text:
    CENTRAL BANK — GRANITE CITY, Guardian of the Estate of Clover Cochran, a Disabled Adult, Plaintiff-Appellee, v. MAHMOUD ZIAEE et al., Defendants-Appellants.
    Fifth District
    No. 5 — 88—0431
    Opinion filed September 25, 1989.

      Morris B. Chapman, of Morris B. Chapman & Associates, Ltd., of Granite City, and Sterling, Kelley & Long, P.C., of Fairview Heights (John Long, of counsel), for appellants.
    David L. Antognoli, of Bernard & Davidson, of Granite City, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendants, Mahmoud Ziaee and Maryam Ziaee, husband and wife, appeal from a judgment of the circuit court of Madison County for plaintiff Central Bank — Granite City, guardian of the estate of Clover Cochran, a disabled adult, upon a jury verdict for actual damages of $79,700 and punitive damages of $80,000. In this cause, defendants raise the following issues: (1) whether the trial court erred in allowing plaintiff to introduce evidence of the amount of defendants’ annual income for the purpose of proving defendants’ net worth in connection with plaintiff’s prayer for punitive damages; (2) whether the trial court’s award of punitive damages constituted double recovery; and (3) whether the trial court erred in admitting into evidence a tape recording of Clover Cochran’s statements made on January 7, 1985. This court affirms.

Plaintiff was appointed guardian of the estate of Clover Cochran on January 9, 1985, when Clover was 89 years old. Plaintiff, in its capacity as guardian, originally filed a complaint against defendants in which it sought to have a constructive trust imposed on all land that Clover Cochran had conveyed to defendants. Plaintiff’s complaint was later amended to add two additional counts. Count II alleged that the estate was entitled to damages for breach of a fiduciary duty in the amount of the difference between the market value of the assets conveyed to defendants and the consideration received by Clover. Count III alleged that the transfers made during the existence of defendants’ fiduciary duty with Clover were induced by defendants’ fraudulent representation that they would “attend to her financial affairs, provide her with the necessities of life, and comfortably support and maintain her for the remainder of her natural life.” Count III sought both compensatory and punitive damages from defendants.

Defendants first met Clover in the winter of 1978 when she was 82 years of age. Defendant Mahmoud Ziaee was a radiologist on staff at various Alton hospitals. His position required him to maintain a residence in Alton. Dr. Ziaee approached Clover about a potential sale of her real estate, even though her property was not listed or advertised. Clover owned approximately 8.5 acres of land in a rural setting off Route 100, close to Grafton. Defendants had no relatives in the United States, and Clover’s family, of which only a few were remaining, were scattered in Kentucky, Georgia and Florida. Clover had been married at one time, but had been divorced for several years and had no children. Defendants, a doctor and a nurse, had two children. Clover and the entire family instantly established a close relationship. By the time the doctor left at the end of their first meeting, he agreed that he knew Clover’s life story. Both defendants and their children began calling Clover “Grandma.”

According to Dr. Ziaee, he and Clover agreed on a purchase price for her property within one week of their initial meeting. The doctor was to pay Clover $5,000 with an option to buy the remainder of her property at her death for a price not to exceed $90,000. Defendants would initially have 4.2 acres on which to build their home. An Alton attorney, Charles Godfrey, who had been retained by Clover in 1978, gave a different account of the original agreement between defendants and Clover.

According to Godfrey, Clover had agreed to sell all her land to defendants for $100,000 payable in installments over a five-year period, with Clover reserving a life estate in the portion of the property where her home was situated. Godfrey, however, suggested a different approach in which defendants would make payments, including interest, over a three-year period with a balloon payment at the end. Godfrey spent some time attempting to get a good title description on the land. A meeting was then scheduled between the parties to sign the papers. Godfrey went over the entire contract with the parties. Initially, the doctor seemed to be in agreement, but then stated that he had changed his mind and wanted “to wait another year or two” before proceeding any further with the transaction. Clover seemed surprised by the doctor’s announcement. Based on Godfrey’s meetings with Clover in 1978, he formed the opinion that Clover’s mental ability was somewhat limited at that time. He did not, however, believe that defendants were forcing her into making this agreement.

Approximately three months later, on December 5, 1978, defendants acquired title to roughly 4.2 acres of unimproved real estate from Clover and an option to purchase her remaining land on which her home was located for a price “not to exceed $90,000.” Defendants paid Clover $5,000 for the 4.2-acre tract, which at that time had a fair market value of $15,500, according to plaintiff’s appraiser at trial. Defendants paid no consideration for the option. A Collinsville attorney, Robert Cadagin, deceased at the time of trial, had been hired by defendants to prepare both the deed and the option. Cadagin originally represented defendants in this suit, but was forced to withdraw due to illness, which ultimately claimed his life. Clover did not have an independent attorney in connection with the transaction.

In March 1980, defendants obtained an additional three-fourths-acre parcel of land to use for their driveway and water line to the house they were constructing. Defendants paid Clover $100 for this conveyance. At trial, plaintiff’s expert estimated that this property had a fair market value of $3,000 at the time of the conveyance. Again, attorney Cadagin prepared the paperwork for this transaction. Clover did not have her own counsel.

In December 1981, another transaction occurred between the parties. At this time, defendants had completed construction on their home. Clover signed an amendment to the option given to defendants in December 1978, whereby the option price on Clover’s remaining land was reduced to an amount “not to exceed $70,000.” Clover received no money in consideration for this transaction. Defendants and Clover then began what would be the last transaction concerning Clover’s real estate.

The final transaction concerned a quit-claim deed of the remainder of Clover’s land with a life estate for Clover. Defendants’ original attorney in this transaction was Tim Campbell. He believed it would be in Clover’s best interest to see a separate attorney who would represent her concerning this transaction. Campbell called another attorney, Robert St. Peters, and asked him to talk to Clover concerning this transaction. Mrs. Ziaee took Clover to consult with St. Peters, but waited in the hallway during Clover and St. Peters’ discussion. St. Peters tape-recorded his conversation with Clover concerning her transfer of land to defendants. This tape recording was played for the jury. Based on this recorded conversation, St. Peters concluded that Clover did not have the requisite mental capacity to make such a transfer and, further, did not desire to make such a transfer. Upon finishing his conversation with Clover, St. Peters informed Mrs. Ziaee that the transfer of Clover’s land would not occur. According to St. Peters, Mrs. Ziaee became irate and pulled the deed prepared by Tim Campbell out of St. Peters’ hands. Mrs. Ziaee then grabbed Clover and shoved her into the Ziaee’s Mercedes. St. Peters immediately called Tim Campbell and told him that Clover did not want to transfer her land. St. Peters stated that after he had explained the deed to Clover, she was adamant that she did not want to give the land away. This was corroborated by the tape. St. Peters also sent a letter to Clover expressing his concern that defendants might try to have Clover sign the deed without her knowing what it was. The letter cautioned her not to sign anything without her knowing what it was. This letter was introduced into evidence. On April 12, 1984, Tim Campbell called St. Peters and assured him that defendants would follow Clover’s wishes — the transaction would not occur. On April 16, 1984, St. Peters received a follow-up letter to that effect with the unsigned quit-claim deed enclosed. However, on May 15, 1984, defendants acquired the balance of Clover’s land by a warranty deed prepared by attorney Cadagin, now deceased. Clover kept a life estate in the remaining property, which was then worth approximately $56,800, according to plaintiff’s expert. Attorney St. Peters was not consulted again and had no knowledge of the transaction.

Defendants also acquired several items of personal property from Clover, including a fur coat, a dining room set, a settee, jewelry, a piano, and a 1953 Chrysler New Yorker. Plaintiff’s attorney also had in his possession 300 Kentucky Bank shares along with a general power of attorney executed by Clover. Dr. Ziaee testified that he had paid Clover $500 for the automobile and that he performed several repairs on the car. No monetary consideration was given for the remaining items of personal property. However, shortly before the May 1984, final real estate transaction, defendants and Clover signed the following document handwritten by Dr. Ziaee:

“I Mahmoud Ziaee and my wife Maryam Ziaee will agree to pay all of Ms. Clover Cochran bills, and other expenses (except medical expenses) that she is not able to pay, and do our best to make her life comfortable, and bring someone to clean her house and serve breakfast and dinner, (which has been done for the past four months) if for some reason we go for vacation we make sure someone brings her breakfast and dinner [¡sic]. In return Ms. Cochran is going to give us her furniture (the ones she does not use now) like her dining room set and china and her piano and whatever she likes to give us whenever she decides (from today January 18,1984) to give [sic].”

The guardianship proceedings were initiated when Lovetta Beck, a close personal friend of Clover’s since the 1950’s, called the Regional Guardianship office expressing her concern over Clover’s physical and living conditions. Lovetta Beck and Emma Sawyer, another friend of Clover’s, went to visit and found Clover’s house unkempt with dirty dishes on the table and no food in the refrigerator. There were also many pieces of furniture missing. The bathroom was filthy and littered with used toilet paper. Clover’s appearance was also unkempt. Lovetta Beck had seen Clover regularly over the years. She recalled going to lunch with Clover in 1982, and noticing a change in Clover. While Clover’s appearance was still good, “her conversation was so disjointed I had a little trouble keeping up with her *** she just wasn’t lucid.”

Upon receiving the report from Lovetta Beck concerning Clover’s well-being, the Regional Guardian administrator, Kay Beuhne, had the Visiting Nurses Association complete an investigation into Clover’s welfare. Clover’s nephew-in-law in Kentucky was also contacted. Representatives of the Visiting Nurses Association came and found the same conditions at Clover’s residence as did Lovetta Beck and Emma Sawyer. The house was in disarray. There was only spoiled food in the refrigerator, and the plumbing was not working. A bucket was being used for feces. Clover herself gave the appearance of being malnourished. The Regional Guardian believed that Clover was unable to make decisions concerning her care and her estate. Clover was admitted to the hospital on January 9, 1985, and remained there until February 11, 1985. She was then placed in a nursing home and was still at the nursing home at the time of trial.

Dr. Alejandro Datum, a board-certified psychiatrist, completed a psychological examination of Clover while she was hospitalized in January 1985. Dr. Datum diagnosed Clover as suffering from severe senile dementia with psychosis. A CAT scan revealed brain atrophy. According to Dr. Datum, Clover’s condition progressed gradually and had been long-standing. He believed her ability to handle her affairs had been impaired for some time, anywhere from 5 to 10 years prior to the time he examined her.

Two of Clover’s relatives testified concerning Clover’s failing mental capacity and health. William Ward, age 73, Clover’s nephew, visited Clover in 1978 and noticed her mental abilities were impaired. He then talked to Clover weekly or biweekly. These conversations abruptly ended in 1982 when Clover refused to answer the phone. On a subsequent visit in March 1984, Clover’s condition had further deteriorated. Clover’s person and house were both in deplorable condition. Clover did not recognize him nor his brother-in-law, who also accompanied him. Mr. Ward did acknowledge that he is a potential heir to Clover’s estate. He also agreed that after his 1984 visit, he did nothing to aid the ailing Clover. His lack of motivation was attributed to his own failing health.

Linda Tanner, a cousin of Clover’s, took care of Clover’s sick sister from 1982 to 1985. During this time, Clover’s sister would call Clover regularly. In 1984, they began having trouble reaching Clover and called defendants to check on her. They were assured she was fine, but had difficulty hearing the telephone ring. Dr. Ziaee told Ms. Tanner in the latter part of 1984 that Clover no longer wished to have contact with her family, but rather that she now considered the Ziaees her family. Ms. Tanner was later contacted by a friend of Clover’s who told her that Dr. Ziaee had told her that Clover had no family. After learning this, Linda Tanner came to visit Clover on January 6, 1985. She gave the same general description of Clover’s appearance, physical condition, and living arrangements as did the other plaintiff’s witnesses.

During her January visit, Ms. Tanner contacted the Ziaees. She testified that Dr. Ziaee offered to sign over $30,000 of Clover’s bank shares to her by using his power of attorney over Clover’s property if she would take Clover and never return. When she refused, he told her never to come back to Clover’s house. Ms. Tanner did not take Clover back with her as planned because Clover’s doctor advised her against it. Ms. Tanner is also a potential heir of Clover’s estate.

Defense witnesses testified to the contrary concerning Clover Cochran’s mental abilities. Defendants themselves believed that Clover did not suffer any impaired abilities until two weeks before she was removed from her home. There was also testimony by defendants that Clover had feigned mental incompetence during her discussions with attorney St. Peters because she did not trust him.

Mrs. Ziaee testified that Clover had become a member of the family. Mrs. Ziaee cooked breakfast and dinner for Clover, and Clover often ate with defendants at their home. Clover was invited to all defendants’ parties and celebrated birthdays with the Ziaee family. Mrs. Ziaee further testified that her husband had refused to allow the family to move back to St. Louis, even though it would have been more convenient to do so, because he had promised Clover that they would not move while she was still alive so that they could take care of her. Mrs. Ziaee also said that she had no control over Clover’s person or home from the end of December until the time Clover was removed from her home. During this time, Mrs. Ziaee stated that she would clean Clover’s home; however, someone else would come in and mess it up. Soon it came to the point where she was not allowed to come in at all.

Dr. Ziaee testified that Clover was capable until approximately two weeks before she was removed from her home. He also testified to the attention both he and his family had shown to Clover. Specifically, he testified that during the time he had known Clover he had driven her to a family wedding in Kentucky and to visit her sister in Florida because Clover was afraid to fly.

Friends of defendants testified concerning the relationship between defendants and Clover. George Miller, a St. Louis attorney and a friend of the family, visited defendants regularly in Godfrey. He saw Clover during these visits and also called her Grandma. According to Miller, Clover never wanted to leave her home and realized that by having defendants live next door, she would have medical care available and would be able to stay at her home. She wanted defendants to have her land upon her death and had asked Miller if he could draw up papers that would give defendants her land. Miller, who was not licensed in Illinois, referred Clover to attorney Cadagin. Miller’s wife confirmed her husband’s testimony concerning the mutually affectionate relationship between defendants and Clover.

Wanda Long, defendants’ housekeeper from late 1980 until approximately the end of 1984, testified that she also cleaned Clover’s house. She, too, called Clover Grandma. She testified that defendants took good care of Clover. Mrs. Ziaee would cook Clover breakfast and dinner, and Mrs. Long was instructed to do the same if defendants were ever gone. She further testified that she did not meet anyone from the Visiting Nurses Association; however, on rebuttal Barbara Roth of the Visiting Nurses Association testified that the second time she went to see Clover, no one would answer the door. She then went to defendants’ home to get help. Wanda Long escorted her back to Clover’s home. Wanda Long then told her that she was happy that the Visiting Nurses were assisting Clover and that a housekeeper would be coming. According to Barbara Roth, Long stated she had only been sent to clean Clover’s house two times and both times she broke her vacuum sweeper because the house was so filthy. The first time she had been sent because the bathroom facilities were not working and Clover had urinated all over the floor. Long had been sent to clean it up. Also, in rebuttal, plaintiff admitted a tape recording made by Linda Tanner, a relative of Clover’s, who had come up from Georgia to check on Clover in January of 1985. The tape was made on January 7, 1985. The recording, consisting of Linda Tanner asking Clover a series of questions, was introduced to prove Clover’s mental abilities. It also included Clover cursing defendant, Dr. Ziaee, calling him a liar, and accusing him of taking her property without her consent. Defendants objected to the introduction of the tape.

Defendants’ first issue on appeal is whether the trial court erred by allowing plaintiff to introduce evidence of defendants’ annual income for the purpose of proving defendants’ net worth in connection with plaintiff’s prayer for punitive damages. Defendants argue that plaintiff introduced only a scintilla of evidence of defendants’ net worth — namely, that defendants had built a house in Godfrey which probably cost more than $350,000, but failed to prove what portion of the value of the house represented defendants’ equity therein and that defendants owned a small condominium in St. Louis, the market value of which was not proven nor the amount of defendants’ equity therein. Plaintiff then introduced defendants’ income tax returns for the years 1982 through 1986. Finally, defendant Dr. Ziaee testified his income for 1986 exceeded $300,000. Defendants argue the jury award of punitive damages in the amount of $80,000 was based not on net worth, but rather on defendants’ income; therefore, the punitive damage award must be reversed.

Plaintiff responds that the evidence of defendants’ income may be considered in assessing punitive damages where, as here, defendants failed to comply with the discovery order and plaintiff’s Rule 237 (107 Ill. 2d R. 237) request for production of a financial statement or balance sheet. We agree.

In general, punitive damages serve two basic functions: (1) punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future, and (2) punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s acts, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant. (Restatement (Second) of Torts §908 (1979).) Thus, the jury must be informed of the defendants’ assets in order to adequately punish defendants. Traditionally, courts have used “net worth” as the method by which to apprise the jury of defendants’ wealth. Net worth is defined as the “[rjemainder after deduction of liabilities from assets.” Black’s Law Dictionary 939 (5th ed. 1979).

It has been held to be error to admit evidence of defendants’ net earnings for the purpose of fashioning an award of punitive damages. (Fopay v. Noveroske (1975), 31 Ill. App. 3d 182, 334 N.E.2d 79.) However, in Fopay, admission of net earnings was held to be error because evidence of net worth had already been introduced. The Fopay court found that evidence of net earnings in addition to net worth was wrong because “past earnings are necessarily and inextricably intertwined with *** net worth,” particularly “where defendant’s ‘assets’ were purchased from income,” and hence, “a real possibility exists of providing the jury with a deceptively high ability to pay.” (31 Ill. App. 3d at 200, 334 N.E.2d at 94.) In the same vein, it would be wrong for the jury or a court to assume that defendant will continue to earn at his past rate. However, we are not faced with the same set of circumstances as the Fopay court.

In Fopay, the defendants had submitted a financial statement disclosing their net worth, which was stipulated to by the parties. In the instant case, there was no such stipulation. In fact, the record reveals defendants had failed to comply with the court’s discovery order and a Rule 237 request for production of a financial statement or balanee sheet. Such a distinction was pointed out in Fopay, when we stated:

“We are not faced with a situation in which the defendant’s assets are in some way indeterminable or concealed. Our approach is the only sound way to balance the need to punish a defendant with the need to avoid imposing an oppressive burden upon him.” (31 Ill. App. 3d at 201, 334 N.E.2d at 95.)

Therefore, under the circumstances of the instant case, the court was justified in allowing evidence of defendants’ income in connection with plaintiff’s prayer for punitive damages. The perceived danger of the jury compounding evidence of net worth with evidence on income in assessing punitive damages was not present. While evidence of net worth is still the preferred method of assessing punitive damages, defendants must be aware that lack of compliance -with a court’s discovery order can lead to introduction of evidence of net income instead. Moreover, in Fopay, the introduction of net income, in addition to evidence of defendants’ net worth, was held to be harmless error, as the jury awarded only $20,000, which was well within the defendants’ ability to pay. Likewise, in the instant case, the jury award of $80,000 was well within defendants’ ability to pay.

We move next to the question whether the award of punitive damages constituted an impermissible double recovery. Defendants argue that in Illinois punitive damages may only be awarded when torts are committed with fraud, actual malice, deliberate violence or oppression, wilful conduct, or gross negligence in disregard of the rights of others. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.) According to defendants, when a requisite element of the tort itself constitutes these types of conduct, an allowance of punitive damages should be improper. Compensatory damages are adequate to compensate plaintiff for the entire tort, including the elements that constitute bad faith. Plaintiff responds that all fraud does not involve the same degree of misconduct or culpability. The instant case concerns defendants’ breach of their fiduciary duty owed to Clover Cochran to an extent which justifies an award of punitive damages. We agree.

Punitive damages are not favored and are to be awarded with caution and confined within narrow limits where the wrongful act is accompanied by aggravating circumstances such as wilfulness, wantonness, malice, or oppression so as to warrant imposition as punishment to the wrongdoer and deter the defendant and others from committing like conduct in the future. (In re Estate of Wernick (1986), 151 Ill. App. 3d 234, 249, 502 N.E.2d 1146, 1156.) While deceit alone cannot support a punitive damages award, such damages may be allowed “ ‘where the wrong involves some violation of duty springing from a relation of trust or confidence, or where the fraud is gross, or the case presents other extraordinary or exceptional circumstances clearly showing malice and wilfulness.’ ” (Home Savings & Loan Association v. Schneider (1985), 108 Ill. 2d 277, 284, 483 N.E.2d 1225, 1228, quoting from Laughlin v. Hopkinson (1920), 292 Ill. 80, 89, 126 N.E. 591, 595.) Illinois courts are not hesitant to award punitive damages in cases where there has been a flagrant breach of fiduciary responsibility and clear evidence of fraud. In re Estate of Wernick (1986), 151 Ill. App. 3d 234, 502 N.E.2d 1146; Obermaier v. Obermaier (1984), 128 Ill. App. 3d 602, 470 N.E.2d 1047.

In the instant case, there was substantial evidence of defendants’ breach of their fiduciary duty amounting to gross misconduct which justifies the jury award of punitive damages. Defendants, a doctor and a nurse, willingly established a relationship of trust and confidence with an 82-year-old woman without close relatives and who lived in a relatively isolated area. After establishing this relationship with Clover, defendants entered into an ongoing series of profitable transactions which culminated in defendants acquiring for $5,000 all of Clover’s real estate, the value of which was approximately $77,000. The most flagrant example of abuse by defendants occurred when they agreed, through their attorney, Tim Campbell, not to make any transactions with Clover in which they would acquire the remainder of her property. Less than one month after this promise was made, defendants broke the promise and completed this transaction through another attorney. In addition, Dr. Ziaee was given power of attorney over Clover, and defendants acquired valuable and sentimental items of Clover’s personal property for no consideration except defendants’ promise to take care of her.

This promise to take care of Clover, clean her house, and bring her breakfast and dinner was soon discarded after defendants acquired her assets. Clover was found by her friends in a filthy house, without the use of her toilet, with human feces on the floor. She was malnourished and slovenly. The Guardianship and Advocacy Commission immediately intervened upon finding this almost 90-year-old woman in such a state of distress. She was diagnosed as having severe senile dementia, including brain atrophy. The physician who diagnosed her condition opined that this condition had been present for some 5 to 10 years. Yet defendant, a doctor whom Clover trusted and treated as her own son, testified under oath that her condition was good up until two weeks before she was removed from her home. Clover’s condition upon removal from her home had so deteriorated that it warranted a one-month stay in the hospital before she could be placed in a long-term care facility. Such evidence clearly warranted the submission of the issue of punitive damages to the jury and the subsequent imposition of punitive damages.

Defendants cite the case of Costello v. Capital Cities Communication, Inc. (1987), 153 Ill. App. 3d 956, 505 N.E.2d 701, reversed on other grounds (1988), 125 Ill. 2d 402, 532 N.E.2d 790, which held that where actual malice is the gist of the libel action, both compensatory and punitive damages cannot be recovered. To allow both would constitute a double recovery. This holding is not applicable to situations such as the one before us. A libel action is clearly distinguishable from an action for breach of a fiduciary duty. Defendants’ argument that the award of punitive damages constituted an impermissible double recovery is without merit. We cannot think of a situation more deserving of an award of punitive damages than the case at bar in order not only to punish defendants, but also to deter others who might consider duping a senile and lonely octogenarian.

We move now to the final issue, whether the trial court erred by admitting into evidence the second tape recording of Clover Cochran’s statements made on January 7, 1985, by Linda Tanner. Defendants argue that it was prejudicial error to allow the introduction of this second tape into evidence because there was a strong likelihood that the jury would take as true Clover’s accusations against defendant Dr. Ziaee, as compared to the slight usefulness of the statements as proof of Clover Cochran’s mental capacity. Plaintiff responds that defendants failed to properly object to the tape’s admission, having thereby waived the argument that the probative value is outweighed by the tape’s prejudicial effect. We agree.

Where grounds of an objection to admission of testimony have not been included in the objection entered at trial, such grounds ordinarily will not be considered on appeal. (Pyse v. Byrd (1983), 115 Ill. App. 3d 1003, 1007, 450 N.E.2d 1374, 1376.) A review of the record indicates that the defense attorney argued against the tape’s admission on the grounds that: (1) the tape was not proper rebuttal; (2) the conversation was made in contemplation of litigation and, therefore, incompetent; and (3) Linda Tanner, whose testimony was required to lay the foundation for the tape, was precluded from testifying because of her presence in the courtroom at earlier stages in the trial. Defense counsel did not argue that the tape recording was unduly prejudicial. Therefore, defendants waived this argument. The waiver rule is appropriate in the instant case because had defendants timely interposed the objection, the alleged prejudicial effect of the tape could have been avoided by either cutting those portions of the tape defendants claimed were unflattering or by giving a limiting instruction advising the jury to consider the recording only for purposes of determining Clover’s mental condition. Assuming, arguendo, that defendants had objected at trial on the grounds that the tape’s probative value was outweighed by its prejudicial effect, we find the tape would still have been admissible.

Tape recordings are generally admissible to the same extent as a witness who heard the statement. (Belfield v. Coop (1956), 8 Ill. 2d 293, 304, 134 N.E.2d 249, 254; People v. McCommon (1979), 79 Ill. App. 3d 853, 866, 399 N.E.2d 224, 234.) More importantly, statements disclosing a mental condition existing at times both before and after the making of a will are relevant if accompanied by medical evidence that the condition was both continuing and progressive. (In re Estate of Berry (1988), 170 Ill. App. 3d 454, 524 N.E.2d 689.) While we are not dealing with a will contest, the same reasoning can apply to the instant case.

As explained in the 1941 case of Peters v. Peters (1941), 376 Ill. 237, 33 N.E.2d 425, “[pjroof of the mental condition of the testator a reasonable time before or after the making of a will may be received where it tends to show mental condition at the time of the execution of the instrument. A mental condition shown to exist is presumed to continue, if it be of a continuous nature.” (376 Ill. at 243, 33 N.E.2d at 427.) Moreover, a trial court has substantial discretion to determine the time frame within which events concerning the testator are relevant to the capacity of the decedent in a will contest suit. (In re Estate of Berry (1988), 170 Ill. App. 3d 454, 524 N.E.2d 689.) With this in mind, we cannot say that the trial court abused its discretion in allowing into evidence the second tape.

The January 7, 1985, tape recording did indicate that Clover was suffering from advanced senility. Her thoughts wandered and she incessantly rambled. She also made a number of references that her parents were still alive and that she regularly used a horse and buggy as transportation. The tape recording supported Dr. Datum’s opinion that Clover’s condition was long-standing and progressive, and not, as defendants argued, of recent origin. The second tape also allowed the jury to compare Clover’s condition from the time the first tape was made 10 months prior to the second recording. The jury was able to determine whether Clover’s mental condition had diminished over this 10-month period.

Defendants further argue that the second tape was cumulative and should not have been allowed into evidence. However, we find that the tape was admissible to refute defendants’ argument that Clover feigned incompetence during the first recording made by attorney St. Peters. We are also unconvinced by the cases cited by defendants to support their contention that the second tape was inadmissible. In People v. Johnson (1979), 68 Ill. App. 3d 836, 386 N.E.2d 642, admission of hearsay evidence by the arresting officer that a patron at the store that was robbed had identified the defendant at a face-to-face confrontation was held to be error requiring reversal. In Johnson, the hearsay evidence was inadmissible even for the limited purpose for which it was offered, which was to explain the officer’s investigatory procedure. Even though it was offered for a limited purpose, it was reemphasized by two other witnesses other than the officer and argued by the prosecutor during closing argument as a positive identification of the defendant. In the instant case, the second tape recording was admissible to prove diminished mental capacity, and there was no argument by plaintiff that the tape recording should be used to prove that defendant Dr. Ziaee was a liar and had taken Clover’s property against her will.

Likewise, In People v. Escobar (1979), 77 Ill. App. 3d 169, 395 N.E.2d 1028, the prejudicial effect of the disputed evidence which was offered for a limited purpose arose from an argument that the evidence should be used for a purpose other than for which it was admitted. Again, in the instant case there was not such improper argument. The trial court was within his discretion to admit the second tape. A limiting instruction may have been appropriate; however, defendants did not ask for such an instruction, and we cannot say that without such an instruction, the admission of the tape was so unduly prejudicial to defendants that reversal is required.

For the foregoing reasons, the judgment of the circuit court of Madison County is hereby affirmed.

Affirmed.

WELCH, P.J., and HOWERTON, J., concur.

       After the case was taken under advisement, Justice Howerton was assigned to the panel in substitution of Justice Rarick, who recused himself.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
      In re MARRIAGE OF GINA LYNN (TURNER) AKINS, Petitioner-Appellant, and JAMES ANTHONY TURNER, Respondent-Appellee.
    Fifth District
    No. 5 — 88—0482
    Opinion filed September 26, 1989.
    J.C. Mitchell, of Mitchell & Armstrong, Ltd., of Marion, for appellant.
    Paul Thomas Austin, of Marion, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

The petitioner, Gina Akins, and the respondent, James Turner, were married on March 25, 1978. Their marriage produced three children, James Allen Turner, born October 4, 1978, Jennifer Turner, born January 22, 1981, and Julie Turner, born October 29, 1982. On September 25, 1986, the petitioner filed for dissolution of the marriage. On January 13, 1987, the respondent answered, and on March 27, 1987, the parties appeared and the circuit court of Williamson County heard testimony. The respondent filed a petition for temporary relief on May 28, 1987, alleging that the petitioner had refused to permit him to visit with the children. On October 13, 1987, the petitioner filed for leave to remove the children from the State of Illinois, alleging financial distress and the fact that employment was available in North Carolina. On October 23, 1987, the court held a hearing on these two petitions and subsequently ordered the children to remain in the State of Illinois. Judge Arlie Boswell was thereafter unable to continue hearing the cause, and on November 24, 1987, a different judge, Judge C. David Nelson, heard testimony regarding the permanent custody of the children. At that hearing the parties stipulated that Judge Nelson could review the transcript of the earlier proceeding, Judge Nelson stating that “[a]s I understand it, both sides are in agreement that I should read and rely upon to the extent possible, the transcript of the proceedings that were had before Judge Boswell.” On May 10, 1988, Judge Nelson entered the judgment of the circuit court. The court found that the best interests of the children lay in having their legal custody vested in the respondent and ordered petitioner to pay $150 per month child support pursuant to section 505 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 505). The petitioner appeals. We vacate the lower court’s judgment and remand the cause for further proceedings consistent with this opinion.

As this court has previously noted, the overriding concern of a . court in a dispute over child custody is the arrangement which will best serve the interests of the children. (In re Marriage of Sorenson (1984), 127 Ill. App. 3d 967, 969, 469 N.E.2d 440, 442; see also Ill. Rev. Stat. 1987, ch. 40, par. 602 (“[t]he court shall determine custody in accordance with the best interest of the child”).) The trial court is in. a unique position to assess the demeanor and credibility of witnesses (In re Marriage of Holder (1985), 137 Ill. App. 3d 596, 600, 484 N.E.2d 485, 489), and while the court on review does not require the lower court to make specified findings or recitals concerning evidence presented in compliance with section 602 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 602) in rendering the court’s decision regarding child custody, the record must contain sufficient evidence concerning those findings to support the judgment. (Hollo v. Hollo (1985), 131 Ill. App. 3d 119, 126, 474 N.E.2d 827, 833.) The petitioner contends on this appeal that the trial court erred in considering evidence obtained from a previous hearing held before a different judge in determining custody of the children. We agree.

In In re Marriage of Sorenson (1984), 127 Ill. App. 3d 967, 469 N.E.2d 440, this court vacated a dissolution judgment entered by the trial court where the record showed that the court had based its decision as to child custody on transcripts of prior hearings before a different judge. Our decision was premised on the belief that where evidence is contradictory on matters crucial to a determination of comparative parental fitness, the court does not serve the best interests of the child unless it has the ability to discern the truth by personally observing the demeanor of the conflicting witnesses.

The procedure followed here is no more acceptable than that condemned by us in Sorenson. The evidence before Judge Nelson, the trial judge who determined the issue of custody, consisted primarily of the transcript of the earlier proceeding before Judge Boswell, a transcript which is replete with contradictory testimony concerning physical abuse, among other things. The sole evidence presented at the hearing before Judge Nelson on November 24, 1987, consisted of the testimonies of the psychologist, Dr. Gordon Plumb, and the respondent’s aunt, Marilyn Hicks.

The judge thus apparently weighed the evidence as it appeared in the earlier trial transcript, attributing greater credibility to the testimony of respondent and the witnesses called on his behalf. Where the testimony of the respective parties and their witnesses was contradictory on matters crucial to a determination of comparative parental fitness, we do not believe the interests of the child were best served by credibility thus attributed on the basis of data which were inherently incomplete. If, by reason of their stipulation, the parents were not entitled to a determination of their comparative parental fitness by a trier of fact who was afforded the opportunity to discern truthfulness by observing the demeanor of contradictory witnesses, the child, whose life is singularly affected by such a determination, was so entitled. (See Sorenson, 127 Ill. App. 3d at 970, 469 N.E.2d at 442.) On this basis, we hold, as we held in both Sorenson (127 Ill. App. 3d at 970, 469 N.E.2d at 442), and in a subsequent disposition, In re Marriage of Maroon (1988), 165 Ill. App. 3d 529, 532, 519 N.E.2d 49, 52, that the parties’ stipulation to the court’s consideration of a transcript of a prior hearing, insofar as it relates to a determination of child custody, is inconsistent with the declared policy of our State and, as such, is inoperative. Since this cause requires remandment, it is unnecessary for us to rule on the remaining issues in the petitioner’s brief.

For the foregoing reasons, we vacate the judgment of the trial court and remand the cause for a new hearing consistent with this opinion.

Vacated and remanded.

RARICK and GOLDENHERSH, JJ., concur.


text:
    LARA BERTETTO, A Minor, by and through her Parents and Next Friends, Randy Bertetto, et al., Plaintiff-Appellant, v. SPARTA COMMUNITY UNIT DISTRICT NO. 140, Defendant-Appellee and Counterdefendant-Appellee (The City of Sparta, Defendant and Counterplaintiff-Appellant).
    Fifth District
    No. 5 — 88—0323
    Opinion filed September 27, 1989.
    Rehearing denied November 1, 1989.

      Jack A. Strellis, of Strellis, Faulbaum & Field, of Waterloo, for appellant Lara Bertetto.
    Coppinger, Carter, Schrempf & Blaine, Ltd., of Alton, for appellant City of Sparta.
    Stephen C. Buser, of Freeark, Harvey, Mendillo & Dennis, of Belleville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Lara Bertetto, and defendant-counterplaintiff, City of Sparta (the City), appeal from an order of the circuit court of Randolph County which dismissed with prejudice counts I and II of plaintiff’s amended complaint and the City’s second amended counterclaim for contribution. The circuit court entered its order pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615) on the grounds that these pleadings failed to state a claim upon which relief could be granted. For the reasons which follow, we find that plaintiff’s amended complaint did sufficiently allege claims for negligence and wilful and wanton misconduct and that the City’s counterclaim likewise sufficiently stated a cause of action for wilful and wanton misconduct. We therefore reverse and remand for further proceedings.

In ruling on a motion to dismiss, a court must accept as true all well-pleaded facts in the pleading attacked, as well as all reasonable inferences which can be drawn from those facts that are favorable to the pleader. (Burks v. Matrix Vision of Wilmette, Inc. (1988), 174 Ill. App. 3d 1086, 1087, 529 N.E.2d 642, 643.) A cause should not be dismissed on the grounds that the pleadings fail to state a cause of action unless, clearly, no set of facts could be proven under the pleadings which would entitle the plaintiff to relief. Northrop Corp. v. Crouch-Walker, Inc. (1988), 175 Ill. App. 3d 203, 212, 529 N.E.2d 784, 789.

The pleadings at issue here alleged that plaintiff suffers from a medical condition diagnosed as spinal muscle atrophy with scoliosis and that she is confined to a wheelchair. She was a student at the Sparta-Lincoln Attendance Center at 200 North St. Louis Street, Sparta, Illinois, which was owned and operated by the defendant Sparta Community Unit District No. 140 (the School District). On the other side of North St. Louis Street from the center was a playground which the School District also controlled and maintained.

The pleadings further alleged that on September 8, 1986, the School District transported plaintiff from the center to the playground in her wheelchair. That wheelchair had been entrusted to the District by plaintiff’s parents. Although plaintiff’s parents had advised the School District that plaintiff had to be secured in the wheelchair by her seat belt whenever she was moved, plaintiff’s seat belt was not fastened on this occasion. One of plaintiff’s classmates was allowed to push plaintiff along in the wheelchair, and as this was being done, the wheels of the wheelchair hit a “crevice,” “thereby throwing the plaintiff with force and violence upon the pavement.” As a result of this accident, plaintiff suffered numerous injuries, including a fractured right femur, bruises, contusions of the body and internal injuries.

In 1988, plaintiff, by her parents and next friends, filed a complaint in the circuit court of Randolph County to recover damages for the personal injuries she sustained in the September 8, 1986, accident. Plaintiff’s complaint, as amended, was in three counts. Counts I and II were directed against the School District. Count I alleged negligence, and count II was premised on wilful and wanton misconduct. Count III was directed against the City of Sparta and alleged that the City had been negligent in failing to keep the walkway between the center and the playground in a reasonably safe condition for pedestrians and students; that it had permitted a “crevice” to “be and remain upon said walkway, thereby creating a dangerous condition”; and that it failed to repair the “crevice” in the walkway.

The City, in turn, filed a counterclaim against the School District for contribution. In its second amended counterclaim, the pleading at issue here, the City argued that it was entitled to contribution from the School District because the District was guilty of wilful and wanton misconduct.

The School District filed a motion pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2— 615) to dismiss counts I and II of plaintiff’s amended complaint and the City’s second amended counterclaim for contribution on the grounds that those pleadings failed to state a claim upon which relief could be granted. Following a hearing, the School District’s motion was granted, and counts I and II of the amended complaint and the second amended counterclaim for contribution were dismissed with prejudice. At the same time, the circuit court made an express written finding that there was no just reason for delaying an appeal. (Rule 304(a), Official Reports Advance Sheet No. 23 (eff. Jan. 1, 1989), 134 Ill. 2d R. 304(a).) Plaintiff and the City have each now appealed.

There is no dispute that the circuit court dismissed count I of plaintiff’s amended complaint, which sought recovery from the School District based on negligence, only because the court believed that the District was immune from suit. We agree with plaintiff that this was error.

Under section 24 — 24 of the School Code, teachers stand in the relation of parents and guardians to pupils. (Ill. Rev. Stat. 1987, ch. 122, par. 24 — 24.) Teachers are therefore granted immunity from suits for negligence arising out of “matters relating to the discipline in and conduct of the schools and the school children.” (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 173, 347 N.E.2d 705, 709.) In Gerrity v. Beatty (1978), 71 Ill. 2d 47, 52-53, 373 N.E.2d 1323, 1326, however, our supreme court found that a school board may be subject to liability for negligence arising out of the furnishing of equipment for students. Two years later, in Lynch v. Board of Education (1980), 82 Ill. 2d 415, 434, 412 N.E.2d 447, 459, the court expressly held that “a school district has an affirmative duty, where students are engaging in school activities, whether they are extracurricular, or formally authorized as part of the school program, to furnish equipment to prevent serious injuries.”

Count I of plaintiff’s amended complaint in this case alleged negligence based on the breach of just such a duty. Specifically, it alleged that when plaintiff was being transported from the center to the playground, and was thus engaged in a “school activity,” the School District,

“through its agents and servants acting in its behalf, owed the duty of excercising due care and caution in providing, operating and utilizing adequate equipment, namely, the entrusted wheelchair and attached seat belt.”

Count I further alleged that the District breached this duty when it

“[cjarelessly and negligently failed to provide, operate and utilize adequate equipment, namely, the entrusted wheelchair and seat belt, which would have prevented LARA BERTETTO from being thrown from the wheelchair at times and place pertinent hereto.”

We believe that these allegations are sufficient to bring count I within the rule set forth in Lynch v. Board of Education (1980), 82 Ill. 2d 415, 412 N.E.2d 447, and that the circuit court therefore erred in dismissing count I for failure to state a cause of action.

The School District attempts to resist this conclusion by arguing that because the equipment alleged to be inadequate here, the wheelchair and seat belt, was supplied to the School District by plaintiff’s parents, the District cannot be held liable. This argument must fail. The affirmative duty to furnish adequate equipment as set forth in Lynch v. Board of Education (1980), 82 Ill. 2d 415, 412 N.E.2d 447, belongs to the School District, not the parents. Accordingly, if the equipment supplied by parents is not adequate for a particular activity, we believe that the District must provide alternate equipment which is adequate. Unless the activity is one which is required to be provided pursuant to some other provision of the law, the District may, of course, also choose not to allow the student to participate in the activity. But in any case, the School District may not evade its duty by attempting to shift responsibility for providing adequate equipment to the parents of the children in its charge. To hold otherwise would reduce the Lynch rule to a nullity.

The School District also attempts to avoid application of the duty recognized in Lynch (82 Ill. 2d 415, 412 N.E.2d 447), by arguing that count I of plaintiff’s amended complaint does not really allege that the equipment involved was defective at all. The District reads count I as alleging not that plaintiff was hurt because of any defect in the wheelchair or seat belt, but that she was injured simply because the seat belt in the wheelchair was not being used at the time of the accident. In the School District’s view, this is tantamount to a claim of improper supervision, which would not be actionable.

The problem with this argument is that it ignores the express language of the complaint. As the text of count I quoted above indicates, plaintiff alleged not only that the School District had carelessly and negligently failed to utilize the wheelchair and seat belt, but also that it had carelessly and negligently “failed to provide *** adequate equipment,” namely the wheelchair and seat belt. While it may turn out, following a trial on the merits, that the wheelchair and seat belt themselves were adequate and that the only problem was with the failure to properly secure plaintiff in the wheelchair with her seat belt, we have not yet reached that stage of the proceedings. At this point we are concerned only with the sufficiency of the pleadings, and count I of those pleadings is sufficient to state a cause of action against the School District under Lynch (82 Ill. 2d 415, 412 N.E.2d 447). The dismissal of that count therefore constituted reversible error.

We likewise believe that the circuit court erred in dismissing count II of plaintiff’s amended complaint, which alleged that the School District should be held liable based on wilful and wanton misconduct. In Hadley v. Witt Unit School District 66 (1984), 123 Ill. App. 3d 19, 22, 462 N.E.2d 877, 880, this court reiterated the rule that

“[a] wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by *** ordinary care.”

Paragraph 2 of count II here alleged that plaintiff had a medical condition diagnosed as spinal muscle atrophy with scoliosis, that she was confined to a wheelchair, and that the School District knew of her condition. Paragraph 3 alleged that plaintiff’s parents had told the District that when plaintiff was transported in her wheelchair the “seat belt provided therein must be fastened.” Paragraph 4 alleged that one of plaintiff’s classmates was permitted to push her wheelchair from the center to the playground across the street, and paragraph 5 alleged, inter alia, that the District allowed plaintiff to be moved from the school to the playground “without causing her to be secured *** in the wheelchair with the seat belt when it had knowledge, or through reckless and wanton conduct, failed to acquire knowledge that [plaintiff] was not secured with the seat belt.” Count II further alleged that while plaintiff was being transported between the center and the playground, the wheels of her wheelchair struck a “crevice” in the surface of the passageway between those two locations “thereby throwing [her] with force and violence upon the pavement,” and that the School District allowed plaintiff’s wheelchair to pass over this “crevice” when it had knowledge, or through reckless and wanton conduct, failed to acquire knowledge as to the dangerous condition which that “crevice” presented. We believe that these allegations, if true, would establish such a “reckless disregard for the safety of others” as to constitute wilful and wanton misconduct within the meaning of Hadley (123 Ill. App. 3d 19, 462 N.E.2d 877).

We turn then to the propriety of the circuit court’s order dismissing the City’s second amended counterclaim for contribution. That amended counterclaim, like count II of plaintiff’s amended complaint, is based on wilful and wanton misconduct, and the facts alleged in support of that claim are essentially the same as those contained in count II of plaintiff’s amended complaint. The only difference in the substance of the pleadings is that the amended counterclaim does not make mention of the School District’s failure to acquire knowledge as to the dangerous condition presented by the “crevice” in the passageway between the center and the playground. Instead, it focuses exclusively on the District’s having allowed plaintiff to be pushed in her wheelchair from the center to the nearby playground by one of plaintiff’s fellow students, a child of tender years, without having her seat belt fastened, even though the District knew of plaintiff’s medical condition and that she was supposed to have her seat belt fastened whenever she was transported in her wheelchair. As with count II of plaintiff’s amended complaint, we believe that these allegations sufficiently allege a cause of action for wilful and wanton misconduct. The circuit court therefore likewise erred in dismissing the City’s second amended counterclaim.

For the foregoing reasons, the judgment of the circuit court of Randolph County dismissing with prejudice counts I and II of plaintiff’s amended complaint and the City’s second amended counterclaim is reversed, and this cause is remanded to the circuit court for further proceedings not inconsistent with the views expressed in this opinion.

Reversed and remanded.

RARICK and GOLDENHERSH, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN CLARK BRIDGES, Defendant-Appellant.
    Fifth District
    No. 5 — 87—0608
    Opinion filed September 27, 1989.

      Charles M. Schiedel and James E. Chadd, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles Garnati, State’s Attorney, of Marion (Kenneth R. Boyle, Stephen E. Norris, and Raymond E Buckley, Jr., 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, John Clark Bridges, was found guilty of two counts of aggravated battery. One count was based on the victim’s status as a peace officer (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4(b)(6)). The other count was based on the fact that defendant had caused great bodily harm to the victim (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4(a)). Defendant was sentenced to five years on each count. The sentences were to run concurrently, but consecutive to defendant’s prior juvenile disposition. In this cause, defendant raises the following issues: (1) whether defendant was improperly transferred from juvenile to criminal court; (2) whether defendant was improperly convicted for two counts of aggravated battery; and (3) whether defendant’s felony sentence can be made consecutive to his term of imprisonment under his juvenile disposition. We affirm in part and vacate in part.

At the time of the instant offense, defendant was 16 years old and was awaiting being sent to the Juvenile Department of Corrections at Joliet. Defendant had previously been tried as an adult for murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1) but was not convicted of that crime. Defendant had instead been convicted of attempted murder, voluntary manslaughter, aggravated battery, and unlawful use of weapons. However, the State had not moved to have defendant tried as an adult, but rather had relied on section 2 — 7(6)(a) of the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 702 — 7(6)(a)), which provides that the definition of a delinquent minor does not apply to a minor of at least 15 years of age who is charged with murder. After defendant’s acquittal on the murder charge and convictions on four other charges, a dispositional order was entered pursuant to the Juvenile Court Act which committed defendant to the Juvenile Division of the Department of Corrections until age 21.

Prior to dispositional hearing, on November 28, 1986, at approximately 4:30 p.m., defendant was in the juvenile facility at the Williamson County jail. One other juvenile, William Hale, was also in this facility. The two juveniles had neither been allowed to take showers that day nor had they been allowed to make telephone calls. Defendant and Hale wanted to talk to a juvenile officer concerning the lack of shower and telephone use, but were told that none were available. In response to this treatment, Hale jammed the lock on the outside door to the juvenile area with a toothbrush. One of the guards was drawn to this area when she noticed cookies scattered about the floor. She assumed something was wrong and immediately solicited the aid of three other officers. The four officers entered the juvenile area after forcing the door open. The officers proceeded to tell the juveniles to return to their cells. The juveniles refused. Two other officers were called to assist. When there was still no movement by the juveniles, the officers equipped themselves with night sticks. There was then what was described as a “Mexican standoff.” Finally, Deputy Ronald McDonald entered the area with a riot stick, which was described as three feet in length, approximately two inches wide. When McDonald entered the room, he was then face to face with defendant. As McDonald turned to say something to the other officers, he was hit on the left cheek by defendant.

McDonald and the other officers agreed that McDonald did not hit defendant nor did he make any movement with the riot stick or his hands that could have been construed as an attack. Defendant admitted hitting McDonald, but argued that he did so only in self-defense. Defendant further admitted McDonald did not hit or touch him first, but defendant was reacting to what he thought was going to be a blow. Witness Hale testified that McDonald punched defendant in the stomach with the night stick and only then did defendant punch McDonald. Defendant was ultimately restrained and both juveniles returned to their cells.

McDonald’s treating physician testified that McDonald suffered a fractured left cheekbone. Blood was found behind McDonald’s ear, which was an indication that he may have suffered a broken skull. In order to confirm or deny this, McDonald was sent to Evansville, Indiana, for further examination by a neurosurgeon. There it was determined that there was no skull fracture. McDonald was off work for approximately three months due to his injuries. He stated he still suffers some slight hearing loss in his left ear, sinus problems, nerve damage in his face, and had to undergo an operation to repair a damaged eye socket.

After this incident, the State moved to have defendant transferred to adult court. The State’s motion was granted, and defendant was ultimately convicted of two counts of aggravated battery.

The first issue defendant raises on appeal is whether he was improperly transferred from juvenile court to criminal court. He argues that he was improperly transferred because the trial court failed to give proper consideration to his personal history and background and failed to evaluate and consider the availability of other juvenile facilities. The State responds that the record supports the trial court’s determination to transfer defendant’s case to criminal court. We agree.

The procedures governing a transfer hearing and the criteria to be considered are controlled by section 2 — 7(3)(a) of the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 702 — 7(3)(a)), which provides, in pertinent part:

“(a) In making its determination on a motion to permit prosecution under the criminal laws, the court shall consider among other matters: (1) whether there is sufficient evidence upon which a grand jury may be expected to return an indictment; (2) whether there is evidence that the alleged offense was committed in an aggressive and premeditated manner; (3) the age of the minor; (4) the previous history of the minor; (5) whether there are facilities particularly available to the Juvenile Court for the treatment and rehabilitation of the minor; and (6) whether the best interest of the minor and the security of the public may require that the minor continue in custody or under supervision for a period extending beyond his minority.”

This statute is rooted in the constitutional requirement of procedural due process as stated by the Supreme Court in Kent v. United States (1966), 383 U.S. 541, 577, 16 L. Ed. 2d 84, 95, 86 S. Ct. 1045, 1055. However, the State need only present evidence sufficient to persuade the trial court, in the sound exercise of its discretion that in light of the statutorily prescribed criteria, transfer is warranted. (People v. Taylor (1979), 76 Ill. 2d 289, 303-04, 391 N.E.2d 366, 372.) With this in mind, we turn next to an examination of the transfer hearing held in this case.

The State first called circuit judge Thomas Haney, who was the presiding judge at defendant’s first appearance on this matter when defendant was still in juvenile court. Judge Haney testified that near the end of the hearing when he was explaining defendant’s rights, defendant said to the judge, “Why don’t you go fuck off *** Why don’t you go screw something?” The State then called Delores Hull, a Saline County probation officer who interviewed defendant in connection with the 1986 murder charge. Ms. Hull had been a probation officer since 1981. She testified concerning her familiarity with placement of juveniles in appropriate facilities. Based on defendant’s psychological report, which found defendant to be overly aggressive, it was Ms. Hull’s opinion that there would be no appropriate facility for defendant. She did not specifically check with placement facilities concerning defendant, but was relying on her past experiences with similarly situated juveniles who had always been turned down in the past.

Two Harrisburg police officers testified about a meeting they had with defendant on December 18, 1984. On that date, defendant’s father had called them to his residence concerning defendant’s state of mind. Defendant’s father told the police officers that he was worried about his son because his son had no feelings and did not care about anyone. During discussions with defendant on that date, defendant told the officers that he wanted to kill someone just to see how it felt.

The State also called four witnesses, including defendant, to the aggravated battery which occurred at the Williamson County jail. All related virtually the same facts that were set out at the beginning of our opinion.

The State’s final witness was defendant’s father. He testified that he would rather see his son at the adult facility in Menard rather than at the juvenile facility in Joliet. This desire was based in part on the fact that he believed defendant had not made any progress at Joliet, but rather that his son had been “messed over up here in Joliet.” His desire to have his son at Menard was also based on geographical considerations, as he lived in Southern Illinois, approximately five hours from Joliet.

The State also introduced into evidence a certified copy of defendant’s conviction in case number 85 — J—29 in Saline County, which included a copy of the record sheet of petition to transfer from juvenile division to criminal division and a psychological report completed in connection with the murder case. A transcript by the court reporter of the December 3, 1986, dispositional hearing involving defendant was also introduced.

The purpose of any transfer hearing is to “balance the best interests of the alleged juvenile offender, particularly as these interests relate to his or her potential for rehabilitation, against society’s legitimate interest in being protected from criminal victimization perpetrated by minors.” (People v. Clark (1987), 119 Ill. 2d 1, 12, 518 N.E.2d 138, 143.) On review, the appellate court’s role is to determine whether, in light of the statutory criteria, the trial judge abused his discretion. (People v. Thomas (1981), 94 Ill. App. 3d 895, 419 N.E.2d 480.) No one criterion is determinative, nor is equal weight necessarily given to every criterion. What is required is preservation of the record to allow meaningful review of the trial court’s exercise of discretion. People v. Taylor (1979), 76 Ill. 2d 289, 303-04, 391 N.E.2d 366, 376; People v. Kraman (1981), 96 Ill. App. 3d 390, 404, 421 N.E.2d 346, 357.

In the instant case, defendant does not contest the court’s finding with respect to the first three criteria. There was evidence not only to support an indictment, but also to find defendant guilty beyond a reasonable doubt. The evidence showed that defendant struck the victim while defendant was looking away. It was best described as a “sucker punch.” Defendant’s stance throughout his encounter with the officers was aggressive. The blow was definitely premeditated and calculated. Regarding the third criterion, defendant’s age, defendant was 16 at the time of the occurrence on November 28, 1986, but turned 17 on December 7, 1986. Had the crime occurred two weeks later, defendant would have been an adult. We move now to the contested criteria.

The fourth criterion, the minor’s history, usually includes review of information concerning such factors as social adjustment, mental and psychological health, school adjustment, adjustment in the family, familial support for any possible treatment or rehabilitation, and any previous involvement in the juvenile system. (People v. Clark (1987), 119 Ill. 2d 1, 17, 518 N.E.2d 138, 145.) A review of the record indicates that defendant’s social adjustment is lacking indeed. The psychological reports state that defendant has no friends. The only people that he has any feelings for at all are his father, whom he loves, and his mother, whom he hates. Defendant’s father had been concerned by defendant’s lack of feelings for others as evidenced by his calling the Harrisburg police department requesting assistance with his son in 1984. Two psychologists stated that defendant only tolerates his stepmother in deference to his father. The record also indicates that defendant has a long history of violent and hostile behavior. The psychological report includes statements from defendant’s mother that her son has been involved in a number of fights since grade school. When defendant was only 12, he threatened his mother with a knife, telling her that he would kill her if she attempted to maintain custody of him after his parents’ divorce. When defendant was 15, he told two Harrisburg police officers that he would like to kill someone just to see what it was like. When defendant was 16, he did kill someone and was convicted of attempted murder and voluntary manslaughter. It was while defendant was incarcerated for these offenses that he attacked Deputy McDonald.

Defendant clearly has no respect for the court system, as evidenced by the remarks he made to Judge Haney during his first appearance on the aggravated battery charges. Furthermore, all psychological reports and all transcripts evidence that both defendant and his father have an “us against the world mentality.” At least two psychologists believe that defendant’s father is a highly suspicious and potentially violent man and that defendant has taken on these same characteristics.

Defendant’s school adjustment is also lacking. Defendant dropped out of high school in the tenth grade. He has taken GED classes while incarcerated, and at the time of sentencing hearing, defendant expected to complete that course within a few months.

Defendant argued that the psychological reports filed in conjunction were too dated tó be beneficial. One psychological evaluation was conducted on August 14, 1985, and the other was dated August 11, 1986. Defendant argues that the interval between these reports and the sentencing hearing constitute an enormous time in the life of a minor and that positive changes could have been made in his life. While this is possible, we see no such indication, as clearly evidenced by defendant’s attitude toward the court at his first appearance, his fighting while incarcerated, as well as his father’s paranoid statements to the court. This combination indicates that nothing has changed from the time the psychological reports were initially made. In support of this finding we note that there is on file a report from defendant’s correctional counselor at Joliet, which was completed on February 5, 1987. This report indicates that defendant has continued his aggressive behavior by fighting with other juveniles.

We do agree that the fifth factor, the availability of facilities for defendant’s treatment and rehabilitation, was not given a great deal of consideration. We cannot say, however, that the trial court abused its discretion in this regard. The probation officer made it clear that no facility of which she was aware and which the county could afford would be willing to accept defendant due to his aggressive and violent behavior. Indeed, it is quite possible that after defendant’s stay in the Juvenile Department of Corrections on his earlier charges, it would be difficult to find a facility that would be willing to take him.

As to the sixth criterion, the record clearly supported the trial court’s finding that the public’s need for security in this instance outweighed the interest of defendant. Overall, the record supports the trial court’s determination to transfer defendant’s case to criminal court. There was sufficient information on each of the six points found in section 2 — 7(3)(a) of the Juvenile Court Act. Ill. Rev. Stat. 1985, ch. 37, par. 702-7(3)(a).

We move now to the second issue, whether defendant was improperly convicted and sentenced for two counts of aggravated battery. Defendant argues that the two convictions and sentences were improper in the present case because the evidence revealed only one act of striking the victim. While there was some evidence that defendant continued fighting with the victim after the initial blow, the occurrence was all part of a single action, and therefore, one of the aggravated battery convictions must be vacated. We agree.

In this cause, defendant was charged with two separate counts of aggravated battery. The aggravating factor in count I was the causation of great bodily harm; in count II, it was the victim’s status as a police officer. We find the instant case analogous to People v. Ellis (1986), 143 Ill. App. 3d 892, 493 N.E.2d 739, wherein the defendant was charged with one count of aggravated battery based on great bodily harm, and a second count based on a public place of accommodation. In Ellis, the State argued that there were separate physical acts because the defendant struck the victim on the back of the head and then struck her in the face when she turned to face him. This court reversed defendant’s conviction and held, first, that the defendant’s conduct could not be broken into separate acts and, second, that the defendant’s conviction based on a public place must also be reversed. “The fact that this act occurred in a public place of accommodation does not belie the fact that a single offense of aggravated battery was committed.” (143 Ill. App. 3d at 897, 493 N.E.2d at 743.) Likewise, in the instant case, one act of aggravated battery was committed, and the status of the victim, a police officer, will not allow two convictions to stand.

The State argued that this case was similar to People v. Myers (1981), 85 Ill. 2d 281, 426 N.E.2d 535, in which the supreme court upheld convictions for both attempted murder and armed violence based upon the defendant’s act of cutting the victim’s throat with a knife. In Myers, the defendant pressed a knife to the victim’s throat, withdrew the knife momentarily to threaten someone else, and then returned the knife to the victim’s throat. The Myers court found that each of these two movements amounted to “an overt or outward manifestation sufficient to support a different offense.” (85 Ill. 2d at 288, 426 N.E.2d at 538.) We find the State’s reliance on Myers to be misplaced, as we are able to distinguish these two cases on facts alone. The Myers court relied on the existence of an intervening event, the defendant’s threatening another victim, in order to support both convictions. In the present case, there was no such intervening event. All blows were struck in rapid succession. We, therefore, vacate defendant’s conviction for aggravated battery based upon the victim’s status as a police officer and affirm the other conviction based upon injury. We do not, however, agree with defendant that this cause needs to be remanded for resentencing.

A cause need not be remanded for resentencing where there is no indication that the sentencing court improperly considered the vacated conviction. (People v. Wilson (1981), 93 Ill. App. 3d 395, 417 N.E.2d 146.) In the instant case, defendant was sentenced to five years on each charge, the sentences to run concurrently. There is nothing in the record to indicate defendant’s sentence would have been less severe had defendant been convicted of only one charge. The record reflects that the trial judge was concerned with defendant’s history of violence and the fact that the victim was seriously injured, not the fact that defendant had two separate convictions. Accordingly, we find no need to remand this cause for resentencing on the one aggravated battery conviction. We affirm the five-year sentence.

This leads to the final issue, whether the trial court erred by imposing a consecutive sentence. Defendant argues that a felony sentence cannot be made consecutive to defendant’s term of confinement under a juvenile disposition. Defendant further argues that all statutory provisions defining situations where consecutive sentences may be imposed require that a defendant must have more than one criminal conviction and sentence. Because adjudications of delinquency under the Juvenile Court Act are not criminal proceedings (In re Beasley (1977), 66 Ill. 2d 385, 362 N.E.2d 1024; In re B.S. (1979), 73 Ill. App. 3d 507, 392 N.E.2d 62), there can be no consecutive sentence imposed in the instant case. We disagree.

In the instant case, the aggravated battery sentence was made consecutive to defendant’s term of confinement in the Juvenile Department of Corrections. What is controlling is the underlying basis of defendant’s sentence to the Juvenile Department of Corrections. (See People v. Singleton (1984), 103 Ill. 2d 339, 469 N.E.2d 200.) Here, the underlying basis is defendant’s felony convictions for attempted murder and voluntary manslaughter, not defendant’s adjudication as a delinquent.

Defendant makes an additional argument that a juvenile disposition cannot be made part of a consecutive sentence because section 5 — 8—4(e)(4) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—4(e)(4)) states that day-for-day good conduct credit shall apply to the aggregate term of a consecutive sentence and such credit cannot apply to commitments under the Juvenile Court Act because of their indeterminate nature.

As prescribed by the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—4(a)), it is generally within the discretion of the trial court to determine whether multiple terms of imprisonment are to be served concurrently or consecutively. This discretion is, however, qualified by limitations set forth in the Code. Defendant constructs an interesting argument, but we decline to follow such reasoning, as we do not believe the General Assembly intended to make all such sentences run concurrent with a juvenile disposition. To follow defendant’s argument would be to allow juvenile offenders to commit serious crimes while serving out their commitment to the Juvenile Department of Corrections without fear of serious consequences in adult court.

We find the instant problem analogous to cases where defendants are serving Federal determinate sentences which do not have minimum or maximum terms. In People v. Boney (1970), 128 Ill. App. 2d 170, 262 N.E.2d 766, it was held that Illinois did not relinquish jurisdiction of the defendant when it turned him over to Federal authorities, as a detainer was placed with the Federal penitentiary to hold the defendant for return to Illinois upon conclusion of the defendant’s Federal sentence in order that he might serve his State sentence. Likewise, we hold that defendant must complete his disposition in the Juvenile Department of Corrections where day-for-day good conduct credit cannot be calculated. Upon release, defendant will serve his five-year sentence on the aggravated battery charge, and at that time, day-for-day good conduct credit shall apply.

For the foregoing reasons, this court affirms in part and vacates in part the order of the circuit court of Williamson County.

Affirmed in part; vacated in part.

WELCH, P.J., and RARICK, J., concur.


author: JUSTICE HOWERTON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CRAIG COOPER, Defendant-Appellant.
    Fifth District
    No. 5 — 87—0800
    Opinion filed September 28, 1989.
    Daniel M. Kirwan and Dan W. Evers, both of State Appellate' Defender’s Office, of Mt. Vernon, for appellant.

      John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Ellen Eder Irish, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

We affirm defendant’s conviction by jury for armed robbery.

Defendant raises two issues. He claims first that the circuit court erroneously allowed the introduction of hearsay. He claims second that the circuit court erred in allowing substantive use of an out-of-court statement made by a witness under section 115 — 10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115-10.1).

A witness testified that defendant’s coconspirator told him that he and defendant had “stuck up” the victim. Defendant is correct in categorizing this evidence as hearsay. However, the error is waived. Defendant did not object at the time the evidence was offered and did not address the error in his post-trial motion. People v. Volkmar (1989), 183 Ill. App. 3d 149, 538 N.E.2d 1255.

Defendant’s second claim was not waived. A prosecution witness’ signed, out-of-court statement was used by the prosecution not only to impeach the witness but as substantive evidence of the assertions contained therein. Defendant argues that the trial court erred in allowing the use of that statement as substantive evidence, but contests the substantive use of only part of the statement. Defendant says it was error to allow substantive use of that part of the statement that read, “Craig Cooper and Walter Eden told me they had just robbed Travis Vaughn.”

Section 115 — 10.1 of the Code of Criminal Procedure of 1963 provides:

“In all criminal cases, evidence of a statement made by a witness is not made inadmissible by the hearsay rule if
(a) the statement is inconsistent with his testimony at the hearing or trial, and
(b) the witness is subject to cross-examination concerning the statement, and
(c) the statement
* * *
(2) narrates, describes, or explains an event or condition of which the witness had personal knowledge, and
(A) the statement is proved to have been written or signed by the witness ***.” Ill. Rev. Stat. 1987, ch. 38, par. 115-10.1.

At issue is the meaning of “personal knowledge” as used in subsection (c)(2). We hold that the personal knowledge required by the statute is not that which is acquired by being told something, even if an admission; rather, it means “the witness whose prior inconsistent statement is being offered into evidence must actually have seen the events which are the subject of that statement.” See Steigmann, Prior Inconsistent Statements as Substantive Evidence in Illinois, 72 Ill. B.J. 638, 640 (1984); see also Graham, Employing Inconsistent Statements for Impeachment & as Substantive Evidence: A Critical Review & Proposed Amendments of Federal Rules of Evidence, 801(d)(1)(A), 613 & 607, 75 Mich. L. Rev. 1565, 1584-85 (1977).

In the case at hand, the witness’ statement that “Craig Cooper and Walter Eden told me they had just robbed Travis Vaughn” was based on knowledge he gained by being told that by a coconspirator, not from his perception of the robbery itself. Substantive use of that portion of the statement was error.

We reject, however, defendant’s claim that the error requires reversal. The standard for determining whether error is harmless or reversible is whether it is harmless beyond a reasonable doubt. (People v. Bascomb (1979), 74 Ill. App. 3d 392, 392 N.E.2d 1130.) Error may be harmless because the error itself is inconsequential or, if the error is of a more serious nature, it may be deemed harmless when balanced against the strength of the State’s evidence. (People v. Glover-El (1981), 102 Ill. App. 3d 535, 430 N.E.2d 147.) Here, defendant gave a confession, the validity of which is not an issue in this appeal. Therefore, we hold that the error was harmless.

Defendant’s conviction is affirmed.

Affirmed.

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