author: JUSTICE GOLDENHERSH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDDIE BROWN, Defendant-Appellant.
    Fifth District
    No. 5 — 92—0356
    Opinion filed September 23, 1993.

      Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Diane L. Campbell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

After a jury trial defendant, Freddie Brown, was found guilty of first-degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(1)) and two counts of attempted first-degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 8 — 4(a)). Defendant was sentenced to 50 years in the Department of Corrections on the murder conviction and 20 years in the Department of Corrections on each of the attempted murder convictions. The 20-year prison terms are to run concurrently to each other and consecutively to the murder conviction. In this cause, defendant raises two issues: (1) whether the trial court erred in refusing to give defendant’s tendered jury instructions on the offense of aggravated battery, and (2) whether the trial court abused its discretion in sentencing defendant. We affirm.

I

The offenses charged herein occurred on the afternoon of May 26, 1991, at the home of Arthur and Betty Howard. The Howards’ daughter, Anita, defendant’s ex-wife, was an officer in the Air Force and was home on leave to attend a cotillion with her daughter, Tantrece. Defendant was Tantrece’s father. Defendant and Anita were married in 1972 but divorced in the early 1980’s. Anita obtained custody of Tantrece; however, Tantrece lived primarily with her grandparents, Arthur and Betty Howard, because Anita was often required to move due to her career in the Air Force. Over the years, Tantrece had not seen a lot of her father, but she denied that her grandparents turned her against him or refused to allow her to associate with him.

Defendant could not accept his divorce from Anita and continually harassed the Howard family. Doris Telford, employed by the Department of Children and Family Services (the Department), testified that on May 18, 1990, a man who identified himself as defendant and with whom she had previously spoken about his daughter, ex-wife, and in-laws telephoned her. At that time defendant stated: “I have a weapon. I’m contacting your agency in order to keep from killing someone, from stalking them.”

In 1982, Anita met Lavester Cook, who was also in the Air Force. The two were married approximately three years when they came to St. Louis so that Anita could attend the cotillion with her daughter. Anita and Lavester arrived in East St. Louis on May 25, 1991, and settled in with Anita’s parents. The car the Cooks were driving upon arrival bore Texas license plates. The Cooks were then stationed in Texas. Tags on the car also indicated that the vehicle belonged to a member of the armed forces. An article announcing the cotillion appeared in a local newspaper approximately one week prior to the event. The article stated that Tantrece would be attending the ball with her mother, Anita, and included both Tantrece’s and Anita’s photographs.

On the afternoon of May 26, 1991, the Cook car was parked in front of the Howards’ residence. Lavester was not at the Howards’ residence in the afternoon. He left with Anita’s brother, Roderick, in Roderick’s car. While Lavester was gone, defendant came to the Howards’ home. Anita answered the door. Anita called to Tantrece to let her know her father arrived. Tantrece went to the door and spoke with defendant for approximately three minutes. Without being invited, defendant came into the house and asked, “Where is he? Where is he?” Tantrece believed that defendant was asking about Lavester. For the next few minutes, Tantrece and Anita tried to get defendant to leave. Anita argued with defendant. Betty came downstairs and asked defendant to leave, but he would not. Tantrece saw defendant pull a handgun from his pocket. Tantrece told Betty defendant had a gun. Tantrece then left the home. Betty called upstairs to her husband and told him that defendant had a gun. Arthur then started downstairs. At that point, defendant shot Betty two times, once in each leg. Defendant stated, “I’m going to kill all you damn mother fuckers.” Betty then fled from defendant and ran upstairs. Defendant and Anita remained in the kitchen. Betty heard defendant say, “Come here, Anita, I’m going to kill you.”

Arthur Howard remembered coming downstairs and seeing defendant come through the door. At that time, Howard says, defendant stated, “I’m going to kill all you fuckers.” Arthur was shot two times by defendant, once in the abdomen and once in his shoulder. Arthur was shot in the kitchen. After he was shot, Arthur passed out and remembered nothing until he awoke in the hospital. Arthur spent 29 days in the hospital due to the injuries he sustained on May 26, 1991. He was also required to undergo two surgeries during his hospitalization.

Anita was found dead in the kitchen. She was shot once in the right side of her torso and died from that wound. After Betty was shot, she went upstairs and lay on the side of the hallway, pretending she was dead. She saw defendant climbing the stairs. Once upstairs, defendant looked in Betty’s bedroom. Defendant called for Tantrece but after getting no answer left the Howards’ residence. Betty was treated for her injuries and released from the hospital later that day.

Prior to trial, on motion of defendant’s public defender, a clinical psychologist, Dr. Daniel J. Cuneo, was appointed to examine defendant’s fitness to stand trial and to determine whether defendant was sane at the time of the offenses. Dr. Cuneo concluded that defendant suffered from paranoid personality disorder, but that he was sane at the time of the offenses and was fit to stand trial. Dr. Cuneo summed up his interview with defendant as follows:

“It would be my opinion that Mr. Brown was suffering from a substantial disorder of thought, mood, and behavior (Paranoid Personality Disorder) which impaired his judgment and behavior at the time of the alleged offenses, but not to the extent that he was unable to appreciate the criminality of his conduct or to conform his behavior to the requirements of the law. Mr. Brown does suffer from a Paranoid Personality Disorder. He interprets all events to fit his narrow bias. He feels that his ex-wife destroyed his life by leaving him and has attributed to her every failing in his life. The only way he could deal with his daughter rejecting him was to hold to the belief that she was sexually abused by his in[-]laws whom he believes stole her from him. He feels mortally wronged by his ex[-]wife and her parents. His whole life since 1980 has revolved around his seeking vindication of this wrong. He interprets everything in light of this belief. Yet Mr. Brown knows that shooting others is wrong. He was not psychotic at the time. He had the ability to control his behavior. Therefore it would be my opinion that Freddie Brown was legally sane at the time of the alleged offenses.”

At a hearing on October 30, 1991, the parties stipulated to Dr. Cuneo’s report. The trial court found defendant fit to stand trial. On December 5, 1991, defense counsel filed notice that defendant would present the affirmative defense of insanity. On January 7, 1992, defendant expressed his desire to represent himself. The trial court admonished defendant about the problems and risks associated with self-representation. Ultimately, the trial court allowed defendant to proceed pro se, but the court ordered the public defender to remain at counsel table with defendant throughout the trial. On February 4, 1992, defendant informed the trial court that he would not pursue an insanity defense at trial.

On March 16, 1992, the cause proceeded to trial with defendant representing himself. As ordered, a public defender sat at counsel table with defendant. Defendant’s theory at trial was that he did not in fact shoot the victims but that Lavester Cook was the perpetrator. This is indicated by defendant’s cross-examination of the State’s witnesses. Defendant did not take the stand. At the close of the evidence, defendant asked the court to instruct the jury on aggravated battery as an alternative to attempted first-degree murder. The trial court denied defendant’s request. The jury found defendant guilty of first-degree murder and two counts of attempted first-degree murder.

The presentence investigation revealed that defendant, who was then 38 years old, had no prior convictions or adjudications as delinquent as a juvenile. Defendant is a high school graduate and has completed about 1½ semesters at a local junior college. As previously alluded to, defendant did have a history of mental illness. In 1984, defendant was examined for purposes of receiving SSI disability benefits. He was diagnosed as schizophrenic. He was again examined for SSI purposes in 1989, when he was diagnosed as psychotic but “able to control his psychosis with withdrawal from reality, avoiding confrontations with people.”

Victim impact statements from Lavester Cook and Betty Howard were submitted. Lavester complained that over the years defendant had attempted to ruin his Air Force career by falsely accusing him of child molestation. Betty complained that defendant harassed her family for over 10 years.

At sentencing, defendant’s father testified in mitigation, as did his brother. Both testified that defendant suffered from some type of mental infirmity. Defendant also addressed the court. Defendant stated, “It is my opinion I am not a criminal.” Defendant pointed out that this was a “family situation” and that he loved his ex-wife and daughter. Defendant showed no remorse and asked for the minimum sentence. The trial court noted in mitigation that defendant has a mental disease or defect and recommended defendant receive psychiatric care while confined. In aggravation, the trial court stated that “a sentence is necessary to deter the conduct of others who would perceive that once wed, they are forever entitled.” The trial court sentenced defendant to 50 years in the Department of Corrections on the murder conviction and 20 years in prison on each attempted murder conviction, the 20-year prison terms to run concurrently to each other and consecutively to the murder conviction.

II

The first issue we are asked to consider is whether the trial court erred in refusing to give defendant’s tendered jury instructions on aggravated battery. Defendant contends that there is some evidence in the record to permit a rational jury to conclude that defendant only intended to harm rather than to kill Betty and Arthur Howard, so the court should have instructed the jury on the less serious offense of aggravated battery. The State replies that the trial court was correct to refuse to give defendant’s tendered instructions on aggravated battery because the evidence at trial did not require that defendant’s aggravated battery instructions be given. We agree.

A defendant may be entitled to have the jury instructed on a less serious charge that is included in the one he is charged with. (Beck v. Alabama (1980), 447 U.S. 625, 636-37, 65 L. Ed. 2d 392, 402, 100 S. Ct. 2382, 2389.) The reason for a lesser-included-offense instruction is that it gives a third option to a juror who, believing the defendant was guilty of something but uncertain whether the offense charged has been proved, might otherwise convict rather than acquit the defendant of the greater offense. (Keeble v. United States (1973), 412 U.S. 205, 212-13, 36 L. Ed. 2d 844, 850, 93 S. Ct. 1993, 1997-98.) It is well established that aggravated battery is a lesser-included offense of attempted murder. (People v. Jenkins (1976), 41 Ill. App. 3d 392, 354 N.E.2d 139.) However, in order to convict for the crime of attempted murder, a finding that the defendant specifically intended to kill the victims is required; aggravated battery does not require specific intent. People v. Fox (1983), 114 Ill. App. 3d 593, 449 N.E.2d 261.

In People v. Johnson (1991), 219 Ill. App. 3d 460, 579 N.E.2d 978, our colleagues in the first district determined that the defendant was not entitled to have the jury instructed on the lesser-included offense of aggravated battery. It was sufficient that the jury was instructed on attempted murder. In Johnson, the defendant’s alibi witnesses and the defendant’s theory at trial advocated that defendant was not guilty of any crime whatsoever. (Johnson, 219 Ill. App. 3d at 465, 579 N.E.2d at 982.) The State, however, provided evidence that the defendant stabbed the victim in the back in an unprovoked attack and also tried to stab her in the face. The Johnson court concluded that an aggravated battery instruction was unnecessary because under those facts the jury could easily determine that the defendant had the requisite intent to kill. (Johnson, 219 Ill. App. 3d at 466, 579 N.E.2d at 982.) The present case is similar.

Here, we reviewed the record and have no doubt that the jury could have concluded from the testimony that defendant had the requisite intent to kill both Arthur and Betty Howard. The evidence shows that defendant had a vendetta against the Howards for several years after his divorce from their daughter. A Department worker testified that she had many conversations with defendant concerning his daughter, his ex-wife, and his in-laws. On May 18, 1990, defendant called the Department worker and told her he had a gun and intended to kill his ex-wife or ex-in-laws and was contacting the Department so they might stop him. On the day of the occurrence in question, defendant stormed into the house and shot Betty Howard two times and stated, “I’m going to kill all you damn mother fuckers.” Defendant shot Arthur Howard in the abdomen and shoulder, after which Arthur passed out. Defendant did kill his ex-wife. He then passed Betty in an upstairs hallway. Betty was lying on the floor pretending she was dead. Defendant made no attempt to assist either Arthur or Betty after he shot them. While defendant chose not to testify in the present case, his cross-examination reveals that his defense was that Lavester Cook actually shot the victims. Defendant did not present evidence that he did not intend to kill the victims when he shot them.

We are also unconvinced by defendant’s argument that because Arthur and Betty Howard’s injuries were not “life-threatening” the jury could have determined that defendant did not intend to kill the victims and, thus, aggravated battery instructions should have been given. The evidence was clear that Arthur Howard passed out after the attack and Betty Howard pretended she was dead. Defendant made no attempt to assist either of the Howards or to determine whether they were alive before he left the house. It is the function of the jury to determine the existence of the intent to kill necessary for a conviction of attempted murder, and such a determination will not be disturbed unless a reasonable doubt of defendant’s guilt exists. (People v. Tyler (1989), 188 Ill. App. 3d 547, 544 N.E.2d 1077.) We believe the record supports the jury’s determination that defendant had the intent necessary for a conviction of attempted murder. We do not believe this is a case in which the jury, believing defendant was guilty of something, went ahead and convicted defendant of attempted murder even though the requisite attempt was not proven. Therefore, the trial court did not commit reversible error by refusing to instruct the jury on the lesser-included offense of aggravated battery.

The other issue we are asked to consider is whether the trial court abused its discretion in sentencing defendant. Defendant contends the trial court abused its discretion in sentencing him to a term totaling 70 years’ imprisonment because there was extensive evidence in mitigation and only one statutory aggravating factor. Defendant claims to have rehabilitative potential which would not be well served by the excessive length of his sentence. (People v. Bigham (1992), 226 Ill. App. 3d 1041, 590 N.E.2d 115.) Defendant requests that his sentence be reduced to a total not exceeding 40 years’ imprisonment. The State responds that the trial court did not abuse its discretion, especially whén one considers that defendant showed no remorse for his actions and believed that his actions were not “criminal” because they involved a “family situation.” We find no abuse of discretion.

A conviction of murder carries a prison sentence of not less than 20 years and not more than 60 years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—l(a)(1).) A conviction for attempted murder carries a prison sentence of not less than six years and not more than 30 years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(3).) The sentencing judge is in the best position to consider matters relating to sentencing determinations and is vested with wide discretion in making a reasoned judgment as to the penalty appropriate to the circumstances of each case. (People v. O’Neal (1988), 125 Ill. 2d 291, 297, 531 N.E.2d 366, 368; People v. Steppan (1985),. 105 Ill. 2d 310, 473 N.E.2d 1300.) A sentence within the statutory guidelines that is alleged to be excessive will not be disturbed on review unless it is manifestly disproportionate to the nature of the offense. People v. Cabrera (1987), 116 Ill. 2d 474, 493-94, 508 N.E.2d 708, 716.

We agree that defendant did have some factors in mitigation, including the fact that he was a first-time offender. However, defendant’s lack of a prior record is not necessarily the most persuasive consideration at sentencing; the seriousness of the crime has been called the most important factor to be considered in imposing sentence. (People v. Hernandez (1990), 204 Ill. App. 3d 732, 740, 562 N.E.2d 219, 225.) Another factor in mitigation was defendant’s mental infirmity; however, defendant was found fit to stand trial and sane at the time of the offenses. The trial court did take note of defendant’s mental defect and stated on the record that defendant should receive psychiatric assistance during his incarceration.

We have reviewed the record and conclude that the 70-year prison term imposed by the trial court was not an abuse of discretion. The judge noted that the sentence was necessary to deter “others who would perceive that once wed, they are forever entitled.” In our estimation, the sentence was also necessary to stop defendant. Defendant harassed the Howard family for more than 10 years. Both Betty and Arthur survived the attack, and defendant’s daughter, Tantrece, is also a potential target. As the State points out, defendant showed no remorse for his actions and believed that the judicial system had no right to be involved because it was a “family situation.” We cannot agree that under these facts the trial court abused its discretion in sentencing defendant.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

CHAPMAN, P.J., and WELCH, J., concur.


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    JULIA O. CLAYTON, Plaintiff-Appellant, v. BRADFORD NATIONAL BANK et al., Defendants-Appellees.
    Fifth District
    No. 5 — 92—0513
    Opinion filed September 21, 1993.

      James E. Buchmiller, of Greenville, for appellant.
    Douglas Marti, of Greenville, for appellees.
   JUSTICE WELCH

delivered the opinion of the court:

This action is one for the partition of land owned by two sisters, plaintiff-appellant, Julia 0. Clayton, and defendant-appellee, Eva D. Allen, as tenants in common by virtue of inheritance from their parents. The parties do not dispute the actual partition of the land but only the award of attorney fees pursuant to section 17 — 125 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 17 — 125.) That section provides as follows:

“In all proceedings for the partition of real estate, when the rights and interests of all the parties in interest are properly set forth in the complaint, the court shall apportion the costs among the parties in interest in the action, including the necessary expense of procuring such evidence of title to the real estate as is usual and customary for making sales of real estate, and a reasonable fee for plaintiff’s attorney, so that each party shall pay his or her equitable portion thereof, unless the defendants, or some of them, interpose a good and substantial defense to the complaint. In such case the party or parties making such substantial defense shall recover their costs against the plaintiff according to justice and equity.” (Ill. Rev. Stat. 1989, ch. 110, par. 17-125.)

This statutory authorization for an award of attorney fees is based upon the premise that plaintiff’s attorney acts for all interested parties. (Lane v. Budiselich (1974), 17 Ill. App. 3d 914, 916, 308 N.E.2d 811, 812.) Thus, an award of attorney fees is only appropriate where it is not necessary for defendants, or any of them, to employ counsel to protect their interests in the land. (Harrison v. Kamp (1949), 403 Ill. 542, 547, 87 N.E.2d 631, 634.) When the rights and interests of all parties in interest are not properly set forth in the complaint or where defendants interpose a good and substantial defense to the complaint, thereby necessitating their employment of counsel, apportionment of plaintiff’s attorney fees is not appropriate. (Harrison, 403 Ill. at 547, 87 N.E.2d at 634.) Thus, as affecting the right to apportionment of attorney fees, plaintiff owes defendant a duty to establish the right to partition, to join all necessary parties as defendants, and to set forth the interests of all parties properly. (O’Malley v. Walker (1955), 4 Ill. App. 2d 555, 124 N.E.2d 690.) WTiere defendants interpose a substantial defense in good faith, it is sufficient to preclude apportionment of plaintiff’s attorney fees, even if that defense is not sustained in either the trial court or the reviewing court. Harrison v. Kamp (1949), 403 Ill. 542, 87 N.E.2d 631; Jackson v. O’Connell (1964), 46 Ill. App. 2d 49, 196 N.E.2d 714.

In the instant case, the original complaint for partition was filed by plaintiff-appellant, Julia O. Clayton, in the circuit court of Bond County on March 2, 1987. This complaint was subsequently amended. Her complaint alleged that she and defendant-appellee owned the premises as tenants in common by virtue of inheritance from their parents and by virtue of warranty deeds conveying partial interests in the property from other heirs of the parents. It further alleged that Clayton had obtained a partial interest in the premises by warranty deed from defendant-appellee Allen. The complaint did not allege the respective interests of the parties as to the amount of their interests in the premises. The complaint asked the court to determine the respective interests of the parties in the premises and to either partition the property in kind or to order a sale of the property and a division of the proceeds. Count II of the complaint as amended seeks reimbursement upon partition for expenses and improvements paid for by plaintiff-appellant Clayton relating to the premises.

On August 27, 1987, Allen filed an answer to the complaint admitting the above allegations of the complaint but denying any desire for partition as prayed for in the complaint. The answer also sets forth the affirmative defense that plaintiff had orally promised defendant that if defendant moved back to the premises in question from Chicago plaintiff would reconvey to defendant that interest in the premises which defendant had previously conveyed to plaintiff; that in reliance on this promise of plaintiff, defendant did move from Chicago to the premises in question and made substantial improvements thereon; and that because of plaintiff’s promise, plaintiff was estopped from bringing the partition action. This affirmative defense was ordered dismissed on motion of plaintiff, but was later reinstated by the trial court. In her answer to the amended complaint, defendant also raised certain affirmative defenses to plaintiff’s claim for reimbursement for expenses and improvements.

Also on August 27, 1987, defendant filed a counterclaim against plaintiff. This counterclaim was subsequently amended. Count I thereof alleged that the parties were two of the legal heirs of their parents, whose estate had never been fully administered by the court, and that plaintiff had taken possession of the premises in question and had sold timber and firewood therefrom, had collected rent from the premises, had not distributed certain personalty of the estate, and had made use of the premises for her personal benefit without any accounting or distribution of income to defendant. Count I sought an accounting and payment of any sums due to defendant, as a result of the accounting, by virtue of her undivided interest in the premises. Count II of the counterclaim alleged that plaintiff had orally promised that if defendant would move back to the premises from Chicago plaintiff would reconvey to defendant that interest in the premises which defendant had previously conveyed to plaintiff and that in reliance on this promise defendant had returned to the premises and made very substantial improvements thereon. Count II prayed that plaintiff be compelled to reconvey to defendant the undivided interest in the premises which defendant had previously conveyed to plaintiff. Count III of the counterclaim as amended sought reimbursement upon partition for the substantial improvements which defendant had made to the property.

In her answer to the amended counterclaim, plaintiff asserted that, with respect to count I, defendant has been guilty of laches, that the claim for an accounting is barred by the statute of limitations, and that no accounting is required by law, and, with respect to count II, that the action is barred by the Statute of Frauds (Ill. Rev. Stat. 1989, ch. 59, par. 1 et seq.) and by laches. Plaintiff also sought reimbursement for the improvements she had made to the property. With respect to count III, plaintiff simply denies that defendant is entitled to reimbursement for improvements to the property.

The matter came on for trial on January 13, 1988, on the issues raised by the pleadings. We note that due to court scheduling problems, the case was tried piecemeal, with evidence being taken on January 13, 1988, May 25, 1988, April 27, 1989, and April 28, 1989. This procedure was objected to strenuously by the attorney for plaintiff; however, the procedure is not raised as error on appeal. At the conclusion of the evidence, the court asked the parties to submit written briefs on the issues.

On May 1, 1990, the circuit court of Bond County entered judgment finding that: defendant made substantial improvements to the property; plaintiff did promise to defendant a reconveyance of defendant’s one-eighteenth interest upon defendant moving back to the property, and defendant reasonably relied on that promise to her detriment and is therefore entitled to the additional one-eighteenth interest upon any division of the property; and the interests of the parties in the property were seven-ninths to the plaintiff and two-ninths to the defendant. A commissioner was appointed to view the property to determine whether division was possible and to report back to the court. The court further found that no accounting was due from plaintiff to defendant.

On April 16, 1991, the court entered an order finding that, pursuant to the commissioner’s recommendation, the property could be equitably divided in kind with plaintiff receiving a seven-ninths interest and defendant receiving a two-ninths interest. The commissioner was granted leave to employ a surveyor to effect the division in kind.

On July 10, 1991, an order was entered approving the report of the commissioner and confirming the plat of survey effecting the division of the property. The order set forth the division of the property, and the parties were ordered to surrender possession of any property not awarded to them by partition.

On August 15, 1990, plaintiff filed a motion for allowance of attorney fees and costs, with itemized bills attached. On October 3, 1990, defendant filed a motion for apportionment of her attorney fees, alleging that she had interposed a good and substantial defense to plaintiff’s complaint for partition and that she had been the first party to properly set forth the interests of the parties in the property. Attached to the motion were itemized bills. Both parties filed memoranda in support of their motions.

On January 30, 1992, the court entered its judgment as to attorney fees. The court found that plaintiff’s complaint did not completely set forth the respective interests of the parties in the property. The court further found that although plaintiff’s promise to reconvey a portion of the premises to defendant is a collateral issue, it also affects the quantity of land to be awarded to the parties upon partition and can therefore be viewed as either a substantial defense to plaintiff’s complaint for partition or as the first proper statement of the parties’ respective interests in the property. Furthermore, the promise to reconvey was raised as an affirmative defense to plaintiff’s complaint. The court found that other issues raised by defendant’s counterclaim, such as the issue of accounting, were strictly collateral to the partition action and therefore .the parties should bear their own attorney fees with respect to those collateral issues. However, issues of reimbursement for improvements were germane to the partition action. The court determined that 40% of the actual time spent by the attorneys was attributable to the partition action and that 60% was attributable to collateral issues. This 60% spent on collateral issues should remain unapportioned as to the partition suit. The court further found that neither party had objected to the actual billings of the other and that defendant’s total attorney fees and costs were $34,381.03. The court found that, while these fees might appear excessive, the possible loss of defendant’s home may have warranted the fees. The court determined that 40% of $34,381.03 is $13,752.41 and that seven-ninths of this amount is $10,696.32, which amount should be apportioned to and paid by plaintiff. Two-ninths of the total of $13,752.41, or $3,056.09, was apportioned to defendant. Plaintiff’s attorney fees were not apportioned between the parties, and plaintiff was ordered to pay them in full.

Both parties sought reconsideration of the court’s order. Defendant argued that her counsel had spent more than 40% of his time on the partition action and less than 60% of his time on collateral issues. Plaintiff argued that the court had awarded defendant attorney fees on a counterclaim raising a collateral issue and that plaintiff’s complaint for partition had completely set forth the respective interests of the parties in the property to be partitioned, whereas the counterclaim had set forth neither a substantial defense nor the first accurate statement of the parties’ respective interests in the property. Plaintiff further argued in her motion for reconsideration that she had objected to the amount and necessity and appropriateness of defendant’s attorney fees, which were excessive and unnecessary.

On July 9, 1992, the court ruled on the motions for reconsideration, affirming its previous order but clarifying that, indeed, plaintiff had argued that defendant’s attorney fees were excessive and unnecessary.

On appeal, plaintiff asks that we reverse the order of the trial court denying apportionment of her attorney fees, that we order that two-ninths of her attorney fees be apportioned to defendant and that at least two-ninths of the costs incurred in the circuit and appellate courts be apportioned to defendant, and that the judgment of the trial court apportioning defendant’s attorney fees to plaintiff be reversed.

We address first the issue of whether the trial court erred in denying apportionment of plaintiff’s attorney fees. The statute provides that when the rights and interests of all the parties in interest are properly set forth in the complaint and where the defendant does not interpose a good and substantial defense to the complaint, the court shall apportion the costs among the parties in interest in the action, including a reasonable fee for plaintiff’s attorney. We agree with the trial court that plaintiff was not entitled to apportionment of her attorney fees for two reasons: her complaint did not properly set forth the rights and interests of all the parties in interest in that it failed to set forth defendant’s right to reconveyance of the interest in the premises which she had previously conveyed to plaintiff, and defendant interposed a good and substantial defense to the partition action by setting up her claim to an additional interest by virtue of plaintiff’s promise to reconvey.

' I

While plaintiff’s complaint sets forth the record owners of the property to be partitioned and the manner in which they acquired their interests, it does not set forth the amount of their respective undivided interests, nor does it set forth the promise by plaintiff to re-convey a portion of the premises to defendant and defendant’s substantial reliance to her detriment thereon. Thus, plaintiff’s complaint does not properly set forth all of defendant’s rights and interest in and to the real estate in question. As we have stated, the statutory authorization for an award of attorney fees is based on the premise that plaintiff’s attorney acts for all interested parties. It is essential that the conduct of the attorney for the party seeking partition be fair and impartial to all the parties in interest. (Harrison v. Kamp (1949), 403 Ill. 542, 547, 87 N.E.2d 631, 634.) Here, plaintiff did not fairly and honestly represent the interests of all the parties sought to be partitioned, and the complaint did not properly set forth all of defendant’s interest in the real estate. Where it is necessary for defendant to employ counsel to protect her interest in the property, as here, where plaintiff failed to set forth defendant’s right to reconveyance of a portion of the premises, apportionment of plaintiff's attorney fees is not appropriate.

Furthermore, defendant interposed a good and substantial defense to the complaint. The complaint failed to allege defendant’s right to reconveyance. Defendant was thereby forced to defend against plaintiff’s complaint by properly setting forth her additional interest in the premises by virtue of plaintiff’s promise to reconvey. It is error to apportion plaintiff’s attorney fees where the suit is strongly contested and defendant has in good faith advanced reasonable and substantial grounds on which she defended. (Jackson v. O’Connell (1964), 46 Ill. App. 2d 49, 53, 196 N.E.2d 714, 716.) The adversary nature of this proceeding is apparent from the record.

Plaintiff does not argue that defendant’s defense was not made in good faith. Plaintiff does argue, however, that the defense is not substantial in that it raises a collateral issue which is not directly involved in the partition suit. Plaintiff argues that when only a collateral issue is raised by defendant, it will not prevent apportionment of plaintiff’s attorney fees to the other parties in a partition suit.

In Bailey v. Bailey (1986), 150 Ill. App. 3d 81, 501 N.E.2d 391, the court discussed the difference between a substantial defense and a collateral issue. In that case, the court held that where a will contest did not affect title to the property subject to partition, it was not a substantial defense to the partition action but constituted a collateral issue. It was possible to divide the disputed properties without resolution of the will contest. However, a will construction action, although in one sense a collateral issue, also constituted a substantial defense to the partition action. The parties’ proffered constructions directly influenced and could have changed the proposed quantity of land to be taken by each individual party. The court held that the will construction was, therefore, by definition a substantial defense. The court further held that the presentation of this substantial defense to the partition action precluded an award of attorney fees to plaintiff.

In the instant action, the issue of plaintiff’s promise to reconvey to defendant a portion of the premises to be partitioned is a substantial defense to the partition action. It is not possible to divide the property without resolution of the issue of plaintiff’s promise to re-convey. Resolution of the issue of plaintiff’s promise to reconvey does affect title to the property subject to partition. It directly influences and could change the proposed quantity of land to be taken by each of the parties. It is, therefore, by definition a substantial defense to the partition action precluding an award of attorney fees to plaintiff.

This is not such a case as Kunart v. Deal (1955), 5 Ill. App. 2d 142, 124 N.E.2d 591, where it could be said that, with the exception of the answer and the order denying apportionment of plaintiff’s attorney fees, every other matter in connection with the partition action was prepared and done by plaintiff’s attorney. Instead, unlike Kunart, in this case the original complaint did not correctly and properly set forth the interests of the various parties in interest, and there was a controversy that required a substantial defense on the part of defendant. The trial court did not err in denying plaintiff’s request for apportionment of her attorney fees.

We now turn to the question of whether the trial court erred in apportioning defendant’s attorney fees to plaintiff. Again, we find that the trial court properly apportioned defendant’s attorney fees for two reasons: the defendant was the first party to properly set forth the rights and interests of the parties in the property, and section 17 — 125 provides that the party making a substantial defense to a complaint for partition shall recover her costs against the plaintiff according to justice and equity.

It has been held that, under section 17 — 125, attorney fees may be awarded to the party whose attorney first sets forth the rights and interests of all the parties. (Herrman v. Golden (1981), 93 Ill. App. 3d 937, 940, 418 N.E.2d 187, 191.) This applies to a counterclaimant even though the partition statute makes no mention of a counter-claimant. In Jackson v. O’Connell (1964), 46 Ill. App. 2d 49, 52, 196 N.E.2d 714, 716, the court held that the statute allows the successful party to petition the court to have his attorney fees apportioned, whether that successful party is the plaintiff, the defendant, or a counterclaimant. Thus, it is not necessary to be the original plaintiff in order to have one’s attorney fees apportioned. The court held in Jackson that upon satisfying the requirements of section 17 — 125 it is possible for the attorney of a counterclaimant to have his fees apportioned.

We have already found that plaintiff’s complaint did not properly set forth the rights and interests of the parties in the property to be partitioned but that defendant’s counterclaim did. Defendant was entitled to apportionment of her attorney fees for being the first party to properly set forth the rights and interests of the parties in the property to be partitioned.

Plaintiff argues for the first time in her reply brief that she interposed a good and substantial defense to defendant’s counterclaim in that she denied the existence of an oral agreement to reconvey and that, therefore, defendant is not entitled to apportionment of her attorney fees even if she was the first party to properly set forth the rights and interests of the parties. Plaintiff did not raise this issue before the trial court, nor did she raise it in her opening brief on appeal. It is well settled that questions not raised in the trial court are waived and may not be raised for the first time on appeal. Furthermore, points not raised in an appellant’s initial brief are waived and may not be raised in the reply brief. (In re Liquidations of Reserve Insurance Co. (1988), 122 Ill. 2d 555, 568, 524 N.E.2d 538, 543-44.) To allow plaintiff to make this argument for the first time in her reply brief, without giving defendant an opportunity to respond thereto, would be manifestly unfair. Accordingly, we decline to address plaintiff’s argument that she presented a good and substantial defense to defendant’s counterclaim, precluding an award of attorney fees to defendant.

Defendant is also entitled to apportionment of her attorney fees because, as we have already found, she presented a good and substantial defense to the partition action. Section 17 — 125 provides that a party making such a substantial defense shall recover his or her costs against the plaintiff according to justice and equity. (Ill. Rev. Stat. 1989, ch. 110, par. 17 — 125.) The allowance of attorney fees as apportioned costs is largely a matter resting in the discretion of the trial court. (Lane v. Budiselich (1974), 17 Ill. App. 3d 914, 917, 308 N.E.2d 811, 813.) Section 17 — 125 authorizes an award of attorney fees to defendant where a substantial defense is raised to the plaintiff’s complaint. We cannot state that the apportionment of attorney fees to defendant in this case is contrary to justice and equity. Defendant carried the burden of proof on the issue of plaintiff’s promise to reconvey a portion of the premises and prevailed thereon. We find no abuse of discretion in the trial court’s award of attorney fees to defendant.

Finally, we turn to the question of the necessity and excessiveness of defendant’s attorney fees. The fixing of attorney fees and the allowance of those fees as apportioned costs are largely matters resting in the discretion of the trial court. (Lane v. Budiselich (1974), 17 Ill. App. 3d 914, 917, 308 N.E.2d 811, 813.) In the instant case, defendant’s attorney submitted extremely detailed itemized bills for his services. It appears that defendant’s attorney keeps very detailed time records, recording even five minutes spent on the case. However, none of the time spent appears to us to be clearly unnecessary. These bills also reflect time spent on matters collateral, but related, to the partition action. The trial court found that 60% of the time spent was spent on these collateral issues. This finding is not contrary to the manifest weight of the evidence, and we note that time spent on these collateral issues did contribute to the high fees. However, high fees are not necessarily excessive fees. This case was commenced in 1986 and concluded in 1992. It involved numerous issues relating to the administration of the deceased parents’ estates, improvements to the realty, valuation of the realty and improvements thereon, and the oral promise to reconvey. Defendant’s attorney also made several unsuccessful settlement attempts.

Finally, we note that the trial court, in its order for attorney fees, noted that while defendant’s attorney fees appear excessive, the possible loss by defendant of her home may have warranted the extensive litigation. Thus, the trial court considered the issue of the excessiveness of defendant’s attorney fees and determined that they were not excessive. We agree that the attorney fees are high. However, we cannot say that the trial court abused its discretion in approving them, nor is there any basis for finding that the order of the trial court was contrary to the manifest weight of the evidence.

For the foregoing reasons, we affirm the judgment of the circuit court of Bond County.

Affirmed.

CHAPMAN, P.J., and LEWIS, J., concur.


author: PRESIDING JUSTICE McCUSKEY

text:
    TERESA DUNBAR, Plaintiff-Appellant, v. THRYLL LATTING, Indiv. and d/b/a Latting Rodeo Productions et al., Defendants-Appellees.—JIMMY CUNNINGHAM et al., Plaintiffs-Appellants, v. THE VILLAGE OF HOPKINS PARK et al., Defendants-Appellees.
    Third District
    Nos. 3 — 92—0940, 3 — 92—0961 cons.
    Opinion filed September 14, 1993.

      Fred I. Benjamin, of Benjamin & Shapiro, Ltd., of Chicago (Paul R. Kesselman, of counsel), for appellant Teresa Dunbar.
    Copeland, Finn & Fieri, of Chicago (Michael P. Hendrickson, of counsel), for appellants Jimmy Cunningham and Lucille Cunningham.
    Karen L. Kendall and Brad A. Elward, both of Heyl, Royster, Voelker & Allen, of Peoria, and Heyl, Royster, Voelker & Allen, of Urbana (Michael E. Raub, of counsel), for appellee Thryll Latting.
    Modesto, Reynolds & McDermott, of Chicago (William E. Hoversen, Jr., of counsel), for appellee Village of Hopkins Park.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

Plaintiffs Jimmy and Lucille Cunningham filed a complaint alleging that they were injured by defendants’ negligence when bleachers they were sitting on collapsed at a rodeo. Plaintiff Teresa Dunbar also filed a complaint alleging that she was injured in the same bleacher incident. The cases were consolidated by the trial court, and we will refer to the Cunninghams and Dunbar collectively as plaintiffs. Plaintiffs appeal from an order which granted summary judgment in favor of two of the defendants, Thryll Latting, d/b/a Latting Rodeo Productions (Latting Rodeo), and the Village of Hopkins Park (Village).

Plaintiffs raise two issues on appeal: (1) whether the trial court erred in granting summary judgment in favor of the Village because, as it owned the park where the rodeo was held, it had a duty to maintain the property in a reasonably safe condition; and (2) whether the trial court erred in granting summary judgment in favor of Latting Rodeo because, as the producer of the rodeo, it had a duty to provide safe seating for spectators at the rodeo. After considering the plaintiffs’ arguments, we affirm the trial court based upon our review of the record.

On May 24, 1987, plaintiffs attended a rodeo which was held in a park located in the Village. The bleachers they were sitting on collapsed, and plaintiffs suffered injuries. Plaintiffs filed complaints against Pembroke Rough Riders Rodeo (Pembroke), Latting Rodeo, and the Village. The Cunninghams also named Pembroke Township as a defendant. On March 9, 1989, an order was entered in the Dunbar case which stated that Pembroke was held in default. Later, on October 16, 1990, the trial court consolidated the two cases. On December 19, 1991, the Cunninghams voluntarily dismissed Pembroke Township from the action with prejudice. We note that neither Pembroke nor Pembroke Township is a party to this appeal.

Both the Village and Latting Rodeo filed motions for summary judgment. The Village contended that it was entitled to summary judgment because it did not own, manage or maintain the bleachers in question. In its motion, Latting Rodeo contended that it was involved in the rodeo only to the extent of its contractual obligations with Pembroke. Under the terms of this agreement, Latting Rodeo had no responsibility for the design, construction and maintenance of the bleachers.

Plaintiffs filed responses to the motions for summary judgment. The Cunninghams noted that the Village had liability insurance at the time of their injuries. They thus contended that the protections of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1991, ch. 85, par. 1 — 101 et seq.) did not apply. The Village filed a reply in which it argued that the Tort Immunity Act had been amended and therefore did apply even though the Village had liability insurance. It also argued that, pursuant to section 3 — 106 of the Tort Immunity Act (Ill. Rev. Stat. 1991, ch. 85, par. 3 — 106), plaintiffs had to plead and prove that the proximate cause of their injuries was the Village’s willful and wanton conduct. The Village contended that there was no evidence of willful and wanton conduct. Subsequently, on July 9, 1992, the Village filed an amended answer to Dunbar’s first amended complaint and an amended answer to the Cunninghams’ complaint. In both amended answers, the Village alleged that, under the Tort Immunity Act, it could not be liable for negligent conduct.

The parties filed various affidavits, documents and deposition excerpts in support of and in opposition to the motions for summary judgment. The facts showed that, since approximately 1978, a rodeo was held on the Village’s property each Memorial Day weekend. The park where the rodeo was held was known as “Rodeo Park.” In one area of the park there was some playground equipment and a ball field. There were no permanent structures in the area where the rodeo was held. The bleachers, corrals and fences needed for the rodeo were erected and dismantled each year before and after the rodeo. This particular year, the wooden bleachers which were used by spectators were constructed and installed by Griffin Lumber Company (Griffin), a local company located in the Village. Plaintiffs did not name Griffin as a defendant in their complaints.

In 1987 and prior years, the Village entered into an agreement with Pembroke. Pembroke was essentially responsible for putting on the rodeo. Under the agreement, Pembroke agreed: (1) to carry liability insurance; (2) to obtain a liquor license; (3) to pay prevailing wages for security and use Village auxiliary police; (4) to be completely responsible for cleaning up the park after the rodeo; and (5) to make a donation of $400 to the Village’s “Emergency Assistance Fund.” However, Pembroke did not have liability insurance coverage at the time plaintiffs were injured. The Village’s mayor testified in his deposition that the Village’s only responsibility under the agreement was to provide traffic control. The Village did not require Pembroke to provide proof that it had liability insurance coverage. Also, the Village did not inspect the bleachers or any of the other structures. Prior to the plaintiffs’ injuries in 1987, no one had been injured at the annual rodeo.

In 1987, Pembroke also entered into an agreement with Latting Rodeo. Under the terms of this agreement, Latting Rodeo was to provide a portable arena including a fence and bucking chutes, all personnel including cowboys and an announcer, and all animals and handlers to be used in the rodeo. Latting Rodeo was paid a fee for these services which was not related to ticket sales. Pembroke was responsible for selling the tickets to the rodeo. Latting Rodeo had nothing to do with the construction of the bleachers. The evidence presented showed that the animals and personnel provided by Latting Rodeo did not come into contact with the bleachers and did not cause the collapse of the bleachers.

A hearing was held regarding the summary judgment motions, and the Village argued that it was entitled to the protections provided by the Tort Immunity Act “in the use of land for recreational purposes.” An order was later entered on November 19, 1992. The court granted both motions for summary judgment. The court found that neither Latting Rodeo nor the Village had control over the bleachers which allegedly collapsed so that neither of these defendants owed plaintiffs a duty of care. The court’s order stated that no just cause existed to delay enforcement or appeal of the order pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). Thereafter, plaintiffs filed timely notices of appeal.

On appeal, plaintiffs argue that summary judgment should not have been granted. They contend that the facts presented to the trial court were adequate to show that both the Village and Latting Rodeo had a duty to plaintiffs.

Summary judgment is a drastic means of disposing of litigation and should only be allowed when the right of the moving party is clear and free from doubt. (Mitchell v. Jewel Food Stores (1990), 142 Ill. 2d 152, 165, 568 N.E.2d 827, 832; Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) “The sole function of the court reviewing the trial court’s entry of summary judgment is to determine whether the lower court correctly ruled that no genuine issue of material fact had been raised, and if none was raised, whether judgment was correctly entered as a matter of law.” Lavat v. Fruin Colnon Corp. (1992), 232 Ill. App. 3d 1013, 1023, 597 N.E.2d 888, 894.

In this case, plaintiffs have alleged a cause of action based upon negligence. To properly state a cause of action for negligence, a plaintiff must establish that the defendant owed a duty of care, a breach of that duty, and an injury proximately caused by the breach. (Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 421, 592 N.E.2d 1098, 1100.) Whether or not a duty of care exists is a question of law to be determined by the court and thus may be determined on a motion for summary judgment. (Wojdyla, 148 Ill. 2d at 421, 592 N.E.2d at 1100.) On appeal, a trial court’s determination whether a duty exists is subject to de novo review. Wolowinski v. City of Chicago (1992), 238 Ill. App. 3d 639, 641, 606 N.E.2d 273, 274.

Here, there is no real dispute regarding the facts. The only issue is whether, under the facts presented to the trial court, either the Village or Latting Rodeo had a duty to plaintiffs. We find that this issue is properly subject to de novo review.

Plaintiffs first argue that summary judgment should not have been granted for the Village. They argue that there is no dispute that the Village owned the property where the rodeo was held. The Cunninghams therefore contend that the Village had a duty, pursuant to section 3 — 102(a) of the Tort Immunity Act (Ill. Rev. Stat. 1991, ch. 85, par. 3 — 102(a)), to maintain its property in a reasonably safe condition. Dunbar argues that the Tort Immunity Act does not apply because it is undisputed “that the Village maintained an insurance policy to cover persons injured while on Village property.” Dunbar contends, however, that the Village breached its duty when no one from the Village supervised the installation of the bleachers on its property or inspected the bleachers to ensure they were safe. Dunbar also contends that the Village is liable because it failed “to make sure that those organizing the Rodeo were properly insured.”

Initially, we note that section 9 — 103 of the Tort Immunity Act was amended in 1986 to allow local public entities to acquire commercial liability insurance without waiving their immunities under the Act. (Aetna Casualty & Surety Co. v. James J. Benes & Associates, Inc. (1992), 229 Ill. App. 3d 413, 420, 593 N.E.2d 1087, 1092.) Therefore, contrary to Dunbar’s contention, the Tort Immunity Act does apply to this action even though the Village had liability insurance. Ill. Rev. Stat. 1991, ch. 85, par. 9 — 103(c).

The Cunninghams rely on section 3 — 102(a) of the Tort Immunity Act, which provides, in pertinent part:

“Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition ***.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 85, par. 3 — 102(a).)

Section 3 — 106 of the Tort Immunity Act, however, provides otherwise when the property in question is recreational property. The record shows there is no dispute that the park where the rodeo was held was recreational property.

Under section 3 — 106 of the Tort Immunity Act, a local public entity is not liable for any injury resulting from a condition on public property intended or permitted to be used for recreational purposes unless the local public entity is guilty of willful and wanton conduct which proximately caused the injury. (Ill. Rev. Stat. 1991, ch. 85, par. 3 — 106; Barrett v. Forest Preserve District (1992), 228 Ill. App. 3d 975, 978, 593 N.E.2d 990, 992.) The purpose of this legislation is to encourage the development and maintenance of parks, playgrounds and similar areas. John v. City of Macomb (1992), 232 Ill. App. 3d 877, 879, 596 N.E.2d 1254, 1256.

The Village did not base its motion for summary judgment on section 3 — 106. However, after the motion was filed, it did argue before the trial court that there was no evidence that it engaged in willful and wanton conduct. The Village thus contended that it could not be liable to plaintiffs based upon section 3 — 106 of the Tort Immunity Act (Ill. Rev. Stat. 1991, ch. 85, par. 3 — 106). We agree with plaintiffs that this was not the basis of the trial court’s ruling. However, we do not agree with plaintiffs that this issue must be considered waived and cannot be considered on appeal.

Summary judgment may be affirmed on any grounds supported by the record regardless of whether the trial court relied on those grounds or whether the reasoning of the trial court was correct. (Aetna Casualty & Surety Co. v. James J. Benes & Associates, Inc. (1992), 229 Ill. App. 3d 413, 417, 593 N.E.2d 1087, 1089.) A reviewing court will consider all grounds urged and facts revealed in the trial court when determining the propriety of the entry of summary judgment. Kirnbauer v. Cook County Forest Preserve District (1991), 215 Ill. App. 3d 1013, 1016, 576 N.E.2d 168, 171.

Because the record shows that the property involved in this action is recreational property, we conclude that section 3 — 106 applies to this case. Thus, the Village can be liable only if it engaged in willful and wanton conduct which proximately caused plaintiffs’ injuries. The Tort Immunity Act defines willful and wanton conduct as “a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property.” (Ill. Rev. Stat. 1991, ch. 85, par. 1 — 210.) Our supreme court recently determined that there is a qualitative difference between negligence and willful and wanton conduct. (Burke v. 12 Rothschild’s Liquor Mart, Inc. (1992), 148 Ill. 2d 429, 450, 593 N.E.2d 522, 531.) The court noted that willful and wanton conduct approaches the degree of blame associated with intentional harm because the defendant deliberately inflicts a highly unreasonable risk of harm upon others in conscious disregard of that risk. Burke, 148 Ill. 2d at 448, 593 N.E.2d at 530.

Willful and wanton conduct may be found to exist where the local public entity takes no action to correct a condition even though it was informed about the dangerous condition and knew that other persons had previously been injured because of the dangerous condition. (See Straub v. City of Mt. Olive (1993), 240 Ill. App. 3d 967, 979-80, 607 N.E.2d 672, 680-81.) Also, a local public entity may be found to have engaged in willful and wanton conduct when it intentionally removes a safety feature from its recreational property. (See Benhart v. Rockford Park District (1991), 218 Ill. App. 3d 554, 559-60, 578 N.E.2d 600, 603-04.) However, where there are no facts or allegations to show that the local public entity engaged in any intentional act or knew of other injuries or accidents caused by the allegedly dangerous condition, the conduct of the local public entity does not rise to the level of willful and wanton conduct. See Brown v. Chicago Park District (1991), 220 Ill. App. 3d 940, 944-45, 581 N.E.2d 355, 359.

Here, plaintiffs have not argued that the Village engaged in any intentional conduct. Also, there were no facts presented to show that the Village knew of any dangerous condition or any previous injuries. In fact, the undisputed facts show that, although Pembroke had staged a rodeo on the Village’s property for years, there were no prior injuries or problems with unsafe bleachers. Under these circumstances, while the Village’s failure to inspect the bleachers may have been negligent, it cannot be considered willful and wanton conduct. Summary judgment is properly granted where the acts of the local public entity cannot be characterized as willful and wanton conduct. Foley v. City of LaSalle (1993), 241 Ill. App. 3d 54, 58, 608 N.E.2d 964, 966.

We also disagree with Dunbar’s argument that the Village is subject to liability based upon its failure to ensure that Pembroke had liability insurance. Under section 3 — 106, the Village is not liable for plaintiffs’ injuries unless it was “guilty of willful and wanton conduct proximately causing such injury.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 85, par. 3 — 106.) Even if we were to assume that the Village’s failure to obtain proof of insurance could be considered willful and wanton conduct, this failure could not have been the proximate cause of plaintiffs’ injuries. The cause of an injury is that which actually produces it. (Thompson v. County of Cook (1993), 154 Ill. 2d 374, 383, 609 N.E.2d 290, 294.) Plaintiffs’ injuries were caused by the collapse of the bleachers, not by the Village’s failure to obtain proof that Pembroke had liability insurance.

At oral argument, Dunbar also argued that the immunity provided by section 3 — 106 does not apply because putting on a rodeo is not a governmental function. This argument has no merit. Even if we agreed with Dunbar that the act of presenting a rodeo to the public is not a governmental function, the facts here show that the Village did not put on the rodeo. The Village merely provided Pembroke with the recreational property on which to present the rodeo. Providing a playground or other recreational property is a governmental activity. (See Davis v. Chicago Housing Authority (1990), 136 Ill. 2d 296, 301, 555 N.E.2d 343, 345.) Because we have concluded that section 3 — 106 of the Tort Immunity Act applies to plaintiffs’ action against the Village and because the facts presented do not show any willful and wanton conduct on the part of the Village, we conclude that summary judgment for the Village was properly entered by the trial court.

Additionally, we note that the Village may arguably be entitled to immunity under section 3 — 109 of the Tort Immunity Act. This section provides that a local public entity is not liable for injuries to a spectator arising out of a “hazardous recreational activity.” (Ill. Rev. Stat. 1991, ch. 85, par. 3 — 109(a).) The statute specifically includes “rodeo” in its definition of hazardous recreational activity. (Ill. Rev. Stat. 1991, ch. 85, par. 3 — 109(b)(3).) We merely note this section of the statute in passing because none of the parties discussed this immunity. However, we have not based our decision on this section of the Tort Immunity Act.

Plaintiffs next argue that Latting Rodeo was not entitled to summary judgment. Relying on Tomlin v. Miller (1948), 335 Ill. App. 267, 81 N.E.2d 760, they argue that Latting Rodeo was the “rodeo producer” and thus had a duty to furnish a reasonably safe place for plaintiffs and other spectators to view the rodeo. Based on our review of Tomlin, we disagree with the plaintiffs and conclude that Tomlin is clearly distinguishable.

In Tomlin, the defendant held a rodeo on his farm. The defendant charged admission and used his own horses in the rodeo. No seating was provided, and the plaintiff and some of the other spectators stood near the fence around the corral. During the rodeo, a horse jumped the fence. A portion of the fence was dislodged and struck the plaintiff, injuring him. On appeal, the court affirmed a jury verdict for the plaintiff, holding that it was the defendant’s duty to exercise ordinary care “in furnishing a reasonably safe place for plaintiff and other spectators to view said rodeo.” Tomlin, 335 Ill. App. at 271-72.

There are two important factual differences between Tomlin and the instant case. In Tomlin, the defendant conducted the rodeo on his own property and had full responsibility for the entire performance. Here, the rodeo was held on property owned by the Village, and Pembroke was responsible for putting on the rodeo. Latting Rodeo’s responsibilities were set out in its contract with Pembroke. Under the terms of the contract, Latting Rodeo was to provide personnel, animals and a portable arena including a fence and bucking chutes. For these services, Latting Rodeo was paid a flat fee unrelated to ticket sales. It is undisputed that the contract did not require Latting Rodeo to provide seating for the spectators of the rodeo. The facts also show that Latting Rodeo had nothing to do with erecting the bleachers for the rodeo. Based upon these facts, Latting Rodeo, unlike the defendant in Tomlin, had no responsibility for providing seating for the rodeo and was not responsible for all aspects of the performance.

Another distinction is that, in Tomlin, the plaintiff’s injuries occurred when one of the defendant’s animals jumped the fence. Here, it is undisputed that plaintiffs’ injuries were not caused by the equipment, personnel or animals provided by Latting Rodeo.

Plaintiffs assert, however, that Latting Rodeo had a duty to inspect the bleachers. We disagree and conclude that there is no factual or legal basis for imposing a duty on Latting Rodeo to inspect the bleachers because: (1) the bleachers were not located on Latting Rodeo’s property; and (2) the contract with Pembroke imposed no responsibility on Latting Rodeo to inspect the bleachers. Therefore, we agree with Latting Rodeo that summary judgment was properly granted by the trial court.

In sum, following our review of the record, we find that no genuine issue of material fact exists, and we conclude that the trial court, as a matter of law, correctly entered summary judgment in favor of both defendants.

For the reasons indicated, the judgment of the circuit court of Kankakee County is affirmed.

Affirmed.

SLATER and BRESLIN, JJ., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SALVADOR RAYA, Defendant-Appellant.
    Third District
    No. 3 — 92—0886
    Opinion filed September 9, 1993.

      Thomas A. Karalis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (John X. Breslin and Gary E Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant Salvador Raya appeals to this court from a conviction of unlawful possession of a controlled substance with the intent to deliver in violation of section 401 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1991, ch. 56½, par. 1401(a)(2)(A)). The circuit court of Rock Island County entered judgment following a jury trial. Defendant was sentenced to a seven-year term of imprisonment and fined $4,000.

The record indicates that on May 9, 1992, Detective Mark Hanna of the Moline police department obtained a search warrant to search the house of Mathias Pizano for narcotics. On May 8, 1992, Detective Hanna had been informed from a confidential source that there would be a party at Pizano’s house and that drug activity was expected at the party. Detective Hanna testified that Mathias Pizano, Mario Barajas, and Karen and Coss Gatarez were targeted as suspects for possible drug activity.

Officer Jerome Patrick testified that he was the first officer to enter Pizano’s house, and that after securing the downstairs area, he was told by Officer Brockway that there was a white powdery substance in the upstairs laundry room. In the laundry room, Officer Patrick found a plastic bag containing a white powdery substance and an Illinois identification card belonging to the defendant. Officer Hanna testified that he observed the plastic bag lying open on a dryer, with two “lines” of cocaine out on the flap of the open bag, along with the defendant’s ID card. Morton crime lab employee Michelle Dierker examined the plastic bag and determined that it contained 25.8 grams of a substance containing cocaine.

Detective George Miklas testified that he entered the backyard of the Pizano residence and observed another officer arresting Mario Barajas, who had a narcotics scale, some cocaine and $2,660 in cash on his person. Detective Miklas then saw the defendant and another individual looking out of the back door of the Pizano residence. He chased the two individuals, eventually seizing and arresting the defendant. Detective Miklas testified that the defendant did not have any drugs on his person. Detective Steven Brockway testified that he spoke with the defendant at the Moline police department. Detective Brockway stated that after being advised of his Miranda rights, the defendant told the detective that the cocaine did not belong him, but belonged to unknown persons who were in the laundry room with Mathias Pizano, and that these people had asked to borrow his ID card in order to cut “lines” of cocaine. Mathias Pizano testified for the defense, but he testified that he was not in his house when the police executed the search warrant and that he was not in the laundry room at any time with a bag of cocaine. He also testified that he did not see the defendant in the laundry room with a bag of cocaine.

The defendant did not testify at trial.'

Fernando Castillo testified for the defense that he had obtained an ounce of cocaine from a man named Pajaro. Castillo stated that Pajaro left the “baggy” of cocaine with him and that Pajaro was to return to get the bag but was to leave him a portion of the cocaine. Pajaro had not returned after about an hour, so Castillo left the cocaine at a neighbor’s house and went over to the party at Pizano’s house. Castillo testified that while at Pizano’s house, people at the party asked him to go and get the cocaine from the neighbor’s house, and bring it to the party, but that the defendant did not ask him to go and get the cocaine. Castillo further testified that he brought the bag of cocaine to Pizano’s house and took it upstairs to the laundry room. After taking the cocaine to the laundry room, he went downstairs and had not returned to the laundry room when the police executed the warrant. Castillo stated that after he learned that the defendant had been arrested for possession of the cocaine in the laundry room, he gave a statement to the police because the cocaine belonged to him, and not the defendant. Officer Hanna testified for the defense that he did not recall the defendant having any tubing or straws which could be used to ingest cocaine. Officer Hanna further testified that Castillo, who had not yet been arrested, was taken to the Moline police department immediately after testifying.

Manuel Alonzo testified for the defense. Alonzo testified that he was at Pizano’s house and that he borrowed the defendant’s ID card so that Castillo could use it to gain admission into a tavern. Alonzo testified that he was in the laundry room along with the defendant and Castillo when the police executed the warrant, that there were approximately four people in the laundry room at that time, and that he did not see any cocaine. He further stated that all four persons walked downstairs from the laundry room when the police arrived, and that he and Castillo were taken into custody by the police.

The State called Officer Hanna as a rebuttal witness. He testified that Castillo gave a taped statement on July 19, 1992. Officer Hanna stated that during the statement, Castillo stated that he was upstairs with the defendant when the police entered the house, and that the defendant had asked him to bring the cocaine to the party. Detective Brockway then testified as a rebuttal witness for the State. He stated that he had a conversation with Castillo on September 23, 1992, during which Castillo stated that the defendant had asked him to bring the cocaine to Pizano’s house. Officer Brockway also testified that Castillo stated that the defendant was in the laundry room with him and had given him his ID card which he used to cut the cocaine.

On appeal, the defendant contends that (1) the State failed to prove beyond a reasonable doubt that the defendant was guilty of unlawful possession of a controlled substance with the intent to deliver, under an accountability theory, (2) the defendant was denied a fair trial due to comments made by the prosecutor during closing argument, and (3) in the event that this court does not reverse the defendant’s conviction, defendant’s fines should be reduced by $255 monetary credit for his 51 days of pretrial and presentence incarceration.

The decisive issue in this case is whether the prosecution proved the defendant guilty beyond a reasonable doubt of unlawful possession of a controlled substance with the intent to deliver, based on a theory of accountability for the acts of Fernando Castillo. The applicable test is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) The defendant argues that it was the prosecution’s burden to prove that the defendant had the specific intent that another person deliver the cocaine to a third person, to sustain a conviction of unlawful possession of a controlled substance with the intent to deliver. (Ill. Rev. Stat. 1991, ch. 56½, par. 1401 (a)(2)(A).) The defendant further contends that the prosecution offered insufficient evidence to prove such intent. We agree.

Under the theory of accountability of section 5 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 5 — 2), the State must show: (1) the defendant solicited, aided, abetted, agreed, or attempted to aid another in the planning or commission of an offense; (2) the 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 crime. (People v. Haynes (1991), 223 Ill. App. 3d 147, 150, 853 N.E.2d 1177, 1179.) The Illinois Supreme Court recently stated that “[accountability, tied as it is to the crime charged, must comport with the requirements of that crime. Thus, for example, the charge of assault with intent to rape, a specific intent crime, must require a specific intent for one who is accountable as well.” (People v. Stanciel (1992), 153 Ill. 2d 218, 234, 606 N.E.2d 1201, 1209.) As a result, in the present case, the prosecution had the burden of proving beyond a reasonable doubt that the defendant had the specific intent to have Castillo bring the drugs to the party for the purpose of delivering them to others, not only for the defendant’s own personal use.

The State correctly contends that its burden was to prove that the defendant shared the intent of the principal or that there was a community of unlawful purpose, to establish the specific intent to promote or facilitate the commission of a crime. (People v. Gil (1984), 125 Ill. App. 3d 892, 895, 466 N.E.2d 1205, 1208.) However, the State errs in stating that “the evidence satisfactorily established that defendant had a specific intent to promote the unlawful commission of a crime, to wit, the unlawful possession of a controlled substance with the intent to deliver it.” In the light most favorable to the State, the evidence could only have established that the defendant asked Castillo to bring the cocaine to Pizano’s house, that the defendant gave Castillo his ID card to use to cut the cocaine, and that the defendant was in the laundry room and intended to ingest some of the cocaine. Nowhere in the record are there facts establishing that the defendant asked or indicated to Castillo that he should sell or give any of the cocaine to others at the party.

The State cites several cases to support its accountability theory. (People v. Saunders (1990), 206 Ill. App. 3d 1008, 565 N.E.2d 183; People v. Parks (1978), 57 Ill. App. 3d 405, 373 N.E.2d 783; People v. Thomas (1993), 242 Ill. App. 3d 266, 609 N.E.2d 1067.) However, each of these cases involved the sale of narcotics, and in each case, there was evidence that the defendant had knowledge of and assisted in the sale or purchase of narcotics. In Saunders, the evidence established that the defendant was involved in an attempted sale of cocaine to undercover police officers (Saunders, 206 Ill. App. 3d at 1011, 565 N.E.2d at 185-86). In Parks, a police officer testified that the defendant had represented to the officer and a “confidential source” that he possessed certain amounts of mescaline or LSD for possible sale to the officer, which defendant’s companion eventually delivered to the officer’s “confidential source” (Parks, 57 Ill. App. 3d at 407, 373 N.E.2d at 784-85). Finally, in Thomas, testimony established that the defendant assisted his cohort in the attempted purchase of 10 pounds of marijuana from undercover officers, including retrieving the purchase money from the trunk of a car (Thomas, 242 Ill. App. 3d at 275-76, 609 N.E.2d at 1074). Each of these cases involved narcotics transactions in which the evidence tended to establish that the defendants intended the present or future distribution of drugs to others.

The State also cites People v. Tinoco (1989), 185 Ill. App. 3d 816, 541 N.E.2d 1198, and People v. Schlig (1983), 120 Ill. App. 3d 561, 458 N.E.2d 544, for the proposition that the fact finder may infer the defendant’s accountability from his approving presence at the scene of the crime and from evidence of conduct showing a design to aid in the offense. However, as in the cases mentioned above, in both Tinoco and Schlig the defendants were involved in the sale of narcotics to undercover agents. In both cases, evidence established that the defendants, through their communications, intended to assist in the distribution of narcotics to third persons. As stated above, the evidence in this case tends only to establish that the defendant requested cocaine for his own use, and not for distribution to others.

If this defendant can be held criminally responsible for having the intent to deliver narcotics under the facts in this record, then every person who solicits drugs from a supplier or source for his own personal ingestion could be held accountable for the possession with the intent to deliver of the supplier. This analysis is addressed in the committee comments to the accountability statute. (Ill. Rev. Stat. 1991, ch. 38, par. 5 — 2.) The comments point out that subsections (c)(l), (c)(2) and (c)(3) “state certain principles for relieving a person from accountability for the conduct of another who would otherwise fall under the prior provisions of subsection (c).” (Ill. Ann. Stat., ch. 38, par. 5 — 2, Committee Comments — 1961, at 236 (Smith-Hurd 1989).) Subsection (c)(2) states that a person is not so accountable if “[t]he offense is so defined that his conduct was inevitably incident to its commission.” (Ill. Rev. Stat. 1991, ch. 38, par. 5 — 2(c)(2).) The comments then note that “[t]he Model Penal Code suggests such examples as these ***. *** Should a bribe-taker be guilty of bribery?” (Ill. Ann. Stat., ch. 38, par. 5 — 2, Committee Comments — 1961, at 236 (SmithHurd 1989).) We find this analysis applicable to the case at hand. One who solicits narcotics for his own personal use should not be held accountable for the distributor’s intent to deliver. There are simply insufficient facts in the record for a jury to conclude beyond a reasonable doubt that the defendant intended the cocaine to be delivered to anyone other than himself.

Pursuant to Supreme Court Rule 615(b)(3) (134 Ill. 2d R. 615(b)(3)), this court may reduce the degree of an offense when a lesser included offense is involved. (People v. Williams (1991), 222 Ill. App. 3d 129, 138, 582 N.E.2d 1158, 1164.) The State asks that, in the event that this court finds insufficient evidence to sustain the conviction of unlawful possession of a controlled substance with the intent to deliver, we enter a judgment of conviction on the lesser included offense of unlawful possession of a controlled substance. A lesser included offense “[i]s established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged.” (Ill. Rev. Stat. 1991, ch. 38, par. 2 — 9.) The evidence in this case was insufficient only in establishing the culpable mental state of intent to deliver. Because the evidence in this case was sufficient to establish beyond a reasonable doubt the offense of unlawful possession of a controlled substance (Ill. Rev. Stat. 1991, ch. 56½ par. 1402(a)(2)(A)), we grant the State’s request.

Defendant next contends that he was denied his right to a fair trial as a result of two comments made by the prosecutor during closing arguments. The defendant has waived his right to preserve this issue for review. To preserve issues for appeal, “[b]oth a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial.” (Emphasis in original.) (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) Defense counsel objected to the prosecutor’s comments neither at trial, nor in a post-trial motion. However, the defendant urges us to apply the plain error exception to the waiver rule to reverse defendant’s conviction. For an appellate court to invoke the plain error rule, it must be plainly apparent from the record that error affecting substantial rights was committed. Error may be deemed plainly apparent when the evidence is closely balanced or the error was of such magnitude that the defendant was denied a fair trial. People v. Whitehead (1987), 116 Ill. 2d 425, 447-48, 508 N.E.2d 687, 695-96.

The defense contends that the prosecutor made two statements during closing argument that constitute plain error. These statements were:

“Use your common sense also when you think who has a motive to lie, who has a motive to make up a story in this case. The police? Salvador Raya wasn’t even one of the people targeted in execution of the search warrant. The Defendant and his friends. They’re here to get Salvador off.
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Well who do you believe? *** Do you believe the testimony, because if you do and if you believe the police are making up a story about Salvador Raya well then its your duty to find the defendant not guilty. But, I think you’ll believe the Police. Your duty is to find the defendant guilty.”

These statements, taken in context, were not of such magnitude as to constitute plain error. Nor was the evidence so closely balanced in light of the evidence at trial establishing the defendant’s possession of the cocaine to apply the plain error doctrine. The issue is waived.

Finally, the defendant contends that his $4,000 in fines should be reduced by $255 to reflect the monetary credit for his 51 days of pretrial and presentence incarceration. The trial judge levied a mandatory drug assessment fine of $3,000 and a “street value” fine of $1,000. The defendant argues that he should receive the $5-per-day credit against his fines for both the 16 days he served in the county jail prior to trial and the 35 days served between trial and sentencing pursuant to section 110 — 14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 110 — 14). Section 110 — 14 allows such credit when the defendant is incarcerated on a “bailable offense.” (Ill. Rev. Stat. 1991, ch. 38, par. 110 — 14.) The State contends that once the defendant’s bond was revoked upon the guilty verdict, he was no longer incarcerated on a “bailable offense”; thus, defendant should receive monetary credit only for the 16 days of pretrial incarceration. In this court’s recent decision in People v. Bennett (1993), 246 Ill. App. 3d 550, we stated that “[t]he statute does not make a distinction between defendants who are financially unable to post bond and those who are denied the opportunity to post bond by the trial court. The statute also does not prohibit the award of credit for the period of incarceration after a guilty finding.” (Bennett, 246 Ill. App. 3d at 551-52.) Thus, the defendant is entitled to $5-per-day credit for 16 days’ pretrial incarceration as well as the 35 days’ incarceration between the end of his trial and sentencing.

For the reasons stated, the defendant’s conviction is reduced to one of unlawful possession of a controlled substance. The defendant’s sentence is vacated and the cause is remanded for resentencing, with defendant to receive credit for 51 days of incarceration to be charged against the fines levied.

Affirmed as modified and remanded.

McCUSKEY, P.J., and SLATER, J., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDREW M. ASPELMEIER, Defendant-Appellant.
    Third District
    No. 3 — 92—0884
    Opinion filed September 10, 1993.

      Winstein, Kavensky & Wallace, of Rock Island (Arthur R. Winstein, of counsel), for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (John X. Breslin and Judith Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Defendant Andrew Aspelmeier was charged with two counts of first degree murder in the deaths of Tracy Rutherford and Arlene Aspelmeier. Following a bench trial, the defendant was found guilty but mentally ill (see Ill. Rev. Stat. 1991, ch. 38, par. 115 — 3(c)) on both counts and he was sentenced to two concurrent terms of natural life imprisonment. On appeal, the defendant contends that the trial court’s determination that he was legally sane at the time the offenses were committed was against the manifest weight of the evidence. We affirm.

The evidence presented at trial showed that on February 28, 1992, the defendant and his girlfriend, Tracy Rutherford, along with Rutherford’s 21-month-old son, went to the home of defendant’s mother, Arlene Aspelmeier, in East Moline, Illinois. The defendant had recently borrowed $2,700 from his father and was planning on moving to California. While at his'mother’s home, the defendant came to believe that Rutherford and his mother were conspiring against him, apparently to take the money. Shortly after his mother had given him some mail, the defendant shot his mother in the head with a shotgun. The defendant then shot Rutherford twice in the head as she was talking on the telephone. The defendant took Rutherford’s son down into the basement of the home, along with a handgun, until he determined that no one was coming. Defendant and the child then drove around for a while, until he dropped the boy off the next morning at the home of George and Marjorie Liebengood, Rutherford’s grandparents. Mr. Liebengood twice asked the defendant where Rutherford was, and defendant told him that she was with his mother. Defendant also told Liebengood that he was involved in a money “scam” and he was going to turn himself in to the police. According to Liebengood’s trial testimony, the defendant appeared to be normal. He was not easily distracted, nor did he speak rapidly or jump from topic to topic. Liebengood had given a statement to police on March 2, 1992, however, in which he stated that defendant appeared abnormal, as if he was in shock, and his responses to questions were strange and unusual. In addition, police officer Joseph Reedy testified that Liebengood called the East Moline police department and reported that defendant had made a strange statement to him.

Judy Scharer, an East Moline police dispatcher, testified that the defendant arrived alone at the police station at 7:45 a.m. on Saturday, February 29, and asked to speak to someone. He did not appear to be easily distracted, speak rapidly or skip from topic to topic. On cross-examination, Scharer agreed that when the defendant entered the police station he appeared to be somewhat confused.

Officer Reedy next spoke with the defendant, who told him he had been involved in a scam that had cost the lives of two people. The defendant told Reedy that he had borrowed money from his father, left the money at his mother’s house, and when he returned there with his girlfriend, the money was missing. After his mother gave him some mail, the defendant loaded a shotgun and shot both his mother and Tracy Rutherford. A tape-recorded statement was taken from the defendant by Reedy, which was played in open court. Reedy testified that the defendant appeared calm and quiet. He did not seem distracted, nor did he speak rapidly or switch from topic to topic. Defendant was responsive to questions and able to express himself. He did not complain of tension or that his mind was about to explode. Reedy found it unusual, however, that the defendant could not remember the address of the apartment where he and Tracy Rutherford had lived for a year and a half.

Police officer Corey Fulton was dispatched to Arlene Aspelmeier’s home, where he found the bodies of the victims. Prior to leaving the police station, Fulton spoke with the defendant and asked for permission to search the home. The defendant responded that he did not know if he could give permission because, although he had been staying there, he did not own the house. According to Fulton, the defendant was coherent, articulate, and able to respond to questions.

Police officer Richard Scott also interviewed the defendant on February 29 and took two taped statements from the defendant, which were played to the trial judge. According to Scott, the defendant was quiet and unemotional and he would think about his answers before giving them. Defendant did not seem distracted, nor did he speak rapidly, jump from topic to topic, or complain that his mind was about to explode. Scott acknowledged on cross-examination, however, that he found the defendant’s “laid back” attitude unusual. Two jailers at the Rock Island County jail where the defendant was being held also testified that the defendant was quiet and slept a lot.

The defendant presented the testimony of Dr. Robert Chapman, a psychiatrist, who examined the defendant on July 31, 1992, at the State’s request for the purpose of determining sanity. Chapman interviewed the defendant for two hours and gave him a psychological test. Chapman also relied upon police reports, copies of the statements defendant gave to Officers Scott and Reedy, and the report of Dr. Eric Ritterhoff, who had examined the defendant in early March and several times in May. Although Ritterhoff’s report was not entered into evidence, testimony was elicited that Ritterhoff had diagnosed the defendant as suffering from paranoid delusional disorder. Ritterhoff’s report did not state an opinion concerning whether or not the defendant could appreciate the criminality of his conduct. Chapman testified that he and Ritterhoff agreed that the defendant was suffering from a severe mental disease and a state of psychosis; they differed only in their classification of defendant’s condition. Chapman’s diagnosis was that defendant had suffered from an acute manic psychosis, which lasted from approximately three days before February 28 until approximately 1 or IV2 weeks afterward. The defendant then went into spontaneous remission and his symptoms abated. It was Chapman’s opinion that on February 28 the defendant lacked the capacity to appreciate the criminality of his behavior.

On cross-examination, Chapman acknowledged that the psychological test he administered to the defendant, although of marginal validity because the defendant attempted to place himself in an overly positive light, revealed that the defendant’s personality profile was within normal limits. Chapman also agreed that the Diagnostic and Statistical Manual III (DSM-III) listed inflated self-esteem or grandiosity, decreased need for sleep, talkativeness, flight of ideas, distractibility, and excess involvement in pleasurable activities as criteria for a diagnosis of a manic episode. He acknowledged that manic speech is typically loud, rapid and difficult to interpret, may jump from topic to topic and is sometimes unresponsive. Chapman admitted that Ritterhoff had evaluated the defendant during the first week of March, when defendant was still in his manic episode, but had not diagnosed acute manic psychosis. Chapman also agreed that the duration of a manic episode averages about four months, while the defendant’s episode lasted only two weeks. Finally, Chapman acknowledged that much of the basis for his diagnosis was the defendant’s statements that his mind was racing, his thinking was jumping from topic to topic and he felt that his mind would explode.

In announcing its judgment, the trial court stated that it had listened to the three taped statements given by the defendant and it found that defendant was clear, coherent, precise, reflective and he was able to tell the police exactly what he had done. There was no indication that the defendant’s mind was jumping from topic to topic or was unfocused. The court noted that the tapes corroborated the police officers’ observations that defendant was coherent, responsive and had a clear understanding of the facts surrounding the killings. The court also thought that the defendant’s answer to Officer Fulton’s request to search the house suggested that the defendant was “able to be concerned about right and wrong [and] understand the legality of matters before him.” The court summarized the findings of the two doctors, noting that the defendant’s conduct as related in his taped statements and by the observations of the witnesses did not appear to meet the criteria for a diagnosis of acute manic psychosis. The court also pointed out that Dr. Ritterhoff saw the defendant while he would have been in a manic state and yet he failed to recognize it. The court noted that Dr. Chapman’s diagnosis largely relied upon the defendant’s subjective statements and that the psychological testing of the defendant did not support Chapman’s diagnosis. Finally, the court stated:

“I think a person has to be extremely mentally ill not to appreciate [that] killing his mother is wrong or criminal. *** I do not believe the defense of insanity is proved by the preponderance of the evidence. In my mind after listening to the evidence as a whole I really think he’s sane beyond a reasonable doubt. Very mentally ill but never the less sane.”

Defendant contends that the trial court’s finding of sanity was against the manifest weight of the evidence. The defendant argues that the trial court disregarded the uncontradicted opinion of Dr. Chapman that he was insane, as well as the supporting testimony of other witnesses that defendant appeared confused, unusually “laid back” and abnormal shortly after the killings. Defendant also maintains that the trial court’s statement quoted above indicates that the court required the defendant to prove that he was extremely mentally ill, an improper and higher standard of proof than that required by law.

Section 6 — 2 of the Criminal Code of 1961 (the Code) provides in part:

“Insanity, (a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
* * *
(c) A person who, at the time of the commission of a criminal offense, was not insane but was suffering from a mental illness, is not relieved of criminal responsibility for his conduct and may be found guilty but mentally ill.
(d) For purposes of this Section, ‘mental illness’ or ‘mentally ill’ means a substantial disorder of thought, mood, or behavior which afflicted a person at the time of the commission of the offense and which impaired that person’s judgment, but not to the extent that he is unable to appreciate the wrongfulness of his behavior or is unable to conform his conduct to the requirements of law.” Ill. Rev. Stat. 1991, ch. 38, par. 6 — 2.

When a defendant raises the affirmative defense of insanity, he bears the burden of proving, by a preponderance of the evidence, that he was legally insane at the time of the offense. (People v. Thurman (1991), 223 Ill. App. 3d 196, 584 N.E.2d 1069; Ill. Rev. Stat. 1991, ch. 38, par. 6 — 2(e).) The fact finder’s determination of the defendant’s sanity will not be disturbed on appeal unless it is contrary to the manifest weight of the evidence. (People v. Beehn (1990), 205 Ill. App. 3d 533, 563 N.E.2d 1207.) The weight to be given an expert’s opinion on sanity depends upon the reasoning and factual details used to support that opinion (People v. Glenn (1992), 233 Ill. App. 3d 666, 599 N.E.2d 1220) and a court may consider the length of time between the incident and the expert’s examination of the defendant, as well as the extent to which the diagnosis was based on the defendant’s statements (see Beehn, 205 Ill. App. 3d 533, 563 N.E.2d 1207). A trier of fact may reject all expert testimony and conclude that a defendant was sane based solely on lay testimony; lay opinions are particularly relevant if they are based on observations made shortly before or after the crimes were committed. People v. West (1992), 231 Ill. App. 3d 646, 596 N.E.2d 740.

In this case the trial court rejected Dr. Chapman’s diagnosis, finding that it was largely based on the defendant’s subjective statements, that it was not supported by the psychological testing and that it was inconsistent with the testimony of the witnesses who observed the defendant shortly after the killings. The court also noted that the defendant’s taped statements corroborated the lay witnesses’ descriptions of defendant as coherent and responsive to questions. While there was some evidence that defendant appeared abnormal, confused or unusually calm, the majority of the lay testimony supported the trial court’s determination that the defendant had failed to prove he was insane. We hold that the trial court’s decision was not against the manifest weight of the evidence.

We also reject the defendant’s argument that the trial court’s isolated comment that a person would have to be extremely mentally ill not to appreciate that killing his mother is wrong indicates that the court misunderstood or misapplied the burden of proof. Our review of the court’s detailed findings, consisting of more than 20 pages of transcript, shows that the court carefully analyzed both the facts and the law. The court twice stated that the defendant had the burden of proving his insanity by a preponderance of the evidence. The court also noted that the Code defines insanity as “when at the time of the conduct as a result of a mental disease or mental defect the [defendant lacks substantial capacity either to one, appreciate the criminality of his conduct or two, conform his conduct to the requirements of the law.” We find that the record shows that the court understood and properly applied the law in reaching its decision.

For the reasons stated above, the judgment of the circuit court is affirmed.

Affirmed.

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