text:
    CHARLES D. BURNHAM, a Minor, by his Mother and Next Friend, Pamela Burnham, Plaintiff-Appellant, v. CHERYL A. LEWIS, Defendant-Appellee.
    Fifth District
    No. 5-90-0432
    Opinion filed August 27, 1991.

      Joseph J. Neely, of Neely & Neely, of Metropolis, for appellant.
    Charles E. Schmidt and Rebecca J. O’Neill, both of Brandon & Schmidt, of Carbondale, for appellee.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

On May 12, 1986, Charles Burnham, age 10, was struck and injured by an automobile driven by Cheryl Lewis. Plaintiff filed the present action in the circuit court of Massac County on January 6, 1987, and defendant filed her answer on February 3, 1987. Contained in defendant’s answer was the affirmative defense of comparative fault. On December 8, 1988, plaintiff amended the complaint by adding a count for willful and wanton misconduct. Defendant filed an answer to the new count on January 19, 1989, and filed an amended answer on January 23, 1990. The amended answer addressed each count of plaintiff’s complaint and prayed for a judgment in defendant’s favor but did not include the comparative fault defense.

At trial, which commenced on February 5, 1990, plaintiff produced evidence of medical bills totaling $3,211 and of property damage totaling $60. The plaintiff also produced numerous occurrence and post-occurrence witnesses who testified that immediately after the accident plaintiff was semi-conscious and bleeding profusely from a gash along the side of his head. He also had numerous scratches and bruises.

Dr. Enrique Yap, the initial treating physician, testified that plaintiff had an eight-inch laceration along the left side of his head which exposed the skull along the entire length. Plaintiff’s condition was stabilized and his neck was immobilized by a neck brace. A subsequent X ray revealed a subluxation of the cervical spine. Plaintiff was immediately transferred by ambulance to the care of Dr. John D. Noonan, a neurosurgeon in Paducah, Kentucky. Dr. Yap opined that plaintiff’s injuries were life-threatening.

Dr. Noonan testified that he first saw plaintiff in the emergency room of Western Baptist Hospital. While in X ray, plaintiff went into shock from the scalp laceration and resultant blood loss. Dr. Noonan testified that he had to act then or plaintiff would have died from cardiac arrest. Plaintiff was also found to have cervical strain. Plaintiff was hospitalized for several days. Plaintiff saw Dr. Noonan several times after he was discharged during which times plaintiff complained of difficulty with his ears and his memory. He was advised that this was a normal result of the concussion he had sustained in the accident and that it would probably improve.

Plaintiff’s mother testified that while he was in the hospital he had to be fed because his hands were so badly scraped that it hurt to bend his knuckles. She also stated that he sat slumped because of the injury to his neck and shoulders and could not lift his arm for several days. After coming home, plaintiff began walking on his toes on one foot occasionally, and continued to do so for over a year and a half. He also complained of pain in his knees and ankles. He suffered a blackout spell in the hospital and continues to have brief blackouts and dizzy spells.

Plaintiff’s mother also testified that for about a year after the accident, plaintiff complained of hearing noises in his head or ears. Plaintiff also evidenced memory loss and became quieter, not running and playing as much. She stated that during the year and a half before trial, plaintiff had seemed more like his old self.

Myra Tilley, one of plaintiff’s teachers, testified that plaintiff missed the last four weeks of the school year and upon his return the following year seemed very different. He was quiet and withdrawn, and had difficulty recognizing people. His coordination and his gait were affected. This problem, as well as his problems with his memory and ability to recognize people, persisted for several years.

Plaintiff testified that he remembered waking up after being hit. His hands, knuckles, knees, and face were all badly skinned, and he was bleeding from a head wound. He remembered being taken to the hospital where he remained for three or four days. His arms and shoulders hurt so bad that he could not raise his arms. He began experiencing blackouts and dizziness while at the hospital, and these symptoms continue. His knees have continued to cause him pain.

A jury instruction conference was held on February 8, 1990. Plaintiff objected to the giving of any jury instructions on the affirmative defense of comparative fault, arguing that the defendant waived this defense by not including it in the amended answer. The trial court denied the objection, and the jury subsequently returned a verdict for the plaintiff in the amount of $3,500. The jury also attributed 75% of the fault to plaintiff and 25% to the defendant, and reduced the damage award accordingly.

On appeal, plaintiff argues that defendant’s failure to include the affirmative defense of contributory fault in the amended answer waived such defense, and that the trial court erred in instructing the jury on this issue. We find that plaintiff has waived this argument. Upon examining the record, we find that plaintiff himself tendered numerous instructions on the issue of contributory negligence. Plaintiff’s instruction 2, defining the term “contributory negligence,” was given, as were plaintiff’s instructions 3 and 4, the issue and burden of proof instructions, both of which refer to the issue of contributory negligence. We also note that plaintiff declined to tender an alternate verdict form. The trial court gave the verdict form tendered by defendant, which instructed the jury to apportion any percentage of fault attributed to plaintiff and to reduce the amount of damages amended thereby.

To preserve for review an argument relating to jury instructions, a party must both object during the instruction conference (Misch v. Meadows Mennonite Home (1983), 114 Ill. App. 3d 792, 449 N.E.2d 1358; Russo v. Kellogg (1962), 37 Ill. App. 2d 336, 341-42, 185 N.E.2d 377, 380) and set forth his objection in a post-trial motion (Micklos v. Highsmith (1986), 149 Ill. App. 3d 779, 500 N.E.2d 1154). Both are required. Simply including the argument in the post-trial motion will not preserve it where no objection was raised at trial. (Stephenson v. Dreis & Krump Manufacturing Co. (1981), 101 Ill. App. 3d 380, 428 N.E.2d 190; Aspland v. McMaster (1963), 39 Ill. App. 2d 366, 188 N.E.2d 508.) Both must be sufficiently specific to make clear the nature of the objection. (Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 415 N.E.2d 337; Statler v. Catalano (1988), 167 Ill. App. 3d 397, 521 N.E.2d 565; Mathis v. Burlington Northern, Inc. (1978), 67 Ill. App. 3d 1009, 1012, 385 N.E.2d 780, 782, citing Osborne v. Leonard (1968), 99 Ill. App. 2d 391, 240 N.E.2d 769.) A review of the record of the instruction conference and plaintiff’s post-trial motion reveals that plaintiff’s objection in both cases was sufficiently specific. However, we find that despite his objections, plaintiff himself submitted several instructions which addressed the issue of contributory fault. While it was not necessary to tender an alternate instruction given that the trial court made clear that such would be refused (see Department of Public Works & Buildings v. Association of Franciscan Fathers (1977), 69 Ill. 2d 308, 371 N.E.2d 616; People v. Rosario (1988), 166 Ill. App. 3d 383, 519 N.E.2d 1020), we find that by tendering instructions which addressed the issue of contributory fault plaintiff acquiesced to the trial court’s ruling and waived his objection.

We next address plaintiff’s contention that the damage award was palpably inadequate and against the manifest weight of the evidence. Plaintiff produced uncontroverted evidence of medical and hospital bills totaling $3,211 and of property damage totaling $60. The total amount of damages awarded by the jury was $3,500, which means plaintiff received $229 as compensation for his pain, suffering, physical injuries, and the long-term effects of the accident. We agree with plaintiff that this sum bears no reasonable or rational relationship to the proven damages.

Plaintiff provided uncontradicted evidence that he suffered severe, life-threatening injuries requiring hospitalization for several days, was in great pain, and suffered long-term physical disability and personality disorder. Plaintiff also bears permanent scars on his head, elbows, and face. While the amount of damages to be awarded is generally left to the discretion of the jury, that discretion is not unlimited, and it is the duty of this court to reverse where the damage award is clearly against the manifest weight of the evidence or bears no reasonable relationship to plaintiff’s loss. (Atchley v. Berlen (1980), 87 Ill. App. 3d 61, 408 N.E.2d 1177; Stamat v. Merry (1979), 78 Ill. App. 3d 445, 397 N.E.2d 141.) Defendant points to our recent decisions in Kumorek v. Moyers (1990), 203 Ill. App. 3d 908, 561 N.E.2d 212, and Hinnen v. Burnett (1986), 144 Ill. App. 3d 1038, 495 N.E.2d 141, as support for her contention that the jury’s award for pain and suffering was not inadequate. In Kumorek, plaintiffs were compensated for the cost of medical treatment but awarded nothing for pain and suffering. This court reversed, finding the jury’s verdict to be inconsistent. (Kumorek, 203 Ill. App. 3d at 912-13, 561 N.E.2d at 215.) We went on to state that had the jury awarded even a small amount, “[w]e could then arguably acknowledge that the jury recognized such damages but chose not to believe all of the plaintiffs’ testimony.” (Kumorek, 203 Ill. App. 3d at 913, 561 N.E.2d at 215.) In Hinnen, the plaintiff in an automobile accident was awarded $2,500 for past medical expenses but nothing for pain and suffering or disability. This court reversed and remanded for a new trial on damages based upon, inter alia, the inconsistency in the jury’s verdict. (Hinnen, 144 Ill. App. 3d at 1046, 495 N.E.2d at 147.) Both cases address situations where a jury made an award for medical expenses yet denied damages for pain and suffering, resulting in verdicts which were irreconcilably inconsistent. In the present case we are not confronted with an irreconcilably inconsistent verdict, and the above-referenced cases are inapposite. Both Kumorek and Hinnen may be read to support the proposition that where a jury makes even a small award for pain and suffering, the verdicts may be sustained on appeal. They cannot be read to hold that in such cases the verdict must be affirmed. This court is still compelled, where the issue is raised, to determine whether the amount of damages awarded is supported by the manifest weight of the evidence and bears a reasonable relationship to the loss suffered by the plaintiff. Viewing the totality of the evidence, we conclude that such is not the case here.

We must also determine whether a new trial should be confined to the issue of damages only. The standard for making such a determination is well settled:

“ ‘A new trial on the question of damages only is appropriately granted “where (1) the jury’s verdict on the question of liability is amply supported by the evidence; (2) the questions of damages and liability are so separate and distinct that a trial limited to the question of damages is not unfair to the defendant; and (3) the record suggests neither that the jury reached a compromise verdict, nor that, in some other identifiable manner, the error which resulted in the jury’s awarding inadequate damages also affected its verdict on the question of liability.” ’ ” (Barr v. Groll (1991), 208 Ill. App. 3d 318, 323, 567 N.E.2d 13, quoting Hollis v. R. Latoria Construction, Inc. (1985), 108 Ill. 2d 401, 408, 485 N.E.2d 4, 7, quoting Balestri v. Terminal Freight Cooperative Association (1979), 76 Ill. 2d 451, 456, 394 N.E.2d 391, 393.)

Based upon a review of the record, we find that the evidence supports the jury’s findings regarding the question of liability, including its apportionment of fault. We also find that a new trial limited to the question of damages only would not be unfair to the defendant, and that there is nothing in the record suggesting a compromise verdict, nor any indication that the error resulting in the inadequate damage award also affected the findings as to liability. We therefore affirm the trial court’s judgment in part, with respect to defendant’s liability to plaintiff and the appointment of fault, but we also reverse the judgment of the trial court in part, with respect to damages, and remand this cause for a new trial on the issue of damages.

For the foregoing reasons, the judgment of the circuit court of Massac County is affirmed in part and reversed in part, and this cause is remanded with directions.

Affirmed in part; reversed in part and remanded with directions.

HARRISON and WELCH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LEWIS

license: Public Domain

text:
      In re MARRIAGE OF DOLORES JUNE DRONE, Petitioner-Appellee, and LOWELL H. DRONE, Respondent-Appellant.
    Fifth District
    No. 5-90-0050
    Opinion filed August 27, 1991.

      Paul Thomas Austin, of Marion, for appellant.
    Susan Parnell Wilson, of Law Offices of Charles J. Kolker, of Belleville, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court;

The respondent, Lowell H. Drone, appeals the judgment of the circuit court dissolving the parties’ marriage; dividing the marital property; awarding the petitioner, Dolores June Drone, maintenance for two years; and ordering the respondent to pay one-half of the petitioner’s attorney fees. The respondent does not contest the dissolution of the marriage; however, he contends that the court’s distribution of the marital property was erroneous and inequitable, that the court erred in granting the petitioner temporary maintenance for two years, and that the court erred in ordering the respondent to pay one-half of the petitioner’s attorney fees. For the reasons set forth below, we affirm the circuit court’s decision in part and reverse and remand in part.

A hearing on the grounds for divorce was held on August 23, 1988, but the court did not enter judgment for dissolution until after the hearing on the remaining issues. At the subsequent hearing on July 20, 1989, the parties stipulated to the following: (1) that the parties were married in January 1983 and separated in March 1988; (2) that the marital residence at 405 South Third Street, Red Bud, Illinois, has a value of $64,000 minus the remaining mortgage of $32,873; (3) that the monthly payments for the marital home, including the mortgage, taxes, and insurance, are $520 per month; (4) that the petitioner has in her possession a 1985 Pontiac which is paid for; (5) that the respondent has a 1986 Mazda pickup truck and a 1966 Buick Classic in his possession; (6) that the parties have divided their personal property to their satisfaction; (7) that for the year 1988 the respondent’s income was $46,183.52 and the petitioner’s income was $19,574.70; (8) that the petitioner has a retirement plan from St. Luke’s Hospital which will pay her $146.13 per month at age 65 and another pension from the Veteran’s Administration which will pay her $284 per month at age 65; (9) that both parties have an individual retirement account (IRA) valued at $3,061 each in their own names; (10) that the respondent pays $500 per month child support per a court order from a prior divorce; (11) that the outstanding marital debts for credit cards and medical bills total $1,552.50; and (12) that Dr. Hicks’ deposition would be admitted into evidence. The court was also informed that the petitioner’s date of birth is December 29, 1930, and the respondent’s date of birth is June 18, 1947. The petition for dissolution of marriage filed by the petitioner established that there were no children as the result of the marriage.

The petitioner testified that she and the respondent had resided in the marital home since March 1985, and that she had continued to reside there since the parties’ separation in March 1988. When the respondent left the marital home in March 1988, there were several repairs needed on the marital home, which the petitioner enumerated. Following the parties’ separation, the respondent gave the petitioner approximately $2,500 from March 1988 until June 1988. These payments by the respondent were for bills, including the respondent’s child support payments, the respondent’s car payment, and insurance premiums. Between June 1988 and September 1988, when the court entered a temporary maintenance order, the respondent did not pay the petitioner anything, and she had to make the mortgage payments on the home as well as pay for any maintenance and repair needed. After September 1988, the respondent was ordered to pay the petitioner $340-per-month temporary maintenance.

The petitioner further testified that she has a high school education and one year of training as a licensed practical nurse (LPN). In her current job as an LPN at the veterans’ hospital, she may be eligible to receive a $1,000- to $l,500-per-year increase before she retires in 6V2 years. At present, her monthly earnings are $1,100 and her monthly expenses are $1,550.

When the parties bought the marital home, the down payment of approximately $25,500 was paid from their joint checking account. The joint checking account was established when the respondent received a workers’ compensation settlement check; however, the petitioner had also contributed money regularly to this account. In addition, the home was placed in joint tenancy. At the time of the parties’ separation, the joint checking account contained about $300 and their savings account contained about $500, which the petitioner transferred to her own account. Also at the time of the separation, the petitioner had a mutual bond fund which she sold for $554. The petitioner had purchased the mutual bond fund with monies from the joint checking account. During the marriage, the petitioner inherited $1,000 from an aunt, which she used to purchase silver.

At present, the petitioner’s checking account has a balance of $250, but she has no savings account. She does have a thrift savings plan through her employment, where she has $75 per month deducted from her paycheck and the employer also contributes a certain amount as well. At the end of 1988, she had $750 in this account. The petitioner expressed her desire to keep the marital home but admitted that she would need the $340-per-month maintenance she is currently receiving from the respondent to do so. In addition, the petitioner testified that she is unable to pay her attorney fees.

The petitioner testified to her medical condition. Since the parties’ separation, the petitioner has been seeing a psychiatrist approximately once every two to three weeks for depression. These visits cost $60 per visit and have been paid for by the respondent’s health insurance. She also takes medication daily for her depression and anxiety. The petitioner also has diabetes, which she controls with daily medication, and arthritis, for which she takes medication on an as-needed basis. The petitioner also has to have extensive dental work which will cost $800. The petitioner’s medical expenses have been covered under the respondent’s health plan through his employment, although she has recently purchased a supplemental policy for herself. This supplemental policy is not as extensive as the respondent’s health plan, for the cost for the petitioner to purchase a policy equivalent to the respondent’s would be expensive.

The respondent testified as an adverse witness and on his own behalf. He stated that he has been employed by Consolidated Coal Company for 12 years, first as a welder and currently as a grader operator. The respondent’s prior work history was as a salesman for Walker Wholesale Company for 10 or 11 years and as a welder and iron worker for F and E Erection Company for a little over a year. His education consisted of a high school education and some vocational training.

The respondent corroborated the petitioner’s testimony that he received a settlement check in 1984 of approximately $37,000 for a workers’ compensation claim for an injury received prior to the marriage. This settlement check was placed in the parties’ joint checking account. From the joint account to which both the petitioner and the respondent contributed, $25,000 from the settlement check was used as a down payment on the marital home. The respondent stated that a portion of the settlement check was used to purchase the petitioner’s and the respondent’s IRAs and to purchase a carpet and carpet pad for the marital home. He also thought that a couple of thousand dollars may have been used to buy the Mazda truck. It was the respondent’s testimony that he did not intend the down payment on the marital home to be a gift; however, on cross-examination, he admitted that he intended to buy “them” a home with the settlement check. Also, he confirmed that the marital home was in joint tenancy.

The respondent testified that his monthly expenses were about $2,100. These expenses included his court-ordered child support of $500 per month, and it also included the temporary maintenance of $340 per month ordered by the court in September 1988. According to the respondent, his pension through his employer will be $241 per month at age 62. The respondent admitted that the petitioner is currently covered through his health insurance plan, which is paid for by his employer.

Melinda Newport, the petitioner’s daughter, testified on rebuttal that she had discussed the marital home with the respondent before her mother and the respondent had married. Melinda was concerned because her mother was giving up her home with Melinda’s father and her equity in the home, and because her mother was older than the respondent. The respondent reassured her that he intended to buy them a home with the money he received from his workers’ compensation claim.

Dr. Hicks’ evidence deposition of January 18, 1989, was admitted into evidence. In his deposition, Dr. Hicks testified that he is a psychiatrist, and that he first saw the petitioner on April 29, 1988. At that time, the petitioner had severe depressive symptoms, for which he hospitalized her for almost two weeks. The petitioner was also treated for her noninsulin diabetes. The petitioner has been maintained on antidepressant medication and a low dosage tranquilizer since her discharge. In addition, he has continued to see the petitioner on an outpatient basis, approximately once each three to four weeks. It was the doctor’s opinion that the petitioner’s problems were caused by her marital difficulties.

Following this evidence, the case was kept open for the submission of information on the respondent’s pension plan and for legal memorandums to be submitted by counsel. On November 3, 1989, before the court entered its order in this case, the respondent filed a motion to reopen the case for additional evidence. This motion was denied, and on December 26, 1989, the court entered its order for distribution of marital property, for maintenance, and for attorney fees. In the order of December 26, 1989, the court made findings pursuant to the parties’ stipulation. The court also found that the respondent was able-bodied and well able to earn a substantial income both now and in the future, but that the petitioner was quickly approaching retirement age, was in poor health, and was limited in her ability to earn income both now and in the future. The court ordered the dissolution of the parties’ marriage and ordered the following distribution of assets: (1) the property discussed in the stipulation was awarded in accordance with the stipulation; (2) the petitioner was awarded the marital home, subject to the mortgage thereon; (3) the petitioner was awarded maintenance of $340 per month for two years; (4) the respondent was ordered to pay one-half of the petitioner’s attorney fees ($1,574); (5) the respondent was to keep the petitioner on his health insurance policy for one year; (6) the respondent was to pay $170 for which he is in arrears in his temporary maintenance payments; (7) the respondent was to reimburse the petitioner for the four mortgage payments paid by her from June 1988 to September 1988; (8) the respondent was to pay the petitioner one-half of the amount needed to make the house repairs and maintenance enumerated in the order; (9) the petitioner was to be solely liable for the marital debts; (10) the silver was to be divided equally; and (11) the parties were to receive their respective IRAs and his or her own pension from their employment. It is from this order that the respondent appeals.

The first issue raised by the respondent is that the court’s distribution of the marital property was inequitable. Specifically, the respondent contends that the court erred in finding that the down payment on the marital home made from his workers’ compensation settlement check was a gift to the marriage instead of nonmarital property. He asserts that he testified that he did not intend to make a gift of these funds, and that this testimony was uncontradicted.

Before a court distributes property, a determination must be made as to the property’s classification, i.e., whether the property is marital or nonmarital. In making this determination, section 503 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1989, ch. 40, par. 503) sets forth the criteria to be considered. Generally, property acquired before the marriage is presumed to be nonmarital (Ill. Rev. Stat. 1989, ch. 40, par. 503(a)(6)), while property acquired during the marriage is presumed to be marital (Ill. Rev. Stat. 1989, ch. 40, par. 503(b)), with various exceptions delineated in the statute. Thus, we must initially determine whether the respondent’s workers’ compensation award was marital or nonmarital property before we can consider whether the distribution was equitable.

In this case, the respondent’s injury for which he received the workers’ compensation settlement check occurred in 1979, before the parties were married. However, he received the settlement check in 1984, during the marriage. Our research has not uncovered any case presenting this exact factual situation, but the reviewing court’s decision in In re Marriage of Dettore (1980), 86 Ill. App. 3d 540, 408 N.E.2d 429, provides guidance in making our determination. In Dettore, the court held that “if the claim for a compensation award accrues during the marriage, the award is marital property regardless of when received.” (In re Marriage of Dettore, 86 Ill. App. 3d at 542, 408 N.E.2d at 431.) Applying the reasoning of Dettore, it is reasonable to infer that the time the cause of action accrues determines the classification of this property interest. Generally, a cause of action accrues when facts exist which allow a person to maintain an action against another. (Aetna Life & Casualty Co. v. Sal E. Lobianco & Son Co. (1976), 43 Ill. App. 3d 765, 357 N.E.2d 621, affirmed (1977), 69 Ill. 2d 126, 370 N.E.2d 804.) Here, the respondent’s workers’ compensation claim accrued at the time of his injury in 1979. Therefore, his settlement check was nonmarital property as it was acquired prior to the marriage.

Having classified the settlement as nonmarital property, we find that the court correctly determined that this nonmarital property was transmuted into marital property. The settlement check received by the respondent was placed in a joint tenancy checking account. The statute provides that nonmarital property transferred into some form of co-ownership, such as joint tenancy, creates the presumption that the property is marital property. (Ill. Rev. Stat. 1989, ch. 40, par. 503(b).) Thus, once the respondent placed the settlement check in the joint checking account, the presumption arose that the settlement check was marital property. Further, when the parties purchased the marital home, title to the property was placed in joint tenancy. It has been held that a marital residence is presumed to be marital property, even if one spouse provides all of the consideration, absent clear and convincing evidence to the contrary. In re Marriage of Emken (1981), 86 Ill. 2d 164, 427 N.E.2d 125.

The evidence presented in this case did not rebut the presumption that the marital home was marital property. The respondent, in his testimony, stated simply that he did not intend the money as a gift. However, he also testified that he intended to buy “them” a home with the proceeds from his workers’ compensation case. In addition, the petitioner’s daughter’s testimony contradicted the respondent’s statement that the money used for the down payment of the marital home was not a gift.

Having determined that the court correctly classified the parties’ home as marital property, we now address the respondent’s contention that the distribution of the marital property was not equitable. The statute requires that the division of marital property be in “just proportions” after consideration of “all relevant factors.” (Ill. Rev. Stat. 1989, ch. 40, par. 503(d); In re Marriage of Wojcicki (1982), 109 Ill. App. 3d 569, 440 N.E.2d 1028.) The division of marital property in “just proportions” does not mean the property must be divided in mathematical equality, and an unequal division may be made where the court has properly applied the statute. In re Marriage of Emery (1989), 179 Ill. App. 3d 744, 534 N.E.2d 1014.

The relevant statutory factors to be considered in this case are the contribution of the parties to the marital property; the value of the property set apart for each spouse; the duration of the marriage; the relevant economic circumstances of each spouse upon distribution of the property; the obligations and rights arising from a prior marriage; the age, health, station, occupation, amount and sources of income, vocational skills, and employability of the parties; whether the apportionment is in lieu of or in addition to maintenance; and the reasonable opportunity of each spouse to acquire capital assets and income in the future. Here, both of the parties were given their respective pensions and IRAs, and the silver was divided equally. The only property which was not given equally was the marital home. We find that the court’s distribution of marital property was in just proportions. The evidence revealed that the petitioner was 58 years of age at the time of the divorce and not in the best of health. Because of her age, the petitioner was unlikely to acquire capital assets or income in the future. In contrast, the respondent was 42 years of age, was able to work many more years than the petitioner, and had a greater opportunity to acquire capital assets and income in the future. Further, the petitioner’s income was approximately $19,000 per year, while the respondent’s annual income was approximately $46,000. Therefore, although the marriage was of only five years’ duration, and the respondent had to pay $500 in child support to a former wife, we do not find that the court’s distribution of marital property was an abuse of discretion.

The next issue raised on appeal by the respondent is that the court erred when it awarded the petitioner maintenance of $340 per month for two years. In his argument of this issue, the respondent argues evidence he desired to present in his motion to reopen the case for the taking of additional evidence, which motion was denied by the circuit court. The respondent contends that the court erred in refusing to hear the additional evidence that he had lost his job and, because of these changed circumstances, he was unable to pay the petitioner maintenance.

Generally, the decision to deny a motion to reopen proofs is within the sound discretion of the circuit court, and unless the court abused its discretion, the court’s decision will not be disturbed on review. (In re Marriage of Weinstein (1984), 128 Ill. App. 3d 234, 470 N.E.2d 551.) A court’s decision to grant or deny such a motion rests upon the consideration of whether there is some excuse for the failure to introduce the evidence at trial, whether the other party will be surprised or unfairly prejudiced by the new evidence, whether the evidence is of utmost importance to the movant’s case, and whether there are cogent reasons for denying the motion. In re Marriage of Weinstein, 128 Ill. App. 3d 234, 470 N.E.2d 551.

In the case at bar, we cannot say that the court abused its discretion in denying the respondent’s motion to reopen proofs for the hearing of additional evidence. The date of the last hearing on the evidence for the issues of maintenance and distribution of marital property was July 20, 1989. Following the hearing and before the court entered judgment, the respondent stated that he would provide additional information regarding his pension within 30 days. After submission of this information, both the respondent and the petitioner were given two weeks to submit memorandums of law and arguments to the court. The record reveals that the petitioner submitted her written arguments and memorandum of law on October 5, 1989, but the respondent did not file his until December 14, 1989, after he had filed his motion to reopen proofs on November 3, 1989. In the respondent’s motion, he states that he will lose his job sometime within two weeks following December 11, 1989. We find that if the court had allowed the respondent’s motion to reopen proofs, the petitioner would have been unfairly prejudiced. Further, there are cogent reasons for denying the motion. First, the granting of the respondent’s motion would cause undue delay in resolving the parties’ case. The resolution of marital dispositions should be done expeditiously out of fairness to both parties, and to allow delays which could possibly alter dispositions prevents timely resolutions. Further, as the court duly noted, the respondent had recourse in that he could file a petition to modify the judgment after the judgment was entered. In addition, the respondent is an able-bodied man and there is no reason to presume that he will be unable to find alternative employment which will enable him to meet his legal obligations. For these reasons, the court’s denial of the respondent’s motion was not an abuse of discretion. Because the respondent’s motion was properly denied, we cannot consider the facts relating to the motion as support for his argument that the court’s award of maintenance to the petitioner was improper; however, we now consider whether the facts presented at the hearings supported the court’s decision.

Generally, an award of maintenance is a matter of discretion for the circuit court, and the court’s decision will not be overturned upon review unless the court abused its discretion or its decision is against the manifest weight of the evidence. (In re Marriage of Zummo (1988), 167 Ill. App. 3d 566, 521 N.E.2d 621.) In determining whether a court’s award of maintenance was proper, it must be reviewed in light of the factors set forth in section 504 of the Act. (Ill. Rev. Stat. 1989, ch. 40, par. 504; In re Marriage of Zummo, 167 Ill. App. 3d 566, 521 N.E.2d 621.) Section 504 provides that a court may award maintenance if it finds that the spouse seeking maintenance lacks sufficient property, including marital property awarded, to provide for her reasonable needs and is unable to support herself or otherwise lacks sufficient income. In re Marriage of Zummo, 167 Ill. App. 3d 566, 521 N.E.2d 621.

After determining that maintenance is appropriate, section 504(b) provides the factors to be considered in determining the amount and duration of the maintenance award. (Ill. Rev. Stat. 1989, ch. 40, par. 504(b).) Those factors include the financial resources of the person seeking maintenance; the standard of living established during the marriage; the duration of the marriage; the age and physical and emotional condition of the parties; and the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

The record clearly established that the court did not abuse its discretion in awarding the petitioner maintenance of $340 per month for two years. The evidence revealed that the petitioner’s only source of income was her wages earned at the veteran’s hospital, a yearly income of about $19,000, while the respondent’s yearly income was approximately $46,000. The petitioner testified that her monthly expenses were $1,700, but her monthly income was $1,100, which evidence demonstrated the petitioner’s inability to meet her reasonable needs. In contrast, the respondent’s monthly income was about $3,800 and his expenses were only $2,100. In addition, the respondent’s list of expenses included the monthly maintenance payment of $340 to the petitioner. Clearly the respondent’s income was more than adequate to meet his needs while meeting the needs of the petitioner. Additionally, the petitioner was near retirement age, aged 59 at the time of the dissolution of the marriage, and her opportunity to increase her income was extremely limited. However, the respondent was 42 years of age and had many income-producing years ahead of him. Further, the petitioner’s physical and emotional condition also prevented her from gaining additional income, as compared with the respondent, who was younger and able-bodied. The court’s award of $340 per month for two years was of a limited duration and was not against the manifest weight of the evidence.

The last issue raised by the respondent is that the court erred in ordering him to pay one-half of the petitioner’s attorney fees as the petitioner failed to show that the fees sought were reasonably required and necessary for the proper performance of legal services under the circumstances. The respondent does not contend that the petitioner was financially able to pay or that he was unable to pay these fees.

Generally, the burden of proof is upon the party seeking the attorney fees to show that the fees incurred were reasonable and necessary. (In re Marriage of Douglas (1990), 195 Ill. App. 3d 1053, 552 N.E.2d 1346.) Here, the evidence presented to the court regarding the attorney fees was through the petitioner’s attorney’s submission of an affidavit in which the attorney’s hours were itemized and her hourly rate given, as well as an enumeration of the costs incurred. The petitioner’s attorney did not testify. The total hours given in the affidavit were 33.85 hours, which were billed at $80 per hour. The costs incurred were $440, which combined with the attorney fees totalled $3,148. Also in the affidavit, the attorney stated that the $80 per hour was her “ordinary and usual rate.”

At the time of the submission of the affidavit, respondent’s attorney objected to its submission. His objection was as follows:

“Well, I am going to object to it. I take it this is what they do up in St. Clair County and maybe this is something they do in Randolph County. This isn’t the way we do it where I am from. I object to it. I believe she should call an attorney to testify that the charges were reasonable and they were necessary for the handling of this case, and I would object for those reasons to the admission of this affidavit of attorney’s fees or for the Court’s consideration.”

From this objection, it is clear that the respondent’s attorney found the affidavit to be insufficient to show the fees incurred were reasonable and necessary. We agree with the respondent.

In determining whether a spouse may recover attorney fees from another, the financial positions of the parties must be considered. (Ill. Rev. Stat. 1989, ch. 40, par. 508(a).) In addition, “ ‘the amount of fees to be allowed in a divorce proceeding depends on a consideration of the skill and standing of the attorneys employed, the nature of the controversy, and the novelty and difficulty of the questions at issue; the amount and importance of the subject matter, especially from a family law standpoint; the degree of responsibility involved in the management of the case; the time and labor required; the usual and customary charge in the community; and the benefits resulting to the client.’ ” (In re Marriage of Douglas, 195 Ill. App. 3d at 1061, 552 N.E.2d at 1351, quoting Christian v. Christian (1979), 69 Ill. App. 3d 450, 458-59, 387 N.E.2d 1254, 1260-61.) Here, just as in Douglas, the record was unclear as to whether the fees awarded were reasonable and necessary. Therefore, we reverse and remand this cause to the circuit court for a hearing on the evidence and to determine the necessity and reasonableness of the attorney fees.

For the foregoing reasons, the judgment of the circuit court of Randolph County is affirmed in part and reversed in part and this cause is remanded to the circuit court.

Affirmed in part; reversed in part; and remanded.

HARRISON and GOLDENHERSH, JJ., concur.


author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD D. DOYLE, Defendant-Appellant.
    Second District
    No. 2 — 89—0977
    Opinion filed June 5, 1991.
    Rehearing denied September 30,1991.

      G. Joseph Weller and Beth Katz, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

This is an appeal from the trial court’s order certifying the defendant, Donald D. Doyle, as an habitual child sex offender pursuant to the Habitual Child Sex Offender Registration Act (Act) (Ill. Rev. Stat. 1987, ch. 38, par. 221 et seq.). The defendant challenges the application of the Act to him as well as its constitutionality. We affirm.

On March 10, 1989., the defendant pleaded guilty to two counts of aggravated criminal sexual assault (counts I and XX) (111. Rev. Stat. 1987, ch. 38, par. 12 — 14(b)(1)). The remaining counts were nolprossed. The factual basis for the pleas shows that, during the period June 1 through July 4, 1987, the defendant engaged in acts of sexual penetration with C.W., a minor child under 13 years of age (count I). Sometime during the period of June, July or August of 1985, the defendant committed a similar offense against A.W, also a minor child under 13 years of age (count XX). The defendant was admonished of his rights, and the trial court accepted the pleas. The court entered the convictions and sentenced the defendant to two concurrent 10-year terms of imprisonment.

Immediately following the imposition of sentence, the State moved to certify the defendant as an habitual child sex offender pursuant to the Act. The trial court reserved the issue for later consideration in response to the defendant’s objection and to allow further research on the issue. The defendant filed his formal written motion on August 14, 1989, arguing that the Act did not apply to him in that he was not convicted “a second or subsequent time” where his two convictions were the result of simultaneous guilty pleas on charges from the same indictment. In his motion, the defendant also sought to declare the Act unconstitutional. The court denied the defendant’s motion and amended the order of commitment by certifying him as an habitual child sex offender under the Act. The defendant’s motion to reconsider was denied on September 22,1989.

The defendant’s appeal presents two issues for consideration. First, the defendant raises the issue whether the order certifying the defendant as an habitual child sex offender should be vacated because two simultaneous pleas of guilty resulted in the entry of convictions with concurrent sentences and there was no second or subsequent conviction as specified by the Act. Second, in the alternative, the defendant challenges the constitutionality of the Act and requests this court to reconsider its recent decision upholding its constitutionality in People v. Adams (1990), 198 Ill. App. 3d 74, appeal allowed (1990), 133 Ill. 2d 560.

We first address the defendant’s claim that the Act is unconstitutional since the application of its provisions depends on whether the Act is constitutional. Our examination of the defendant’s brief persuades us that the defendant has failed to argue adequately the issue or cite authority therefor. In conclusory fashion, the defendant merely claims that the Act is unconstitutional and requests this court to reconsider its recent decision in Adams. The defendant neither argues specifically why the Act is unconstitutional nor cites any authority contrary to our prior decision. While we are aware that Adams has been appealed to our supreme court, the defendant offers us no compelling reason to revisit that decision. Since the defendant has failed to brief this issue properly, we deem it waived. See People v. Foster (1990), 195 Ill. App. 3d 926, 951; People v. Trimble (1989), 181 Ill. App. 3d 355, 356.

We next address whether the Act was properly applied to the defendant. Section 222 of the Act specifies that an habitual child sex offender is one who, “after July 1, 1986, is convicted of a second or subsequent time” for any of the sex offenses specified, including aggravated criminal sexual assault. (Ill. Rev. Stat. 1987, ch. 38, par. 222.) Upon such conviction, the court shall certify that the person is an habitual child sex offender and shall include the certification in the order of commitment. (Ill. Rev. Stat. 1987, ch. 38, par. 222.) However, section 222 excludes from coverage as a second or subsequent conviction those convictions “which result from or are connected with the same act, or result from offenses committed at the same time” and provides that such convictions “shall be counted for the purpose of this Article as one conviction.” (Ill. Rev. Stat. 1987, ch. 38, par. 222.) That section also excludes, as a second or subsequent conviction, any “conviction set aside pursuant to law.” (Ill. Rev. Stat. 1987, ch. 38, par. 222.) Once the offender is so certified, he is required to register with the police chief or sheriff in the municipality or county in which the offender resides. Ill. Rev. Stat. 1987, ch. 38, par. 223.

We have found no case interpreting this statute regarding the meaning of a “second or subsequent” conviction qualifying a defendant for certification and registration as an habitual child sex offender. The intent of the legislature is best determined by the plain and ordinary meaning of the statutory language (People v. Pettit (1984), 101 Ill. 2d 309, 313), and, if there is any ambiguity or the intent of the legislature is not manifest, we may apply the rules of statutory construction. (See People ex rel. Moss v. Pate (1964), 30 Ill. 2d 271, 273; People v. Dunlap (1982), 110 Ill. App. 3d 738, 743.) Additionally, a statute should be construed so as to avoid an absurd result. Dunlap, 110 Ill. App. 3d at 743.

The two offenses to which the defendant pleaded guilty were separate offenses committed against two different victims at different times. The defendant argues that, because he pleaded guilty to these offenses at the same time and the convictions were entered at the same time, he has not been convicted a “second” time within the meaning of the statute. Such an argument is neither supported by the plain and ordinary meaning of the language of the statute nor the rules of statutory construction. In construing the statute as a whole and in examining the context in which the words “second or subsequent” are used, it becomes clear that the legislature intended that the accused be qualified for status as an habitual child sex offender when he commits and is convicted of two sex offenses which are separate in time. If the legislature wanted to qualify the word “second” so as to require that the convictions be entered at different times, it would have so specified. For example, the legislature could have stated that the additional conviction be second and subsequent to the first, as opposed to second or subsequent. We construe the word “second” here as meaning that the defendant qualifies if he is convicted twice of any of the enumerated offenses and the second of two convictions stemmed from a different act or from an offense that occurred at a different time from the other.

When the legislature has intended that the convictions be entered in a particular sequence of times, for example, to qualify a defendant for habitual criminal offender status for purposes of imposing an extended sentence, it has had no difficulty in expressing its intention. Thus, a court may adjudicate a defendant as an habitual criminal where he has been twice convicted in any State or Federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class X felony, criminal sexual assault or first degree murder, and is thereafter convicted of a Class X felony, criminal sexual assault or first degree murder, committed after the prior two convictions (Ill. Rev. Stat. 1987, ch. 38, par. 33B — 1). The habitual criminal provisions do not apply unless the first offense is committed after the effective date of the statute, the second offense is committed after conviction of the first, and the third offense is committed after conviction of the second. (Ill. Rev. Stat. 1987, ch. 38, pars. 33B — 1(d), 1005 — 5—3(c)(7), (c)(8).) Where the legislature has not clearly imposed a sequence in the entry of the convictions, we will not read such a requirement into the statute. See, e.g., People v. Hamilton (1980), 81 Ill. App. 3d 297, 303.

Next, in considering the meaning of the phrase “second or subsequent” in the context of the provision, we observe that the legislature specifically excepted from consideration as a second or subsequent conviction any conviction resulting from the same act or resulting from an offense committed at the same time as the offense resulting in the other conviction. Our interpretation of “second” conviction as synonymous with two convictions arising from separate offenses is supported by the rules of construction. The legislature ex-eluded from consideration those multiple convictions stemming from one act or from offenses committed at the same time. The legislature also excluded convictions set aside by law. To the extent the provision may be considered ambiguous (although we do not believe it is), the rule of statutory construction expressio unius est exdusio alterius is applicable here: an expression of certain exceptions in a statute is construed as an exclusion of all others. People ex rel. Difanis v. Barr (1980), 83 Ill. 2d 191, 199; Lunde v. Rockford Public Library Board (1987), 153 Ill. App. 3d 803, 809.

The legislature contemplated that multiple convictions arising from the same or simultaneous acts would be excluded from consideration, but chose not to exclude convictions simultaneously entered as the result of guilty pleas or because of administrative convenience where the underlying offenses were obviously separate and should be treated as such. The defendant could have been tried separately for each of the offenses. We see no reason why, because of the happenstance of the timing of the convictions, the defendant should be exempt from the statutory certification and registration requirements. Such an exemption appears to us illogical under the circumstances. Two recent appellate decisions have concluded that the certification and registration requirements are not penal in nature. (People v. Taylor (1990), 203 Ill. App. 3d 636, 638; Adams, 198 Ill. App. 3d at 79.) No argument has been advanced that the provisions were enacted to provide the defendant with notice that he would be punished more severely upon conviction of a second offense should he fail to change his behavior. We believe that the legislature chose to subject to these requirements those persons who demonstrate recidivist tendencies as shown by their proclivity to commit the enumerated offenses more than once. Our review of the legislative debates concerning these provisions does not suggest otherwise. These requirements are intended to apprise law enforcement officials that such persons are present in their community and may present a potential threat to the welfare of the children residing there. The question whether these provisions are effective in assisting law enforcement is not before us, and we express no opinion on the wisdom of enacting such provisions.

Since the defendant has not shown that he is excluded from the requirements of the Act, the judgment of the circuit court is affirmed.

Affirmed.

WOODWARD and BOWMAN, JJ., concur.


author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. JERRY PETERSON, Defendant-Appellee (Jim Edgar, Appellant).
    Fifth District
    No. 5 — 89—0029
    Opinion filed August 28, 1991.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Claudia E. Sainsot, Assistant Attorney General, of Chicago, of counsel), for appellant.
    George R. Ripplinger, Jr., of Ripplinger, Dixon & Johnston, of Belleville, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court;

The Secretary of State appeals from an order of the trial court directing the Secretary to rescind a 12-month statutory summary suspension of defendant’s driving privileges and to reduce it to a six-month period. We reverse.

Defendant was arrested and charged with driving under the influence (DUI) on November 7, 1988, in violation of section 11 — 501(a)(1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 11— 501(a)(1)). He was given the warning to motorists, which informed him that if he was not a first offender and refused or failed to complete all alcohol assessment tests as requested, his driving privileges would be suspended for a minimum of 12 months. Defendant refused to submit to the tests. The Secretary summarily suspended defendant’s driver’s license for 12 months because defendant was not a first offender as defined by statute.

At defendant’s first appearance on December 12, 1988, the trial court entered an order amending defendant’s statutory summary suspension to a period of six months because the defendant’s earlier arrest was more than five years before the arrest in the instant case. The court ordered the Secretary of State to rescind the 12-month suspension and to issue a six-month suspension to begin December 23, 1988. The State appealed. We reverse.

The State asserts that the trial court improperly ordered the Secretary of State to rescind the 12-month statutory summary suspension of the defendant’s driving privileges because the defendant was not a first offender as defined by section 11 — 501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501). Defendant argues that the proper calculation of the time between the offenses should run from the time of the arrest on the first conviction to the time of the arrest on the second charge.

At the time of the offense and subsequent issuance of the court order, in the case at bar, section 11 — 500 read as follows:

“For the purposes of interpreting Sections 6 — 206.1 and 6— 208.1 of this Code, ‘first offender’ shall mean any person who has not had a previous conviction or court assigned supervision for violating Section 11 — 501, or a similar provision of a local ordinance, or a conviction in any other state for a violation of driving while under the influence or a similar offense where the cause of action is the same or substantially similar to this Code, within the last 5 years; or any person who has not had a driver’s license suspension for Section 11 — 501.1 after January 1, 1982, or a previous statutory summary suspension as provided in this Code, except in cases where the driver submitted to chemical testing resulting in an alcohol concentration of 0.10 or more and was subsequently found not guilty of violating Section 11 — 501, or a similar provision of a local ordinance.” (Ill. Rev. Stat. 1987, ch. 95½, par. 11-500.)

First offenders under this statute were those drivers who had not previously had a conviction for driving under the influence within the last five years, had not been given court supervision for driving under the influence within the last five years, and had not had their driver’s licenses suspended for driving under the influence after January 1, 1982. People v. Doyle (1987), 159 Ill. App. 3d 689, 693, 512 N.E.2d 798, 800.

Defendant was convicted of driving under the influence on November 9, 1983. On November 7, 1988, less than five years after that conviction, he was again arrested for driving under the influence of alcohol. The trial court’s order stated that it believed that the measurement of the five-year period was to extend from conviction to conviction. Four districts of the appellate court have held that it is not the date of the prior arrest, but the date of the conviction, supervision, or suspension that begins the five-year period. (See People v. Moffat (1st Dist. 1989), 192 Ill. App. 3d 326, 329, 548 N.E.2d 757, 759; People v. Reymar (2d Dist. 1990), 197 Ill. App. 3d 224, 225, 553 N.E.2d 1186, 1187; People ex rel. Edgar v. Topping (3d Dist. 1990), 204 Ill. App. 3d 518, 520, 562 N.E.2d 8, 10; People v. Sandness (4th Dist. 1990), 197 Ill. App. 3d 486, 488, 554 N.E.2d 769, 771.) We agree, and hold that defendant was not a first offender subject to only a six-month period of suspension of his driving privileges, due to his prior DUI conviction within five years of the instant arrest for driving under the influence of alcohol. The 12-month license suspension ordered by the Secretary of State was proper. The trial court’s order to the Secretary of State, directing him to issue a six-month suspension, is reversed. The 12-month suspension of defendant’s driving privileges is reinstated.

Reversed.

HOWERTON and WELCH, JJ., concur.


author: JUSTICE HOWERTON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DALE R. WARREN, Defendant-Appellant.
    Fifth District
    No. 5 — 88—0498
    Opinion filed August 28, 1991.

      Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.

      Michael Kiley, Special Prosecutor, of Shelbyville (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State's Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

A Christian County jury convicted defendant of 12 counts of sexual offenses against his teenage stepdaughters. We affirm.

Defendant’s two stepdaughters alleged that defendant had sexually molested them. Thereafter, the police served defendant with a court order instructing him to stay away from his stepdaughters.

The next day defendant went to the house of the officer who served the court order, to talk about the complaints. The officer told defendant that he could not speak to him unless he gave him “Miranda” warnings. Defendant asked how many years he could get. The officer replied, “Get an attorney.”

The day after, the officer asked defendant to come to the Christian County sheriff’s office. Defendant came. The officer gave him the warnings required by Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. Defendant agreed to answer general questions concerning his family and stepdaughters, but when the officer showed defendant his stepdaughters’ complaints, defendant refused to answer any questions.

After testifying on direct and cross-examination, the State redirected the officer:

“Q. Mr. Rogowski, on cross-examination, counsel asked you about repeated denials. Let me direct your attention to March 26 when you served the papers on the defendant. At that time, did he deny any involvement with the girls?
A. No.
Q. Let me direct your attention now to the March 27 meeting at your house. Did you ask him any questions at that time?
A. No.
Q. Did he deny any involvement after having a day to read these papers?
A. No.
Q. Now, let me direct your attention to March 28 at the Christian County sheriffs office. I will ask you, was that the first time that he denied any involvement with the girls?
A. Yes.
Q. Now, you have indicated he said he trusted the girls?
A. Yes.
Q. Subsequent to his reading the statements, did he make any statement with regards to trusting the girls at that point?
A. I can’t recall.
Q. Mr. Rogowski, at the Christian County sheriff’s office, after reading the statements, what, if any, questions did the defendant avoid answering or evade answering?
A. If he did fondle or have intercourse with any of the girls.
Q. When you say he avoided or evaded those answers, can you be more specific, please?
A. He would just stop talking. He wouldn’t go any further.”
In closing argument the prosecutor reviewed the police officer’s testimony, referring to defendant’s silence:
“Rogowski talked about his impression of the defendant. No eye contact, very nervous. Certainly it is a situation that would get anybody nervous but there was a change there. He wouldn’t answer directly.”

Defendant argues that the only purpose the prosecution had in commenting on his silence was to give the jury the impression that defendant was hiding behind his “constitutional rights,” the inference being that he was avoiding the truth of the allegations. Defendant argues that such misuse of the invocation to remain silent violates the fifth amendment of the United States Constitution (U.S. Const., amend. V). See Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240.

The State maintains that defendant has waived any objection to the testimony of Officer Rogowski and the closing argument because no objections were made at trial or in the post-trial motion. (People v. Friesland (1985), 109 Ill. 2d 369, 488 N.E.2d 261; People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) However, Illinois Supreme Court Rule 615(a) provides that “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” (134 Ill. 2d R. 615(a).) There is no question in this case that the State made use of defendant’s silence. (See People v. Mills (1968), 40 Ill. 2d 4, 237 N.E.2d 697.) We address whether use of defendant’s prearrest, post-Miranda warning silence was error.

I

Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, held that post-arrest, post-Miranda warning silence cannot be used to impeach a defendant. The rationale is that it is fundamentally unfair for the government to impliedly promise that silence after arrest carries no penalty, and then make use of that silence. See also Wainwright v. Greenfield (1986), 474 U.S. 284, 88 L. Ed. 2d 623, 106 S. Ct. 634.

In the case at bar, defendant’s silence was not used to impeach, but was used in the State’s case in chief and closing argument. Although Doyle involved impeachment, there is no question that the principle applies to the case at bar. See, e.g., Wainwright v. Greenfield (1986), 474 U.S. 284, 88 L. Ed. 2d 623, 106 S. Ct. 634 (which held that use of post-arrest, post-Miranda warning silence to prove defendant sane was a violation of the due process clause of the fourteenth amendment to the Constitution of the United States).

The issue before us, then, is whether the fourteenth amendment prohibits the use of prearrest, post-Miranda warning silence in the State’s case in chief and closing argument.

The United States Supreme Court has yet to deal with this issue, but other courts have held that the use of prearrest, post-Miranda warning silence violates the due process clause of the Constitution of the United States. See Fencl v. Abrahamson (7th Cir. 1988), 841 F.2d 760; State v. Fencl (1982), 109 Wis. 2d 224, 325 N.W.2d 703; State v. Plourde (1988), 208 Conn. 455, 545 A.2d 1071.

In Fencl v. Abrahamson, the prosecutor used defendant’s prearrest, post -Miranda warning silence in his opening statement, his case in chief, and his closing argument. The United States Court of Appeals, Seventh Circuit, held that all three uses violated defendant’s right to due process secured by the fourteenth amendment.

In State v. Fencl, the Wisconsin Supreme Court, considering the same issue, focused on the giving of the warnings, not on the arrest, and condemned the use of prearrest, post-Miranda warning silence, saying:

“The Doyle decision was based upon the fact that governmental action (i.e., giving the Miranda warning) encouraged or induced silence by assuring the defendant that such silence is protected. Receipt of the Miranda warning is the important factor in the Doyle analysis, not whether the defendant has been arrested. Therefore, the Doyle rationale protects post-Miranda silence whether occurring before or after arrest.” State v. Fencl, 109 Wis. 2d at 234, 325 N.W.2d at 710.

In Plourde, the Connecticut Supreme Court likewise held that the Doyle rationale applied to prearrest, post-Miranda warning silence, ruling that the unfairness of using defendant’s silence following Miranda warnings is not mitigated by the absence of custody. It noted that “silence in the wake of Miranda warnings is ‘insolubly ambiguous’ and consequently of little probative value *** [and] ‘while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings.’ ” State v. Plourde (1988), 208 Conn. 455, 465-66, 545 A.2d 1071, 1077, quoting Doyle, 426 U.S. at 617-18, 49 L. Ed. 2d at 421-22, 96 S. Ct. at 2244-45.

We follow these decisions and hold that using a defendant’s prearrest, post-Miranda warning silence, unless invited, violates due process.

II

We next address whether the use of defendant’s silence was harmless beyond a reasonable doubt. (Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.) In so doing, we look to five factors: (1) the intensity and frequency of the references; (2) which party elected to pursue the line of questioning; (3) the use to which the prosecution put the silence; (4) the trial judge’s opportunity to grant a motion for a mistrial or to give a curative instruction; and (5) the quantum of other evidence indicative of guilt. Phelps v. Duckworth (7th Cir. 1985), 772 F. 2d 1410, 1413.

Our review of the record convinces us that there is no reasonable likelihood that the reference to defendant’s silence contributed to his conviction. Defendant’s stepdaughters testified explicitly about defendant’s sexual advances and conduct. The elder of the two sisters testified that she told her mother of defendant’s abuses when she learned from her younger sister that defendant had begun to abuse her. This testimony was corroborated by the younger sister. Reference to defendant’s silence was brief. We firmly believe that the jury would have convicted defendant absent the improper reference to defendant’s silence, and thus we rule that the use of defendant’s silence was harmless beyond a reasonable doubt. The circuit court is affirmed.

Ill

Next, defendant argues that the circuit court erred by allowing the State’s expert witness to testify to sexual abuse accommodation syndrome because the State laid no foundation establishing the reliability of the syndrome.

Generally, the proponent of the evidence has the burden of establishing to the court that a theory is accepted by experts in the field. However, unless the opponent objects to the admissibility of the evidence on grounds that the foundation is faulty, the circuit court is not given any opportunity to rule.

Here, defendant did not object at trial, nor did he include this objection in his post-trial motion. Failure to raise an issue at trial and in post-trial motion constitutes waiver of the issue, absent plain error. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

Defendant requests that if we find the issue waived, we consider it waived only through the ineffective assistance of defense counsel. We decline to do so. Assistance of counsel will be deemed ineffective if counsel’s performance was outside the wide range of professionally competent representation and but for those deficiencies, there is a reasonable probability that the outcome of the trial would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) The record demonstrates that counsel vigorously presented a defense and argued defendant’s positions to the jury.

IV

Defendant argues that permitting a child abuse consultant to testify as an expert was improper because she was not a psychiatrist, behavioral psychologist, or physician, as required by section 115 — 7.2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 7.2). We agree with defendant. It was improper for the circuit court to allow her to testify. The statute is plain and unambiguous, admitting no other interpretation: only a psychiatrist, behavioral psychologist, or physician can testify. Not every error, though, will require reversal of a judgment. New trials should be ordered only when evidence improperly admitted appears to have affected the outcome of the trial. (Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525.) Here, the circuit court allowed the witness to testify for the limited purpose of explaining the character traits generally found in abused children; she also testified that the characteristics and behavior of defendant’s stepdaughters were consistent with victims who suffer from abuse accommodation syndrome. She offered no medical or psychological diagnosis. She did not offer any testimony concerning any of the acts performed against the stepdaughters or who may have perpetrated the abuse. She focused strictly on the behavior displayed by the stepdaughters as related to post-traumatic stress syndrome. We are also mindful that the statute has since been amended so that now, the witness need not be either a psychiatrist, behavioral psychologist, or physician to be qualified to testify, but only an expert, qualified by the court. (See Pub. Act 85 — 1279, eff. Jan. 1, 1989 (amending Ill. Rev. Stat. 1987, ch. 38, par. 115 — 7.2).) Because the amended statute deals with the admission of evidence, it is procedural in nature and would be applicable upon retrial of defendant. Considering the witness’ qualifications, she more than likely would be allowed to testify upon remand. Thus, there is essentially no reason to remand for a new trial because in view of the statutory change, the witness’ testimony would be allowed on retrial, rendering the error harmless.

V

Defendant argues he was denied a fair trial by introduction of hearsay. Defense counsel made no objection. This issue is waived. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

VI

Defendant contends he was not proven guilty of count VII of the indictment, which charged him with criminal sexual assault, because there was no evidence of penetration of his finger into the stepdaughter’s vagina in February 1987 as alleged.

Defendant was charged with criminal sexual assault in that in February of 1987 he placed his finger into the sex organ of the victim. The testimony of the minor victim was that in February 1987 defendant touched her vagina over her shorts. The statute states that any intrusion no matter how slight into a person’s sex organ by another person is sufficient to be termed sexual penetration. (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 13(a)(3), 12 — 12(f); People v. Gardner (1988), 172 Ill. App. 3d 763, 527 N.E.2d 155.) Therefore, we hold that the evidence supports the conviction on count VII.

VII

Defendant was convicted of two counts of aggravated criminal sexual abuse and two counts of battery based on the same two incidents of fondling the victim’s breast. Since the law does not allow multiple offenses to be carved from the same act (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838), defendant’s convictions and sentences for battery must be vacated.

We vacate in part and affirm in part.

Affirmed in part; vacated in part.

WELCH and GOLDENHERSH, JJ., concur.

       Ironically, since defendant had voluntarily complied with a request to come to the station and was free to leave at any time (see Oregon v. Mathiason (1977), 429 U.S. 492, 50 L. Ed. 2d 714, 97 S. Ct 711), the police had no duty to advise defendant of the warnings contained in the Miranda decision.

       The United States Supreme Court has indicated broad application of Doyle, saying in Anderson v. Charles (1980), 447 U.S. 404, 65 L. Ed. 2d 222, 100 S. Ct. 2180, that “the Due Process Clause of the Fourteenth Amendment prohibits impeachment on the basis of defendant’s silence following Miranda warnings * * * [and] bars the use against a criminal defendant of silence maintained after receipt of government assurances.” 447 U.S. at 407-08. 65 L. Ed. 2d at 226.100 S. Ct. at 2181-82.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RANDY BUIE, Defendant-Appellant.
    Fifth District
    No. 5 — 90—0501
    Opinion filed August 28, 1991.

      Larry L. LeFevre and Paul K. Zeman, both of LeFevre, Zeman, Oldfield & Schwarm Law Group, of Vandalia, for appellant.
    Don Sheafor, State’s Attorney, of Vandalia (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

Two boys, one 20, the other 16, were walking on the storefront sidewalk in St. Elmo, Illinois, one late October night.

A truck whipped across the sidewalk and stopped in front of them. One of the boys ducked into a doorway; the other ran, but was caught by defendant’s two fellow scofflaws. They put him in a headlock and dragged him back to where defendant was holding the other boy, who had ducked into the doorway.

They slapped the boys and slammed their heads against a wall. A knife was pulled and held to one boy’s throat. “Don’t tell anyone,” they said.

Defendant grabbed one of the boys, pulled him out to the sidewalk, shoved him to the ground, and with one of his fellow thugs, kicked him in the ribs, again and again.

One of the hoodlums said something about getting a gun out of the truck. One of the two boys managed to get up, run to an apartment above a store, pound on the door, and scream for help.

Defendant and his two fellow outlaws ran to the truck, jumped in, and drove away.

The two boys started home, thinking they were safe, but they were wrong. They were stopped again.

The 20-year-old ran away. Defendant and one of the others talked to the 16-year-old. One of them grabbed him in a headlock and said he was going to do some kind of “suplex wrestling move or something like that.” He told the boy that if he did not land right, he probably would break his neck. He asked, “How much do you want to bet he is going to bleed?”

The boy tripped and fell down, his legs extending upward into the air, and one of the men got on top of him.

Defendant grabbed the boy’s leg and said, “We are going to treat you like a little lady.”

They started shoving the boy’s head into the concrete sidewalk and grabbing his face. The boy kicked one of them in the mouth, escaped their grasp, and ran to the home of the other boy’s mother, where he saw the 20-year-old boy bleeding and bruised.

The mother left to get a policeman who lived in the neighborhood, but when she got outside, she saw defendant and his two henchmen walking up the street. She stopped, turned, and went back inside, and the three muggers came to her house.

“Hey, little woman, we got something for you,” they yelled.

They came up to the house, pounded on the door, and yelled to the two boys to come outside so they “could beat their asses again.”

Defendant pried open one of the windows and yelled to the woman. “Bitch,” they called her. “Come outside so we can fuck you up the ass, too.”

Defendant complains about four things on appeal: (1) that elevating a battery committed on a public way to an aggravated battery (see Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(8)) violates the equal protection clauses of the Illinois and United States Constitutions; (2) that failure to exclude the mother’s testimony was error; (3) that permitting the mother to testify about defendant’s conduct at her house was error; and (4) that sentencing defendant to five years in prison was excessive and disparate to that received by the codefendants.

We affirm defendant’s conviction of aggravated battery and his five-year sentence to prison.

Section 12 — 4(b)(8) of the Criminal Code of 1961 states:

“(b) A person who, in committing a battery, commits aggravated battery if [sic] he either:
* * *
(8) Is, or the person battered is, on or about a public way, public property or public place of accommodation or amusement.” Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(8).

Defendant claims the statute violates the equal protection clauses of both the Illinois (Ill. Const. 1970, art I. §2) and United States (U.S. Const., amend. XIV) Constitutions, arguing that there is no rational basis for elevating simple battery, a misdemeanor, to aggravated battery, a felony, just because it was done on a public way. (See People v. Lockwood (1976), 37 Ill. App. 3d 502, 346 N.E.2d 404 (Moran J., dissenting).) We disagree.

Equal protection challenges to this statute have been dealt with and rejected by Illinois courts. (See People v. Watson (1987), 118 Ill. 2d 62, 514 N.E.2d 167; People v. Lowe (1990), 202 Ill. App. 3d 648, 560 N.E.2d 438; People v. Cole (1977), 47 Ill. App. 3d 775, 362 N.E.2d 432.) In each of these cases, the supreme court and appellate court noted that “[t]o meet constitutional scrutiny, classification under the statute must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons in similar circumstances shall be treated alike.” (Lowe, 202 Ill. App. 3d at 656, 560 N.E.2d at 443, citing Watson, 118 Ill. 2d 62, 514 N.E.2d 167.) “[Gjovernments may recognize and act upon factual differences which exist between individuals, classes and events [citations], and *** the police power may be broadly exercised by the legislature to preserve public health, morals, welfare and safety.” Cole, 47 Ill. App. 3d at 779-80, 362 N.E.2d at 435.

Here, the legislative intent of the statute is clear: it intended to protect the public safety by making more serious a battery done in a public place, because it “constitutes a more serious threat to the community than simple battery.” (Ill. Ann. Stat., ch. 38, par. 12 — 4, Committee Comments, at 465 (Smith-Hurd 1979).) Thus, elevating simple battery to aggravated battery relates directly to the harm sought to be remedied and therefore withstands defendant’s equal protection challenge.

Next, we address defendant’s contention that the circuit court should not have allowed the mother to testify. The State originally charged defendants with criminal trespass to her house but dropped the charges. Prior to trial, counsel for one of the codefendants sought in limine to bar her from testifying, claiming she should not testify since the criminal trespass charges had been dropped and since she was not an occurrence witness. The State argued that she could testify to the statements made outside her house by defendants and to the boys’ condition after they retreated to her house.

The circuit court allowed her to testify but granted codefendant’s motion to the extent that it barred her from testifying as to the dismissed criminal trespass charges. Defendant claims the circuit court’s denial of the motion was error. Defendant, however, neither joined in the motion in limine brought by the codefendant nor objected during her testimony; therefore, defendant has waived review of the issue on appeal. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

Defendant also argues that the mother’s testimony that defendant pounded on the door of her house and pried open a window violated the limited order in limine. This issue, too, is waived. To preserve an issue for appellate review in Illinois, the party must object at trial and file a written post-trial motion raising the issue. (Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130.) Here, defendant failed to object at trial; therefore, the issue is waived.

Lastly, defendant contends that his sentence was excessive and disparate to that received by codefendants. Defendant argues that when the relationship between the offense charged and the sentence imposed is so disproportionate as to bring the system of the administration of justice into question, it should be corrected on appeal. (See People v. Odom (1980), 82 Ill. App. 3d 853, 403 N.E.2d 297.) Defendant claims, or in his words, the “bottom line is,” that a sentence of five years in prison for fighting warrants reduction. We disagree.

It is not the function of the appellate court to substitute its judgment for that of the trial court. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Rather, it is this court’s function to determine if the trial court abused its discretion in imposing the sentence. (People v. LaPointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) The circuit court should consider the following factors when sentencing: (1) the evidence at trial; (2) presentence reports; (3) evidence of aggravation or mitigation; (4) arguments on sentencing alternatives; and (5) statements made by defendant on his own behalf. (People v. Clark (1981), 97 Ill. App. 3d 953, 424 N.E.2d 9.) There is no evidence that the circuit court abused its discretion or considered improper information in deciding on defendant’s sentence.

Defendant also claims that his sentence was disparate to that of the codefendants — one received probation, while the other received two years in prison. We find no merit in his claim. To prove disparate sentencing, defendant must show that those receiving lesser sentences were similarly situated in backgrounds, prior criminal history, potential for rehabilitation, or in involvement in the particular offense. (People v. Gangestad (1982), 105 Ill. App. 3d 774, 434 N.E.2d 841.) We compare defendant with his codefendants: one codefendant had no convictions; the other had 10 traffic violations and three alcohol-related violations. Defendant, on the other hand, had these convictions: disorderly conduct in October 1981; theft in December 1981; theft in October 1983; theft in May 1985; possession of cannabis in March 1988; and nine traffic offenses including an offense for driving under the influence (DUI) in which he failed to complete treatment and pay his fine. Res ipsa loquitur.

The circuit court is affirmed.

Affirmed.

HARRISON and GOLDENHERSH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTIN WILLIAMS, Defendant-Appellant.
    Fifth District
    No. 5 — 90—0106
    Opinion filed August 28, 1991.

      Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Scott Mansfield, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The defendant, Martin Williams, was found guilty of theft after a jury trial in St. Clair County, Illinois. He was sentenced to the Department of Corrections for four years. Defendant’s sole contention on appeal is that the trial court erred in denying his motion for substitution of judge, made pursuant to section 114 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 5(a)). The State argues that defendant has waived the issue by failing to raise it in his post-trial motion, and that his motion for substitution was not timely filed and, therefore, the trial court’s denial of the motion was proper. We shall address the waiver issue first.

Section 114 — 5(a) provides as follows:

“114 — 5. Substitution of judge, (a) Within 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of that judge on the ground that such judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion. The defendant may name only one judge as prejudiced, pursuant to this subsection; provided, however, that in a case in which the offense charged is a Class X felony or may be punished by death or life imprisonment, the defendant may name two judges as prejudiced.” Ill. Rev. Stat. 1989, ch. 38, par. 114 — 5(a).

When a defendant complies with the terms of section 114 — 5(a), the trial court loses all power and authority over the case except to make the necessary order to effectuate the change. (People v. Davis (1957), 10 Ill. 2d 430, 140 N.E.2d 675, cert, denied (1957), 355 U.S. 820, 2 L. Ed. 2d 35, 78 S. Ct. 25.) If a section 114 — 5(a) motion is improperly denied, all subsequent action taken by the trial court is void (People v. Ethridge (1966), 78 Ill. App. 2d 299, 223 N.E.2d 437). A void order may be challenged at any time. (In re T.E. (1981), 85 Ill. 2d 326, 333, 423 N.E.2d 910, 913.) We conclude that defendant has not waived the issue. We turn now to the merits of defendant’s appeal.

Defendant was charged with committing the offense of theft from a person. Defendant’s initial court appearance was before Judge Radcliffe February 14, 1989, at which time defendant’s bond was set at $10,000. Defendant’s next court appearance came February 24, 1989, before Judge Lipinot, who appointed the public defender to represent him. Defendant then appeared March 3, 1989, before Judge Stevens and entered a plea of not guilty. On March 5, 1989, defendant posted a $1,000 bond and was released from custody. After defendant’s release on bail the public defender moved to withdraw from the case. A hearing on the motion to withdraw was held March 12, 1989, before Judge Wharton. Defendant was present at the hearing. Judge Wharton granted the motion to withdraw and continued the case to the next jury docket. The defendant was scheduled to appear in court at the June 9, 1989, docket call before Judge Wharton, but he did not appear. Judge Wharton ordered defendant’s bond forfeited and issued a warrant for his arrest. The defendant appeared in court on July 6, 1989, before Judge Radcliffe at which time his bond was reinstated, and the public defender was reappointed. On August 29 the public defender filed a motion to reconsider the order of reappointment. Defendant was scheduled to appear for docket call on September 15, 1989, before Judge Flynn, but he again failed to appear. Defendant’s bond was ordered forfeited, and a bench warrant was issued. While the record is unclear, it appears that defendant was in court on October 5, 1989, before Judge Radcliffe regarding defendant’s bond. On October 16 defendant was present at a hearing before Judge Flynn on the public defender’s motion to reconsider the July 6 order reappointing the public defender. Judge Flynn allowed the motion and ordered defendant to appear in court on November 1.

On October 25, 1989, the office of the chief judge mailed a criminal docket call to defendant directing him to appear before Judge Flynn on November 9, 1989. The defendant did not receive this information because the court file did not contain his correct address. The failure of the information to reach defendant can only be attributed to defendant since he twice signed court documents which listed his address incorrectly. Therefore, we shall assume that he received the notice of the docket call.

Defendant appeared in court on November 1 to report to Judge .Flynn that he had not been able to hire counsel. Defendant’s next court appearance was before Judge Flynn on November 9, at which time defendant informed the court that he would be representing himself and that he would be ready for trial during the next week. Defendant appeared in court on November 15 before Judge Aquirre. Judge Aquirre reappointed the public defender and then stated, “This cause will be reset for trial and reassigned with due notice.” Defendant’s section 114 — 5(a) motion for substitution of judge was filed on November 21. During the hearing on the motion conducted on December 12, Judge Flynn stated: Defendant’s jury trial was conducted that same day, and as noted above, defendant was convicted of theft from a person and sentenced to four years in the Department of Corrections.

“The motion for substitution was a standard motion for substitution that this particular defense counsel has been filing, I believe, in every case involving me and I have been denying it in every case in which the case has been appearing on prior dockets in front of me and I have been granting those motions concerning cases that appear before me for the first time. So I think defense counsel could have contemplated that the motion would, in fact, be denied and it has been denied.”

Section 114 — 5(a) (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 5(a)) is to be given a liberal interpretation so as to permit rather than deny a motion for substitution. (People v. Flowers (1977), 47 Ill. App. 3d 809, 365 N.E.2d 506.) The motion is timely filed when brought within 10 days of the date the defendant could be charged with knowledge of the assignment of the case to the trial judge. People v. Oatis (1979), 69 Ill. App. 3d 736, 741, 387 N.E.2d 1052, 1056.

The record does not contain an order of assignment or a rule of practice which governs assignments. However, the State maintains that defendant should be charged with knowledge of the assignment of the case to Judge Flynn on or before November 9, 1989. We disagree.

The State bases much of its contention on the statement made by Judge Flynn to defendant on November 9,1989:

“Here is what we are going to do. I am going to check with the judge next door so that we are both not calling out the same lawyers whether it be prosecutors or defense attorneys for the same time. You will be receiving a phone call from someone here whether it be the clerk or whoever informing you as to when your case will be tried one day next week, so you may receive a call later on today, or it may be next week sometime, but it will tell you when you need to be here.”

The State also cites the fact that defendant appeared before Judge Flynn on more than one occasion in support of its contention.

Judge Flynn’s statement indicates only that defendant’s trial was scheduled for the following week. Defendant appeared before six different judges during the proceedings and was without counsel from October 16 through November 15. Moreover, on November 15, Judge Aquirre informed the defendant that his case would be rescheduled and “reassigned” with due notice. We do not feel that defendant can be charged with having knowledge that Judge Flynn was assigned to his case on these facts.

The State also argues that defendant was made aware that Judge Flynn was assigned to his case by the October 25 docket call letter which indicated that defendant was to appear November 9 before Judge Flynn. In People v. Gunning (1982), 108 Ill. App. 3d 429, 439 N.E.2d 108, the court discussed the distinction between a docket call and a trial call:

“The sparse record before us does not indicate what the nature of a docket call is in Champaign County. Traditionally, it has been a public calling of pending cases, generally at the beginning of a term of court, for the purpose of disposing of them by setting for trial, by continuing, by defaulting, or by making some other disposition of them. *** Clearly an order to appear at a docket call is not an order to appear for trial, nor can a docket call be a trial call. The docket call is a sifting process and is a valuable tool for good judicial administration.” Gunning, 108 Ill. App. 3d at 432, 439 N.E.2d at 110.

The October 25 letter from the chief judge’s office sets forth the purpose of a docket call in St. Clair County:

“The purpose of the docket call is to ascertain the status of cases and to schedule trials and the taking of pleas.”

We do not agree that the presence of defendant’s case on Judge Flynn’s November 9 docket call made defendant aware that Judge Flynn was assigned to his case.

The record in this case simply does not indicate that Judge Flynn was assigned to the case prior to the day of trial, December 12. Therefore, we must conclude that defendant’s motion was not filed too late as the State contends.

We now address the State’s contention that defendant’s motion was filed too early.

In People v. Walker (1988), 119 Ill. 2d 465, 519 N.E.2d 890, our supreme court addressed the constitutionality of section 114 — 5(a):

“The automatic-substitution-of-judge provision makes clear that its protections may be invoked only after assignment is made and then only ‘within 10 days after’ the case has been placed on the trial calendar of the assigned judge.” (Emphasis in original.) Walker, 119 Ill. 2d at 477, 519 N.E.2d at 894.

Defendant contends that it is unlikely that St. Clair County would assign judges to the cases they would be handling on the very day the matter is scheduled for trial and that Judge Flynn’s remarks of December 12 reflect that the case had been previously assigned to him. These arguments may well have merit, but they do not establish, and more importantly, the record as a whole does not establish any definite date of assignment to Judge Flynn other than the December 12 trial date. Defendant concedes that under Walker his motion for substitution of judge was properly denied if it was filed before his case had been assigned to Judge Flynn for trial. Since defendant’s motion was filed on November 21 and since the only date of assignment to Judge Flynn which is established by the record is December 12, we must conclude that the motion was filed too early. Therefore, defendant was not entitled to a substitution.

We note that in People v. Samples (1982), 107 Ill. App. 3d 523, 437 N.E.2d 1232, we held that a defendant could file his motion for substitution of judge prior to the judge’s actual assignment to the case. To the extent that Samples is inconsistent with Walker, it is overruled.

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

Affirmed.

LEWIS and HOWERTON, JJ., concur.