author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LIBORIO CRISANTOS, Defendant-Appellant.
    First District (4th Division)
    No. 1—88—2418
    Opinion filed March 28, 1991.

      Michael A. Unger, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and William D. Carroll, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial defendant, Liborio Crisantos, was found guilty of possession with intent to deliver a controlled substance. (Ill. Rev. Stat. 1987, ch. 56½, par. 1402.) Defendant was sentenced to a term of six years to be served in the Illinois Department of Corrections.

Defendant appeals, seeking reversal of his conviction or, in the alternative, reversal of his conviction and remand of the cause for a new trial. Defendant raises the following issues for our review: (1) whether the State proved his guilt beyond a reasonable doubt; (2) whether he was denied a fair trial when certain of the State’s witnesses allegedly made negative insinuations regarding Hispanic persons; and (3) whether the trial court erred in giving the jury an instruction on both actual and constructive possession of a controlled substance.

We affirm.

At trial, the evidence established that on October 5, 1987, at approximately 2:30 p.m., four members of the Chicago police force’s organized crime division, narcotics section, were performing a surveillance of the Latin Lounge. The lounge is located at 2528 Lincoln Avenue in Chicago. The surveillance was conducted from an undercover van which was located 150 feet to 200 feet south of the lounge. Chicago police officers Ricardo Abreu and Frank Goff testified that they observed the owner of the lounge, Vitine Santiago, come out of the lounge on at least two occasions and look along Lincoln Avenue in a northerly direction.

At approximately 2:45 p.m., the officers observed a man, identified as defendant, walking in a southerly direction along Lincoln Avenue. Officer Goff testified that he did not “focus” on defendant until he walked into the lounge. Officer Abreu also testified that he saw defendant walking southbound on Lincoln Avenue. Both Officers Abreu and Goff testified that they observed defendant carrying a box. Shortly after the officers observed defendant enter the lounge, they executed a search warrant.

Officers Abreu, Goff, O’Connor, and Thomas then proceeded directly to the lounge and knocked on the door. The purpose of their presence was first announced in English and then Officer Abreu repeated the same information in Spanish. The officers observed defendant, through a glass door, rapidly walk toward the rear of the lounge.

Santiago, who was standing at the entrance, did not immediately open the door. It was only after the officers started to use force to gain entry into the premises that Santiago opened the door. Once inside the lounge, Officers Abreu and O'Connor walked toward the rear of the lounge. As the officers were walking, they observed defendant coming out of the rest room. Officer Abreu then seized defendant. Officer O’Connor went into the rest room, where he discovered the box that the officers had previously observed being carried by defendant. Three plastic bags containing 800 grams of cocaine were retrieved from the box.

Defendant was then arrested. In searching the rest of the lounge, the officers discovered a gun and $300 in cash. A triple beam scale, which is commonly used in weighing cocaine, was also found on the premises.

Defendant testified that he was employed by Santiago to do general maintenance work at the lounge. Defendant’s regular working hours were from noon until 7 p.m., when the lounge opens for business. He had been employed by Santiago for approximately three years.

According to defendant, on October 5, when the police arrived, he and Santiago were the only two people on the premises. The lounge was closed, and defendant was in the process of “moving” glasses from the back of the lounge to the front of the lounge. Santiago had previously told defendant not to open the door until he instructed him to do so. Defendant also testified that he was not in possession of the cocaine that had been confiscated by the police nor had he ever seen cocaine on the premises.

After hearing all of the evidence, defendant was found guilty and sentenced to six years’ imprisonment. It is from this decision that defendant appeals.

The first issue defendant raises is whether the State proved beyond a reasonable doubt that he had either actual or constructive possession of the seized cocaine. Defendant argues that the State’s case was based upon the testimony of Officers Abreu and Goff, which was of “dubious trustworthiness” and insufficient to show that he was in actual possession of the cocaine.

Defendant contends that the officers’ vantage point in the van would not have allowed them to positively identify him as the person who entered the lounge carrying the box and that Officer Goff did not “focus” on the person carrying the box in question. Moreover, defendant argues, on the day in question, he did not leave the lounge prior to the officers’ arrival.

Initially, we note that the police officers’ testimony regarding defendant’s activities on October 5 differs from defendant’s version of the events. As the jury found defendant guilty, it is evident that the officers’ testimony proved to be more credible. Credibility determinations are exclusively within the province of the jury. (People v. Collins (1985), 106 Ill. 2d 237, 261-62.) A court of review will not substitute its judgment for that of the trier of fact where the evidence is conflicting; “[i]t [is] the jury’s responsibility to resolve contradictory evidence and factual disputes and weigh the credibility of the witnesses.” (People v. Kubat (1983), 94 Ill. 2d 437, 468.) We, therefore, defer to the findings of the trier of fact with respect to the weight given to defendant’s testimony.

Defendant’s claim that the undercover van was parked too far away from the lounge to allow the officers to positively identify him is without merit. The van was equipped with special surveillance equipment to view street activities within radius of the lounge. The fact that Officer Goff testified that he did not “focus” on defendant as he was walking down Lincoln Avenue is not fatal to the State’s case, as Officer Abreu did observe defendant walking down the street with the box. Moreover, as the State contends, Officer Goff’s observation of defendant's clothing and physical characteristics enabled him to identify defendant as the person he saw carrying the box.

We find defendant’s contention that the State had not proved that he was in actual or constructive possession of the cocaine to be without merit. Defendant reasons that he was merely an employee on the premises when the police arrived and that the State did not present evidence that he possessed the contraband or even knew that cocaine was in the lounge.

In order to support a conviction for the unlawful possession of a controlled substance, the State must prove that the defendant had knowledge of the presence of the controlled substance and that the substance was in his immediate and exclusive control. (People v. Ortiz (1980), 91 Ill. App. 3d 466, 470.) The elements of possession or knowledge are both questions of fact which must be determined by the jury (Ortiz, 91 Ill. App. 3d at 471), and are rarely susceptible to direct proof (People v. Embry (1960), 20 Ill. 2d 331, 334). This is because drug trafficking is conducted with the “utmost secrecy and care.” People v. Nettles (1961), 23 Ill. 2d 306, 308.

In the instant case, we find that the State proved that defendant had actual possession of the drugs as both Officers Abreu and Goff identified defendant as the person carrying the box which contained the 800 grams of cocaine.

Constructive possession may be proved where the accused “knows of the presence of the substance and has the intent and capability to maintain control and possession of it. [Citations.] Thus, defendant must be shown to have exclusive control of the area where the controlled substance was located.” People v. Roundtree (1985), 135 Ill. App. 3d 1075, 1080.

In the instant case, defendant had exclusive control over the rest room, the area in which the cocaine was found, at the time the contraband was seized. Defendant was the last person seen in the rest room before the officers discovered the cocaine, and defendant admitted that only he and Santiago were in the lounge when the officers arrived. Under the circumstances of this case, we find that the State had adequately proved defendant’s guilt under a theory of constructive possession.

Next defendant contends that he was denied a fair trial by certain statements made by the State’s witnesses. Specifically, defendant cites to Officer Abreu’s testimony concerning how cocaine is “usually packaged” and how a search warrant is “usually obtained.” Defendant argues that these statements, coupled with Officer Goff’s testimony that he has heard officers announce their office in Spanish “on several hundred search warrants,” constitute reversible error. Defendant reasons that the import of these statements is that all Spanish-speaking persons are drug dealers. He submits that his guilt was not based upon the evidence presented against him but, rather, was due to the fact that he is Hispanic.

However, these objections were not raised during trial or in defendant’s motion for a new trial. To preserve a question for review there must be both an objection to the evidence at trial and a written post-trial motion raising the question of the objected to evidence. (See People v. Enoch (1988), 122 Ill. 2d 176.) We, therefore, find that for all intents and purposes this issue has been waived.

Even assuming, arguendo, that this issue had not been waived, we find no merit to defendant’s claim. Defendant is correct in his assertion that insinuations made by the State having no basis in fact constitute “potentially reversible error.” (People v. Connor (1988), 176 Ill. App. 3d 900, 906.) However, after carefully reviewing the transcript, we find no recorded testimony from Officer Abreu as to how cocaine is “usually packaged” or how a search warrant is “usually obtained.” We do not know from which portion of the transcript defendant is quoting. The testimony which defendant refers to was elicited for the purpose of explaining how the narcotics section operates. There was no improper insinuation having no basis in fact made during Officer Abreu’s testimony.

Defendant also takes Officer Goff’s testimony completely out of context. Officer Goff was giving a narrative as to the events of October 5 when he was asked whether he recalled the words used by Officer O’Connor in executing the search warrant. Officer Goff stated that Officer O'Connor announced their presence and purpose and then told Santiago to open the door. Officer Goff then testified that this same announcement was repeated in Spanish by Officer Abreu “which [Officer Abreu] always does when dealing with Spanish people. *** I don’t speak Spanish, but I understand the phrase because [Officer Abreu has] repeated it on several hundred search warrants.”

We find that this testimony was not elicited for the purpose of insinuating that Hispanic persons are drug dealers. This testimony illustrates how Officer Abreu ensures that the announcement is understood by Spanish-speaking persons. While the announcement of authority and purpose may not be necessary to the execution of a search warrant (People v. Conner (1979), 78 Ill. 2d 525, 531), it may protect the police officers and result in the avoidance of a confrontation (People v. Ouellette (1979), 78 Ill. 2d 511, 520). We cannot, by any stretch of the imagination, interpret Officer Goff’s statements as insinuating that Hispanic people are drug dealers. Defendant’s contention fails with respect to this issue.

The final issue defendant raises is whether the trial court’s instruction to the jury on both actual and constructive possession of a controlled substance was erroneous where the only evidence, allegedly, presented was that of actual possession.

However, we previously held that defendant was proved guilty beyond a reasonable doubt under both actual possession and constructive possession theories. The evidence presented at trial supported both of these theories. Where evidence is presented at trial supporting both an actual possession theory and a constructive possession theory, both theories may be given to the jury. People v. McCrimmon (1986), 150 Ill. App. 3d 112, 117.

For the foregoing reasons, the decision of the circuit court is affirmed. As part of our judgment, we grant the State’s request that defendant be assessed $50 as costs for defending this appeal pursuant to People v. Nicholls (1978), 71 Ill. 2d 166. We deny the State’s request that this court also award it an additional $25 as fees pursuant to People v. Agnew (1985), 105 Ill. 2d 275, as oral argument before this court was waived by defendant.

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.


source: Caselaw Access Project

author: JUSTICE McMORROW

license: Public Domain

text:
    TERRY DOWNING, Plaintiff-Appellee and Cross-Appellant, v. UNITED AUTO RACING ASSOCIATION et al., Defendants-Appellants and Cross-Appellees (Robert Guess, Defendant).
    First District (4th Division)
    Nos. 1—89—0716, 1—89—0739 cons.
    Opinion filed March 28, 1991.

      French, Rogers, Kezelis & Kominiarek, P.C., of Chicago (James M. Hofert and Russell P. Veldenz, of counsel), for appellants.
    Hayes & Power, of Chicago (Terrence J. Lavin, Thomas G. Siracusa, and David A. Novoselsky, of counsel), for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff Terry Downing was injured during a midget car race that was held on premises operated by defendants United Auto Racing Association (UARA) and Aaron Willis (Willis) (hereinafter collectively referred to as defendants). The plaintiff’s injuries occurred when a car driven by defendant Robert Guess (Guess) overturned on the racetrack and struck plaintiff, who was standing just off the track in an area unprotected by a guardrail. A jury found that Guess was not negligent in his driving of the car, and he is not a party to this appeal. The jury determined that the actions of defendants UARA and Willis with respect to their maintenance of the track amounted to willful and wanton misconduct, and awarded plaintiff $1.5 million in damages. The jury also found that plaintiff was 59% comparatively negligent in causing his own injuries and reduced the award by this percentage, for a net damages award of $615,000.

Defendants UARA and Willis raise numerous issues on appeal. Based upon our review of the record, we conclude that: (1) the evidence of record supports the jury’s determination that the actions of these defendants constituted willful and wanton misconduct; (2) a release signed by plaintiff was properly excluded from evidence; (3) the advent of -comparative negligence does not abolish the distinction between ordinary negligence and willful and wanton misconduct; (4) the trial court’s instruction to the jury to disregard certain testimony from the plaintiff’s expert was sufficient to cure any prejudice to the defendants arising from such testimony; (5) the trial court's instruction to the jury to disregard hearsay testimony from one of plaintiff’s occurrence witnesses was adequate to prevent any prejudice to the defendants; (6) there was no error in any of the trial court’s rulings with respect to testimony provided by plaintiff’s experts at trial; (7) defendants are not entitled to a new trial because of allegedly improper testimony regarding the scope of plaintiff’s injuries; and (8) there were no cumulative errors that entitle defendants to a new trial.

Plaintiff also cross-appeals from the judgment entered upon the jury’s verdict, claiming that his ordinary negligence could not offset defendants’ liability for willful and wanton acts. We conclude that, in light of the adoption of comparative fault, a jury may consider a plaintiff’s ordinary negligence to reduce the amount of damages assessed for a defendant’s willful and wanton acts.

In accordance with these determinations, we affirm.

Plaintiff was injured on August 12, 1978, during a midget car race at Joliet Memorial Stadium. Defendant Willis leased the track to promote, organize and supervise such races. Under the agreement, defendant Willis was to provide a safe, adequate, and properly prepared track for the races, including personnel to supervise activities near the track and in the pit area. Defendant UARA agreed to sanction races held by defendant Willis at the stadium.

At the time of his injury, plaintiff was a member of a pit crew for Richard Pole (Pole), a midget car driver. Plaintiff helped others in the crew to prepare the car and push it onto the track. As plaintiff waited on the track for the car to be pushed into a warm-up race, he noticed that the car being driven by Guess bicycled in the turns nearer to plaintiff. “Bicycling” occurs when the car’s inner wheels lose contact with the track surface.

According to plaintiff’s trial testimony, Guess’ car bicycled approximately two feet off the asphalt in these turns. After Guess’ car passed through the turns, plaintiff and other members of the crew pushed Pole’s car onto the track to participate in the warm-up race. Thereafter, plaintiff began to walk off the track toward the pit area. He was accompanied by George Boban (Boban), who was also a pit crew member for Pole. Both plaintiff and Boban noted that Guess’ car again bicycled a few feet in the air when the car made the two turns at the far end of the track. Plaintiff testified that he mentioned to Boban, and to David Valentino (Valentino), a pit crew member for another driver who was nearby, that Guess’ car should be blackflagged off the track. “Blackflag” occurs when the racing steward waves a black flag to a driver to signal to the driver that his car should leave the track. Valentino also testified at trial that he noticed that Guess’ car bicycled when making turns around the track.

Boban and Valentino testified that they were standing with plaintiff in the grassy area near the track when they noticed Guess’ car bicycling in turns on the track. Also, Boban and Valentino testified that Guess’ car bicycled both during warm-up laps, where the cars are running at a reduced speed, and during hot laps, where the cars are making trial runs at full speed. However, plaintiff testified that he believed Guess’ car was operating a warm-up lap when he first noticed the bicycling, but that he did not know whether Guess was operating during a hot lap when Guess’ car repeated its bicycling around the track.

It was established at trial that a racing steward controlled whether the cars were racing a warm-up lap or a hot lap. To indicate a warm-up lap, the steward would wave a yellow flag. To indicate a hot lap, the steward would wave a green flag. In addition, there was a light signal at the far end of the track, away from the pit area, that would show a yellow or green light depending upon the signals given by the racing steward.

During the time that plaintiff, Boban, and Valentino noticed Guess’ car bicycling at the far end of the track, they were located in a grassy area off the track between the pit and the straightaway. A guardrail separated the track from the pit area at the turns at this end of the track, and there was a fence along the track straightaway. Boban, Valentino, and plaintiff all testified that they were aware that it was dangerous to remain in this area during a hot lap.

Plaintiff testified at trial that because he believed that the bicycling of Guess’ car created a hazardous condition on the track, he concluded that Guess’ car should be removed from the race. In an effort to find a race official to blackflag Guess' car, plaintiff began to walk away from Boban and Valentino. He walked in the grassy strip along the track, away from the guardrail, in the direction of the fence along the straightaway. Plaintiff did not watch Guess’ car as it continued on the track.

Boban and Valentino testified that as Guess’ car reached the turns nearer to the pit area, the car again bicycled. It then flipped over and began skidding toward the area where plaintiff, Boban, and Valentino were located. Although Boban and Valentino avoided injury, plaintiff was struck by the car and pinned against the fence next to the track straightaway. He sustained injuries requiring extensive surgery and lengthy post-operative care.

Plaintiff contended that defendants UARA and Willis were guilty of willful and wanton conduct because they (1) failed to extend the guardrail near the pit area and (2) failed to provide a pit steward to ensure that persons did not remain in the exposed area near the pit. In addition, plaintiff claimed that defendant UARA was guilty of willful and wanton misconduct because it failed to blackflag Guess’ car off the track once it began to bicycle.

To support his contentions, plaintiff produced evidence at trial to show that defendants were aware that the area where plaintiff had been located was dangerous because it exposed persons standing there to the risk of being hit by cars driven on the track. Plaintiff’s expert at trial, Dr. John Fitch, stated that the guardrail along the pit area should have been extended toward the straightaway to minimize this hazard. Dr. Fitch also testified that, as an alternative to a guardrail, defendants should have placed a steward in the area where plaintiff was located at the time he was injured, who would be responsible for preventing persons from remaining in that vicinity. Dr. Fitch also stated that the defendant UARA should have blackflagged Guess’ car off the track before it bicycled, lost control, and spun into plaintiff. Dr. Fitch testified that either an extended guardrail, the presence of a steward to warn plaintiff off the area unprotected by a guardrail, or the removal of Guess’ car probably would have prevented plaintiff’s injuries.

Defendants presented evidence to show that none of the alternatives suggested by plaintiff was reasonably necessary and that none would have prevented plaintiff’s injuries. Testimony from experts detailed these points. Defendants also presented testimony to establish that they had warned pit crew members, including plaintiff, not to stand in the area where the plaintiff’s injuries occurred.

Based upon this evidence, the jury returned a verdict against defendants UARA and Willis. It awarded plaintiff $1.5 million in damages, reduced to $615,000 for plaintiff’s comparative fault, which the jury assessed at 59%. The trial court entered judgment in conformity with this verdict. Defendants UARA and Willis appeal, and plaintiff cross-appeals.

I

Defendants argue that the jury’s finding of willful and wanton misconduct was not supported by the evidence of record. They contend that the trial court should have granted their motion for judgment notwithstanding the verdict or in the alternative for a new trial. A motion for judgment notwithstanding the verdict should be granted when all the evidence, viewed in the light most favorable to the non-moving party, so overwhelmingly favors the movant that no contrary verdict could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504; Bausback v. K mart Corp. (1990), 194 Ill. App. 3d 325, 550 N.E.2d 1269.) A motion for a new trial is properly allowed when the jury’s verdict is against the manifest weight of the evidence. Marin v. American Meat Packing Co. (1990), 204 Ill. App. 3d 302, 562 N.E.2d 282.

Willful and wanton acts are those which, under the circumstances of the particular case, exhibit reckless disregard for the safety of others, including the failure to exercise ordinary care to prevent an impending danger. (Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 583, 69 N.E.2d 293; see also Adkins v. Sarah Bush Lincoln Health Center (1989), 129 Ill. 2d 497, 518, 544 N.E.2d 733; O’Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, 469, 415 N.E.2d 1015; Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 412 N.E.2d 447.) To establish that a defendant was guilty of willful and wanton conduct, plaintiff must show that the defendant had actual or constructive knowledge that his conduct posed a high probability of serious physical harm to others. (Albers v. Community Consolidated No. 204 School (1987), 155 Ill. App. 3d 1083, 1085, 508 N.E.2d 1252.) The evidence must disclose that defendant was reckless, not merely careless, in his disregard of the danger created by the circumstances. (Lynch, 82 Ill. 2d 415, 412 N.E.2d 447.) Whether a defendant’s acts amounted to willful and wanton conduct is a question to be resolved by the finder of fact, based upon the particular circumstances of each individual case. Lynch, 82 Ill. 2d 415, 412 N.E.2d 447; Soucie v. Drago Amusements Co. (1986), 145 Ill. App. 3d 348, 495 N.E.2d 997; Barth v. Board of Education (1986), 141 Ill. App. 3d 266, 490 N.E.2d 77.

A review of the record reveals sufficient basis to justify the jury’s verdict that defendants UARA and Willis were willful and wanton. Plaintiff produced evidence that showed defendants were aware that the exposed area near the pit presented a substantial risk of serious injury to persons who stood there, and that defendants knew pit crew members were often located in the vicinity during warm-up and hot laps. The testimony of plaintiff’s expert, Dr. John Fitch, established that defendants should have either extended the guardrail near the pit area, or secured the presence of a pit steward who would be responsible for preventing pit crew members from standing in the area. Dr. Fitch also testified that defendant UARA, in addition to these alternatives, should have had Guess’ car blackflagged off the track before it bicycled, lost control, and spun into plaintiff. Dr. Fitch testified that in his opinion, the defendants’ failure to extend the guardrail, or require the presence of a pit steward, was an utter disregard for the safety of pit crew members. The plaintiff’s expert gave similar testimony with respect to defendant UARA’s failure to black-flag Guess’ car. We cannot say, as a matter of law, that this evidence was insufficient to prove that defendants’ omissions constituted willful and wanton conduct. It is not the province of this court, on appeal from a jury verdict, to reweigh the evidence of record or to question the validity of the opinions stated by the plaintiff’s expert. See, e.g., Doser v. Savage Manufacturing & Sales, Inc. (1990), 142 Ill. 2d 176.

Defendants do not dispute the sufficiency of the evidence with respect to their knowledge that the exposed area between the guardrail and the fence was hazardous to pit crew members who stood in that location. Instead, defendants argue that the jury could not find them liable for willful and wanton misconduct, because the defendants warned pit crew members not to stand in the exposed area during hot laps, and because they provided light signals at the far end of the track, visible to pit crew members, to indicate whether the cars were running a warm-up lap or a hot lap. Defendants also note that their opportunity to have plaintiff removed from the exposed area prior to his injury lasted only a few seconds and was too short a period of time in which to prevent plaintiff from remaining in the exposed area. Defendants further observe that plaintiff was fully aware of the hazards associated with his staying in the exposed area near the pit. On these bases, the defendants urge that the jury could not find defendants willful and wanton on any of the grounds alleged by the plaintiff.

We are unable to find defendants’ arguments sufficient ground to disturb the jury’s verdict. As defendants concede, defendants were aware that the exposed area remained hazardous to pit crew members and required a warning to pit crew members to avoid the area. Defendants also acknowledge that because of the hazardous nature of the exposed area near the pit, light signals at the far end of the track were intended to show whether the cars were running warm-up laps or hot laps. Plaintiff’s expert testified that, in his opinion, the defendants’ warnings and light signals were insufficient to adequately protect plaintiff, in view of the high degree of risk of serious bodily harm created by the exposed area near the pit. Plaintiff’s expert stated that because of the likelihood of serious bodily injury associated with the exposed vicinity near the pit, defendants should have either extended the guardrail near the pit area or provided a pit steward to prevent pit crew members from remaining in the exposed area near the pit. Plaintiffs expert testified that the probability of serious bodily injury also required that defendant UARA should have blackflagged Guess’ car before it bicycled, lost control, and spun into plaintiff. It was the opinion of the plaintiff’s expert that each of these alternatives probably would have been sufficient to avoid plaintiff’s injuries, in spite of the short period of time he remained in the exposed area prior to his being struck by Guess’ car. The defendants’ knowledge that a short time was required for a midget car to complete a lap on the track, and that injury could occur within seconds, was further indication that these additional alternatives should have been pursued by the defendants in order to lessen the high degree of serious bodily injury created by the exposed area near the pit. It was the jury’s responsibility to assess the weight to be given to the testimony of plaintiff’s expert, and to determine whether defendants’ warnings were sufficient under the circumstances of this case. Upon review, we are not empowered to usurp this jury function. (See Doser v. Savage Manufacturing & Sales, Inc. (1990), 142 Ill. 2d 176.) In addition, the plaintiff’s understanding of the scope of harm associated with remaining in the exposed area near the pit was considered by the jury with respect to plaintiff's comparative fault, and we cannot say upon review that the jury’s apportionment of comparative fault between the parties was erroneous as a matter of law.

Defendants essentially argue that, because the defendants undertook some acts to provide for the safety of pit crew members in the exposed area by warning them about the hazards and by providing light signals to alert them to whether the cars were running a warmup lap or a hot lap, defendants’ failure to undertake additional steps could not be deemed willful and wanton. Defendants note that there are Illinois cases in which the defendants’ provision of some safety measures led the courts to conclude that the defendants were not liable for willful and wanton misconduct for their failure to provide other or additional safety measures. See Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 412 N.E.2d 447; Holsapple v. Casey Community Unit School District C-1 (1987), 157 Ill. App. 3d 391, 510 N.E.2d 499; Turner v. Commonwealth Edison Co. (1976), 35 Ill. App. 3d 331, 341 N.E.2d 488.

However, in none of these cases did the plaintiff’s expert testify that the failure to provide an additional safety measure was, in the expert’s opinion, an utter disregard for the plaintiff’s safety. In the instant cause, the plaintiff's expert identified two alternatives, i.e., the extension of the guardrail near the pit or the provision of a pit steward near the exposed area of the track, that defendants could have undertaken in order to protect plaintiff from the dangers created by the open area between the pit and the straightaway. Plaintiff’s expert identified a third alternative that should have been performed by defendant UARA, i.e., to have Guess’ car blackflagged off the track before it bicycled, lost control, and spun into plaintiff. Plaintiff’s expert further testified that the failure to undertake any of these steps was, in his opinion, an utter disregard for the plaintiff’s safety.

This critical distinction renders factually inapposite the cases cited by defendants in the instant cause. It was the jury’s task to determine whether, under the facts of this case, the defendants’ failure to provide additional safety measures amounted to willful and wanton misconduct. We cannot say, as a matter of law, that the defendants were not willful and wanton merely because they undertook the safety measures upon which the defendants rely in this appeal. Defendants’ position asks this court to ignore the testimony of plaintiff’s expert to the effect that the measures undertaken by defendants were substantially inadequate, that the provision of one or more of the safety measures enumerated by the plaintiff’s expert probably would have prevented plaintiff’s injuries, and that defendants’ failure to undertake one or more of these safety measures evidenced an utter disregard for the plaintiff’s safety. Our scope of review does not grant us such authority. See Doser v. Savage Manufacturing and Sales, Inc. (1990), 142 Ill. 2d 176.

Defendants also claim that the jury’s verdict was erroneous, because plaintiff produced no evidence to show that defendants had actual or constructive knowledge that the existing safety features were unreasonably dangerous. Specifically, defendants assert that plaintiff produced no evidence of any prior accidents or complaints, or industry custom or practice, regarding the existing safety measures at the track. However, the cases cited by defendants do not hold that proof of industry custom or practice, or proof of prior incidents or complaints, is a prerequisite in all instances to support a finding of willful and wanton conduct (see Holsapple v. Casey Community Unit School District C-1 (1987), 157 Ill. App. 3d 391, 510 N.E.2d 499; Keller v. Mols (1987), 156 Ill. App. 3d 235, 509 N.E.2d 584; Del Muro v. Commonwealth Edison Co. (1984), 124 Ill. App. 3d 473, 464 N.E.2d 772; Mathis v. Burlington Northern, Inc. (1978), 67 Ill. App. 3d 1009, 385 N.E.2d 780), and a jury’s finding of willful and wanton acts has been upheld in the absence of evidence that defendants had received prior complaints or notice of accidents regarding the dangerous condition created by the defendants’ conduct. (See, e.g., Soucie v. Drago Amusements Co. (1986), 145 Ill. App. 3d 348, 495 N.E.2d 997; Barth v. Board of Education (1986), 141 Ill. App. 3d 266, 490 N.E.2d 77.) It was the province of the fact finder to consider the absence of prior complaint, prior accidents, and the absence of industry standard or custom, in reaching its determination of whether defendants’ actions constituted willful and wanton conduct. Upon review, we cannot conclude that defendants’ argument in this regard is sufficient ground to disturb the jury’s verdict against them.

Defendants also contend that the jury’s determination was not supported by the record because plaintiff’s expert, Dr. Fitch, testified on cross-examination that he did not know, with certainty, whether an extended guardrail would have prevented the accident. Although an expert’s opinion may not be based on speculation or conjecture, “an expert opinion couched in terms of probabilities *** is not improper or inadmissible. [Citation.]” (Rodrian v. Seiber (1990), 194 Ill. App. 3d 504, 507, 551 N.E.2d 772.) In the case at bar, the record reflects that Dr. Fitch stated on direct examination that an extended guardrail probably would have prevented plaintiff’s injuries. Consequently, the testimony of Dr. Fitch was sufficient to support the jury’s verdict against defendants, on the ground that defendants’ failure to provide an extended guardrail proximately caused the plaintiff’s injuries.

In light of these considerations, we conclude that the trial court properly denied defendants’ motion for judgment notwithstanding the verdict or a new trial.

II

Defendants urge that they should receive a new trial because the trial court committed reversible error when it denied defendants’ motion to pursue their affirmative defense that defendants were not liable because plaintiff had executed a release relieving defendants of liability for injuries sustained at the track. We find no error in the trial court’s ruling.

Generally, a release does not bar plaintiff’s maintenance of an action alleging willful and wanton misconduct by the defendants. This rule is based on the determination that, as a matter of public policy, a plaintiff cannot exculpate or indemnify a defendant for the defendant’s willful and wanton acts. (See Falkner v. Hinckley Parachute Center, Inc. (1989), 178 Ill. App. 3d 597, 533 N.E.2d 941; Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 510 N.E.2d 409; Third Swansea Properties, Inc. v. Ockerlund Construction Co. (1976), 41 Ill. App. 3d 894, 354 N.E.2d 148; see also Davis v. Commonwealth Edison Co. (1975), 61 Ill. 2d 494, 336 N.E.2d 881; Schek v. Chicago Transit Authority (1969), 42 Ill. 2d 362, 247 N.E.2d 886.) In light of this precedent, the trial court properly denied defendants’ request to pursue their affirmative defense that plaintiff’s execution of a release precluded plaintiff’s recovery from defendants for willful and wanton misconduct.

Defendants argue that the trial court’s ruling was in error, because Illinois courts have recognized the validity of a release in cases involving injuries sustained as a result of a race car accident. However, the cases cited by defendants are inapposite, because they pertained to suits alleging negligence, rather than those alleging willful and wanton acts. (See Schlessman v. Henson (1980), 83 Ill. 2d 82, 413 N.E.2d 1252; Morrow v. Auto Championship Racing Association, Inc. (1972), 8 Ill. App. 3d 682, 291 N.E.2d 30; see also Provence v. Doolin (1980), 91 Ill. App. 3d 271, 414 N.E.2d 786.) We decline defendants’ invitation to create an exception for exculpatory clauses involving racetrack accidents on the theory that Illinois law has a deleterious, chilling effect on the sport of car racing.

Defendants also argue that they should have been permitted to cross-examine plaintiff regarding the contents of the release in order to show that plaintiff had assumed the risk of injuries at the track. Initially, defendants contend that the release was relevant to the question of plaintiff’s implied primary assumption of the risk.

Under implied primary assumption of the risk, the plaintiff’s conduct is deemed an implicit assumption of all of the risk arising from a certain activity. As a result, under implied primary assumption of the risk, a plaintiff may relieve a defendant of any duty to the plaintiff to be free from ordinary negligence. See Goad v. Evans (1989), 191 Ill. App. 3d 283, 547 N.E.2d 690; Clark v. Rogers (1985), 137 Ill. App. 3d 591, 484 N.E.2d 867; Duffy v. Midlothian Country Club (1985), 135 Ill. App. 3d 429, 481 N.E.2d 1037.

Implied primary assumption of the risk is similar to an express assumption of the risk. Under express assumption of the risk, a plaintiff has explicitly, usually in writing, agreed to relieve the defendant of liability for any injuries arising from an activity. However, an express assumption of the risk does not preclude a plaintiff’s suit for willful and wanton misconduct, because public policy dictates that a plaintiff cannot absolve a defendant of liability for the defendant’s willful and wanton acts. (See, e.g., Falkner v. Hinckley Parachute Center, Inc. (1989), 178 Ill. App. 3d 597, 533 N.E.2d 941.) In light of this public policy, we conclude that an implied primary assumption of the risk, similar to an express assumption of the risk, should not bar a plaintiff’s action for injuries due to willful and wanton acts of a defendant. (Falkner, 178 Ill. App. 3d at 604.) Accordingly, the release was not admissible to show that plaintiff’s actions amounted to an implicit, primary assumption of the risks of injury arising from his participation in the midget car race.

Defendants also argue that they should have been permitted to offer the release to prove plaintiff’s implied secondary assumption of the risk. Implied secondary assumption of the risk occurs when a plaintiff, by his conduct, has assumed certain consequences from his participation in an activity. Implied secondary assumption of the risk is a damage-reducing factor considered as an element of comparative fault. See Simpson v. General Motors Corp. (1985), 108 Ill. 2d 146, 483 N.E.2d 1; Corlett v. Caserta (1990), 204 Ill. App. 3d 403, 562 N.E.2d 257; Wheeler v. Roselawn Memory Gardens (1989), 188 Ill. App. 3d 193, 543 N.E.2d 1328; Duffy v. Midlothian Country Club (1985), 135 Ill. App. 3d 429, 481 N.E.2d 1037.

Defendants fully cross-examined plaintiff regarding his understanding of the hazards associated with his remaining in the exposed area of the track between the pit area and the straightaway, and defendants acknowledge that the area was hazardous to anyone who remained there. Defendants do not demonstrate in what respect plaintiff’s trial testimony contradicted his written acknowledgment, in the release, that the exposed area near the pit was dangerous. As a result, we are unable to conclude that defendants’ lack of cross-examination of plaintiff regarding the provision in the release should warrant a new trial.

In addition, the record shows that prior to trial, the court expressly reserved ruling on whether defendants should be permitted to cross-examine plaintiff regarding a provision in the release wherein plaintiff recognized the hazards associated with the exposed area near the pit, in order to show that plaintiff’s implied secondary assumption of the risk should act as an offset under comparative fault. However, during their cross-examination of plaintiff, defendants did not renew their request to question plaintiff regarding this provision in the release. Defendants’ failure to renew their request constituted a waiver of this argument and cannot be asserted on appeal. See, e.g., Morris v. Illinois State Board of Education (1990), 198 Ill. App. 3d 51, 555 N.E.2d 725.

Ill

Defendants also assert that they should have been permitted to pursue their affirmative defense that plaintiff was precluded from any recovery because of his execution of the release, because the rule regarding unenforceability of a release with respect to willful and wanton conduct is no longer supported by Illinois precedent. Defendants contend that the advent of comparative negligence has abolished the distinction between ordinary negligence and willful and wanton acts, and that liability for willful and wanton misconduct remains viable only in the context of punitive damages.

To support this argument, defendants note that prior to Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, Illinois law held that a plaintiff’s contributory negligence barred any recovery from the defendant who had committed acts of ordinary negligence. To circumvent the harsh effects of this rule, it was held that a plaintiff’s contributory negligence did not prevent recovery for the defendant’s willful and wanton conduct. (See Alvis, 85 Ill. 2d at 10.) Defendants also note that Illinois courts have recognized that the rule permitting recovery when the plaintiff’s acts were negligent and the defendant’s conduct willful and wanton was “cumbersome and difficult to apply” (Alvis, 85 Ill. 2d at 10), and not a matter with which the average juror was readily familiar. (Lynch, 82 Ill. 2d at 431-32.) In addition, defendants observe that there is a “thin line” between simple negligence and willful and wanton acts, citing Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 35, 330 N.E.2d 509, State Farm Mutual Automobile Insurance Co. v. Mendenhall (1987), 164 Ill. App. 3d 58, 61, 517 N.E.2d 341, Barth v. Board of Education (1986), 141 Ill. App. 3d 266, 276, 490 N.E.2d 77, and Spivack v. Hara (1966), 69 Ill. App. 2d 22, 26, 216 N.E.2d 173.

We cannot accept defendants’ argument that the adoption of comparative fault dictates the conclusion that a plaintiff’s execution of a release relieves the defendant of liability for the defendant’s willful and wanton conduct. (See Montag v. Board of Education, School District No. 40 (1983), 112 Ill. App. 3d 1039, 1044-45, 446 N.E.2d 299.) The underlying justification for the adoption of comparative fault is to equitably apportion damages among the parties according to their respective fault in causing the plaintiff’s injuries. (See Alvis, 85 Ill. 2d at 16.) However, abolition of the rule that a plaintiff’s exculpatory agreement cannot relieve the defendant of liability for willful and wanton conduct would not serve to apportion damages according to the parties’ relative fault. Rather, it would completely bar a plaintiff’s recovery of any damages from the defendant notwithstanding defendant’s willful and wanton conduct. Although there may be a “thin line” between simple negligence and willful and wanton acts under the facts of certain cases, and although the distinction between ordinary negligence and willful and wanton misconduct may not be easily understood by jurors, “the[se] necessary subtle calculations [are] no more difficult or sophisticated for jury determination than others in a jury's purview.” Alvis, 85 Ill. 2d at 17.

In light of these considerations, we decline to hold that the adoption of comparative fault has abolished the distinction between ordinary negligence and willful and wanton conduct in the context of enforcement of an exculpatory clause between the parties. Whether a plaintiff’s comparative fault may offset the amount of damages recovered from the defendants for willful and wanton acts is considered below with respect to plaintiff’s cross-appeal.

IV

Defendants argue that the plaintiff intentionally violated the trial court’s orders excluding evidence regarding post-accident changes to the racetrack undertaken by defendants. Specifically, defendants claim that plaintiff impermissibly elicited testimony from Dr. Fitch to the effect that there should have been an additional guardrail along the track straightaway, following the turn on the track where the exposed area near the pit was located. The trial court held this testimony inadmissible and instructed the jury to disregard it. However, the defendants argue that they were substantially prejudiced by the stricken testimony, that the trial court’s instruction to the jury did not cure this prejudice, and that, therefore, they should receive a new trial. We disagree.

As noted more fully above with respect to defendants’ motion for judgment notwithstanding the verdict or a new trial, the record contains sufficient evidence to sustain the jury’s verdict that defendants’ failure to extend a guardrail or provide a pit steward amounted to willful and wanton misconduct. The record also supports the jury’s verdict that defendant UARA was willful and wanton with regard to its failure to have Guess’ car blackflagged off the track before it bicycled, lost control, and spun into plaintiff. In light of this evidence of record, the trial court’s curative instruction was sufficient to dispel any prejudice to the defendants resulting from this testimony. In addition, because of the adequate evidence to support the jury's determination, we cannot say that defendants should be entitled to a new trial on the ground that plaintiff’s actions were purposely designed to avoid an earlier trial court in limine order. See Dugan v. Weber (1988), 175 Ill. App. 3d 1088, 530 N.E.2d 1007.

V

Defendants assert that plaintiff improperly elicited hearsay testimony from Valentino to the effect that shortly before the accident, Valentino heard Boban say that Guess’ car should be black-flagged off the track. The trial court struck Valentino’s testimony for reasons unchallenged in this appeal and instructed the jury to disregard this evidence.

Based upon our review of the record, we conclude that the trial court’s instructions to the jury were adequate to cure any prejudice to the defendants on this point. (See, e.g., Dugan v. Weber (1988), 175 Ill. App. 3d 1088, 530 N.E.2d 1007.) Plaintiff testified and was cross-examined regarding his own statements at the time to the effect that Guess’ car should be removed or blackflagged from the track. Valentino and Boban were also fully questioned regarding their perceptions of the extent to which Guess’ car bicycled while on the track, and whether they considered it a hazard on the track. Construing the record as a whole, Valentino’s stricken testimony was an isolated, peripheral remark, and the trial court’s curative instruction to the jury sufficient to forestall any prejudice to the defendants.

VI and VII

Defendants also challenge the trial court’s admission into evidence of Dr. Fitch’s expert opinion regarding the need for an extension of the existing guardrail. Defendants renew arguments they made with respect to the sufficiency of the evidence to support the jury’s verdict, to wit: (1) plaintiff produced no evidence that the existing guardrail violated industry standards or practices; and (2) the plaintiff’s expert could not testify with absolute certainty that an extended guardrail would have prevented plaintiff’s injuries. In addition, defendants argue that the trial court’s cautionary instruction to the jury, to disregard a statement made by Dr. Fitch regarding the basis of defendant Willis’ liability for the failure to extend the guardrail, was insufficient to cure the prejudice arising from this stricken testimony.

As stated earlier with respect to whether defendants are entitled to judgment notwithstanding the verdict or a new trial, the record contains ample evidence to support the jury’s conclusion that defendants were liable for willful and wanton misconduct because of their failure to either extend the guardrial or to provide a pit steward near the exposed area of the track. The record also supports the jury’s determination that defendant UARA was liable for willful and wanton misconduct because of its failure to have Guess’ car blackflagged off the track before the car bicycled, lost control, and spun into plaintiff. The plaintiff’s evidence also showed that defendant Willis was responsible for maintenance of the track in order to ensure the safety of pit crew members. Consequently, even if the trial court committed error in its rulings with regard to the testimony of Dr. Fitch pertaining to the need for an extended guardrail and defendant Willis’ liability therefor, we are unable to conclude that such error would warrant a new trial.

VIII

Defendants also attack the trial court's ruling that the plaintiff’s trial expert, Dr. John Fitch, was qualified to render an expert opinion at trial. The record supports the trial court’s determination that Dr. Fitch was qualified to render an expert opinion.

A person is qualified as an expert when he has peculiar knowledge, training, or experience that is relevant to an issue at trial. (See, e.g., Schaffner v. Chicago & North Western Transportation Co. (1989), 129 Ill. 2d 1, 541 N.E.2d 643.) According to his trial testimony, Dr. Fitch was a competitive professional race car driver from 1949 until 1966, and remained actively involved in the industry after his retirement. He has served as a safety consultant on motor vehicle safety standards for a wide variety of institutions, has worked on publications involving vehicle deceleration and crash barriers, and holds a patent for a certain type of vehicle safety barrier system commonly used on all public highways across the country. Dr. Fitch has also consulted on racetrack design and safety at tracks on several occasions, including tracks that could be used for midget car races. Based upon this evidence, the trial court properly exercised its discretion when it determined that Dr. Fitch was qualified to render an expert opinion with respect to the safety of the racetrack at issue in the instant cause.

The case of Galindo v. Riddell, Inc. (1982), 107 Ill. App. 3d 139, 437 N.E.2d 376, is factually inapposite to the case at bar. In Galindo, the witness offered as the defendant’s expert had been a professional football player and had a degree in mechanical engineering. Because the witness had never used his expertise to determine the causes of a football injury, the court determined that he was not qualified to render an expert opinion on the cause of the plaintiff’s injuries during a football game. In the case before us, although the plaintiff’s expert did not have experience as a midget car race driver, he nevertheless was experienced in competitive racecar driving and in the design of racetracks with a view to safety measures necessary to protect persons in the event of a racecar accident on the track. The expert’s limited experience with midget cars affected the weight to be given to his testimony, but did not bar the admissibility of his testimony. See Buford v. Chicago Housing Authority (1985), 131 Ill. App. 3d 235, 244, 476 N.E.2d 427.

IX

Defendants assert that they should receive a new trial because plaintiff’s treating physician, Dr. Campbell, should not have been permitted to testify that plaintiff’s condition may deteriorate to such a degree that amputation of his lower leg and foot might be required. It has been held that, when the defendant does not challenge on appeal the amount of damages assessed against the defendant, the trial court’s erroneous admission of evidence regarding the extent of a plaintiff’s injuries is insufficient ground to reverse for a new trial. (See, e.g., Illinois Piping Co. v. Industrial Commission (1987), 156 Ill. App. 3d 955, 509 N.E.2d 1107.) Defendants UARA and Willis do not contest the amount of damages awarded to the plaintiff in the instant cause. Consequently, even assuming arguendo that Dr. Campbell’s challenged testimony should have been excluded, we cannot say that its introduction was so prejudicial to defendants that they should be granted a new trial.

X

In light of these considerations, we also find that there were no cumulative errors that deprived defendants of a fair trial. Our review of the record reveals sufficient evidence to support the jury’s verdict against the defendants, and that none of the alleged errors affected the jury's determination. We conclude that defendants’ arguments are insufficient to disturb the trial court’s entry of judgment against them.

XI

In a cross-appeal, plaintiff challenges the apportionment of damages between the parties. Specifically, plaintiff argues that his ordinary negligence could not be considered by the jury as an offset in the assessment of compensatory damages for the defendants’ willful and wanton misconduct.

Illinois precedent is in conflict with respect to this question. In State Farm Mutual Automobile Insurance Co. v. Mendenhall (1987), 164 Ill. App. 3d 58, 517 N.E.2d 341, the court determined that a plaintiff’s ordinary negligence could be considered by the jury to reduce the compensatory damages assessed for the defendant’s willful and wanton conduct. The court’s ruling in Mendenhall was expressly reaffirmed in Yates v. Brock (1989), 191 Ill. App. 3d 358, 547 N.E.2d 1031, appeal denied (1990), 131 Ill. 2d 568. (See also Deal v. Byford (1989), 127 Ill. 2d 192, 537 N.E.2d 267 (question not addressed because not preserved for review).) Relying on Mendenhall, the trial court judge in the instant cause permitted the jury to consider the plaintiff’s ordinary negligence in reducing the damages assessed for the defendants’ willful and wanton conduct.

However, the decisions of Mendenhall and Yates were subsequently rejected in Burke v. 12 Rothschild’s Liquor Mart, Inc. (1991), 209 Ill. App. 3d 192, wherein the court determined that the plaintiff’s ordinary negligence could not reduce the damages recovered for the defendant’s willful and wanton acts. Cases from other jurisdictions also represent a split of authority on this question. See, e.g., Amoco Pipeline Co. v. Montgomery (W.D. Olka. 1980), 487 F. Supp. 1268 (applying Oklahoma law); Vining v. City of Detroit (1987), 162 Mich. App. 720, 413 N.W.2d 486; Krivijanski v. Union R.R. Co. (1986), 357 Pa. Super. 196, 515 A.2d 933; Davies v. Butler (Nev. 1979), 602 P.2d 605; see generally Annot., Application of Comparative Negligence in Action Based on Gross Negligence, Recklessness, or the Like, 10 A.L.R.4th 946 (1981).

The decisions of Mendenhall and Burke founded much of their analysis on the Illinois Supreme Court’s adoption of comparative fault in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886. The courts noted that prior to Alvis, Illinois adhered to the contributory negligence rule. Under this rule, a plaintiff was prevented from any recovery for compensatory damages from a negligent defendant, if the plaintiff’s ordinary negligence also contributed to his injuries. However, the plaintiff was permitted full recovery of compensatory damages, irrespective of the plaintiff’s ordinary negligence, if the defendant’s acts amounted to willful and wanton conduct. (See Alvis, 85 Ill. 2d at 10.) The advent of comparative fault in Alvis eliminated the harsh effect of the contributory negligence rule upon a negligent plaintiff’s recovery of compensatory damages from a negligent defendant. Under Alvis, compensatory damages are assessed according to an apportionment of the parties’ respective negligence in proximately causing the plaintiff’s injuries. (See Alvis, 85 Ill. 2d at 16.) The supreme court in Alvis did not resolve the collateral issue of whether the jury should be permitted to apportion damages between the negligent plaintiff and the willful and wanton defendant. Alvis, 85 Ill. 2d at 28.

The courts in Mendenhall and Burke adopted divergent views with respect to the significance that should be accorded to the equitable principles underlying comparative fault. The Mendenhall court concluded that equitable principles of comparative fault outweigh the social opprobrium associated with willful and wanton acts, because of the “thin line” between ordinary negligence and willful and wanton conduct. (164 Ill. App. 3d at 61.) The Burke court determined that the social stigma attached to willful and wanton conduct overrides the equitable principles of comparative fault, because of the significant difference in the degree of culpability associated with ordinary negligence as compared to willful and wanton acts. (Burke, 209 Ill. App. 3d at 204; see also Wassell v. Adams (7th Cir. 1989), 865 F.2d 849 (noting “split” in Illinois cases regarding proper characterization of “willful and wanton”); Davis v. United States (7th Cir. 1983), 716 F.2d 418 (noting that Illinois had apparently adopted a rule equating “willful and wanton” conduct with “gross negligence”).) Thus, the divergent views expressed in Mendenhall and Burke reflect the hybrid nature of willful and wanton conduct, which under the facts of one case may be only degrees more than ordinary negligence, while under the facts of another case may be only degrees less than intentional wrongdoing. See Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 35, 330 N.E.2d 509.

The courts in Mendenhall and Burke also differed with respect to the significance they attached to Illinois Supreme Court decisions that have limited, or refused to apply, comparative fault principles in certain situations. In Structural Work Act (Ill. Rev. Stat. 1989, ch. 48, par. 60 et seq.) cases, a plaintiff’s comparative fault is not considered as an offset or a bar to the defendant’s damages, in order to preserve the social interest in providing safe working conditions in those instances governed by the Act. (See Hollis v. R. Latoria Construction, Inc. (1985), 108 Ill. 2d 401, 485 N.E.2d 4.) In strict product liability cases, a plaintiffs ordinary negligence does not reduce his compensatory damages, although the plaintiff’s misuse of the product, or his assumption of the risk from using the product, may be considered by the jury in reducing the amount of damages recovered from the defendant. (See Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197.) The Mendenhall court concluded that these supreme court decisions did not indicate that comparative fault should be inapplicable when damages are assessed against the willful and wanton defendant. (Mendenhall, 164 Ill. App. 3d at 61.) However, the Burke court determined that these supreme court decisions demonstrated that comparative fault principles should be limited to those instances where the defendant was found liable for negligent, but not willful and wanton, conduct. Burke, 209 Ill. App. 3d at 205-06.

Under the facts of the instant cause, we conclude that the trial court properly permitted the jury to consider the plaintiff’s comparative fault, based upon principles of ordinary negligence, as an offset to the compensatory damages awarded for the defendants’ willful and wanton conduct. In light of the hybrid nature of the concept of willful and wanton conduct, and the circumstance that such behavior may not amount to an intentional tort per se, we agree with the court in Mendenhall that “the fact finder’s ability to prorate the damages between plaintiff and defendant best serves justice and is most consistent with the reasons for comparative negligence.” (164 Ill. App. 3d at 61.) Although we agree with the court’s observation in Burke that there is a distinction in the degrees of culpability associated with ordinary negligence and willful and wanton conduct, we are unable to conclude that this distinction should preclude an equitable apportionment of compensatory damages between the plaintiff and defendants in the case at bar. In addition, as the court noted in Mendenhall, we find that the reasons for limiting application of comparative fault principles in Structural Work Act and strict product liability cases are not present in the instant cause, which involves premises liability. (See Mendenhall, 164 Ill. App. 3d at 59-61, discussing Hollis v. R. Latoria Construction, Inc. (1985), 108 Ill. 2d 401, 485 N.E.2d 4 (comparative fault inapplicable to structural work case), and Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N;E.2d 197 (misuse and assumption of risk considered damage-reducing factors in strict product liability case).) We cannot say that the reasons underlying the recognition of willful and wanton conduct as a basis for liability in tort are equivalent to the goals that justified the Illinois Supreme Court’s decisions in Hollis and Coney.

We note that the jury in the instant cause awarded only compensatory damages, and we express no opinion with respect to whether comparative fault principles apply to a plaintiff’s award for punitive damages. Also, since the case at bar does not involve a defendant found liable for an intentional tort, we do not address the applicability of comparative fault as an offset to the damages assessed against an intentional tortfeasor. In addition, we express no view with regard to whether willful and wanton conduct is governed by the modified comparative fault statute (Ill. Rev. Stat. 1987, ch. 110, par. 2—1116 (effective November 26, 1986)) enacted following the Illinois Supreme Court’s decisions in Alvis, Hollis and Coney, since the parties did not present the question to the trial court in this 1988 jury trial, nor do the parties raise the issue in this appeal. We would also note that the applicability of the modified comparative fault statute was not considered by the courts in Mendenhall, Yates, or Burke.

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

Affirmed.

JIGANTI, P.J., and LINN, J., concur.


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ISMAEL SALAZAR, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—1202
    Opinion filed March 28, 1991.

      Raymond A. Figueroa, of Chicago, and Armand L. Andry, of Oak Park, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Joseph Brent, and Michael Latz, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Ismael Salazar, was convicted of possessing more than 30 grams of a controlled substance with intent to deliver (Ill. Rev. Stat. 1983, ch. 56½, par. 1401(a)(2)) following a jury trial in the circuit court of Cook County. Defendant was sentenced to the penitentiary for a term of 22 years.

Defendant appeals, contending: (1) the State failed to prove beyond a reasonable doubt his guilt and (2) he was denied effective assistance of counsel. Defendant additionally contends he was denied a fair trial because the trial judge (3) denied his request for supplemental voir dire questions and (4) erred in several evidentiary rulings; (5) the prosecutor made improper and prejudicial remarks during closing argument; (6) the trial judge refused to give a tendered jury instruction; and (7) refused to answer questions by the jury during its deliberations. Defendant lastly contends (8) his sentence was excessive.

We affirm the judgment of the trial court.

Background

The record contains the following pertinent facts. On March 11, 1986, Chicago police officer Thomas Finnelly swore out a search warrant for the Fullerton Gift Shop, located at 3563 West Fullerton Avenue in Chicago, and a person who frequented the premises, known as “Cubano.” Officer Finnelly executed the warrant with Chicago police officers Martinez, Sebeck, McCue, Figueroa, Orseshe, and Chicago police sergeant Wagner.

The gift shop was in the first-floor storefront of a two-story building. The shop window had burglar gates across it. Officer Martinez, in civilian dress, knocked on the glass door, which was locked. Defendant came from a back room and approached the door; his hand was in his right jacket pocket. Defendant unlocked the door, and Martinez walked into the shop. Finnelly and the other police officers followed immediately and announced their office. Defendant stood at the far end of the shop’s counter, and Benjamin Cabera stood behind the counter. Observing that one of defendant’s hands was in his jacket pocket, Finnelly ordered defendant not to move. A “pat-down” search of defendant revealed a semi-automatic handgun in defendant’s jacket pocket. Cabera also carried a pistol.

The officers showed defendant and Cabera the search warrant and took them to a furnished room behind the shop. A search of that room yielded another handgun. Searching the main part of the shop, the officers found a wastepaper can below the counter. The can was lined with a clear plastic bag and contained 13 plastic bags filled with cocaine. In the building’s basement, the officers found various drug paraphernalia lying on a desktop. They also found a suitcase containing five large plastic bags filled with cocaine. Officers Szoldatits and Feret of the police department’s canine unit subsequently joined the search assisted by drug-sniffing dogs. The search yielded a total of 2,869 grams of cocaine, which had a street value of approximately $300,000.

The building had only two entrances that led to the basement stairs. One entrance was locked from the outside with burglar gates and from the inside with a wooden beam. The other entrance was through the shop. Officer Finnelly found a city license certificate and a State revenue department registration certificate that were both issued to defendant for the Fullerton Gift Shop. Preparing to leave the shop, defendant gathered his socks and shoes from the backroom. Officers locked the building with defendant’s keys.

On March 27, 1986, defendant and Cabera were jointly charged by information with possessing more than 30 grams of a controlled substance, i.e., cocaine, with intent to deliver. Attorney Michael Green represented defendant from April 1986 to June 1988. Attorney John Cutrone represented defendant during the pretrial proceedings, trial, and sentencing hearing. The trial court provided defendant with an English-Spanish interpreter, who was present during the pretrial proceedings of record, throughout the trial, and at the sentencing hearing.

Prior to trial, all parties presented various motions in limine. Defendant moved to exclude from trial any reference to the street value of the cocaine seized in defendant’s arrest. Defendant argued that the cocaine’s street value was not relevant to any material issue in the case. The trial judge denied the motion, finding that the probative value of the evidence outweighed its prejudicial impact.

Defendant tendered five proposed voir dire questions. The trial judge denied defendant’s motion. The judge found that the questions were addressed either by the venirepersons’ general oath to answer truthfully questions put to them or by more general questions.

The State moved to exclude any reference to Raphael Rodriguez’s Federal conviction of drug possession. The State argued that such evidence was not relevant to any material issue in the case. In response, defendant asserted that Rodriguez actually leased the premises. Defendant argued that evidence of Rodriguez’s drug conviction went to the ownership or possession of the seized cocaine. The trial judge denied the motion, finding that Rodriguez’s drug conviction was irrelevant. The court reasoned that even if Rodriguez owned or possessed the same cocaine for which defendant was charged, ownership or possession could be joint; the fact of Rodriguez’s conviction would not be relevant to the issue of defendant’s guilt or innocence.

Cabera then moved to exclude from trial any reference to the handguns found in the search. The trial court denied the motion, finding that the evidence was relevant to the issue of defendant’s guilt.

Cabera requested a bench trial. As a result, defendant and Cabera were jointly tried, but defendant was tried before a jury while Cabera was tried before the bench. At trial, Officers Finnelly and Martinez testified for the State. In addition to the above-stated pertinent facts, Officer Finnelly testified that he was familiar with the neighborhood surrounding the Fullerton Gift Shop. He further testified that it was not unusual for shopkeepers to equip their businesses with burglar gates and to possess guns.

Michael Zuccaro, the landlord of the building, testified for the State as follows. Zuccaro leased the building’s units. Immediately prior to November 1985, Zuccaro leased the premises to Cabera. During Cabera’s tenancy, the other tenants in the building had access to the building’s basement to do their laundry. Zuccaro leased the premises to defendant in November 1985; defendant signed the lease. Subsequent to the start of defendant’s tenancy, the other tenants in the building were excluded from the basement, which had no windows. The State rested. Officer Szoldatits was defendant’s sole witness.

The jury convicted defendant as charged. At the sentencing hearing, the trial judge denied defendant’s post-trial motion. At the close of the hearing, the trial judge sentenced defendant to a prison term of 22 years. Defendant appeals.

Opinion

I

Defendant claims that the evidence failed to establish beyond a reasonable doubt his guilt. Where a criminal conviction is challenged based on insufficient evidence, a reviewing court, considering all of the evidence in the light most favorable to the prosecution, must determine whether any rational fact finder could have found beyond a reasonable doubt the essential elements of the crime. A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory as to create a reasonable doubt of the defendant’s guilt. People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276-77.

To support a conviction for unlawful possession of a controlled substance with intent to deliver, the State must establish that the defendant had knowledge of the presence of narcotics, that the narcotics were in the immediate control or possession of the defendant, and that the amount of narcotics exceeded any amount that might be viewed as possessed for merely personal use. (People v. Pintos (1988), 172 Ill. App. 3d 1096, 1101, 527 N.E.2d 312, 315.) Whether these elements exist is a question of fact to be determined by the trier of fact. People v. Ortiz (1980), 91 Ill. App. 3d 466, 471, 414 N.E.2d 1072, 1076.

Defendant contends the State failed to prove that he knew that the cocaine was on the premises. The element of knowledge is, of course, rarely susceptible of direct proof. (Ortiz, 91 Ill. App. 3d at 470, 414 N.E.2d at 1075.) However, a fact finder may infer that a defendant had both knowledge and possession of narcotics if the drugs are found on premises under defendant’s control. If the defendant controlled the premises, an inference of knowledge and possession arises, which may sustain a conviction. (Ortiz, 91 Ill. App. 3d at 471, 414 N.E.2d at 1075-76, quoting People v. Nettles (1961), 23 Ill. 2d 306, 308-09, 178 N.E.2d 361, 363.) Mere access by others is insufficient to defeat the inference of knowledge and possession. Ortiz, 91 Ill. App. 3d at 472, 414 N.E.2d at 1077 (and cases cited therein).

The record in the case at bar contains abundant proof that defendant controlled the premises on which the cocaine was found. The record contains evidence that defendant leased the premises, which consisted of the shop and the basement. His name appeared on the lease and also on two business licenses. Some of the cocaine was found in the shop, in an accessible location behind the counter. The remainder was found in the basement, where police also found various drug paraphernalia lying on a desktop. Defendant denied access to the basement to the other tenants in the building. The only available entrance to the basement was through the shop.

Defendant attempts to identify inconsistencies in the evidence. Based on those inconsistencies, he argues that his conviction should be reversed. However, those are questions of fact, which the fact finder found against defendant. After carefully reviewing the entire record, we cannot say that the evidence is so improbable or unsatisfactory as to create a reasonable doubt of defendant’s guilt.

II

Defendant next claims that he was denied effective assistance of counsel due to inadequate representation. To establish a claim of ineffective assistance of counsel based on inadequate representation, a defendant must prove that: (1) counsel’s representation fell below an objective standard of reasonableness; and (2) a reasonable probability exists that, but for counsel’s unprofessional errors, the result would have been different. (People v. Scott (1987), 159 Ill. App. 3d 459, 462-63, 512 N.E.2d 836, 838, citing Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Additionally, a reviewing court need not determine whether a defense counsel’s performance was unreasonable before examining the prejudice that defendant allegedly suffered. A court should dispose of a claim of ineffective assistance of counsel based on insufficient prejudice if it is easier to do so. Scott, 159 Ill. App. 3d at 463, 512 N.E.2d at 838.

Defendant alleges that he could not communicate with his attorney because he was not conversant in English and Cutrone was not conversant in Spanish. Although defendant acknowledges that the trial court appointed an interpreter for him, he nonetheless alleges that a “language barrier” handicapped his ability to converse with counsel.

However, the record does not show, nor does defendant even allege, that the interpreter was deficient in any manner. Rather, the record shows that an interpreter was present throughout all of the proceedings, sat next to defendant throughout the trial, and enabled defendant to understand the proceedings, the court, and counsel. (See People v. Tomas (1985), 136 Ill. App. 3d 1054, 1057, 484 N.E.2d 341, 343.) We find no prejudice here.

Defendant also alleges that Attorney Cutrone, who represented him during pretrial proceedings and throughout the litigation, was not his counsel of choice. Defendant asserts that a relative hired Cutrone without his knowledge, and that he believed that Michael Green, his attorney prior to Cutrone, would represent him at trial. Defendant further alleges that the “language barrier” exacerbated the misunderstanding. However, a “defendant’s appearance with and treatment of a private attorney as his retained counsel ordinarily is deemed to constitute a ratification of defendant’s employment of that attorney and the exercise of his right to counsel of his choice.” (People v. Smalley (1988), 178 Ill. App. 3d 314, 318, 533 N.E.2d 428, 431.) If defendant, assisted by an interpreter, did not want Cutrone to represent him, he could have notified the trial court.

Defendant also alludes to the fact that he did not testify at trial. He makes the bald allegation that his “decision not to testify in the case was not likely a decision based on considered judgment with the assistance of counsel.” First, this assertion is pure conjecture; defendant does not assert that he even wished to testify at trial. Second, defendant raised this issue only after he was convicted. As a result, we conclude that defendant’s failure to testify was a matter of trial strategy with which he agreed. See People v. Berry (1988), 172 Ill. App. 3d 256, 261, 526 N.E.2d 502, 506; People v. Knox (1978), 58 Ill. App. 3d 761, 767-68, 374 N.E.2d 957, 962.

Defendant lastly asserts that Cutrone’s representation was inadequate because Cutrone did not request a pretrial psychological examination to determine defendant’s fitness to stand trial. Again, defendant does not claim that he was actually mentally unfit to stand trial; rather, he merely alludes to the possibility. As a result, he was not prejudiced by defense counsel’s failure to request a physical examination. We hold that defendant received effective assistance of counsel.

III

Defendant next claims that he did not receive a fair trial because the trial judge denied his request for supplemental voir dire questions. Defendant tendered the following proposed questions:

“1. *** Will you be able to answer my questions honestly and completely without regard to what you may think the answers should be?
2. *** Without intending to embarrass you in any way, will you tell us whether you, any relative or a close friend has had a personal or legal problem with drugs or drug dependency?
3. While no one is in favor of drugs, that does not mean that this case is your opportunity to ‘Say No to drugs.’ It is important that you decide the case, not based on your feelings about drugs, but strictly upon the evidence in the case ***. Will you be able to do that?
4. In relation to any prospective juror who indicates that the juror has a relative or close friend of a law enforcement officer, we would request that the Court ask the juror about the frequency with which the juror sees that individual, whether they ever discuss that person’s work and whether that relationship would make them tend to believe the testimony of a law enforcement officer more than the testimony of any other witness, simply because the witness is a law enforcement officer.
5. Have you ever expressed or do you hold the view that the courts are generally too lenient with criminals or persons charged with crimes?”

The trial judge denied defendant’s motion. The judge found that the first question was addressed by the venire’s general oath to answer truthfully the questions put to them. The judge ruled that he would ask the venirepersons the essence of the second and fourth questions, but in a general manner. The judge rejected the third and fifth questions.

This claim is yet another naked allegation that is unsupported by the record. Defendant asserts that the trial judge’s refusal to ask his tendered voir dire questions resulted in a “failure to guarantee” defendant an impartial jury. However, defendant does not argue that the jury finally selected was actually unfair or biased in any manner. Therefore, we will not infer prejudicial error under such circumstances. See People v. Phillips (1981), 99 Ill. App. 3d 362, 369, 425 N.E.2d 1040, 1046 (and cases cited therein).

IV

Defendant next assigns error to three of the trial judge’s rulings on the parties’ in limine motions. Defendant contends the trial judge erred in: (A) excluding evidence of Rodriguez’s Federal conviction of drug possession, (B) allowing evidence of the cocaine’s street value, and (C) allowing evidence that defendant and Cabera possessed handguns.

A trial court must be certain that the grant of a motion in limine will not unduly restrict the opposing party’s case, or deprive a criminal defendant of a viable defense. However, such motions are encouraged in criminal cases to exclude collateral or extraneous matters. A reviewing court will reverse a trial court’s grant or denial of a motion in limine only if the court manifestly exceeded its discretion. People v. Downey (1987), 162 Ill. App. 3d 322, 334, 515 N.E.2d 362, 369.

We further note that the general test for the admissibility of evidence is its relevance. Evidence is relevant where the fact or circumstance offered tends to prove or disprove a disputed fact or to render the matter at issue more or less probable. People v. Jones (1982), 108 Ill. App. 3d 880, 884-85, 439 N.E.2d 1011, 1015-16.

A

Defendant contends the trial judge erred in excluding evidence of Rodriguez’s Federal conviction of drug possession. He argues that the evidence is relevant to the ownership or possession of the seized cocaine. We agree with the trial judge that the fact of Rodriguez’s drug conviction would not render the issue of defendant’s guilt more or less probable. The judge correctly reasoned that even if Rodriguez owned or possessed the same cocaine for which defendant was charged, the possession could be joint. (See Ortiz, 91 Ill. App. 3d at 472, 414 N.E.2d at 1077, citing People v. Embry (1960), 20 Ill. 2d 331, 335-36, 169 N.E.2d 767, 769.) Therefore, the fact of Rodriguez’s conviction was not relevant to the issue of defendant’s guilt.

B

Defendant contends the trial judge erred in allowing evidence of the cocaine’s street value of approximately $300,000. Defendant argues that evidence of the narcotics’ street value is not an element of the offense of possession of a controlled substance with intent to deliver. Defendant further speculates that evidence of the narcotics’ high street value might have biased the jury.

However, it is now settled that evidence of the street value of seized narcotics is relevant to the issue of intent. In other words, “possession of a drug in excess of the amount normally intended for personal use is circumstantial evidence from which a trier of fact may infer that the defendant possessed the substance with the intent to deliver.” (People v. Sadaka (1988), 174 Ill. App. 3d 260, 265, 528 N.E.2d 283, 288.) Additionally, absent any substantial showing of prejudice, the relevance of the street value of narcotics clearly outweighs its prejudice. 174 Ill. App. 3d at 265, 528 N.E.2d at 288.

C

Defendant contends the trial judge erred in allowing evidence that defendant and Cabera possessed handguns. In his one-paragraph statement, defendant has failed to cite any authority or refer to the record. (See 134 Ill. 2d R. 341(e)(7).) Because defendant has failed to adequately present this issue to us for review, we deem the issue waived. People v. Clay (1988), 167 Ill. App. 3d 628, 637, 521 N.E.2d 243, 250; Ortiz, 91 Ill. App. 3d at 474-75, 414 N.E.2d at 1078-79.

V

Defendant next claims that he did not receive a fair trial due to the prosecutor’s improper and prejudicial remarks during closing argument. During the State’s rebuttal argument, the following colloquy occurred:

“[Prosecutor]: Ladies and gentlemen, the evidence that you have seen and the evidence that you have heard from the witness stand is overwhelming. The evidence of the defendant’s guilt *** is overwhelming. Well, what do you do, what do you say when the evidence is overwhelming? What you do is, you talk about something else. You talk about side issues. You talk about something that has nothing to do with the issues in this case. And that is what the defense attorney has done.
[Objection overruled.]
[Prosecutor]: Just because you say it doesn’t make it so. And the defense attorney is trying to pull the wool over your eyes because you are not familiar with big cocaine dealers.
[Objection overruled.]”

Courts have consistently condemned comments disparaging the integrity of defense counsel and implying that the defense presented was fabricated at the direction of counsel. (People v. Starks (1983), 116 Ill. App. 3d 384, 394, 451 N.E.2d 1298, 1305 (and cases cited therein).) However, not every attack on defense counsel entitles defendant to a new trial. Such remarks constitute reversible error only when the remarks substantially prejudiced the defendant. In other words, were it not for the remarks, the verdict would have been different. (People v. Howard (1984), 121 Ill. App. 3d 938, 952-53, 460 N.E.2d 432, 442.) After carefully reviewing the record in the case at bar, we hold that the jury would not have reached a different verdict had the attack on defense counsel not been made.

VI

Defendant next claims that he did not receive a fair trial because the trial judge refused to instruct the jury with a tendered instruction. During the instruction conference, defendant tendered Illinois Pattern Jury Instructions, Criminal, No. 4.15 (2d ed. 1981) (IPI Criminal 2d), which provides as follows:

“Possession is a voluntary act if the offender knowingly procured or received the thing possessed, or was aware of his control of the thing for a sufficient time to have been able to terminate his possession.”

The trial judge denied the instruction over defense counsel’s objection. Defendant argues that the jury, lacking this instruction, did not receive sufficient guidance.

“In considering the adequacy of instructions, a reviewing court must take all of the instructions as a unit to ascertain whether they fully and fairly cover the law.” (People v. Mitchell (1979), 78 Ill. App. 3d 458, 462, 397 N.E.2d 156, 160.) In the case at bar, the trial judge instructed the jury on the requirement of knowledge and the other elements of the offense. The instructions defined the crime charged in the language of the statute. (See IPI Criminal 2d Nos. 17.10, 17.11.) This was entirely proper. See People v. Monroe (1975), 32 Ill. App. 3d 482, 487-88, 335 N.E.2d 783, 787-88.

VII

Defendant claims he did not receive a fair trial because the trial judge refused to answer questions by the jury during its deliberations. The jury sent a note to the trial judge stating: “Testimony found in basement about packages in corner.” The trial judge responded with a note stating: “Members of the jury, you have heard all the evidence and received each, please continue your deliberations, Judge John Morrissey.” The jury subsequently sent a second note stating: “Does the charge possession of a controlled substance with the intent to deliver, just the way the law is written,” and “or is possession of a controlled substance separate with the intent to deliver?” The trial judge sent a message to the jury that the applicable law was contained in the jury instructions and that the jury should continue to deliberate.

We conclude that the trial court properly declined to answer the jury’s questions. The first message from the jury was not even a question. To address the jury’s apparent concern, the trial judge would undoubtedly have needed to have a colloquy with the jury and, perhaps, even to further explain the facts. The second message was addressed apparently to the elements of the offense. However, the jury was clearly instructed as to those elements in the language of the statute. (See People v. Reid (1990), 136 Ill. 2d 27, 39-40, 554 N.E.2d 174, 179-80.) We cannot say that the trial court exceeded its discretion.

VIII

Defendant lastly claims that his 22-year prison sentence was excessive. Defendant points to his age and lack of prior convictions.

Supreme Court Rule 615(b)(4) authorizes this court to reduce a criminal sentence. (134 Ill. 2d R. 615(b)(4).) However, a sentencing decision is a matter of judicial discretion and, so long as the sentence is within the statutory limits, we hesitate to exercise our power to reduce it absent a finding that the trial court exceeded its discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.) In other words, a “rebuttable presumption arises that the sentence imposed was proper and is only overcome by an affirmative showing that the sentence imposed varies greatly from the purposes and spirit of the law or is manifestly violative of constitutional guidelines.” People v. Jenkins (1984), 128 Ill. App. 3d 853, 857, 471 N.E.2d 647, 650, citing People v. Gallardo (1983), 112 Ill. App. 3d 764, 775-76, 445 N.E.2d 1213, 1222.

After reviewing the record in the instant case, we cannot say that the trial court exceeded its discretion. The 22-year sentence was within the statutory range. The record shows that the trial judge considered many different factors before imposing sentence. Further, where the record shows that the trial court considered all the relevant factors that the law requires prior to imposing sentence, a substantial term of imprisonment for possession of a large quantity of cocaine with intent to deliver is not an abuse of discretion. (People v. Bergman (1984), 121 Ill. App. 3d 100, 110-11, 458 N.E.2d 1370, 1378-79.) We hold that defendant’s prison sentence of 22 years was well within the discretion of the trial court.

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

Affirmed.

JOHNSON and McMORROW, JJ., concur.