author: JUSTICE SPITZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY L. WOLF, Defendant-Appellant.
    Fourth District
    No. 4-88-0897
    Opinion filed July 13, 1989.

      Fellheimer, Travers, Luckman & Engelman, Ltd., of Pontiac (Carey J. Luckman, of counsel), for appellant.
    Donald D. Bernardi, State’s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and Peter C. Drummond, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

Defendant Gary L. Wolf was charged on July 12, 1988, by uniform traffic citation and complaint, filed in the circuit court of Livingston County, with driving while license revoked. (Ill. Rev. Stat. 1987, ch. 95V2, par. 6 — 303(a).) On July 27, 1988, the defendant filed a motion requesting that the State be ordered to file a verified complaint. (Ill. Rev. Stat. 1987, ch. 38, par. 111 — 3.) The trial court allowed the defendant’s motion, and on August 4, 1988, the State filed a verified criminal complaint charging the defendant with driving while license revoked (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 303(a)). Specifically, the complaint alleged that the defendant “drove and was in actual physical control of a motor vehicle, to-wit: a 1981 GMC Truck, upon a highway of this State, to-wit: upon County Highway 3150 N. at County Highway 675 E., Livingston County, Illinois, at a time when his driver’s license, permit and privilege so to do and the privilege to obtain a driver’s license or permit was revoked, said offense having occurred upon County Highway 3150 N. at County Highway 675 E., Livingston County, Illinois.”

A jury trial commenced on September 13, 1988, and the following evidence was presented. Livingston County Deputy Sheriff Eldon Finkenbinder testified for the State. Finkenbinder testified that on the evening of July 12, 1988, he received a call to respond to an automobile accident that had occurred at the intersection of roads 3150 North and 675 East, approximately one mile southeast of Streator. Finkenbinder arrived at the scene at approximately 8:15 p.m. and observed a 1988 Oldsmobile automobile that had been involved in an accident “in the right-hand ditch eastbound.” Four people were standing near the automobile. He later noticed a four-wheel drive GMC pickup truck, with a field sprayer attached to the rear, parked on the roadway approximately 80 yards west of the scene of the accident.

A man then walked from the direction of the pickup truck, approached Finkenbinder’s squad car and had a conversation with Finkenbinder. Finkenbinder recognized the man as the defendant. Finkenbinder had known the defendant previously and was aware that the defendant was a licensed field sprayer. The defendant informed Finkenbinder that he had been driving the truck. According to Finkenbinder, the defendant “stated he was southbound on the blacktop road, and that he thought he saw a car behind him. Thinking that it might have been a squad car, he was trying to leave the area *** [because] he was driving revoked.” Finkenbinder testified that the defendant stated “he knew he was revoked.” The defendant informed Finkenbinder that he was proceeding to the Barry Highland farm, located approximately V-k miles west and Vk miles south of Cornell.

Finkenbinder testified that he observed skid marks on the road, which “started before the intersection *** [and curved] to the right around the comer.” He further testified that the defendant’s vehicle was not headed south, in the direction of the farm near Cornell. Finkenbinder estimated that the scene of the accident was located approximately 12 miles from Cornell. Finkenbinder noted that 675 East and 3150 North were publicly maintained State highways. Finkenbinder described the defendant’s vehicle as a “standard” 1981 GMC four-wheel drive pickup truck. The track was pulling a “trailer type” field sprayer which had “a thousand gallon water tank on it with spray booms *** in the folded up position.”

Finkenbinder testified on cross-examination that he did not see the defendant in his truck. He was aware that the defendant’s license had been revoked. Finkenbinder did not examine the engine of the truck. He was shown pictures of the truck and acknowledged that it had “additional equipment.”

Admitted in evidence as People’s exhibit No. 2 was a document from the Secretary of State certifying that a revocation order had been entered against the driving privileges of the defendant on December 12, 1987, and that the revocation was in effect on July 12, 1988.

The first defense witness was Jerry Hogan, who had worked for the defendant for three to four months and lived in the defendant’s house. Hogan’s duties consisted of driving for the defendant, delivering water, and making repairs. Hogan was working for the defendant on July 12, 1988. The defendant was spraying a field farmed by Dave Stipp and Hogan was delivering water to the defendant. The source of the water used to fill the sprayer tank was a pond located on land owned by Robert Legner. The defendant was using his GMC pickup truck and a John Deere “pull-type sprayer with a ground-driven pump.” Hogan described the sprayer and noted that it could not move on its own power and had to be pulled. Hogan believed that the defendant had been operating the truck and sprayer for approximately four to five years. Hogan was shown various photographs of the truck and sprayer unit and described certain modifications made to the truck to accommodate the sprayer. Hogan testified that to his knowledge, the defendant did not use the truck for any purpose other than hauling the sprayer unit. The defendant did drive the truck from one field to another to perform the spraying.

On cross-examination Hogan testified that he was not with the defendant at the time of the accident on July 12, 1988. He acknowledged that he had seen the defendant driving the truck without the sprayer in town, before defendant’s license had been revoked. Hogan had never driven the truck with the sprayer off, although it was detachable and the truck could be driven at normal highway speeds and could be parked in ordinary parking spaces. Hogan stated that prior to the modifications, defendant’s truck was a normal GMC one-ton pickup truck. The truck was not appropriate to use with the sprayer unit until after it was modified.

Defendant’s next witness was Robert Legner. Legner testified that he was a farmer and had hired the defendant to spray his fields, located in Sunbury and Nevada Townships. Legner identified the pictures of defendant’s pickup truck and sprayer unit as the equipment used by defendant in spraying Legner’s fields. Legner also described the modifications made to the truck to accommodate the sprayer. Legner testified that the defendant had made arrangements with him to get water from Legner’s pond when the defendant was operating in the Sunbury, Newton and Nevada Townships.

Legner testified on cross-examination that his three tracts of farmland are seven to eight miles apart. He acknowledged that it was necessary to drive on the roadway in order to travel from one field to another.

The defendant testified that he was 37 years old and was a licensed field crop applicator. He identified certain photographs as pictures of his pickup truck and sprayer unit. Defendant testified that he purchased the sprayer in 1975. Originally, it was pulled by a tractor; however, this method was not efficient and in 1976 he began using a heavy-duty pickup truck to pull the sprayer. The 1981 GMC pickup truck involved in the instant accident was the fourth truck he had used to pull the sprayer. The defendant described in detail the modifications made to the truck to accommodate the sprayer.

The defendant stated that on July 12, 1988, he was spraying for Dave Stipp on the Trainor farm, which was located near Blackstone. At approximately 8 p.m. the defendant’s mother radioed him to inform him that Barry Highland wanted him to spray an 18-acre tract of land located near Cornell. This tract of land was “a couple of miles” from the defendant’s home. The defendant finished spraying for Stipp and loaded the sprayer with water. The defendant stated that it was getting dark and he did not “like taking the main roads.” According to the defendant, he went one mile north, to avoid a main road, took the county line road to Smith-Douglass road and then went south toward the Highland farm. According to the defendant, there was a lot of traffic for a Tuesday night. As he approached the intersection at 675 East and 3150 North, he noticed “some lights coming fast from behind.” He was planning to turn onto 3150 North to get out of the traffic, but when he got to the corner and began braking, the wheels on his truck “locked up,” perhaps due to the 600-gallon load of water in the sprayer. As he continued braking and proceeded to the corner, an automobile pulled up to the corner, at which point the sprayer hit some gravel, skidded sideways “and then slapped the car just like giving it a kick right over into the ditch.”

The defendant testified on cross-examination that at the time of the accident he knew his driver’s license had been revoked. The defendant acknowledged that the truck was used continuously for his spraying operation. The defendant also indicated that the pickup truck in question had been used as a personal vehicle, for purposes other than spraying. Further, he stated that some of the modifications to the truck were made when it was being used as a personal vehicle. The defendant admitted that his license plate had expired on June 30, 1988. The defendant stated that he “wasn’t real sure” if he needed a driver’s license “to be doing what [he was] doing.” He also stated that he became nervous when he saw the lights behind him because he did not want “any other trouble like this.”

During the jury instruction conference the defendant tendered instruction Nos. 7, 8, and 9. Instruction No. 7 read:

“The term ‘farm tractor’ means every motorized device designed and used primarily as a farm implement for drawing wagons, plows, mowing machines and other implements of husbandry, and every implement of husbandry which is self-propelled, excluding all-terrain vehicles and off-highway motorcycles.”

Instruction No. 8 read:

“The term ‘implement of husbandry’ means every vehicle designed and adapted exclusively for agricultural operations.”

Instruction No. 9 read:

“To sustain the charge of driving while license revoked, the State must prove the following propositions:
First: That the defendant drove a motor vehicle upon any street or highway in this State; and
Second: That at the time the defendant drove the motor vehicle upon the street or highway, his driver’s license, permit and privilege to drive was revoked.
Third: That the vehicle driven was not, at that time, an implement of husbandry or a farm tractor.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

The trial court refused these instructions, ruling that there was no evidence to show that the truck was being operated between home farm buildings and adjacent or nearby farmland as provided in the section 6 — 102(4) exemption to the Illinois Vehicle Code’s licensing requirement. (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 102(4).) The court pointed out that instead, the defendant’s evidence showed that the vehicle was driven “long distances from field, to field, to field, twenty miles here and then ten miles here, and then maybe two miles here and just all over.”

Following deliberations, the jury found the defendant guilty of driving while license revoked. The trial court entered judgment on the verdict. Defendant filed a post-trial motion on October 17, 1988, alleging, inter alia, that the trial court erred in refusing instruction Nos. 7, 8, and 9 tendered by the defendant. The motion was denied after a hearing. Defendant was thereafter sentenced to six months’ periodic imprisonment, with certain conditions. This appeal followed.

Defendant contends that the trial court erred in refusing his tendered instructions relating to his alleged affirmative defense. The defendant argues that he presented evidence on and was therefore entitled to instructions concerning his affirmative defense, the statutory exemption from the licensing requirements of the Illinois Vehicle Code (Code) under section 6 — 102(4) of the Code. (Ill. Rev. Stat. 1987, ch. 95x/2, pars. 6 — 101, 6 — 102(4).) The defendant asserts that the “legal framework” of his affirmative defense was embodied in defendant’s instruction Nos. 7, 8, and 9, set forth above.

The State contends that the trial court properly refused defendant’s tendered instructions. The State argues that the instructions were non-Illinois Pattern Jury Instructions (non-IPI), argumentative, and misstated the law. The State further argues that evidence in this case did not warrant the instructions.

The State’s contentions are persuasive. Instructions Nos. 7, 8, and 9, tendered by the defendant, were non-IPI instructions. Courts have held that a non-IPI instruction should be used only if a pattern instruction does not contain an accurate instruction on the subject that the jury should be instructed upon and if the tendered non-IPI instruction is simple, brief, impartial,, and free from argument. (People v. Hall (1986), 143 Ill. App. 3d 766, 491 N.E.2d 757, cert. denied (1987), 481 U.S. 1057; 95 L. Ed. 2d 855, 107 S. Ct. 2200; People v. Wolfe (1983), 114 Ill. App. 3d 841, 449 N.E.2d 980; 107 Ill. 2d R. 451(a).) It is true, as the defendant points out, that there are no IPI instructions on the subject here. However, the non-IPI instructions tendered by the defendant are incomplete, do not convey the correct principles of law, and could be considered argumentative. Defendant’s instruction No. 7 quotes the definition of a “[f]arm tractor” set forth in section 1 — 120 of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 1 — 120). Similarly, defendant’s instruction No. 8 quotes a portion of the definition of an “implement of husbandry” set forth in section 1 — 130 of the Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 1 — 130). Moreover, defendant’s instruction No. 9 does not contain an accurate, complete instruction on the statutory exemption set forth in section 6 — 102(4), which the defendant claims as his affirmative defense.

Section 6 — 102(4) of the Code provides:

“The following persons are exempt from the requirements of Section 6 — 101 and are not required to have an Illinois drivers license or permit if one or more of the following qualifying exemptions are met and apply:
* * *
4. A person operating a road machine temporarily upon a highway or operating a farm tractor between the home farm buildings and any adjacent or nearby farm land for the exclusive purpose of conducting farm operations need not be licensed as a driver.” (Ill. Rev. Stat. 1987, ch. 951/2, par. 6— 102(4).)

Defendant’s instructions Nos. 7, 8, and 9 only pertain to the vehicle driven and whether or not it was an “implement of husbandry” or a “farm tractor.” They do not convey the correct principles of law applicable to the defendant’s alleged affirmative defense under section 6 — 102(4) of the Code. Thus, on this basis alone, the trial court was correct in refusing the instructions. See generally People v. Pope (1985), 138 Ill. App. 3d 726, 486 N.E.2d 350.

Furthermore, there was insufficient evidence to support this particular affirmative defense. The sole function of jury instructions is to convey the correct principles of law applicable to the evidence submitted to the jury. (People v. Moya (1988), 175 Ill. App. 3d 22, 529 N.E.2d 657.) Jury instructions enable the jury to apply the proper legal principles to the facts and arrive at a correct conclusion according to the law and the evidence. (People v. Jones (1986), 145 Ill. App. 3d 835, 495 N.E.2d 1371.) While it is recognized that “slight evidence” will justify an instruction on a given defense (People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378), it is not error for the trial court to refuse a tendered instruction on a defense where there is no evidence to support that particular defense (People v. Miller (1974), 21 Ill. App. 3d 762, 316 N.E.2d 269; People v. Chatman (1982), 110 Ill. App. 3d 19, 441 N.E.2d 1292; People v. Mitchell (1985), 136 Ill. App. 3d 205, 482 N.E.2d 1046).

In the instant case, the trial court found there was no evidence that the defendant’s vehicle was operated “between the home farm buildings and any adjacent or nearby farmland” as required by the exemption set forth in section 6 — 102(4). This finding is supported by the record. The defendant’s own evidence demonstrated that the defendant, in performing field spraying, operated his vehicle on public roadways and traveled distances greater than intended by the language in the section 6 — 102(4) exemption to the licensing requirement. The evidence showed that the defendant contracted with various farmers in Livingston County to spray their fields. The fields were in different locations in the county and were miles apart. Indeed, on the day of the accident the defendant’s vehicle was located approximately 12 miles from his next destination. Thus, the evidence was insufficient to justify giving the defendant’s instruction Nos. 7, 8, and 9. See People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31.

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

Affirmed.

McCULLOUGH, P. J., and GREEN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DWIGHT HANSEN, Defendant-Appellant.
    Fourth District
    No. 4-88-0775
    Opinion filed July 10, 1989.

      George F. Taseff, of Jennings, Novick, Eggan & Ostling, of Blooming-ton, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Michael Blazicek, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by defendant Dwight Hansen from an order of the circuit court of McLean County denying defendant’s petition for expungement of defendant’s arrest records. After being indicted for the delivery of a controlled substance occurring on or about September 26, 1983 (Ill. Rev. Stat. 1981, ch. bQVz, par. 1401(b)(1)), defendant was arrested by a deputy of the McLean County sheriff’s department on October 19, 1983.

Subsequently, defendant pleaded guilty to a lesser, included offense of possession of a controlled substance (Ill. Rev. Stat. 1981, ch. 56%, par. 1402) and was sentenced to a 24-month term of probation. The term of probation was imposed pursuant to section 410 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 56%, par. 1410).

On July 31, 1986, defendant was discharged from probation after successfully completing his probationary period. On August 19, 1988, defendant filed a petition for expungement of his arrest records. After a hearing, the petition for expungement was denied. The trial court found that defendant’s arrest records may not be expunged because of subsection (5) of section 55a of the Civil Administrative Code of Illinois (Ill. Rev. Stat. 1987, ch. 127, par. 55a(5)), dealing with the powers and duties of the Illinois Department of State Police.

Defendant was given leave to file a motion for reconsideration, which he did. The trial court denied defendant’s motion for reconsideration, and defendant appealed.

Section 410 of the Illinois Controlled Substances Act states in relevant part:

“(a) Whenever any person who has not previously been convicted of, or placed on probation or court supervision for any offense under this Act or any law of the United States or of any State relating to cannabis or controlled substances, pleads guilty to or is found guilty of possession of a controlled or counterfeit substance under Section 402(b), the court, without entering a judgment and with the consent of such person, may sentence him to probation. * * *
(e) Upon fulfillment of the terms and conditions of probation, the court shall discharge the person and dismiss the proceedings against him.
(f) A disposition of probation is considered to be a conviction for the purposes of imposing the conditions of probation and for appeal, however, discharge and dismissal under this Section is not a conviction for purposes of this Act or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.” (Ill. Rev. Stat. 1987, ch. 56%, pars. 1410(a), (e), (f).)

Section 5 of “An Act in relation to criminal identification and investigation” (Ill. Rev. Stat. 1987, ch. 38, par. 206 — 5) states, in relevant part:

“All policing bodies of this State shall furnish to the Department [of State Police], daily, in the form and detail the Department requires, copies of fingerprints and descriptions, of all persons who are arrested on charges of violating any penal statute of this State ***. Whenever a person, not having previously been convicted of any criminal offense or municipal ordinance violation, charged with a violation of a municipal ordinance or a felony or misdemeanor, is acquitted or released without being convicted, the Chief Judge of the circuit wherein the charge was brought, or any judge of that circuit designated by the Chief Judge, may upon verified petition of the defendant order the record of arrest and the records of the circuit court relating to such arrest expunged from the official records of the arresting authority and the records of the clerk of the circuit court.”

In addition, subsection (5) of section 55a states:

“The Department of State Police shall have the following powers and duties, and those set forth in Section 55a — 1 through 55c: * * *
5. To (a) be a central repository and custodian of criminal statistics for the State, (b) procure and file for record photographs, plates, outline pictures, measurements, descriptions of all persons who have been arrested on a charge of violation of a penal statute of this State; (c) procure and file for record such information as is necessary and helpful to plan programs of crime prevention, law enforcement and criminal justice, (d) procure and file for record such copies of fingerprints, as may be required by law, of all persons arrested on charges of violating any penal statute of the State, (e) establish general and field crime laboratories, (f) register and file for record such information as may be required by law for the issuance of firearm owner’s identification cards, (h) [sic] employ polygraph operators, laboratory technicians and other specially qualified persons to aid in the identification of criminal activity, and (i) undertake such other identification, information, laboratory, statistical or registration activities as may be required by law.
Photographs, fingerprints or other records of identification so taken shall, upon the acquittal of a person charged with the crime or upon his being released without being convicted, be returned to him, except that nothing herein shall prevent the Department of State Police from maintaining all records of any person who is admitted to probation upon terms and conditions and who fulfills those terms and conditions pursuant to Section 10 of the Cannabis Control Act and Section 410 of the Illinois Controlled Substances Act.” Ill. Rev. Stat. 1987, ch. 127, par. 55a.

This court has previously had the opportunity to construe section 5 in light of section 10 of the Cannabis Control Act (Ill. Rev. Stat. 1987, ch. S&k, par. 710). In People v. Kane (1980), 85 Ill. App. 3d 252, 406 N.E.2d 896, this court held that a discharge and dismissal under section 10 was a release without conviction for purposes of section 5. Therefore, a trial court has the discretionary authority to expunge the records of the arresting authority and the circuit court if a defendant has been discharged after successfully completing section 10 probation.

In comparing section 10 and section 410, the language of the statutes is so similar that the language cannot form the basis of distinguishing this case from Kane and, therefore, the rationale in Kane is equally applicable here. The defendant having successfully completed section 410 probation, the trial court has the discretion to expunge the records of the arresting authority and the circuit court. However, in the case at bar the presiding judge seems to have indicated a belief that section 55a(5) removes that discretion. Kane does not address this question.

All police authorities are required by section 5 to furnish copies to the State Police, but section 5 does not direct that those State Police copies are to be expunged. Instead, section 5 only allows the discretionary expungement of the official records of the arresting authority and the circuit clerk. In addition, section 55a(5), allows the State Police, as “a central repository and custodian of criminal statistics” to maintain such records even if the defendant has successfully completed a term of section 10 or section 410 probation. However, section 55a(5) does not in any way restrict the trial court’s discretion in expunging the records of the arresting authority or the circuit court. The obvious conclusion is that the trial court could have ordered expungement of the records of the McLean County sheriff’s department and the McLean County circuit clerk’s office, but not those of the State Police.

We find nothing in People v. Holum (1988), 166 Ill. App. 3d 658, 520 N.E.2d 419, which is inconsistent with this conclusion. In Holum, the relationship of section 10 and section 55a(5) was raised as an issue, but that case was decided on the basis that the State’s motion to reconsider the order of expungement failed to invoke the jurisdiction of the trial court since the motion to reconsider was filed some 2V2 months after the entry of the order of expungement.

Also raised as an issue in the Holum case, but not therein decided, was the issue of whether section 55a(5) was an ex post facto law as applied to defendant. Defendant raises the issue here as well. The ex post facto clause of the United States Constitution (U.S. Const., art. I, §9, cl. 1) applies where a statute retrospectively changes the legal consequences of acts done before the effective date of the statute such that an act which was innocent when done is now defined as criminal, or aggravates a crime or makes it greater than it was, or imposes a greater punishment than was previously imposed, or alters a rule of evidence making it easier to convict a defendant. Miller v. Florida (1987), 482 U.S. 423, 96 L. Ed. 2d 351, 107 S. Ct. 2446.

Without conceding that this statutory provision is of the type which would invoke the ex post facto clause in the first place, we note that the portion of section 55a(5) relating to the State Police maintaining records on section 410 probationers had been in effect for some time prior to the criminal act to which defendant pleaded guilty. (See Ill. Rev. Stat. 1977, ch. 127, par. 55a.) This law not having changed, defendant’s ex post facto argument is without merit.

In the docket entry in which the trial court denied the petition for expungement, the trial court made the following finding:

“The court further found that expungement of arrest records for offenders who have successfully completed probation pursuant to section 1410 may not be expunged. S.H.A. ch. 127, section 55A, par. 5.”

Since the trial court in this case has indicated section 55a(5) removed the court’s discretion in expunging records, the order denying ex-pungement is reversed and the cause is remanded for a new hearing consistent with the views expressed herein.

Reversed and remanded with directions.

McCULLOUGH, P.J., and GREEN, J., concur.


author: JUSTICE LUND

text:
      In re MARRIAGE OF STEPHEN W. O’NEILL, Petitioner-Appellee, and CAROLE SUE O’NEILL, Respondent-Appellant.
    Fourth District
    No. 4—88—0757
    Opinion filed July 13, 1989.

      Charles J. Gramlich, of Gramlich Law Offices, P.C., of Springfield, for appellant.
    Duane D. Young and Mark Rabin, both of Long, Rabin & Young, Ltd., of Springfield, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Respondent Carole O’Neill appeals from the trial court’s order, which disposed of the marital property, and determined maintenance, child support, and payment of attorney fees. In its order, the trial court found no dissipation of assets and denied respondent’s claim for petitioner Stephen O’Neill’s share of the residence.

Respondent argues on appeal that the trial court erred in not finding dissipation by petitioner, and in not awarding the entire residence asset to her, pursuant to the provisions of sections 504(b) and 503(g) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, pars. 504(b), 503(g)). Because of our holding below, we need not specifically discuss the court’s division of the marital residence.

During the marriage, petitioner was charged with attempt to commit rape. He declared his innocence to his wife and, with her approval, used $15,000 of marital funds to hire defense counsel. He was convicted and, subsequently, admitted his guilt. The evidence given at the hearing on the property, division did not indicate the marriage was undergoing an irreconcilable breakdown at the time of the $15,000 expenditure for attorney fees. Respondent, in answer to the court’s question, stated that she did not know if she would have approved the $15,000 payment had she been aware of her husband’s guilt. Two of the factors the trial court is to consider in dividing marital property are the “contribution or dissipation of each party.” Ill. Rev. Stat. 1987, ch. 40, par. 503(d)(1).

The trial court determined there was no dissipation. The main asset was the equity in the family home, and this real estate interest was split equally between the parties, subject, however, to respondent’s use of the property for the benefit of the children under the provisions of section 503(d)(4) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 503(d)(4)).

It is unclear whether the trial court’s decision was based on the various appellate court cases inferring dissipation is limited to a period of time when there was an irreconcilable breakdown of the marriage (see In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 549, 511 N.E.2d 676, 680; In re Marriage of Aslaksen (1986), 148 Ill. App. 3d 784, 788, 500 N.E.2d 91, 93-94; In re Marriage of Sevon (1983), 117 Ill. App. 3d 313, 317, 453 N.E.2d 866, 869; In re Marriage of Smith (1983), 114 Ill. App. 3d 47, 51, 448 N.E.2d 545, 548; In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 462, 426 N.E.2d 1087, 1094; Klingberg v. Klingberg (1979), 68 Ill. App. 3d 513, 517, 386 N.E.2d 517, 521), or on the fact that respondent had approved the expenditure. We now find the trial court erred, and we repudiate any ruling that says dissipation is limited in time to conduct which takes place during an irreconcilable breakdown of the marriage.

The reputed theory or, as some may say, rule of law, evolved from an innocuous statement in Klingberg: In that case, it was clear the husband wrongfully used marital' funds to prepay child support payments that were an obligation from a prior marriage. This wrongful use took place when the parties of the current marriage were separated. The statement from Klingberg is as follows:

“Rather, the respondent’s action was designed to use marital property for his sole benefit and for a purpose unrelated to the marriage, at a time that the marriage was undergoing an irreconcilable breakdown.” (Emphasis added.) (Klingberg, 68 Ill. App. 3d at 517, 386 N.E.2d at 521.)

This statement is consistent with the case law prior to the October 1, 1977, effective date of the Act, as is illustrated by Gercke v. Gercke (1928), 331 Ill. 413, 163 N.E. 323. See also In re Estate of Chandler (1980), 90 Ill. App. 3d 674, 676, 413 N.E.2d 486, 489.

Since October 1, 1977, section 503(d) has provided that the court:

“[S]hall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:
(1) the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit.” (Ill. Rev. Stat. 1987, ch. 40, par. 503(d).)

No provision within the Act limits dissipation to a time when the marriage is undergoing an irreconcilable breakdown. Similarly, we know of no argument ever having been made suggesting the contribution benefits should be considered only if they took place during a specific time of the marriage.

It is assumed that the theory for limiting the time period for which dissipation can be considered evolved from the quoted sentence from Klingberg. Of the cited cases, all cite Klingberg except for Par tyka, and Partyka cites Hellwig, which, in turn, has cited Klingberg. None of the cited cases have dealt with dissipation which had taken place prior to the irreconcilable breakdown of the marriage. Klingberg correctly stated the law as it existed prior to the Act, but the Act adopted the concept of marital property, greatly expanding the rights of those in the marital partnership.

Nothing in the history of the Act would indicate the consideration of dissipation should be restricted to a time period different from the consideration period for contribution. We have been unable to find a single case which presents an analysis of why the time of dissipation should be restricted to the time of irreconcilable breakdown of the marriage. If a spouse dissipates marital property, for example, by excessive gambling or extravagant purchases of clothing, why should the other spouse be punished for continuing with the marriage? The reasons for maintaining a marriage, including the benefit to children and religious requirements, are important. Logic calls for the consideration of dissipation during the same time period a court would consider contribution.

Some will fear that our opinion will open Pandora’s box, creating havoc by encouraging parties to argue dissipation exists because of every insignificant wasteful act. The present case involves an action which seriously affected the marital estate and cannot be considered insignificant. Trial courts have the ability to weigh the facts and separate dissipation from generally accepted expenditures. Whether a given course of conduct constitutes dissipation within the meaning of the Act depends on the facts of the particular case. In re Marriage of Siegel (1984), 123 Ill. App. 3d 710, 719, 463 N.E.2d 773, 780.

As to whether the commission of a criminal offense by one spouse, with the economic losses which naturally flow from it,' can be considered dissipation appears to be an issue of first impression. Once again, every case will depend on its own facts. The facts in the present case require a finding of dissipation.

Petitioner contends dissipation cannot be considered because respondent acquiesced in the $15,000 payment of attorney fees. (In re Marriage of Aud (1986), 142 Ill. App. 3d 320, 331, 491 N.E.2d 894, 901.) The alleged dissipation in And related to payments made for the support of the defendant’s widowed mother. Plaintiff had acquiesced in the payments, which had been made for a substantial period of time. We do not fault the And opinion, and find that there is no comparison between a child helping support a widowed mother, and a spouse who commits a criminal act resulting in substantial attorney fees and other economic losses. In the present case, respondent did agree with the expenditures, but did so after falsely being told by petitioner of his innocence.

Acquiescence is defined as passive assent or agreement without protest, and we do not intend to indicate by this opinion that its presence bars a finding of dissipation, or even that it creates a presumption against dissipation. As we have indicated, the nondissipating spouse may acquiesce in conduct that dissipates assets for various reasons, including family harmony. The dissipation may still be a factor to consider in dividing the family assets. A different result may take place when both spouses agree to and participate in the dissipation. Acquiescence may become a factor to be considered by the court in determining whether there is dissipation but, in this case, the fact that respondent was uncertain as to what she would have done or how she would have acted if she had been initially told of petitioner’s guilt is not justification for the decision against dissipation. The trial court was in error in finding that dissipation should not be considered in the distribution of the marital assets.

Because this matter must be remanded for further consideration of property distribution, we find that it is not necessary to consider other arguments by respondent.

Reversed and remanded to the trial court for determining the division of marital assets consistent with the dictates of this opinion.

Reversed and remanded with directions.

KNECHT and GREEN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARI E. WHEALON, Defendant-Appellant.
    Fourth District
    No. 4-88-0832
    Opinion filed July 18, 1989.

      Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and John Thomas Moran, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by defendant Mari E. Whealon from the order of the circuit court of Champaign County revoking defendant’s probation and sentencing her to a three-year term of imprisonment. Defendant had been placed on probation after pleading guilty to the offense of deceptive practices for passing bad checks on two occasions on December 26 and 28, 1987, with intent to defraud and to obtain control over property having a value exceeding $150 knowing the checks would not be paid by the depository. Ill. Rev. Stat. 1987, ch. 38, par. 17 — l(B)(d).

On appeal, the only issue raised by defendant is whether the trial court committed an abuse of discretion when sentencing defendant to the three-year term of imprisonment by failing to consider defendant’s drug addiction as a mitigating factor. The precise comments of the trial judge to which defendant objects were these:

“It seems to me that this is not precisely, but almost the exact posture of the Defendant in this courtroom. I didn’t predict with precision the months. Instead of one or ten, it was more about four or five, with you here as coming up before the Court, and saying gee, I am just a poor junkie. It’s not my fault. I don’t know what to do. I can’t control myself. It’s a real problem for me, and as she stood before this Court a few months ago, and was put on probation, would suffer absolutely no consequences as a result of having done so. She declined to admit or acknowledge this drug problem and then violated conditions of probation and now as she faces sentencing, I am supposed to consider it. Things don’t work that way, not in this courtroom, and I have given Miss Whealon her opportunity to own up once, it’s too late now. * * *
I don’t find there to be any mitigation in this case at all.”

When a person is convicted of violating subsection (B)(d) of the deceptive practices statute by obtaining control of property having a value exceeding $150 in separate transactions within a 90-day period, the offense is a Class 4 felony. (Ill. Rev. Stat. 1987, ch. 38, par. 17 — l(B)(d).) A sentence of imprisonment for a Class 4 felony shall not be less than one year nor more than three years. Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-1(a)(7).

Because the trial court is in a better position than is the reviewing court to consider factors such as defendant’s demeanor and credibility, as well as other factors, the trial court is usually better able to assess the proper sentence to be imposed in any particular case. For this reason, in the absence of an abuse of discretion being demonstrated, a reviewing court will not overturn a sentence which complies with the statutory sentencing limitations. (People v. Perru quet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) In determining whether an abuse of discretion has occurred, the record must be viewed in its entirety (People v. Davis (1984), 123 Ill. App. 3d 349, 462 N.E.2d 824), without undue emphasis being placed on isolated comments by the judge.

In sentencing the defendant, the trial court must consider any evidence presented which relates to the statutory factors in mitigation and aggravation (Ill. Rev. Stat. 1987, ch. 38, pars. 1005 — 5—3.1, 1005 — 5—3.2). When sentencing a defendant following a revocation of probation, defendant’s conduct during probation may be considered, and not merely defendant’s conduct up to the time of conviction. (People v. Young (1985), 138 Ill. App. 3d 130, 485 N.E.2d 443.) Drug addiction is not one of the statutorily mandated mitigating factors to be considered, although in appropriate cases courts might consider drug addiction as a factor in, mitigation. The defendant cites no cases in which this has been recognized as an appropriate practice. On the other hand, defendant points to the fact intoxication or alcohol dependence has been considered as a factor in reducing a sentence. (People v. Walcher (1969), 42 Ill. 2d 159, 246 N.E.2d 256; People v. Goodman (1981), 98 Ill. App. 3d 743, 424 N.E.2d 663.) However, if the record disclosed the trial court did not refuse to consider the drug addiction, but instead after considering the defendant’s argument, decided the drug addiction, if proved, did not entitle defendant to lenient treatment, then no abuse of discretion has occurred. See People v. Downey (1987), 162 Ill. App. 3d 322, 515 N.E.2d 362; People v. Bartay (1986), 150 Ill. App. 3d 130, 501 N.E.2d 364.

The presentence report indicates that prior to pleading guilty on the instant offense, this 26-year-old defendant had prior convictions for deceptive practices on July 2, 1981, and for forgery on January 24, 1983. Probation was the sentence for both of these, and in the first of those cases, defendant completed her probation unsuccessfully, paying only $5 of the $64.20 ordered restitution; failing to report to the probation office 3 of 12 months and failing to report changes of address. At the sentencing hearing, defendant did not testify. Nor did defendant call any witnesses who testified defendant was addicted to drugs, although the presentence report does summarize defendant’s drug use.

For the instant offense, defendant was sentenced to 24 months’ intensive probation on May 12, 1988. Although court costs were recovered from defendant’s bond, at the time of the resentencing, no payment had yet been received on the $175.20 ordered to be paid as restitution. Defendant failed to report on eight occasions, violated curfew three nights, and based on urine testing, was found to have violated the directive against using controlled substances on three occasions. According to the alcohol-drug use portion of the presentence report, defendant admitted to smoking cannabis once in a while and using cocaine on weekends when someone brings it over because she does not have the money to purchase it.

At the request of the Department of Children and Family Services, defendant was ordered to appear for evaluation but failed to make sufficient appointments to complete evaluation and testing. In addition, she failed to appear for two scheduled appointments for evaluation of her drug usage after being referred to a service by the probation office.

The trial court stated defendant was given several opportunities to rehabilitate any drug problem she may have, although the court also noted defendant denied having such a problem at the time she was placed on probation. The court also was concerned .that, before being sentenced, defendant took her children, a three-year-old and an eight-month-old, out of foster care and left the State, later to be apprehended in Arizona.

Defendant’s actions, both prior to and after being placed on probation, clearly indicate defendant’s indifference to the laws of this State. There is no evidence defendant is addicted to any drug or that the addiction contributed to the commission of the offense, as the defendant now argues. Nor is this a proper case for this court to determine whether drug addiction may or may not be a mitigating factor. It is clear from the record, nevertheless, that the trial court considered the facts before the court and found the defendant’s argument of drug addiction as a mitigating factor should be accorded little weight.

We are unwilling to state definitively that drug addiction is or is not a mitigating factor. There may be some circumstances in which it is a mitigating factor. On the other hand, it is more readily apparent that drug addiction can be an aggravating factor as part of defendant’s history of prior criminal activity (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(a)(3)) or as evidence refuting the following mitigating factors: (1) defendant’s conduct was the result of circumstances not likely to recur, and (2) defendant’s character and attitude indicate he is unlikely to commit another crime. Ill. Rev. Stat. 1987, ch. 38, pars. 1005 — 5—3.1(a)(8), (a)(9).

Here, defendant argues she was brought to the commission of the offense .because she needed money to buy drugs. Unfortunately, the record on appeal does not include the factual basis for the guilty plea. If defendant passed bad checks to obtain merchandise, her argument fails of its own weight. And even if she passed bad checks to obtain cash to buy drugs, if defendant’s alleged addiction continues, then defendant’s criminal activity is likely to recur. Therefore, the trial court in this case properly considered the defendant’s argument.

For the foregoing reasons, the order of the circuit court of Champaign County is affirmed.

Affirmed.

KNECHT and GREEN, JJ., concur.


author: JUSTICE GREEN

text:
    CHRIS SCHROTH, Plaintiff-Appellant, v. NORTON COMPANY, DefendantAppellee.
    Fourth District
    No. 4-88-0945
    Opinion filed July 18, 1989.

      John T. Papa and John Halloran, of Pratt and Callis, P.C., of Granite City, for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Charles H. Cole, and Lynn D. Dowd, of counsel), for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On April 21, 1987, plaintiff Chris Schroth filed suit in the circuit court of Macon County against defendant Norton Company (Norton) and others seeking damages for injuries plaintiff received to his eyes while, during the course of his work, he was operating a pencil grinder when a grinding disk exploded. At the time of the explosion, plaintiff was wearing safety glasses manufactured by Norton. The count against Norton sounded in the tort of strict liability for defective product. On November 28, 1988, the circuit court allowed Norton’s motion for summary judgment and made a finding pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). Plaintiff has appealed. We affirm.

The clearly stated and often repeated rule in regard to the circumstances in which a summary judgment may properly be issued is that it “is appropriate only when the pleadings, depositions, admissions on file, and affidavits present no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.” (In re Estate of Whittington (1985), 107 Ill. 2d 169, 176-77, 483 N.E.2d 210, 215.) Following the rule requires the court to construe the evidence shown by the depositions, admissions, and affidavits strongly against the movant. (Forsyth v. Dugger (1988), 169 Ill. App. 3d 362, 365, 523 N.E.2d 704, 705.) Plaintiff contends on appeal here that the record presents genuine issues of material fact as to whether the safety glasses manufactured by Norton were unreasonably dangerous or defective because of (1) a lack of warning by Norton of the limitations upon the effectiveness of the glasses; and (2) their failure to perform in the manner reasonably to be expected in light of their nature and intended function. Accordingly, plaintiff maintains the entry of summary judgment was erroneous.

The evidence was undisputed that when the grinding disk exploded, a fragment thereof struck the plaintiff’s spectacles and dislodged them, pushing them up to his forehead, whereupon a subsequent particle then struck plaintiff’s eye. According to the plaintiff’s deposition, the impact from the fragment was extremely powerful, but the glass in the spectacles was not broken. Norton presented the deposition of a safety expert who stated: (1) no spectacles could have resisted dislodgement by the force of the fragment, but goggles might have; and (2) a user would immediately recognize that spectacles could be dislodged when goggles would not. The record contained no indication Norton had given either plaintiff of his employer any warning concerning any limitations as to the protection afforded by safety spectacles as distinguished from goggles.

The parties do not dispute that a product is defective when, in a manner which is dangerous, it fails to perform as would reasonably be expected or when a manufacturer fails to give to users reasonable warning of latent dangers known to the manufacturer. (Dunham, v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 247 N.E.2d 401.) However, no defect is created when the inherent danger in a product is obvious to all who come in contact with it. (Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368.) Under the record here the questions of whether the trial court properly held, as a matter of law, that (1) no warning was required =as to the limitations of the safety spectacles, and (2) those spectacles did not fail to perform as might reasonably be expected, depend upon whether the fact that the spectacles could be knocked away from the eyes by a strong blow leaving the eyes unprotected was obvious to all. We agree it was.

The closest case and that most favorable to plaintiff is Fuller v. Fend-All Co. (1979), 70 Ill. App. 3d 634, 388 N.E.2d 964. There, the plaintiff was struck in the eye by fragments of two punches while he was replacing the punches on a multipress used to punch out holes on a bicycle rim. At the time, that plaintiff was wearing safety spectacles manufactured by that defendant. Those spectacles had no side shields. Suit was brought against that manufacturer on a theory of defective product. The appellate court reversed a summary judgment for the defendant manufacturer on the basis a question of fact existed as to whether the manufacturer should have warned users of the dangers of doing the type of work involved without side shields on the glasses. Citing Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465, the court recognized the question of whether there is a duty to warn is usually a question of law but considered the question to be one of fact there, because the record was disputed. Emphasis was placed on the fact that the manufacturer would be in a better position to know of the dangers involved in using a product than would an ordinary user.

Here, as far as matters controlled by Norton are concerned, plaintiff’s injury could only have possibly been prevented by warning him that goggles would have given him more protection from the unusual type of injury which he received. In Fuller, the failure of the manufacturer was in not warning the user that greater safety would result from placing an attachment, side shields, to the product manufactured. The Fuller court indicated the record was uncertain, but the only uncertainty mentioned was as to the experience and knowledge of the user. That would seem to be of little significance, because questions of assumption of the risk, misuse, or contributory negligence were not in issue, and the manufacturer would have no way of knowing the sophistication of each possible user. In any event, here we found no confusion in the record.

We note the supreme court has laid great importance upon the theory that the existence of duty is a question of law for the court. (Genaust, 62 Ill. 2d 456, 343 N.E.2d 465; Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E.2d 307; Fanning v. LeMay (1967), 38 Ill. 2d 209, 230 N.E.2d 182.) We apply that rule here and conclude as a matter of law that Norton had no duty to warn plaintiff that a blow such as he received to his face would be likely to knock his spectacles askew. That likelihood was obvious. Because of that obviousness, plaintiff had no reasonable expectation to the contrary. This is the basis of our affirmance of the summary judgment.

Plaintiff relies on other cases which we deem to differ substantially from the instant case. In Williams v. Brown Manufacturing Co. (1968), 93 Ill. App. 2d 334, 236 N.E.2d 125, the court held a manufacturer of a trencher had a duty to warn operators of the danger of operating the machinery from a certain position. That danger was not obvious. Similarly, in Stanfield v. Medalist Industries, Inc. (1975), 34 Ill. App. 3d 635, 340 N.E.2d 276, the danger involved in the use of machinery without proper shields was not obvious. The same was true in regard to the use of a caustic grill cleaner in Hayes v. Kay Chemical Co. (1985), 135 Ill. App. 3d 932, 482 N.E.2d 611. In Collins v. Sunnyside Corp. (1986), 146 Ill. App. 3d 78, 496 N.E.2d 1155, the issue was not whether a duty to warn existed, but the sufficiency of a warning which the defendant was clearly under a duty to give. The sufficiency of the warning was held to be a factual question and a summary judgment for that defendant was reversed.

Attached to defendant’s motion for summary judgment was a pamphlet stated to have been published by Norton in 1985 in which defendant recommends persons working at “chipping and grinding” tasks wear “protective spectacles equipped with attached sideshields.” Plaintiff maintains this is an admission that plaintiff should have been warned he should have been using sideshields here. However, the evidence was undisputed here that plaintiff’s spectacles were knocked up onto his forehead and “sideshields” would have been of no help. Thus any failure to warn in this regard could not have been a proximate cause of plaintiff’s injuries.

Plaintiff noted in his brief that evidence that the spectacles Norton furnished for plaintiff’s use conformed to Federal standards would not preclude a factual determination the spectacles were unreasonably dangerous. We agree. This evidence has no bearing on our decision.

We affirm the summary judgment in favor of Norton for the reasons stated.

Affirmed.

McCULLOUGH, P.J., and LUND, J., concur.


text:
    THE DEPARTMENT OF REVENUE ex rel. THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CORROSION SYSTEMS, INC., Defendant (Marshall Fisk, Defendant-Appellant).
    Fourth District
    No. 4-88-0793
    Opinion filed July 18, 1989.
    Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., of Springfield (Stephen R. Kaufmann and Michael C. Connelly, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Rosalyn B. Kaplan, Assistant Attorney General, of Chicago, of counsel), for-appellee.
   JUSTICE LUND

delivered the opinion of the court:

The Illinois Department of Revenue (Department) filed a complaint against Corrosion Systems, Inc. (Corrosion Systems), and its principal financial officer, Marshall Fisk, requesting the payment of unpaid taxes, due under the Use Tax Act (Ill. Rev. Stat. 1987, ch. 120, pars. 439.1 through 439.22). A judgment was entered against the corporation, but the corporation was found to be insolvent. The Department then sought payment from Fisk. The Department filed a motion for summary judgment, which was granted by the circuit court of Sangamon County. Fisk appeals.

The facts are not in dispute. Corrosion Systems is a Missouri corporation making retail sales to Illinois customers. Corrosion Systems registered as a voluntary compliance tax collector of use taxes with the Department, thereby obligating itself to collect use taxes for the State of Illinois. The Department performed an audit of Corrosion Systems’ books and records for the period of January 1977 through April 1980. A notice of tax liability was issued on June 18, 1980, in the amount of $21,724.08, representing tax deficiencies and delinquencies, penalties, and interest due through June 30, 1980. An administrative hearing was held at the corporation’s request, after which the Department issued a revised final assessment showing a total due through May 31, 1982, of $27,109.38. On June 8, 1984, the Department filed the complaint in the instant case to collect the final assessment from the corporation and Fisk. On April 8, 1986, a judgment was entered by the circuit court against the corporation in the amount of $42,149.29. No appeal was taken from that judgment.

The Department then pursued its remedy against Fisk. In his responses to the Department’s requests for admissions, Fisk acknowledged that the corporation was defunct and unable to pay the judgment against it; that Fisk was a stockholder, director, vice-president, and secretary of the corporation during the period from January 1977 through April 1980; that during the same period, Fisk did withdraw funds from the corporation’s bank account and pay debts and/or bills owed by the corporation to its various creditors; that the corporation had charged and collected Illinois taxes “when they were due,” although Fisk believed “most were tax exempt.” Fisk knew of and had failed to satisfy the Department’s claim against the corporation. Although Fisk denied that he had prepared the corporation’s tax returns, the signature of “M. Fisk” appears on three such returns filed on behalf of the corporation. In further requests for admissions, Fisk did not deny that he was authorized to, and did, in fact, sign those returns. On October 5, 1988, the circuit court allowed the Department’s motion for summary judgment against Fisk.

Fisk argues summary judgment should not have been granted the Department on the facts of this case. He argues the record does not conclusively show he wilfully failed to pay the taxes that were assessed against Corrosion Systems.

The focus of this appeal is on section lZMz of the Retailers’ Occupation Tax Act (Act) (Ill. Rev. Stat. 1979, ch. 120, par. 452xk). Although the instant case involves use taxes, section 12 of the Use Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 439.12) incorporates section 13V2 of the Act. Section 13V2 of the Act (Ill. Rev. Stat. 1979, ch. 120, par. 4521/2) allows the Department to collect taxes owed by a corporation from a responsible corporate officer should the corporation be unable to make payment:

“Any officer or employee of any corporation subject to the provisions of this Act who has the control, supervision or responsibility of filing returns and making payment of the amount of tax herein imposed in accordance with Section 3 of this Act and who wilfully fails to file such return or to make such payment to the Department shall be personally liable for such amounts, including interest and penalties thereon, in the event that after proper proceedings for the collection of such amounts, as provided in said Act, such corporation is unable to pay such amounts to the department; and the personal liability of such officer or employee as provided herein shall survive the dissolution of the corporation.” (Emphasis added.)

Case law has given a broad interpretation to the words “wilfully fails.” In Department of Revenue v. Joseph Bublick & Sons, Inc. (1977), 68 Ill. 2d 568, 577, 369 N.E.2d 1279, 1283, the supreme court stated a wilful failure under section 13x/2 of the Act was a voluntary, conscious, and intentional failure. In Department of Revenue v. Heartland Investments, Inc. (1985), 106 Ill. 2d 19, 30, 476 N.E.2d 413, 418, the supreme court appeared to adopt the Federal standard that “in a civil action, wilful conduct does not require bad purpose or intent to defraud the government.”

It is clear that where the corporation collects taxes while doing business, but the moneys are spent on other corporate obligations, the courts will find a wilful failure to pay taxes. In Heartland, the supreme court held that a corporate financial officer was liable, as a matter of law, for the unpaid corporate taxes when the taxes were collected but the moneys were applied to other business debts in an effort to save the business from dissolution. Heartland, 106 Ill. 2d at 30, 476 N.E.2d at 418.

According to Fisk, the instant case involves a significantly different factual situation. Fisk argues that the record does not show the taxes were ever collected by Corrosion Systems. Fisk states that the Corporation did not collect the taxes because the transactions were believed tax exempt. Since the moneys were never collected, were never available to the corporation, and were not spent on other corporate obligations, Fisk argues the Department cannot show, as a matter of law, that he wilfully failed to pay the tax. The tax liability consisted of tax deficiencies and tax delinquencies. Fisk argues that wilfulness was not shown, as a matter of law, for the deficiencies because they represent moneys not collected from the general public. Fisk also argues the Department did not establish the tax delinquencies represent sums that were actually collected.

Fisk relies on two cases for support. (Department of Revenue v. Joseph Bublick & Sons, Inc. (1977), 68 Ill. 2d 568, 369 N.E.2d 1279; Department of Revenue v. Marion Sopko, Inc. (1980), 84 Ill. App. 3d 953, 406 N.E.2d 188.) In Bublick, a trial was held concerning the corporate officer’s alleged tax liability. The officer had instructed his bookkeeper to report only 50% of the gross receipts because the officer concluded 50% of the corporation’s sales were resales and not taxable. The officer stated he was unaware that the Act required a report of all sales, with a deduction for properly documented resales. The correct procedure was clearly set out on the monthly tax forms. In addition, other avenues were available for properly determining the tax. Following the audit, the Department found no documentation of resales and assessed taxes on 100% of sales. The trial court found against the corporate officer. The supreme court affirmed and, in its opinion, first discussed the wilfulness standard. The court stated:

“It is our opinion that a voluntary, conscious and intentional failure satisfies the requirements of ‘wilfully fail,’ as those words are used in this particular act. Whether an employee or officer knowingly, voluntarily and intentionally fails to make this payment is an issue of fact to be determined by the trier of the fact on the basis of the circumstances and evidence adduced in the particular case. Here there was ample evidence to justify a finding that the defendant wilfully failed in his statutory obligation.” Bublick, 68 Ill. 2d at 577, 369 N.E.2d at 1283.

In Marion Sopko, the second district affirmed a trial court’s findings, after a bench trial, that a corporate officer did not wilfully fail to pay taxes. The corporate officer testified that he relied totally on the corporation’s accountant to handle the preparation of tax reports and payments. When a notice of tax liability was received, the officer turned it over to the accountant, who assured the officer that the matter would be properly handled. The trial court concluded that the officer had relied on his accountant, and there was no evidence “that the defendant consciously, voluntarily, intentionally, knowingly or recklessly failed to make the appropriate retailers’ occupation tax payments.” (Marion Sopko, 84 Ill. App. 3d at 955, 406 N.E.2d at 190.) The evidence indicated all of the financial information was given to the accountant who prepared the returns. The corporate officer prepared checks to the Department for the amounts shown on the returns. The appellate court upheld the trial court’s findings on the ground that they were not against the manifest weight of the evidence. The court specifically noted the facts were distinguishable from those in Bublick. Marion Sopko, 84 Ill. App. 3d at 957, 406 N.E.2d at 190.

Fisk argues these cases support the argument that not every tax liability results from a corporate officer’s wilful failure to make the required tax payments. In certain circumstances, a trial is required to determine the corporate officer’s liability. Fisk argues the instant case requires a trial in order to establish his wilfulness. Both Bublick and Marion Sopko were cases where an insufficient amount of taxes was collected, and trials were held to determine the officer’s liability.

The Department argues Fisk’s mistaken belief that the business transactions were exempt and the resulting failure to collect the taxes on those transactions are not grounds for finding the failure to pay nonwilful. The Department cites to Federal cases for the proposition that “[a] mistaken belief on the part of the responsible person that the tax need not or cannot be paid over does not suffice to render the failure to pay nonwilful.” Teel v. United States (9th Cir. 1976), 529 F.2d 903, 906.

A review of the Federal cases indicates the Department has removed this principle of law from its proper context. All of the Federal cases cited by the Department involve situations where the taxes were collected by the corporation, or not collected but accurately reported on the corporation’s returns. However, the taxes were never remitted to the government. (Teel, 529 F.2d 903; Pacific National Insurance Co. v. United States (9th Cir. 1970), 422 F.2d 26; Alioto v. United States (N.D. Cal. 1984), 593 F. Supp. 1402.) The corporate officers were told that because of bankruptcy, or for some other reason, the collected taxes need not be paid to the government. These mistaken ideas were not sufficient to free the corporate officers from a finding of a wilful failure to pay. None of the cases involved a mistaken belief that the taxes were not owed.

There is support in the Federal sector for excusing personal liability on the ground of mistaken belief of whether the tax was owed. “[N]o showing of evil motive or intent to defraud the United States is required [citation]; but, it must be shown that the responsible officer knew the taxes were due.” (Alioto, 593 F. Supp. at 1406.) In Alioto, a corporate officer argued, among other things, that he was simply unaware that taxes were due on a certain date. While finding a factual dispute as to what the officer actually knew, the court stated: “If [the officer] was not aware that the taxes were due, then he would be entitled to prevail as a matter of law.” (Alioto, 593 F. Supp. at 1407.) Apparently, the rule under Federal law is that the government must show the officer knew the taxes were due in order to establish wilfulness. We consider the rule based on reason and now adopt it.

We conclude the trial court improperly granted summary judgment. There should be a trial on the issue as to whether Fisk knew or should have known that the sales, which generated the tax liability, were not exempt from the Illinois tax.

Reversed and remanded.

KNECHT and SPITZ, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL HOUCK, Defendant-Appellant.
    Fourth District
    No. 4-88-0640
    Opinion filed July 10, 1989.

      Asher O. Geisler, of Geisler, Waks & Geisler, of Decatur, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and J.A.C. Knuppel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant Daniel Houck pleaded guilty to criminal sexual assault in the circuit court of Macon County and was sentenced to the Department of Corrections for four years and six months. On appeal, the defendant alleges an error by the trial court in denying him probation after he testified he is willing to undergo a court-approved counseling program. We affirm.

On July 18, 1988, the defendant was charged with the criminal sexual assault of his minor stepdaughter in violation of section 12— 13(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13(a)(3)). At the time of the crime the defendant was age 49, while the victim, L.M.T., was age 14. As part of a plea agreement, the defendant pleaded guilty to the charge. The case was referred to the probation department for a presentence investigation. At the sentencing hearing, the trial judge considered the presentence report along with the defendant’s testimony.

The defendant testified he was willing to undergo a court-approved counseling program for a minimum of two years. He had already started professional counseling, and planned to continue. The defendant also testified he was willing to follow any orders of protection the court would impose.

The State presented evidence of the defendant’s lack of mental illness and described the court-approved counseling program, stating, “counseling is the bedrock of this type of probation.” The State recommended the defendant to be sentenced to the Illinois Department of Corrections for five years since there was no need for counseling.

The trial court agreed with the State, but sentenced the defendant to four years and six months in the Department of Corrections. The judge stated probation can be denied when “imprisonment is necessary for the protection of the public, and probation would deprecate the seriousness of the offense and be inconsistent with the ends of justice.” Here the court found the denial of probation necessary, stating, “Willingness [to undergo the court-approved counseling program] alone is not sufficient.”

The defendant appeals pursuant to Supreme Court Rule 605(b) (107 Ill. 2d R. 605(b)), asking this court to remand the cause and place the defendant on probation. The defendant claims the trial court erred by not following sections 5 — 5—3(e)(i) and (e)(ii) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1987, ch. 38, pars. 1005— 5 — 3(e)(i), (e)(ii)), which state:

“In cases where prosecution for criminal sexual assault or aggravated criminal sexual abuse under Section 12 — 13 *** of this Code results in conviction of a defendant who was a family member of the victim at the time of the commission of the offense, the court shall consider the safety and welfare of the victim and may impose a sentence of probation only where the court finds (i) or (ii) or both are appropriate:
(i) the defendant is willing to undergo a court approved counseling program for a minimum duration of 2 years; or
(ii) the defendant is willing to participate in a court approved plan including but not limited to the defendant’s:
(1) removal from the household;
(2) restricted contact with the victim;
(3) continued financial support of the family;
(4) restitution for harm done to the victim; and
(5) such other measures that the court may deem appropriate.”

The defendant appeals only his sentence, claiming the requirements of section 5 — 5—3(e) of the Code were not met. He does not appeal the conviction, and did not move to withdraw the guilty plea. The Illinois Supreme Court held in People v. Wilk (1988), 124 Ill. 2d 93, 110, 529 N.E.2d 218, 224, it is not necessary to file a Rule 604(d) (107 Ill. 2d R. 604(d)) motion to withdraw a guilty plea, if the defendant is not appealing the conviction. The propriety of the sentence is the sole issue on appeal.

“A sentence imposed within statutory limitation will not be overturned on appeal absent an abuse of discretion.” (People v. Cozad (1987) , 158 Ill. App. 3d 664, 673, 511 N.E.2d 211, 218, cert. denied (1988) , 485 U.S. 964, 99 L. Ed. 2d 432, 108 S. Ct. 1233; People v. Cox (1980), 82 Ill. 2d 268, 279-80, 412 N.E.2d 541, 547.) Criminal sexual assault is a Class 1 felony with a sentencing range between 4 and 15 years. (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 13, 1005 — 8—1(a)(4).) The defendant’s four-year, six-month sentence was clearly within statutory guidelines.

People v. Schillaci (1988), 171 Ill. App. 3d 510, 525, 526 N.E.2d 871, 880, held “[t]he sentence imposed by a trial court will not be altered on review absent substantial error or abuse of discretion.” In Schillaci, the court upheld a denial of probation and a four-year prison sentence for a different Class 1 felony. The appellate court held the trial judge properly exercised his discretion when he ruled:

“ ‘[Probation would deprecate the seriousness of the conduct involved and be inconsistent with the ends of justice ***.
*** However, I believe that a term of four years is more appropriate ***.’ ” (Schillaci, 171 Ill. App. 3d at 525, 526 N.E.2d at 881.)

(See also Ill. Rev. Stat. 1987, ch. 38, pars. 1005 — 6—1(1), (2).) Just as in the case before us, the State recommended a higher sentence than the sentence imposed. There was no abuse of discretion here in sentencing the defendant to the Department of Corrections for four years and six months.

Even the “existence of mitigating factors does not automatically obligate the court to reduce the sentence from the maximum.” (People v. Powell (1987), 159 Ill. App. 3d 1005, 1011, 512 N.E.2d 1364, 1368.) The trial record indicates the trial judge considered mitigating factors such as the defendant not having an extensive criminal history. The record also shows a willingness of the defendant to compensate the victim, another factor in mitigation. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.1(a)(6).) People v. Baker (1983), 114 Ill. App. 3d 803, 811, 448 N.E.2d 631, 637, held, “where mitigation evidence is before the court, it is presumed that the sentencing judge considered the evidence.”

People v. Lipa (1982), 109 Ill. App. 3d 610, 614, 440 N.E.2d 1062, 1065, held:

“The trial court is in a better position than is a reviewing court to determine the appropriate sentence. The trial court has the opportunity to consider many factors such as demeanor and character, while the reviewing court has only the record of the proceedings on which to base its decision. In this case, the record discloses that the trial judge gave careful thought to many factors and, in his words, sought to ‘make the punishment fit the crime and the individual,’ within the statutory guidelines.”

The trial court properly considered mitigating factors and fashioned the defendant’s sentence accordingly.

Here, as in Lipa, the trial judge gave “careful thought to many factors and, in his words, sought to ‘make the punishment fit the crime and the individual’ within the statutory guidelines.” (Lipa, 109 Ill. App. 3d at 614, 440 N.E.2d at 1065.) The trial court considered mitigating factors and the need for counseling. Since the defendant did not suffer from a mental illness, the court found no need for counseling. As counseling is the “bedrock” of this type of probation, the court concluded probation was not appropriate. The trial judge stated, “willingness was not enough.” Defense counsel objected and claimed willingness mandated probation under sections 5 — 5—3(e)(i) and (e)(ii).

The defense is in error. The statute states: “[T]he court *** may impose a sentence of probation only where the court finds (i) or (ii) or both are appropriate.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3(e).) The statute does not require probation. The trial judge has the discretion to make such decisions.

Contrary to the defendant’s argument, section 5 — 6—1 prohibits a sentence of probation when the court has the opinion either of the two requirements of the statute are met. (Ill. Rev. Stat. 1987, ch. 38, par. 1005, ch. 38, par. 1005 — 6—1.) The record shows both requirements were met when the court said imprisonment was “necessary for the protection of the public” arid probation would “deprecate the seriousness of the crime and would be inconsistent with the ends of justice.”

The trial judge properly followed statutory guidelines in denying the defendant probation. Section 5 — 5—3(e) did not mandate probation. There was no abuse of discretion.

We affirm the sentence imposed by the trial court.

Affirmed.

McCULLOUGH, EL, and SPITZ, J., concur.


author: JUSTICE BARRY

text:
    RAYMOND J. THORMAN et al., Plaintiffs-Appellants, v. PHILLIP R. CROSS et al., Defendants-Appellees.
    Third District
    No. 3-88-0564
    Opinion filed July 13, 1989.

      Lucie, Slater & Carper, of Macomb (Gayle Tronvig Carper, of counsel), for appellants.
    Flack, Kwacala, Murphy & Ashenhurst, of Macomb (Lawrence J. Kwacala, of counsel), for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiffs Raymond J. and Wanda L. Thorman brought a complaint for adverse possession of a tract of land comprised of approximately 3.69 acres lying along the southern boundary of their farmland on property owned by defendants Phillip R. and Stephanie E. Cross. The tract is bordered on the north by the section line between the parties’ properties, on the south and east by the LaMoine River and on the west by a township road, all in Macomb Township, McDonough County, Illinois. For purposes of this opinion, the following diagram is provided. The tract in dispute is shaded:

The cause was heard by the circuit court of McDonough County, and an order was ultimately entered in favor of defendants. Plaintiffs’ motion for reconsideration and a motion to amend the complaint to add a claim for a prescriptive easement were also denied, and plaintiffs have appealed from the three orders denying them relief.

The issues before us are: (1) whether plaintiffs adduced sufficient proof of adverse use and under claim of title to sustain their claim of adverse possession; (2) whether the trial court abused its discretion in denying plaintiffs leave to amend their complaint after the court issued its letter opinion finding that adverse possession had not been proved; and (3) whether plaintiffs’ evidence at trial was sufficient to prove a prescriptive easement. We affirm.

The facts necessary to our disposition follow. Plaintiff Raymond Thorman began farming with his father on section 15 in Macomb Township in 1947. At the time, Thorman’s father owned the land. Plaintiffs have lived on the property since 1949. In addition to raising corn, beans, oats and hay, the Thormans raised cattle and hogs. The Thormans maintained a fence along the township road and a lot fence on the high ground north of the section line demarking the southern boundary of plaintiffs’ property. Defendants’ predecessors in title owned the land in section 22 adjacent to the southern boundary of the Thorman farm. They maintained a fence on their property along the south bank of the LaMoine River, which meanders through plaintiffs’ property and dips into defendants’ property to form part of the boundary of the 3.69-acre tract in dispute. This tract and the area along the southern boundary of section 15 is “bottom land,” composed mainly of weeds and some brush and trees. It floods out periodically, and for this reason, the Thormans have not attempted to erect a fence along the section line.

In 1976 plaintiffs purchased their farm from the Thorman family. They continue to raise cattle. The cattle have grazed upon the land in dispute to a limited extent, but primarily they use it to pass from their pasture land on one side of the township road to the other under a bridge on the road. Occasionally, plaintiffs’ permission was sought by persons wanting to enter upon the disputed land for recreational purposes. In 1978, the township road commissioner, assuming as well that the Thormans owned the land, asked Raymond for an easement in connection with the construction of a new bridge. Raymond gave his permission, but no written agreement was entered into.

In 1979 defendants surveyed and then purchased their property, the deed for which includes the tract in dispute. To gain access to the river for boating, defendants twice cut a wire that had been installed by Raymond near the bridge to keep his cattle from roaming beyond the tract in dispute. Raymond replaced the wire on both occasions and explained its purpose to defendant Phillip Cross. Around 1982 or 1983 Phillip attempted to erect a fence on his property along and about 30 feet north of the north bank of the river. Raymond told Phillip he did not want a fence there and explained that it would be impossible to maintain a fence on the north side because of flooding. However, Raymond never asserted that he owned the disputed property during his encounters with Phillip. Defendants discontinued their efforts to fix their property line at that time, but in 1985 they installed a culvert on the property and light barbed wire along the section line. It was at that point that plaintiffs filed their suit and sought injunctive relief in the circuit court.

In an opinion letter of January 21, 1988, the court found that plaintiffs had borne their burden of proving continuous and actual possession of the disputed tract for the 20-year statutory period and that their possession was open, notorious and exclusive. However, the court found that plaintiffs’ possession was not hostile or adverse; nor was plaintiffs’ possession under a claim of title inconsistent with that of the true owner. The court further stated that the evidence supported a prescriptive easement for passage of plaintiffs’ cattle.

Plaintiffs responded by filing a motion to amend their pleadings to add a claim for a prescriptive easement. Defendants resisted the motion on grounds that plaintiffs’ proof would not support elements of adverse use and claim of right to use the land in dispute for purposes of a prescriptive easement. After a hearing on the motion, the court issued another opinion letter on June 10 stating that the court had reconsidered the evidence and applicable law and found that “[t]he requirements for a prescriptive easement are essentially the same as for adverse possession.” Therefore, for reasons set forth in defendants’ objection to plaintiffs’ motion to amend, plaintiffs’ motion was denied.

Plaintiffs then moved for reconsideration, citing by affidavit that counsel for the defendants, in oral argument at the close of evidence at trial, had admitted that plaintiffs’ evidence was sufficient to support a prescriptive easement and that the court should enter a finding to that effect, but that the evidence was not strong enough to support a finding of adverse possession. Upon reconsideration, the trial judge could not state from his memory that defense counsel had gone so far as to state that the court should enter an order finding a prescriptive easement. The court further held that defense counsel’s final argument respecting a prescriptive easement did not constitute a judicial admission upon which plaintiffs were entitled to rely for purposes of amending their complaint. Plaintiffs’ motion for reconsideration was denied accordingly.

The requirements for adverse possession and prescriptive easements are well established in this State. To prove title by adverse possession, the claimants must establish by clear and unequivocal evidence “that during the 20-year prescriptive period [their] possession *** was: (1) continuous, (2) hostile or adverse, (3) actual, (4) open, notorious and exclusive, and (5) under a claim of title inconsistent with that of the true owner. (Tapley v. Peterson (1986), 141 Ill. App. 3d 401, 404, 489 N.E.2d 1170, 1171.) All presumptions are in favor of the record titleholder.” (Perivoliotis v. Pierson (1988), 167 Ill. App. 3d 259, 263, 521 N.E.2d 254, 255.) To claim a prescriptive easement, “the use must have been adverse, uninterrupted, exclusive, continuous and under a claim of right.” (Petersen v. Corrubia (1961), 21 Ill. 2d 525, 531, 173 N.E.2d 499, 502.) “Hostility of possession requires an intent to claim the fee as against the true owner and all others, and one’s claim to the fee is demonstrated by using and controlling the land as an owner.” (Morris v. Humphrey (1986), 146 Ill. App. 3d 612, 616, 496 N.E.2d 1209, 1212.) “Mere permission to use land cannot ripen into a prescriptive or adverse possessory right regardless of the time such permissive use is enjoyed.” (Morris, 146 Ill. App. 3d at 615, 496 N.E.2d at 1211.) And, “[w]hether there was adverse use *** under a claim of right for a period of 20 years, or the use of the [disputed tract was] only permissive, is almost wholly a question of fact.” Petersen, 21 Ill. 2d at 532,173 N.E.2d at 503.

In this appeal, plaintiffs contend that the rules applicable to mistaken boundaries apply on these facts. In mistaken boundary cases, “occupancy to a visible and ascertained boundary for the statutory period is deemed the controlling feature in determining hostility.” (Perivoliotis, 167 Ill. App. 3d at 263, 521 N.E.2d at 255, citing Joiner v. Janssen (1981), 85 Ill. 2d 74, 421 N.E.2d 170.) Plaintiffs seek to benefit from the presumption of hostility applicable to mistaken boundary cases. However, the evidence in this case does not show clearly and convincingly that plaintiffs or defendants’ predecessors in title were mistaken about the boundary between their parcels. The reason for erecting the fence along the south bank of the LaMoine River where it dips into defendants’ property was not because of anyone’s belief that the section line followed the river, but because flooding would have made maintaining a fence along the section line north of the river too burdensome.

Nor did plaintiffs’ evidence establish either adverse use or claim of title or right. Thorman’s trial testimony that he considered the property in dispute his own could best be characterized as equivocal. Prior to defendants’ purchase of the adjoining parcel, defendants’ predecessors in title maintained the fence in question. Thorman’s periodic inspection of it was in the nature of a courtesy to the owner, because the titleholder at that time did not live on the farm, but in Springfield. Despite several opportunities to do so, Thorman never .was heard to assert ownership of the tract, verbally or otherwise, prior to this lawsuit.

When defendants asserted their ownership rights by cutting wires and attempting to erect a fence on the north side of the river, Thorman did not complain that they were trespassing, but only that there were valid reasons for leaving the wire and fence where they had been in prior years. The fact that plaintiffs’ livestock used the tract as a passageway between the pastures on either side of the township road and occasionally grazed on the meager grass that grew there is not sufficient to overcome a presumption that plaintiffs’ use of the property was permissive. See Morris v. Humphrey, 146 Ill. App. 3d at 617, 496 N.E.2d at 1212 (wherein, on similar facts involving uncultivated, unenclosed farmland claimed by an adverse possessor by virtue of farming activities on the disputed tract, this court determined that “[t]he [claimant’s] failure to assert a claim of right to property out of a desire to avoid trouble is clearly an inadequate explanation, which gives rise to the presumption of an awareness on the part of the adverse possessor that the [record titleholder] claims title and ownership”).

In sum, we find that the trial court ultimately did not err in holding that plaintiffs’ evidence fell short of proving that their possession of the disputed tract during the prescriptive period was adverse or hostile or under a claim of title or right for purposes of their claims of adverse possession and/or prescriptive easement. Accordingly, we hold that the court did not err in entering judgment for defendants or abuse its discretion in denying plaintiffs’ motion to amend their complaint to conform to the proofs.

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

Affirmed.

HEIPLE and SCOTT, JJ., concur.