivocally stating that the defendant was not the man Severson had seen at his door. A more accurate description of Severson’s testimony was that he equivocally identified the defendant as the offender.

Additionally, Officer Bednarik testified that Severson had viewed six, not four, photographs and had said either number six or number two, but mostly number two (the defendant) looked like the offender.

Furthermore, Severson testified that he did not pay that much attention to the man at the door. This was understandable since, contrary to the defendant’s assertions on appeal, we note that the scheme was designed to distract Severson. The phone was already ringing when Severson returned from the bank. As he was reading the requested serial numbers, the doorbell rang and “Miller” remained on the line waiting while Severson wrote his name on the envelope, placed the money inside, and turned it over to the “security guard,” as he was requested to do.

Most importantly, Ultis’ identification of the defendant, both from the photographic lineup and at trial, was very clear and unequivocal. Her attention was drawn to the defendant as soon as she saw him walking down the street. Because her young children were playing near the street, and because, as he approached, the defendant’s manner of dress was odd, Ultis became leery. She had the opportunity to view him up close when she retrieved her barking dog and apologized. We find there was ample reason to view her testimony as credible, as the trial court did.

Finally, we note that while there were discrepancies between Ultis’ and Severson’s descriptions of what the defendant looked like and wore, it is clear that discrepancies as to physical characteristics or type of clothing are not fatal, but simply affect the weight to be given identification testimony. (People v. Holmes (1990), 141 Ill. 2d 204, 565 N.E.2d 950.) Thus, the trial judge, as the trier of fact, was in the best position to judge the witnesses’ demeanors and memories as they testified, and to determine the weight to be given their testimony. We find that he properly did so in the instant case.

In sum, viewing the evidence in the light most favorable to the prosecution, we hold that a rational trier of fact could conclude that it was the defendant who appeared at Severson’s door and took his money.

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

Affirmed.

HAASE and McCUSKEY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STANLEY CARTER LIGGINS, Defendant-Appellant.
    Third District
    No. 3—91—0378
    Opinion filed May 29, 1992.

      Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The circuit court of Rock Island County found the defendant, Stanley Liggins, guilty of aggravated criminal sexual abuse and sentenced him to a seven-year term of imprisonment. The sole issue on appeal is whether the trial court erred when it decided the case without allowing the defendant the opportunity to present closing argument.

The evidence adduced at trial established that on August 3, 1990, A.S. and a friend, T.S., were playing when they decided to get a refreshment. The pair then proceeded to Brenda Adams’ apartment to get some “Kool Aid.” The defendant was in the Adams apartment. A.S. and T.S. made some Kool Aid and went out onto the back steps to drink it when A.S. spilled some of her drink on her leg. The girls then went back into the Adams apartment, where the defendant brought A.S. a washcloth to wipe the spill.

At this point, the defendant told T.S. to leave the apartment. He then washed A.S.’s left leg, and, despite her protest, her right leg. He next pulled A.S.’s swimsuit to one side and began wiping her “private part”; her vagina. A.S. then screamed and ran out the door. Thinking the defendant was chasing her, A.S. ran to the nearby apartment of Charlotte Ledbetter and reported to her what occurred.

T.S. and Charlotte Ledbetter also testified. Their testimony substantially corroborates what A.S. testified to earlier.

After the State rested, the defense moved for a directed verdict and extensively argued the alleged weakness of the State’s case. When the trial court denied the motion, the defendant took to the witness stand.

The defendant testified that he was living in the Adams apartment with the Adams family. He specifically recalls when A.S. and T.S. came over for Kool Aid and when A.S. accidentally spilled Kool Aid on her leg. According to the defendant, he went to the bathroom to retrieve a washcloth for A.S. After giving A.S. the washcloth, he went back to the bathroom. After spending several minutes in the bathroom, the defendant went back to the dining room. At this point, the defendant further explained, A.S. screamed, threw the towel, and ran for the door. He claims he did not touch A.S. at any time.

Following the defendant’s testimony, the State produced a prior conviction of defendant.

After the State indicated it had no further evidence, the trial transcript indicates the cause proceeded as follows:

“THE COURT: Anything further?
MR. STENGEL (prosecutor): No, your honor.
THE COURT: Then I am ready to rule. I don’t believe I need closing argument.
MR. SCOVTL (defense counsel): We would renew our motion for a verdict at the close of the evidence.
THE COURT: Your motion is denied. Any other motions?
MR. STENGEL: No.
MR. SCOVIL: No.”

The court then ruled in the case. The trial court discussed the evidence and found the defendant guilty.

According to the State, under these circumstances it wasn’t error for the trial court to deny the opportunity to present closing argument. The State points out the defendant did not object when the trial court stated that it felt closing arguments were unnecessary in this case.

The right to closing argument can be waived. (People v. Riley (1991), 219 Ill. App. 3d 482, 579 N.E.2d 1008.) If a trial court in a bench trial enters its findings directly after the presentation of evidence, defense counsel has the right to object and be given the opportunity to present a closing argument. (People v. Daniels (1977), 51 Ill. App. 3d 545, 366 N.E.2d 1085.) Where no attempt is made to seek closing argument, it cannot be said that a party was denied the opportunity to present a closing argument. People v. Coleman (1991), 212 Ill. App. 3d 997, 571 N.E.2d 1035.

The record in the instant case reveals the trial court began to announce its findings immediately following the close of the defendant’s case. Defendant did not, however, request an opportunity to make a closing argument and did not object to the trial court’s actions. Therefore, under these circumstances, we hold the defendant was not deprived of the right to present closing argument.

For these reasons, we affirm the judgment of the circuit court of Rock Island County.

Affirmed.

McCUSKEY and HAASE, JJ., concur.