author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD BARNETT, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—2898
    Opinion filed March 3, 1992.

      Joseph R. Lopez, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Howard Weisman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

An indictment returned in the circuit court of Cook County charged Donald Barnett (hereinafter defendant) and Tim Taylor with the murder of Allen Nuccio. Defendant was granted a severance from Taylor, and thereafter in a jury trial defendant was found guilty and sentenced to a prison term of 70 years. On appeal defendant contends that: (1) he was not convicted of murder beyond a reasonable doubt; (2) the trial court erred in allowing the testimony of Christine Robbins regarding an incriminating statement made by a coparticipant that implicated defendant; (3) prejudicial comments made by the prosecutor in closing argument denied him a fair trial; and (4) defendant was not proved guilty beyond a reasonable doubt on an accountability theory. For the following reasons, the judgment of the trial court is affirmed.

The record sets forth the following facts relevant to this appeal. On Saturday, November 29, 1986, at approximately 9 a.m., the police discovered the body of Allen Nuccio, slumped over, inside the back of a tow truck parked in a vacant lot at 4230 South Emerald Avenue, Chicago. Police observed numerous gunshot wounds in the body, but found no fingerprints and only minute traces of blood in the back of the truck. At the time of his murder, Nuccio was separated from his wife, Joanne, and lived with Edward Howard in a third-floor apartment above the Fifth Wheel tavern, at 4439 South Halsted Street, Chicago. Defendant owned both the Fifth Wheel and the upstairs apartments. The Fifth Wheel building was across the alley from the vacant lot where police found Nuccio’s body.

TRIAL

At trial, Joanne Nuccio testified that she had been married to Nuccio for seven years and that he was a mechanic and tow truck driver. Nuccio had his own business called “T & J Towing,” and had a 1970 black Chevy tow truck. Nuccio left the marital home during the second week of November 1986.

Christine Robbins testified on behalf of the State that at the time of the murder she was 22 years old and had known defendant all of her life. Christine frequented the Fifth Wheel, and during November 1986 she went to the Fifth Wheel three or four times a week. The tavern had both a front and back entrance, and there was a separate entrance to the upstairs apartments. Christine frequently used the back entrance to the tavern. Christine knew Tim Taylor and Edward Howard, both hired by defendant, as janitors who ran odd jobs and helped tend bar at the Fifth Wheel.

On the morning of Thursday, November 27, 1986, Thanksgiving Day, Christine went to the Fifth Wheel with her children to get pop and chips. At that time, she saw defendant, Howard and Nuccio, whom she knew only as “T.J.” She heard defendant ask Howard to get bread for Thanksgiving dinner. Christine took her kids to a park adjacent to the tavern and later returned to the tavern through the back entrance. At that time, she saw Howard and Nuccio pull up in a tow truck, and Howard walked inside while Nuccio unloaded the truck. Christine heard Howard say to defendant, “I think that boy’s a cop.” She left the Fifth Wheel after that.

Later that evening, Christine returned to the Fifth Wheel for Thanksgiving dinner. She stayed until the tavern closed and afterward attended a party upstairs in Howard’s apartment. At the party, defendant and Tim Taylor went into the front room and she went into the kitchen. Nuccio was in the kitchen and asked if someone would get him some cocaine. Howard told Tim Taylor to get the cocaine, Nuccio handed Taylor money and Taylor left. Taylor returned later with a bag of cocaine and everyone at the party used the cocaine.

After a few minutes, Nuccio told Howard to hide the cocaine in case the cops came, and Nuccio handed the cocaine to Howard. Howard unscrewed the drain pipe in the sink and pretended to put the cocaine in the drain, but in fact he put it in his pocket. A few minutes later, Nuccio said “Let’s do another line.” Howard walked over to the sink, turned on the faucet, and said “Oh my God, I just flushed it down the sink.” The party then broke up. Before Christine left, she heard defendant say to Terry Taylor, Tim Taylor’s brother, that he thought Nuccio was a cop but that he did not care because Nuccio was doing dope with them.

Christine had rented an apartment on the second floor from defendant at one time, and returned to the apartment to sleep that night. At 9 a.m. Friday, she awakened and heard Howard and Nuccio arguing upstairs. Nuccio accused Howard of selling his dope and of taking his cocaine. Christine left the apartment and went home.

At 2 a.m. Saturday, November 29, Christine returned to the Fifth Wheel through the back entrance. She ordered a drink at the bar and sat down next to the office in the rear of the tavern. Nuccio entered and ordered a six-pack to go. Nuccio talked to Howard, Tim Taylor and defendant for a little while and then exited via the back door. A few minutes later, defendant, Howard and Taylor turned around and walked into the office. The three men came out of the office talking, but she could not hear their conversation. After a few minutes, the three men re-entered the office. Taylor exited the office first. Then, on his way out of the office, defendant passed Howard a small, white and silver pearl-handled .22 caliber handgun. Christine recognized the gun as the same one defendant had asked her to hide in her apartment during a police raid at the time she lived above the Fifth Wheel. At that time, defendant had told her the gun was a “twenty-two.”

Howard exited through the back door. Defendant then announced that the tavern was closed and told everyone to leave. Defendant told Taylor to lock the back door, which was unusual because everyone came and went through both doors. Christine noticed at that point that someone had changed the clock to read 4 because she had, just prior to defendant’s announcement, noted that it was 3:30. The Fifth Wheel usually closed at 4 a.m.

Christine then went for a ride with some friends, drank beer, and used cocaine. She returned to sleep at her old apartment at the Fifth Wheel. She was dropped off at the park at the side of the Fifth Wheel and entered through the back entrance to the apartments. As she entered the hallway she heard noises sounding like “M80” firecrackers blasting up through the building. As she walked up the stairs she heard people arguing and saw Tim Taylor and his girl friend, Nancy McNulty, running down the front stairs of the building.

Christine awoke later Saturday morning and went home to find that her sister Alice, known as “Gidget,” was upset about something. Christine asked Gidget what was wrong, but Gidget said not to bother her and said she did not get any sleep. On that evening, Christine returned to the Fifth Wheel to find it closed.

Christine testified that on the morning of December 3 she returned to the Fifth Wheel through the back door. Defendant, Janet Knight and Larry Crossway were present in the tavern. Christine heard defendant telling Crossway to bond Howard out of jail. Christine then left the tavern.

Later that same day, Christine returned to the Fifth Wheel and saw defendant, Knight and Howard. Howard was sitting at the bar drinking shots of whiskey. Christine heard Howard saying, “I did it. You did it. We all did it. We killed T.J.” At that point, defendant walked over to Howard, put his arm around Howard’s neck and said, “shut up m— f— er.” Christine then left the tavern.

Christine did not tell the police what she had seen in November and December of 1986 until April of 1988. The day after Christine talked to the police, defendant approached her on the street, grabbed her and said that she and her sister were “tricks” and “snitches.” Two days later, defendant again approached her and said he heard that she and her sister were both talking to the cops. Thereafter, she and her family were relocated to Streator, Illinois, because she was afraid of defendant.

Following Christine’s testimony, defense counsel moved for a mistrial on the ground that Christine’s testimony regarding the events of December 3, 1986, was inadmissible hearsay. The trial court denied defendant’s motion.

Alice Robbins Parlich (hereinafter Gidget) testified for the State that in November 1986 she lived with her sister Christine, her brother Jack Robbins, and Christine’s four children. On Friday, November 28, Gidget was supposed to baby-sit for Christine’s children at 8:30 or 9 p.m., but did not arrive home until 1:30 a.m. on Saturday morning, November 29. At approximately 2:20, after Christine left and the children were sleeping, Gidget went out to Graham Park at 45th Street and Union Avenue, where she met Sean Dwyer. Dwyer asked her if she wanted to smoke a joint, and they walked to the Fifth Wheel to buy a joint.

Gidget and Dwyer went up to the third floor of the apartments at the Fifth Wheel via the back entrance. They knocked on the door of Howard’s apartment, Howard opened the door, and they entered the front room. Defendant, Howard and Nuccio were in the front room. Defendant was talking to Howard, and Nuccio was sitting in a chair. Gidget and Dwyer went back to the kitchen. Howard entered the kitchen and handed a lit joint to Dwyer. Dwyer passed the joint to Gidget.

Gidget then heard a “big boom” from the front room. She saw Tim Taylor come through the door toward Nuccio and shoot at him approximately three or four times. During the shooting, Howard was standing near Taylor in the archway to the kitchen and defendant was standing on the other side of the chair upon which Nuccio sat. Gidget grabbed Dwyer’s arm and pulled him down to the floor because she was scared. Neither defendant nor Howard tried to help Nuccio after the shooting, nor did defendant look surprised after Taylor finished shooting Nuccio. After the shooting stopped, defendant said to Nuccio, “you cock, you snitch.”

Gidget then pulled Dwyer up and they ran toward the front door. She noticed Nuccio slouched down in the chair. Howard jumped in front of the door and said, “What you just saw you didn’t see, and you ain’t going nowhere.” Howard pushed Gidget and Dwyer away from the doorway, and defendant motioned for Howard to leave the room. Defendant then threatened Gidget and Dwyer, saying “What you just saw didn’t happen,” and that if either of them said anything, “I will kill you and your families, and if I don’t, someone will.” Defendant grabbed Dwyer by the back of the neck and walked him toward the front door telling him to leave and never come back. Defendant opened the door and let Dwyer go, then threatened Gidget again and let her go.

Gidget ran down the front stairs out of the building and around the building to an alley toward her sister’s house. She ran through a gangway and heard sounds of fighting in the alley. She then saw Howard and another man, whom she could not identify, beating Nuccio on the ground. Nuccio was moaning. The other man picked up Nuccio, kicked him and said, “T.J., T.J.” She heard the man say “It’s useless” and then saw Howard pull out a silver gun and shoot Nuccio about five times. When Howard picked up the body, she ran. The next day, Gidget and Dwyer decided not to tell anyone what they saw because they were afraid of defendant’s threats.

In May 1987, Gidget told police that she saw Howard shooting somebody in the alley, but did not tell them about anything she saw in the apartment because she was scared. In June 1988, Gidget told the police everything she witnessed in Howard’s apartment. On cross-examination, Gidget testified that a year after the murder, she learned through a newspaper that there was a $5,000 reward for anyone with knowledge of Nuccio’s murder.

Sean Dwyer testified on behalf of the State that he had known defendant for several years and that defendant had a business selling drugs. Dwyer sold cocaine for defendant and would go to the Fifth Wheel four times a week to pick up drugs from defendant. Dwyer first saw Nuccio in mid-November 1986 at the Fifth Wheel. Approximately 10 days before the murder, defendant asked Dwyer to deliver cocaine to 120th Street and Harlem Avenue and Dwyer asked for a ride because it was far away. Defendant said Dwyer could not get a ride from him, Tim Taylor or Howard. Defendant told Dwyer that they had to stay and “watch T.J.” because defendant thought Nuccio was a cop. A few days before the murder, at 2 a.m., Dwyer had a conversation with Taylor while walking through Graham School Park, just south of the Fifth Wheel. Taylor told Dwyer to “watch out for T.J.” and not to talk to him because he was a cop.

On Friday evening, November 28, Dwyer went to meet his cousin, Johnny Barrett, at 45th and Union Avenue, but Barrett did not show up. After two hours, Dwyer left and went to the Fifth Wheel. At the Fifth Wheel, Dwyer talked to defendant, then went upstairs with defendant, Taylor and Howard to Howard’s apartment. Nuccio was in the apartment sitting in a chair, and appeared to be drunk and high on drugs. They all drank for the next few hours. Then defendant asked Dwyer to go downstairs and look for Jack Robbins because Jack owed defendant money.

Dwyer did not find Jack at the tavern, so he went back up to Howard’s apartment and saw Gidget Robbins. Dwyer followed Gidget into the apartment. Nuccio, defendant, Howard and Taylor were still in the apartment. Dwyer and Gidget went into the kitchen and started to do cocaine. Then Taylor left. Taylor continued to come and go from the apartment. During that time, Nuccio was sitting in a chair, defendant was sitting to Nuccio’s left and Howard was seated next to defendant.

Taylor returned again and started shooting at Nuccio. Dwyer jumped down into the corner on the floor with Gidget. Dwyer was not sure how many shots he heard, but thought he heard six or eight shots. When the shooting stopped, Dwyer looked into the doorway and saw Nuccio slumped down, covered with blood, choking and gagging. There was blood on the floor and the wall. Neither defendant nor Howard attempted to help Nuccio.

After the shooting, Taylor left and defendant and Howard stood in the doorway. Dwyer asked “what the hell’s going on” and Howard told him to calm down. Defendant was telling Nuccio “shut the hell up, you cop.” Dwyer said he wanted to leave, and defendant told him to stay for a while. Dwyer and Gidget walked farther back into the corner of the kitchen. Defendant gave Dwyer some cocaine and told him not to come around anymore. Dwyer ran to his father’s house and did not tell anyone what he had seen that night.

Dwyer stated that he served a sentence in the St. Charles penitentiary for burglary from October 1985 through August 1986, and again for burglary and battery from January 16, 1987, until November 13, 1987. He lived with his mother in Chicago from November 1987 until March 1988, when he was arrested in Missouri. At the time of the trial, Dwyer was serving two concurrent five-year sentences for unlawful use of a weapon and receipt of stolen goods.

Stacey Conrad testified that in November 1986 she worked the 6 a.m. to 2 p.m. shift as a waitress and cashier in the Stockyards Truck Stop at 4516 South Halsted, Chicago. Conrad stated that she had known defendant all of her life, and knew that he owned an older, white Cadillac. On Saturday, November 29, at 5:15 a.m., as she was walking down Emerald Avenue to work, she heard a shot from the direction of a vacant lot toward 43rd Place. At the intersection of 43rd Place and Emerald Avenue, she heard screeching tires and saw defendant in his white Cadillac, followed by a black car driven by Howard, heading east on 43rd Place. The two cars, going approximately 50 to 60 miles per hour, turned into the alley across Union Avenue.

Doctor Michael Chambliss, a Cook County medical examiner, testified that he performed an autopsy on Nuccio’s body on November 30, 1986. Nuccio suffered blunt trauma and gunshot wounds from the neck and head area to the waist area, and had injuries and abrasions on his body consistent with a person being dragged. Doctor Chambliss found that Nuccio suffered a total of 13 gunshot wounds to the body, and Chambliss recovered seven bullets from the body. Chambliss determined that Nuccio died of multiple gunshot wounds.

Chicago police department firearms examiner Ernest Warner testified that on December 1 he examined seven .22 caliber bullets recovered from Nuccio’s body. From his examination of the bullets, he could not determine whether they were fired by a handgun, such as a Jennings, or a semi-automatic long gun, such as a Marlin rifle. Each of these weapons has similar characteristics in terms of analysis of fired bullets, and Warner determined that the murder weapon could have been either of these types of gun.

On cross-examination, Warner stated that a Jennings semi-automatic could either be plated, a shiny color, nickel-plated, chrome-plated or dark blue, but that the handles are readily interchangeable. He stated that it is a small gun which could be carried in a coat pocket. Warner stated that Marlin rifles are usually semi-automatic but are also made in “bolt action.” In his work, Warner sees four to five as many Marlin rifles as Jennings handguns. On redirect, Warner stated that he has seen many Jennings semi-automatic pistols from the Chicago police department crime lab.

Chicago police detective Robert Lane testified on behalf of the State that on Saturday, November 29, he went to the Fifth Wheel tavern at approximately 8 p.m. to investigate the Nuccio murder and found the tavern closed. He had heard that Nuccio had been staying in an apartment above the Fifth Wheel.

On December 1, at approximately 8 p.m., Lane returned to the Fifth Wheel with his partner, Roy Kwilos, to obtain more background information on Nuccio. They went to Howard’s apartment on the third floor and Howard admitted them. Lane and Kwilos entered the kitchen and sat down at the kitchen table. It appeared that the walls, woodwork, baseboard and circumference of the floor area had been freshly painted. Lane could smell the fresh paint in the room.

Chicago police officer Richard Hanley testified that on June 8, 1988, he arrested defendant for the murder of Nuccio. Upon arrest defendant stated: “You cannot arrest me for that. You can only arrest the one who done the shooting.” The State rested, and following closing arguments, the jury returned with a verdict of guilty. Judgment was entered on the verdict, and following a sentencing hearing, the trial court sentenced defendant to a prison term of 70 years. Defendant’s timely appeal followed.

Opinion

Initially, defendant argues that he was not convicted of murder beyond a reasonable doubt. Defendant contends that the State failed to produce any physical evidence linking defendant to the murder and that the testimony of Gidget Robbins and Sean Dwyer was contradictory and self-impeaching. The State responds that viewed in a light most favorable to the prosecution, the record shows that the jury properly assessed the credibility of the witnesses, the weight of their testimony and the inferences drawn therefrom.

It is well established that a judgment of conviction will not be reversed on review unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to justify entertaining a reasonable doubt of the defendant’s guilt. (People v. Williams (1976), 65 Ill. 2d 258, 357 N.E.2d 525.) Upon review, the findings of the trier of fact, including the credibility of witnesses, are entitled to great weight. However, the reviewing court will reverse the conviction if the evidence is so unsatisfactory as to raise a reasonable doubt of defendant’s guilt. Williams, 65 Ill. 2d at 268.

Defendant first contends that the State lacked physical evidence linking him to Nuccio’s murder, specifically that the murder weapon was not introduced into evidence, no fingerprints were found on Nuccio’s truck, only minute traces of blood were found in the truck, and no blood was found outside the truck or anywhere on the ground surrounding the truck. This argument was raised by defendant in People v. Howard (1991), 209 Ill. App. 3d 159, 171, 568 N.E.2d 56, and as in that case, both defendant and the State rely on the balancing of the facts to support their positions.

Regarding the murder weapon, defendant contends that the testimony of the State’s firearms examiner, Ernest Warner, conflicted with the State’s theory that a small .22 caliber handgun had been used as the murder weapon. In making this argument, defendant mischaracterizes Warner’s testimony. Warner testified that the seven bullets recovered from Nuccio’s body were .22 caliber bullets fired from either a Jennings handgun or a Marlin rifle. Warner stated that each of these weapons has similar characteristics regarding analysis of fired bullets and that while he sees four to five times as many Marlin rifles as Jennings handguns, the murder weapon could have been either type of gun. Faced with the same contentions in Howard, this court concluded that Warner’s similar testimony did not contradict the State’s position that the bullets had been fired from a .22 caliber handgun.

As for the lack of fingerprints and bloodstains in and around the truck, the State responds, as in Howard, that absence of fingerprints merely shows that defendant was careful not to leave fingerprints on the truck. In Howard, this court found it reasonable for the jury to have believed that the crime scene had been cleaned to remove all traces of blood and fingerprints. Howard, 209 Ill. App. 3d at 172.

Next, defendant contends that the eyewitness testimony of Gidget Robbins and Sean Dwyer was inconsistent, self-impeaching, and unbelievable. The State admits that while inconsistencies exist regarding minor details, the testimony of the two witnesses is consistent regarding the actual shooting.

Any conflicts or inconsistencies in the testimony of witnesses go to questions of the weight of the evidence and the credibility of the witnesses. These questions, as well as any inferences to be drawn from the evidence, are within the province of the jury and, on review, the court will not substitute its judgment for that of the jury unless the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt as to defendant’s guilt. People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453.

Defendant alleges the following inconsistencies between Gidget’s testimony and Dwyer’s testimony establish a reasonable doubt as to defendant’s guilt: (1) Gidget stated that she met Dwyer in a park and walked to Howard’s apartment; Dwyer stated he met Gidget in the hallway going into Howard’s apartment; and (2) Gidget testified she heard Taylor fire three or four gunshots; Dwyer stated he heard maybe six or eight gunshots.

In Howard, defendant contended that similar testimony by Gidget and Dwyer was inconsistent. There, this court found the testimony regarding the witnesses’ meeting to be irrelevant as to the actual shooting and attributed the variance in testimony to the V-k-year interval between the occurrence and the trial. (209 Ill. App. 3d at 173.) Based on the similarity of the testimony in the record in the present case to the testimony of the same witnesses in Howard, the inconsistencies here are irrelevant.

As to the inconsistencies in the testimony regarding the number of shots heard, in examining similar testimony, this court found that Gidget’s answer was not unequivocal, that Dwyer’s answer was an approximation, and that considering the circumstances, the jury could have reasonably concluded that the witnesses may not have kept an accurate count of the shots fired. (Howard, 209 Ill. App. 3d at 173.) We find the same to be true in the present case. As the State indicates, the record, in fact, discloses many significant consistencies between Gidget’s and Dwyer’s testimony regarding the actual shooting in Howard’s apartment: both witnesses entered Howard’s apartment via the back stairway; upon entering the apartment, each witness noticed that Nuccio was intoxicated and slumped in a chair; both witnesses went into the kitchen; both witnesses saw Taylor burst into the apartment and commence shooting Nuccio; both Gidget and Dwyer were together in the kitchen when the shooting began; they both fell to the floor; defendant restrained both of them from leaving the apartment; and defendant allowed Dwyer to leave first. As in Howard, neither the lack of physical evidence nor the minor inconsistencies between the testimony of Gidget and Dwyer render the evidence so unreasonable, improbable or unsatisfactory as to justify this court’s reversal of the jury’s determination of guilt beyond a reasonable doubt.

In addition, defendant contends that the record disclosed discrepancies regarding the time of the shooting. Defendant contends that Gidget stated she heard gunshots at “approximately 3 a.m.”; however, no such testimony by Gidget appears in the record at all. Defendant further contends that Dwyer stated he heard gunshots at 4 a.m. and that Christine Robbins heard gunshot-like noises at “approximately 5 a.m.” In fact, the testimony of neither Dwyer nor Christine indicates any time at which they heard gunshots. Regarding these alleged discrepancies, there is no inconsistency because the record discloses that none of the witnesses gave explicit testimony as to the precise time of the shooting.

Defendant further attempts to discredit Dwyer’s testimony on the basis that Dwyer had a motive to cooperate with the prosecution to avoid a conviction for battery. However, the record indicates that at the time Dwyer testified, he was serving two concurrent five-year sentences for unlawful use of a weapon and receipt of stolen goods and there was no battery charge pending against him.

Defendant also contends that Gidget’s testimony is inherently unreliable and incredible on the grounds that she never reported the shooting to the police, did not talk to police until May 1987, six months after the shooting, that she made statements to the police which she later admitted were false, and that she learned of a reward before she talked to the police in June 1988. The State responds that Gidget’s testimony corroborates Dwyer’s testimony and that Gidget initially lied to the police because she was afraid of defendant.

The record shows that Gidget’s trial testimony regarding the actual shooting corroborates Dwyer’s testimony regarding the same. Gidget further admitted that she initially withheld her account of the shooting in Howard’s apartment because she was afraid for her life and the lives of her family members. In analyzing similar contentions in Howard, this court stated:

“Defendant also refers to the fact that Gidget did not talk to the police about the shooting until they contacted her in May 1987 and threatened to charge her with the murder. The question of whether Gidget’s testimony is improbable or incredible because of this time lapse is one of credibility which goes to the weight of the evidence. This determination is to be made by the trier of fact. Considering the evidence of threats made by Barnett to Gidget and to her family, the jury reasonably could have believed that Gidget was too frightened to contact the police, and too frightened to implicate Barnett.” (Howard, 209 Ill. App. 3d at 175.)

Thus, no reasonable doubt exists regarding defendant’s guilt which would warrant a reversal of his conviction.

Next, defendant argues that the trial court committed reversible error when it admitted hearsay statements into evidence under the co-conspirator exception to the hearsay rule. Specifically, defendant refers to testimony made by Christine Robbins as to the statements made by Howard and defendant at the Fifth Wheel on December 3, 1986. Defendant claims that such evidence does not fall within the co-conspirator exception to the hearsay rule, because the State failed to establish a prima facie case of conspiracy upon a preponderance of nonhearsay evidence. Defendant further contends that even if such a conspiracy did exist, defendant was unaware of the conspiracy and did not act in furtherance of the conspiracy.

Under the co-conspirator’s exception to the hearsay rule, the declarations of a co-conspirator made in furtherance of the conspiracy are admissible against a defendant even though they were made outside of defendant’s presence. (People v. Miller (1984), 128 Ill. App. 3d 574, 470 N.E.2d 1222.) To rely on this exception, the State need only establish the existence of a prima facie case of conspiracy by a preponderance of the nonhearsay evidence and must show that two or more persons were engaged in a common plan to accomplish a criminal goal or to reach a common end by criminal means. (People v. Brock (1989), 184 Ill. App. 3d 595, 540 N.E.2d 554.) The existence of the agreement need not be proved by direct evidence, but may be inferred from surrounding facts and circumstances, including acts and declarations of the accused. (People v. Columbo (1983), 118 Ill. App. 3d 882, 945, 455 N.E.2d 733.) It is within the discretion of the trial court to admit into evidence hearsay statements or acts of a co-conspirator before sufficient proof of the conspiracy by independent evidence has been given. People v. Kiel (1979), 75 Ill. App. 3d 1030, 394 N.E.2d 883.

In the present case, defendant contends that Christine’s testimony regarding what she saw and heard at the Fifth Wheel on December 3 is inadmissible hearsay evidence. Christine testified that she heard Howard say “I did it. You did it. We all did it. We killed T.J.,” and in response, defendant walked over to Howard, put his arm around Howard’s neck and said, “shut up m— f — er.”

The record establishes direct evidence of conspiracy through witness testimony of events occurring prior to December 3. Christine testified that on November 29, at the Fifth Wheel, defendant handed Howard a small, silver pearl-handled gun and that she recognized it as defendant’s .22 caliber handgun. Gidget testified that she saw Howard holding a small, silver gun in the alley when he shot Nuccio. Police testimony confirmed that the bullets recovered from Nuccio’s body were shot from a .22 caliber pistol. Stacey Conrad testified that she saw defendant speed past her in his white Cadillac at 5:15 a.m. on November 29.

Moreover, the defendant in Howard objected to similar testimony presented by Christine in that case. There, this court found that the statements made by Howard were in furtherance of a conspiracy and that the trial court properly admitted those statements under the co-conspirator’s exception to the hearsay rule. (Howard, 209 Ill. App. 3d at 186.) Accordingly, the statements made by Christine were properly admitted in the present case.

Next, defendant argues that he was substantially prejudiced and denied his rights to a fair trial by the State’s inflammatory comments during closing argument.

Defendant contends that the prosecutor’s comments regarding the events Gidget witnessed in the alley were prejudicial. When commenting that Gidget had seen two men beating Nuccio in the alley, and had positively identified one of the men as Howard, the prosecutor argued:

“Who was the one that was slapping and kicking Allen Nuccio, Ladies and Gentlemen? We know that Tim Taylor’s on the other side of the building. *** There’s [sic] only three guys involved. It was Don Barnett, Edward Howard and Tim Taylor. It had to have been him. *** So he was the one with Eddie Howard who took that man out in the back and he was that second person with Eddie Howard who delivered the coup de grace to Allen Nuccio in the back.”

A prosecutor is given great latitude during closing argument, and the propriety of his comments is within the trial court’s discretion. (People v. Morrison (1985), 137 Ill. App. 3d 171, 484 N.E.2d 329.) The prosecution may base the closing argument on the evidence presented or reasonable inferences therefrom, denounce the activities of defendant and urge that justice be administered. (Morrison, 137 Ill. App. 3d at 184.) In order for a prosecutor’s remarks to constitute grounds for reversal, they must be of “substantial magnitude” when viewed in the context of the entire record to have prejudiced defendant’s rights to a fair trial. (People v. Scott (1990), 194 Ill. App. 3d 634, 551 N.E.2d 288.) Any alleged prejudice to defendant is cured by the trial court’s instruction to the jury that closing arguments are not evidence and that they should disregard any comments made during closing argument which are not based on the evidence. (Scott, 194 Ill. App. 3d at 645.) In the present case, the trial court so instructed the jury.

The State argues that the prosecutor’s comments were based upon the testimony of Gidget and Christine Robbins and the reasonable inferences therefrom. Gidget testified that she saw Howard and another man beating and kicking Nuccio in the alley behind the Fifth Wheel. Christine testified that she saw Taylor and his girl friend flee via the front door of the Fifth Wheel. The State argues that from this evidence, the jury could reasonably infer that defendant was the other man with Howard in the alley. However, as there is nothing in the record that supports the proposition that the “other man” was, in fact, the defendant, the prosecutor’s comments were in error.

While in error, we do not believe that the prosecutor’s comments deprived defendant of a fair trial. Where it appears that improper comments do not constitute a material factor in defendant’s conviction, without which the jury might have reached a different result, the verdict will not be disturbed. (People v. Lyles (1985), 106 Ill. 2d 373, 391, 478 N.E.2d 291.) Here, the evidence of guilt was overwhelming so that no rational jury could have done anything but convict defendant. Where overwhelming evidence of defendant’s guilt exists, a prosecutor’s improper comments during closing argument are harmless error. (People v. Caballero (1989), 126 Ill. 2d 248, 533 N.E.2d 1089.) Under the circumstances, we are convinced that the prosecutor’s remarks had no material effect on defendant’s conviction and fail to provide grounds for reversal, either individually or cumulatively.

Finally, defendant contends that the testimony of Tucker Bentley, a witness who testified at Edward Howard’s trial, but not at defendant’s own trial, contradicts comments made in closing argument by the prosecutor in the present case. Defendant argues that in Howard, Bentley admitted carrying Nuccio’s body down the back stairs of the Fifth Wheel. (Howard, 209 Ill. App. 3d at 169-70.) We find no merit to defendant’s argument. Bentley did not testify in the present case, and his testimony was not before the jury as evidence.

Defendant next contends that the State failed to show, beyond a reasonable doubt, that defendant was accountable for Nuccio’s murder.

In Illinois, a person is accountable for an offense where the jury can reasonably infer from the evidence that defendant solicited, aided, abetted, agreed or attempted to aid another in the planning or commission of an offense, and that the defendant participated before or during the commission of the offense with the specific intent to commit the crime. (People v. Thomas (1989), 186 Ill. App. 3d 782, 542 N.E.2d 881, 887.) The intent to promote or facilitate a crime can be shown by evidence that the defendant and the principals shared a community of unlawful purpose, evidenced by prior deliberation to commit the offense or by the spontaneous and combined participation of a group in the participation of the offense. People v. Gil (1984), 125 Ill. App. 3d 892, 466 N.E.2d 1205.

In the present case, the trial court found significant evidence in the record indicating defendant’s accountability for Nuccio’s murder. The record shows that the murder occurred in defendant’s presence, in his own building, and at the hands of his employees, Howard and Taylor. The jury could infer the unlawful purpose between defendant, Howard and Taylor by the actions and words of defendant. The record indicates that defendant thought Nuccio was a “cop” and wanted Taylor to watch him. Defendant provided Howard with a gun, defendant was not surprised when Taylor burst through Howard’s apartment and shot Nuccio, defendant failed to assist Nuccio, threatened both Gidget and Sean Dwyer, and wanted to keep Howard from discussing the details of the murder. Finally, upon arrest, defendant stated “You cannot arrest me for that. You can only arrest the one who done the shooting.” Based on our review of the record, sufficient evidence exists for the jury to have found defendant guilty beyond a reasonable doubt on an accountability theory.

For the aforementioned reasons, the judgment of the trial court is affirmed.

Affirmed.

O’CONNOR and MANNING, JJ., concur.

      In a separate trial, coparticipant Edward Howard was found guilty of the murder of Nuccio, and this court affirmed his conviction in People v. Howard (1991), 209 Ill. App. 3d 159, 568 N.E.2d 56.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    BEN FRANKLIN FINANCIAL CORPORATION, as Successor to Uptown Federal Savings, F.A., successor by merger to Ben Franklin Savings and Loan Association, Plaintiff-Appellee, v. TERRY A. DAVIS et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 1—89—3061, 1—90—0095 cons.
    Opinion filed March 4, 1992.

      Ronald J. Broida and David G. Pribyl, both of Summit, for appellants.
    Lewis, Overbeck & Furman, of Chicago (Paul V. Esposito and Douglas A. Lindsay, of counsel), for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff Ben Franklin Financial Corporation brought this action to recover the unpaid principal, interest and attorney fees as the result of the default on a promissory note executed by defendants Terry A. and Valerie Davis (Davis). Defendant Chicago Title & Trust Company is trustee under trust No. 59130 of collateral secured under the note, but is not a party to this appeal. The trial court granted plaintiff’s motion for summary judgment on count I of a multicount second amended complaint and entered judgment in favor of plaintiff and against Davis in the amount of $1,650,000, which included $1,500,000 on the principal of the note and $150,000 pursuant to the provisions of the note in the event of default. The trial court also awarded plaintiff prejudgment interest in the amount of $388,586. On appeal, Davis contends that the trial court erred when it (1) granted plaintiff’s motion for summary judgment when genuine issues of material fact existed as to the propriety of the acceleration of the promissory note; and (2) awarded prejudgment interest for the period between September 6, 1989, and October 10, 1989. We affirm in part, vacate in part and remand.

On January 9, 1984, Davis executed and delivered a promissory note to Ben Franklin Savings and Loan Association in the principal sum of $1,500,000 plus interest at a rate of 15% annually. Under the terms of the note, Davis was required to make monthly interest installment payments of $18,750 commencing on February 1, 1984, through January 1, 1989. The note was secured by a security agreement which was incorporated by reference into the note. The agreement required that Davis deposit $200,000 into an impound account to guarantee the payment of interest on the note. In the event of a default on the note or agreement, Davis would be required to pay “an additional interest sum” of $150,000.

The agreement provided that any failure to perform under the note constituted a default, and that in the event of default, plaintiff could elect to have the principal sum and interest “become at once due and payable, at the place aforesaid, without presentment, demand or notice.” Finally, the agreement provided that modification of the agreement could be made only by express written amendment signed by all the parties.

Davis failed to pay the monthly interest installments due for several months, and by September 1987, Davis owed $56,250 in unpaid interest. On December 15, 1987, Davis was in default for missing the December 1987 interest payment. On January 5, 1988, plaintiff demanded from Davis full payment of the note and the additional interest sum of $150,000. On January 8, 1988, Davis paid the December 1987 interest payment and plaintiff withdrew its demand. This was the last payment made by Davis on the note.

The interest payment for January 1988 remained unpaid, and on January 12, 1988, plaintiff informed Davis that he was again in default. Davis took no action to cure the default, and on January 20, 1988, plaintiff demanded full payment of the note and the additional interest sum of $150,000. On February 3, 1988, plaintiff filed suit against Davis.

On September 6, 1989, the trial court granted plaintiff’s motion for summary judgment on count I of the second amended complaint, and entered judgment in favor of plaintiff and against Davis in the amount of $1,650,000. The summary judgment order granted plaintiff leave to file a petition for attorney fees and prejudgment interest, and provided that the summary judgment order was neither enforceable nor appealable until plaintiff’s petition for attorney fees and prejudgment interest was ruled upon.

On September 25, 1989, plaintiff filed its petition for prejudgment interest, attorney fees, and entry of final judgment on count I of the second amended complaint. Supported by affidavits, plaintiffs petition sought $377,336 in prejudgment interest through September 25, 1989, plus $750 per day thereafter until final judgment was entered. On October 10, 1989, the trial court entered an order stating that there was no just reason to delay enforcement or appeal of the order entered on September 6, 1989. (134 Ill. 2d R. 304(a).) On October 11, 1989, Davis filed a motion to reconsider the October 10, 1989, order.

On December 11, 1989, the trial court ruled on all pending motions. The trial court awarded plaintiff prejudgment interest in the amount of $388,586. The trial court also awarded $19,666 for attorney fees and costs of $3,438, and denied Davis’ motion to reconsider.

Davis first argues that a genuine issue of material fact exists as to whether plaintiff exercised good faith when it demanded payment of the note. Davis relies upon section 1 — 208 of the Uniform Commercial Code (Ill. Rev. Stat. 1987, ch. 26, par. 1—208). Section 1—208 states:

“Option to Accelerate at Will. A term providing that one party or his successor in interest may accelerate payment or performance or require collateral or additional collateral ‘at will’ or ‘when he deems himself insecure’ or in words of similar import shall be construed to mean that he shall have the power to do so only if he in good faith believes that the prospect of payment or performance is impaired. The burden of establishing lack of good faith is on the party against whom the power has been exercised.” Ill. Rev. Stat. 1987, ch. 26, par. 1—208.

It is readily apparent that section 1 — 208 applies to cases involving an option to accelerate at will or a clause commonly known as an insecurity clause. An insecurity clause is a clause often inserted in security agreements and promissory notes which provides that one party or his successor in interest may accelerate payment or performance or require collateral or additional collateral when he deems himself insecure.

In the present case, the demand for full payment of the note was not made pursuant to an option to accelerate at will or an insecurity clause, but rather took place pursuant to a default clause contained within the note which states:

“IF DEFAULT SHALL OCCUR in the payment of principal or interest called for herein, *** it is agreed that at the election of Lender, the principal sum remaining unpaid hereon, together with interest thereon, shall become at once due and payable, at the place aforesaid, without presentment, demand or notice.”

Since the plaintiff did not accelerate the note pursuant to an option to accelerate at will or an insecurity clause, section 1 — 208 is not applicable to the present case. Moreover, the record in this case establishes as a matter of law that plaintiff’s demand for full payment of the note after the default was not the result of lack of good faith by plaintiff. (See Watseka First National Bank v. Ruda (1990), 135 Ill. 2d 140, 552 N.E.2d 775.) Davis was late in making interest payments for much of the last quarter of 1987. Davis was in default in December 1987 for not making the December 1987 interest payment, but then cured the default. Davis was late in making the required interest payment for January 1988. Davis was informed by plaintiff that if he did not immediately make the January 1988 interest payment, he would again be deemed in default on the note and that all remedies available to plaintiff would be exercised. Davis never made the January 1988 interest payment. Under the circumstances, it is plain that plaintiff acted completely within its rights when it accelerated the note and that the note was not accelerated by a lack of good faith on the part of plaintiff.

Davis next argues that a genuine issue of material fact exists as to whether the monies deposited in the impound account should have been applied by plaintiff in January 1988 rather than in June 1988. The agreement expressly defines the requirements, obligations and rights of the parties under the impound account, which was established to guarantee payment of the principal and interest on the note. The agreement contains the following provision:

“5. IMPOUNDS. The debtor will establish concurrently herewith and will maintain a hypothecated savings account with [Ben Franklin]. Said account shall have an initial balance of $200,000.00 and shall guarantee payment of interest on the Note secured hereby and guarantee payment of principal and interest on the existing [FHA mortgage on Edgewater Walk Apartments]. Interest shall accrue on said account to the benefit of [Davis]. [Davis] may withdraw funds from said account to make payments on the Note secured hereby; provided however that the balance in the account shall be maintained at a level [of $100,000] *** [Ben Franklin] shall have the right to automatically and directly deduct and credit from the account the amount of interest payments due and owing *** if not paid when due.”

On January 20, 1988, Davis was in default due to his failure to pay the January interest payment due on the note. On that date, approximately $107,000 remained in the impound account. Plaintiff, however, did not apply funds from the account to satisfy the arrearage until June 1988, when it withdrew and applied $84,750 from the account to the accrued interest payments owed by Davis. In September 1988, plaintiff withdrew and applied the remaining $22,573 to the outstanding interest payments owed.

While plaintiff had the right to withdraw funds from the impound account, it did not have an obligation or duty to apply funds from the impound account at any specific time or under any specific set of circumstances. We, therefore, conclude that there being no duty or obligation for plaintiff to immediately apply funds from the impound account to satisfy any interest payment owed, and because plaintiff was acting completely within its rights under the note, there is no material question of fact as to plaintiff’s application of funds from the impound account.

Davis next contends that a genuine issue of material fact exists as to the date that the note was accelerated. Davis argues that an inconsistency between different paragraphs in count I of the second amended complaint creates an issue of material fact as to the date of acceleration.

Paragraph 9 of count I of the second amended complaint states:

“9. That the Note was accelerated on January 20, 1988, and pursuant to the terms thereof, at the election of Plaintiff, interest accrues upon the unpaid principal balance at the rate of 18% per annum from the date of acceleration.”

Paragraph 11 of count I of the second amended complaint states:

“11. Plaintiff has and by the filing of this suit (February 3, 1988) does declare the entire amount of indebtedness immediately due and payable pursuant to the terms of the Promissory Note.”

While an ambiguity may exist between paragraphs 9 and 11 of the second amended complaint, all other facts alleged and presented, including plaintiff’s uncontradicted affidavit, can lead to no conclusion other than that demand for full payment of the note and interest as a result of the default was made on January 20,1988.

Davis next contends that “the attorneys’ fees capitalized to the principal of the promissory note was not reasonable.” It is Davis’ position that the trial court included the attorney fees when it computed the amount of prejudgment interest, and thereby capitalized the attorney fees to the principal sum of the note. It is clear, however, that the trial court did not include the attorney fees when it computed the amount of prejudgment interest. Thus, Davis’ contention is not supported by the record.

Davis next contends that a genuine issue of material fact exists as to whether the note was orally modified. In the first instance, this contention is without merit because the agreement provides that any alteration, modification or amendment to the agreement must be made in writing by consent of the parties. Moreover, Davis has not referred to any specific oral statements by the parties which evinces an intent by the parties to modify the agreement. We, therefore, conclude that no genuine issue of material fact exists with regard to modification of the agreement.

Davis next contends that the trial court erred when it awarded prejudgment interest to plaintiff for the period between September 6, 1989, the date of the order granting summary judgment, and October 10, 1989. The parties agree that prejudgment interest at a rate of 18% should be awarded from the date of plaintiff’s demand for full payment of the note and interest until the date of the final judgment.

Davis contends that September 6, 1989, is the date of entry of final judgment. The September 6, 1989, order, however, is not a final order because it does not dispose of the attorney fees and prejudgment interest issues. Plaintiff contends that final judgment was entered on October 10, 1989. The October 10, 1989, order is likewise not a final order because it does not dispose of the attorney fees and prejudgment interest issue.

The existence of language in the October 10, 1989, order stating that the September 6, 1989, order is final and that no just reason exists for delaying enforcement or appeal of the order does not make a nonfinal order a final order. See Carl Sandburg Village Condominium Association No. 1 v. First Condominium Development Co. (1990), 197 Ill. App. 3d 948, 951, 557 N.E.2d 246, 248; Village of Burnham v. Cook (1986), 146 Ill. App. 3d 124, 126, 496 N.E.2d 1034, 1036.

The record establishes that the order disposing of all issues as to count I was entered on December 11, 1989. It follows that prejudgment interest should have been calculated up to December 11, 1989. The trial court, therefore, erred in calculating prejudgment interest only up to October 10,1989.

Finally, plaintiff requests an award of attorney fees and costs from Davis and his attorneys pursuant to Supreme Court Rule 375 for expenses incurred in defending this appeal. We deny the request because we believe that under an objective standard of conduct a reasonably prudent attorney in good faith could have brought this appeal. See Kennedy v. Miller (1990), 197 Ill. App. 3d 785, 555 N.E.2d 105; see also 134 Ill. 2d R. 375(b), Committee Comments.

Accordingly, the order and judgment of the circuit court are affirmed, except that the prejudgment interest amount is vacated and the trial court is directed to calculate and provide for prejudgment interest as stated herein. The case is remanded for further proceedings consistent with what is stated herein.

Affirmed in part, vacated in part and remanded.

TULLY and CERDA, JJ., concur.

       Justice White heard oral arguments in this appeal prior to his retirement. Since that time, Justice Tully was designated the third member of the panel and has read the briefs and listened to the tapes.


author: PRESIDING JUSTICE McNULTY

text:
      In re ESTATE OF H. EARL HOOVER (Robert C. Hoover et al., Plaintiffs-Appellants, v. Miriam U. Hoover et al., Defendants-Appellees).
    First District (5th Division)
    Nos. 1—88—2841, 1—89—2043, 1—89—2091 cons.
    Opinion filed March 6, 1992.

      Robert A. Holstein and David L. Poindexter, both of Holstein, Mack & Dupree, Jerold S. Solovy, Laura A. Raster, Norman M. Hirsch, and Robert S. Markin, all of Jenner & Block, and Hinshaw, Culbertson, Moelmann, Ho-ban & Fuller, all of Chicago, for appellants.
    Michael T. Hannafan and James J. Byrnes, both of Michael T. Hannafan & Associates, Ltd., Seymour Simon, Stanley J. Adelman, Michael R. Goldman, Carolyn S. Reed, and Fredric A. Cohen, all of Rudnick & Wolfe, James J. Carroll, Lee J. Schwartz, and Mark B. Blocker, all of Sidley & Austin, and Michael W. Coffield and John D. English, both of Coffield, Ungaretti, Harris & Slavin, all of Chicago, for appellees.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

Plaintiffs appeal from an order of the circuit court of Cook County granting summary judgment as to a will contest action brought by plaintiffs against the executors of the estate of H. Earl Hoover alleging that various members of plaintiffs’ family unduly influenced the testator to disinherit his son Robert C. Hoover and five of Robert’s children. Before the court is also an appeal from an order of the circuit court of Cook County imposing sanctions under section 2 — 611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611 (now preempted by Supreme Court Rule 137 (134 Ill. 2d R. 137))), totalling $935,400 against Robert C. Hoover, attorney Robert A. Holstein, and the law firm of Holstein, Mack & Dupree, for the litigation involving the estate of H. Earl Hoover.

The issues raised by plaintiffs on appeal are as follows: (1) whether the trial court erred in granting summary judgment in favor of defendants on the undue influence count; (2) whether the trial court erred in granting summary judgment in light of its refusal to strike expert testimony; (3) whether the trial court erred in placing limitations upon plaintiff’s discovery; (4) whether the trial court erred in not permitting plaintiffs to amend their claim after summary judgment to state a cause of action for fraud in the inducement; (5) whether the trial court erred in concluding that section 2 — 611 applied to Robert C. Hoover, Robert A. Holstein and the law firm of Holstein, Mack & Dupree; (6) whether the trial court awarded the proper amount of sanctions; and (7) whether section 2 — 611 is an unconstitutional legislative intrusion into the Illinois Supreme Court’s exclusive regulatory and disciplinary power over attorneys.

This case involves the estate of H. Earl Hoover, who died testate on November 13, 1985. His will and eight codicils were admitted to probate on November 18,1985.

H. Earl Hoover executed a last will and testament on June 27, 1974. H. Earl Hoover’s son Robert and Robert’s children were beneficiaries under the will and first through third codicils. With the fourth codicil, however, H. Earl Hoover began the disinheritance of Robert and five of his seven children. The disinheritance of Robert and his five children was completed in the fifth codicil and upheld through codicils six, seven and eight. Following H. Earl Hoover’s death, Robert along with his children Catherine, Holly, Robert II, John and Whitney instituted this will contest in the circuit court of Cook County.

Plaintiffs based their will contest on the theories of testamentary incapacity and undue influence. The basis for the undue influence claim was that H. Earl Hoover’s free will had been overcome by a series of lies and misrepresentations about Robert coming from the testator’s wife, Miriam, Robert’s brother Jack, Robert’s daughters Courtney and Elizabeth, and primarily from Robert’s ex-wife, Nancy. Plaintiffs allege that Nancy Hoover misrepresented Robert’s ability to provide adequately for Elizabeth and Courtney’s college and high school educations, Robert’s character in handling the dissolution of his marriage to Nancy and his relationship with his children thereafter.

Defendants filed motions for summary judgment on both the testamentary capacity and the undue influence counts of plaintiffs’ complaint. Plaintiffs did not contest the motion for summary judgment on the testamentary capacity count, and following a hearing on August 26, 1988, the court granted the motions for summary judgment on both counts. On September 13, 1988, plaintiffs moved to vacate the court’s order of August 26, 1988, and grant leave instanter to file a second amended complaint sounding in fraud in the inducement. The court denied plaintiffs’ motion.

Defendants then filed motions for sanctions pursuant to section 2 — 611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611 (now preempted by Supreme Court Rule 137 (134 Ill. 2d R. 137))) against plaintiffs and their attorneys. The circuit court ruled that section 2 — 611 sanctions were appropriate, and on July 7, 1989, the circuit court entered a written order assessing $129,000 in sanctions individually against Robert C. Hoover, and $805,500 in sanctions jointly and severally against Robert C. Hoover, Robert A. Holstein and Holstein, Mack & Dupree. The court declined to impose sanctions upon any individual attorneys of Holstein, Mack & Dupree, other than Robert A. Holstein, holding that such lawyers acted on the authority of Robert A. Holstein and on behalf of the firm.

Plaintiffs appeal the trial court’s order granting summary judgment. Robert C. Hoover, Robert A. Holstein and the law firm of Holstein, Mack & Dupree also seek a reversal of the court’s order awarding sanctions, or in the alternative, that the case be remanded for specific findings as to the individual liability of Holstein, Mack & Dupree attorneys. In addition, the defendants have filed a cross-appeal challenging that part of the court’s order which refused to impose sanctions upon attorneys who signed pleadings other than Robert A. Holstein.

A motion for summary judgment is to be granted where the pleadings, depositions, admissions and affidavits on file show that no genuine issue of material fact exists and that the moving party is entitled to summary judgment as a matter of law. (Kniffin v. Kniffin (1983), 119 Ill. App. 3d 106, 456 N.E.2d 659.) Although the use of summary judgment is to be encouraged to aid in the expeditious disposition of a lawsuit, summary judgment is a drastic means of disposing of litigation and, therefore, should only be allowed when the right of the moving party is free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.) To determine the presence of a genuine issue of material fact, courts must construe the pleadings, depositions, admissions, exhibits and affidavits on file strictly against the movant and liberally in favor of the opponent. (Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.) The granting or denying a motion for summary judgment is not discretionary (Zale Construction Co. v. Hoffman (1986), 145 Ill. App. 3d 235, 494 N.E.2d 830), and the de novo standard of review is applied. (Demos v. National Bank of Greece (1991), 209 Ill. App. 3d 655, 567 N.E.2d 1083.) Applying these principles, we believe that the trial court should not have granted summary judgment in favor of the defendants.

The undue influence which invalidates a will must be directly connected with the procurement and execution of the will and must be operative at the time it is made. (Peters v. Catt (1958), 15 Ill. 2d 255, 154 N.E.2d 280.) In addition, the undue influence must cause the testator to make a disposition of property that is not the testator’s free and voluntary act, but which is the product or mind of another person. (In re Estate of Ariola (1979), 69 Ill. App. 3d 158, 386 N.E.2d 862.) The influence must also be specifically directed toward procuring the will in favor of a particular person or persons. Sterling v. Kramer (1957), 15 Ill. App. 2d 230, 145 N.E.2d 757.

Plaintiffs argue that Nancy was primarily responsible for exerting undue influence on H. Earl Hoover. To support this claim, plaintiffs present evidence of correspondence between Nancy and H. Earl Hoover in which Nancy commented that Robert had abandoned his daughters, was not providing funds for Courtney’s and Elizabeth’s education and left Nancy and the girls destitute. There is also evidence that the testator’s wife, Miriam, sympathized with Nancy and helped to persuade H. Earl Hoover to take Nancy’s side in her dispute with Robert. Plaintiffs contend that Nancy misrepresented her situation to the testator, that Robert was, in fact, providing sufficient financial support to Nancy, Courtney and Elizabeth and that this bombardment of lies by Nancy overcame the testator’s will.

There is no dispute that H. Earl Hoover was greatly upset with Robert’s handling of his divorce and his relations with his daughters Elizabeth and Courtney, and that H. Earl Hoover removed Robert from his will after hearing that Robert made inadequate provisions for his daughters’ future education. From this evidence, and given H. Earl Hoover’s age and deteriorating health, an inference could be drawn that the pressure from family members overcame H. Earl Hoover’s will, and influenced him to procure a will disinheriting Robert and his five children, and providing bequests for Nancy and her two children. In granting summary judgment, the judge must not attempt to weigh the evidence. Even where a given interpretation is more cogent, summary judgment must be denied as long as a contrary interpretation is possible.

In addition, a question of fact exists regarding the interpretation of the following provision of H. Earl Hoover’s diary, a provision clearly material to the issue of whether H. Earl Hoover was unduly influenced. On June 23, 1981, H. Earl Hoover’s diary reports that:

“At 1:20 Bob Foote came to 4:10 [sic] & with [Miriam] revised our wills. He called Tom Swaney and told of the changes. Gave him some snaps for Barbara.”

This diary entry was made just prior to the execution of the fourth codicil, disinheriting Robert and his five children. Plaintiffs interpret this to mean that Miriam alone met with Robert Foote for the purpose of revising not only her will, but the codicil to H. Earl Hoover’s will. Defendants, in contrast, contend that the plain meaning of the diary entry is that Foote met with both Miriam and H. Earl Hoover to discuss changes to their respective wills. This therefore presents another issue of material fact.

Also in dispute is whether the contested codicils procured a benefit for the persons charged with exerting undue influence. It is undisputed that after Nancy approached the testator for funds for the girls’ education, H. Earl Hoover cut Robert out of the will, added educational provisions for Courtney and Elizabeth and left a direct bequest to Nancy. While defendants contend that they were actually adversely affected by Robert’s disinheritance, clearly an issue of disputed fact remains.

Not only do the foregoing contentions reveal the existence of genuine issues of material fact, but the expert affidavit of psychiatrist Dr. Finkel also leads to a conclusion that material issues of fact exist. In his affidavit, Dr. Finkel stated that he reviewed the diaries and medical records of H. Earl Hoover, the depositions of the defendants, the family correspondence as well as articles and cases on undue influence and concluded that H. Earl Hoover was unduly influenced by the actions of the defendants. Dr. Finkel stated that his opinion, “reached with the utmost medical and scientific certainty possible,” was that:

“H. Earl Hoover, when he disinherited Bob, was at an age where he demonstrated difficulty in assuming new tasks and integrating new information, despite his relatively robust condition. The actions of Nancy, Elizabeth, Courtney, Miriam and Jack Hoover, in thrusting upon H. Earl Hoover a volative [sic] and hostile new situation regarding his beloved son Bob, (which as I stated in my affidavit, the evidence shows was a largely false account of that situation) worked effectively to overcome H. Earl Hoover’s freedom of mind and thus substituted their will for his own.”

Defendants moved to strike Dr. Finkel’s affidavit, arguing that Dr. Finkel was not competent to offer the opinions contained in his affidavit, that his opinions were conclusory, and were made without adequate scientific method. In support of their motion to strike, defendants appended the affidavit of their own expert, Dr. Howard Kurland, a practicing psychiatrist. Dr. Kurland, in his counteraffidavit, stated that without the ability to conduct a personal evaluation of H. Earl Hoover, conclusions that he was not capable of comprehending new information, not able to evaluate his informants, and not able to formulate reasonable opinions would lack essential neuropsychiatric validity. Plaintiffs then provided the affidavit of Dr. Ronald Schlensky, who stated that he reviewed Dr. Finkel’s affidavit, the motion to strike and Dr. Kurland’s counteraffidavit, and concluded that Dr. Finkel had “extraordinarily excellent material to provide a basis for formulating an expert opinion.” Dr. Schlensky disagreed with Dr. Kurland’s opinion that such an approach as taken by Dr. Finkel in this case is “neuropsychiatrically invalid,” stating that it would be nearly impossible to have a will contest when psychological and emotional factors are pertinent without retrospective analysis.

In denying the motion to strike Dr. Finkel’s affidavit, the trial court stated:

“So the motions to strike the affidavits are denied. I read them all. I read everything. I don’t want any ifs, ands or buts about it. Everything that is relevant, believe me, I have considered.”

Although defendants challenge the admissibility of Dr. Finkel’s affidavit, they have not cross-appealed on this issue. Because defendants failed to appeal the trial court’s order denying their motion to strike Finkel’s affidavit, they have waived their opportunity to challenge the admissibility of Dr. Finkel’s affidavit on appeal.

We find that the trial court’s acceptance of Dr. Finkel’s affidavit into evidence prevents summary judgment from being entered in favor of the defendants. The function of affidavits is to show whether issues raised are genuine and whether or not each party has competent evidence to offer which tends to support his side of the issue. (Reynolds v. Heerey (1980), 88 Ill. App. 3d 101, 410 N.E.2d 334.) If a material and genuine issue of fact is raised and a jury has been demanded, a trial court may not weigh the evidence set forth in the affidavits and counteraffidavits, thereby denying a trial by jury. (Denton Enterprises, Inc. v. Illinois State Toll Highway Authority (1979), 77 Ill. App. 3d 495, 396 N.E.2d 34.) Because the plaintiffs’ claim of undue influence is supported by Dr. Finkel’s affidavit, which has been deemed competent by the trial court, we find that a disputed issue of material fact as to whether H. Earl Hoover was unduly influenced remains, thereby precluding summary judgment.

Accordingly, we find that there is sufficient evidence to go to the jury on the question of whether defendants unduly influenced H. Earl Hoover to disinherit Robert and his five children and reverse the trial court’s order granting summary judgment in favor of the defendants.

Plaintiffs next contend that the trial court should have permitted the completion of the deposition of Ronald Wagner, Nancy’s divorce attorney. Specifically, plaintiffs argue that the trial court erroneously ruled on the issue of attorney-client privilege.

During Wagner’s deposition, plaintiffs asked him about the contents of specific conversations he had with his client, Nancy. Defendants objected to these questions on the grounds of attorney-client privilege. Plaintiffs asserted that Nancy had completely waived this privilege by her prior disclosures and filed a motion to compel. The trial court ruled that while Nancy had waived the attorney-client privilege as to the contents of specific conversations or correspondence between her and Wagner either at her deposition or in documents she produced in this case, there had been no blanket waiver of the attorney-client privilege. The court therefore ordered that Wagner be permitted to answer all questions concerning conversations he had with Nancy in which she repeated to him communications with third parties. The court also ordered that plaintiffs could inquire on all previously disclosed material. When plaintiffs persisted in their questioning about specific conversations between Wagner and Nancy not already disclosed by Nancy, plaintiffs presented a second motion to compel, and the trial court ruled that Wagner could be asked two specific questions relating to two specific conversations he had with Nancy to which the attorney-client privilege had been waived. Plaintiffs were allowed to take one further session on Wagner’s deposition during which plaintiffs asked these two questions about these specific conversations. Defendants, however, again objected asserting the attorney-client privilege when plaintiffs attempted to ask Wagner about conversations other than the two specific conversations set forth in the court’s order.

Plaintiffs now assert that the trial court erred in ruling that Nancy’s waiver of the attorney-client privilege involving her conversations with Wagner was limited. Plaintiffs contend that Nancy completely waived the privilege by testifying about conversations with her lawyer, disclosing communications to third parties in letters turned over to plaintiffs and voluntarily turning over her divorce files to plaintiffs.

We disagree. The attorney-client privilege may be waived by the client when she voluntary discloses the privileged information. (Newton v. Meissner (1979), 76 Ill. App. 3d 479, 394 N.E.2d 1241.) However, the voluntary disclosure of confidential information does not effectively waive the attorney-client privilege as to all other non-disclosed communications which may have taken place. (Newton, 76 Ill. App. 3d at 499, 394 N.E.2d at 1255.) The trial court, therefore, correctly determined that while Nancy had partially waived the attorney-client privilege as to the communications with Wagner that she had disclosed, there was no blanket waiver as to the undisclosed communications.

Plaintiffs next maintain that the trial court erred in restricting the production of documents to the period of 1979 to 1985, and in prohibiting the production of H. Earl Hoover’s diaries from 1949 to 1952. The trial court denied plaintiffs access to the documents on the basis that plaintiffs’ request was overbroad, irrelevant and was not calculated to lead to the discovery of admissible evidence.

In light of the fact that the contested codicils were executed between the years of 1981-1983, the trial court properly confined discovery to the time period between 1979 through 1985 and denied plaintiffs’ request for access to H. Earl Hoover’s diaries from the period of 1949 through 1952. These requests were indeed overbroad, irrelevant and not calculated to lead to the discovery of admissible evidence, particularly given the fact that the diaries were written more than 35 years before H. Earl Hoover’s death and more than 30 years before he signed the first of the five contested codicils. Plaintiffs have not presented any reason as to why the documents sought are relevant to determine whether H. Earl Hoover was unduly influenced when signing the codicils in 1981 through 1983. Accordingly, the trial court properly ruled that plaintiffs were not entitled to these documents.

Plaintiffs next contend that they should have been permitted to amend their claim to state a cause of action for fraud in the inducement pursuant to section 2 — 1005(g) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(g)), and that the trial court’s failure to allow such an amendment constitutes an abuse of discretion. Section 2 — 1005(g) provides: “Before or after the entry of summary judgment, the court shall permit pleadings to be amended upon just and reasonable terms.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(g).) The decision to permit amendment rests with the sound discretion of the trial court. Hill v. Jones (1990), 198 Ill. App. 3d 854, 556 N.E.2d 613.

In order to support a fraud in the inducement theory, Nancy’s statements must be shown to have caused H. Earl Hoover to sign each of the contested codicils disinheriting Robert. This is the same showing which must be made to support an undue influence theory. In light of our determination that there remain genuine issues of material fact as to plaintiffs’ undue influence claim, and that plaintiffs rely on the same allegations in their undue influence count as in their fraud in the inducement theory, we reverse the trial court’s order denying plaintiffs leave to amend their complaint to state a cause of action for fraud in the inducement.

In light of our decision to reverse the trial court’s order granting summary judgment and remand for further proceedings, we also reverse the sanction award imposed against Robert C. Hoover, Robert A. Holstein and Holstein, Mack & Dupree and remand this matter for a new hearing at the conclusion of the trial on the case in chief. If the trial court again awards sanctions of a significant magnitude, the trial court must provide a specific explanation for its sanction award and an itemized account of what fees and expenses it is allowing or disallowing.

The law in Illinois is that where the expenses and fees incurred in defending the suit were incurred by reason of the unsupported pleadings, an isolated focus on each reimbursable component is not necessary. (G.M. Sloan Mosaic & Tile Co. v. Newman/Lustig & Associates (1990), 199 Ill. App. 3d 518, 557 N.E.2d 403.) However, when the sanction award is substantial, it should be treated in the same manner courts treat substantial sanction awards under Federal Rule 11. (See Leoco, S.A. v. Caribe Crown, Inc. (1991) 212 Ill. App. 3d 640, 571 N.E.2d 759.) Section 2 — 611 is virtually identical to Rule 11 of the Federal Rules of Civil Procedure and, therefore, Illinois courts may seek guidance in the Federal interpretation of Federal Rule 11 in applying section 2 — 611. Federal courts disapprove of unexplained lump sum awards in Rule 11 cases and require any court imposing a “substantial” sanctions award to state with specificity the method of computation. (Brown v. Federation of State Medical Boards (7th Cir. 1987), 830 F.2d 1429; Thomas v. Capital Security Services, Inc. (5th Cir. 1988), 836 F.2d 866 (while the district court need not make specific findings as to the imposition of Rule 11 sanctions in all cases, where such sanctions are substantial in amount, they must be quantifiable with some precision and explained to the court with appropriate specificity).) Accordingly, in order for us to exercise our power of review, the trial court in awarding substantial sanctions must state the theory under which sanctions are being awarded and state with specificity the manner in which the sanctions were computed.

Finally, the sanctioned parties contend that section 2 — 611 is an unconstitutional encroachment by legislature upon the Illinois Supreme Court’s exclusive regulatory and disciplinary authority over attorneys. The appellate court recently rejected this argument in In re Marriage of Stone (1990), 197 Ill. App. 3d 457, 554 N.E.2d 801. We find that decision persuasive and likewise uphold the constitutionality of section 2 — 611.

Affirmed in part; reversed in part and remanded.

MURRAY and GORDON, JJ., concur.


author: JUSTICE GORDON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HENRY SMITH, Defendant-Appellant.
    First District (5th Division)
    No. 1—90—0812
    Opinion filed March 6, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Michael Davidson and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Brian Clauss, and Roseanne McDonnell, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

Following a trial without a jury, defendant Henry Smith was found guilty of possession of a stolen motor vehicle. The court sentenced defendant to a prison term of five years. On appeal, defendant contends that the State failed to prove him guilty beyond a reasonable doubt because it did not prove that defendant was ever actually in the stolen car or that the car defendant was in was owned by the complaining witness.

At trial, Lucille Morgan testified that on November 28, 1987, she owned a 1980 Buick, VIN number 4M47WAH151913. At 8:30 p.m., she gave her son the keys to the car and permission to use the car. She did not give defendant permission to borrow, use or take possession of the vehicle. She did not know that it had been stolen. A police officer telephoned at 3 a.m. to inform her that the car had been stolen and recovered. She inspected the car at the police station and found that the steering column had been peeled.

Officer John Randle testified that on November 28, 1987, at 1:50 a.m., he was in a patrol car when he observed a two-door 1980 Buick traveling toward him, heading the wrong way down a one-way street. He attempted to curb the car. The car stopped half a car length from Randle. “We pulled up to each other.”

Three occupants, including defendant, immediately exited from the car. Defendant was seated in the driver’s seat and exited through the driver’s door. The other two men exited from the passenger’s door. Randle chased and caught defendant after about 30 feet. He did not lose sight of him from the time he fled the car until he apprehended him. There was good lighting due to streetlights. The closest streetlight was 40 or 50 feet away. Randle observed that the steering column of the car was peeled away.

Defendant testified that on November 28, 1987, at 1:50 a.m. he was in a car with Cottrell and another friend. Cottrell was driving, and defendant sat behind him, in the back seat. They were stopped by the police. Defendant exited from the car after Cottrell, but he did not run from the police. Defendant denied ever driving the Buick. He did not notice that the steering column had been peeled.

Officer Francis Sutter testified for the State on rebuttal that on November 28, 1987, at 1:50 a.m., he was on routine patrol with his partner when he turned down a one-way street, saw another patrol car in front of him and a Buick coming toward them. Sutter saw the other squad car and the Buick stop. Defendant “came running across the sidewalk,” from the direction of the Buick. He did not see defendant exit the vehicle. Sutter and Randle chased defendant and caught him 20 or 30 feet from the Buick. Streetlights lit the area surrounding the vehicle. The closest streetlight to the vehicle was 15 to 20 feet away.

The police arrest report signed by Randle states that on November 28, 1987, at 1:50 a.m., he “observed [defendant] driving” a car westbound on an eastbound street without headlights. When the officer tried to stop them, the occupants pulled over and fled on foot. The officer chased and caught defendant and a second man. The vehicle’s steering column was peeled. The officer checked with the vehicle’s owner, “who stated no permission given to [defendant] to operate her vehpcle].” The report describes the vehicle as a 1977 Buick with State license number LHM8. The complainant is listed as Lucille H. Morgan.

The felony complaint lists Lucille H. Morgan as the complainant, and stated that defendant was unlawfully in “possession of a vehicle, to wit: 1980 Buick Coupe 2 Dr., VIN 4M47WAH151913, IL Reg # LHM 8.” The felony information contains similar information.

The court found defendant guilty, stating that it found “the testimony of Officer Randle to be credible, that he did, in fact, see the defendant exit from the driver’s position of that vehicle” and that “he never lost sight of the defendant.”

Opinion

Defendant contends that the State failed to prove him guilty beyond a reasonable doubt. On appeal, we must reject a challenge to the sufficiency of the evidence and affirm the conviction if, when viewing the evidence in a light most favorable to the prosecution, we find that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453.) In order to establish possession of a stolen motor vehicle, the State must prove that defendant was in possession of a motor vehicle, that the motor vehicle was stolen, and that defendant knew it was stolen. Ill. Rev. Stat. 1989, ch. 95½, par. 4—103; People v. Whitfield (1991), 214 Ill. App. 3d 446, 573 N.E.2d 1267.

The testimony of Officers Randle and Sutter, which the trial court found to be credible and which is not challenged by defendant, establishes that defendant was in possession of a motor vehicle. Randle observed defendant exit from the driver’s seat, and both officers chased defendant for 20 to 30 feet and apprehended him. Randle never lost sight of defendant from the time he exited the car until he apprehended defendant.

The State also established that defendant knew that the motor vehicle he was driving was stolen. There is an inference that a person exercising exclusive and unexplained possession of a stolen vehicle has knowledge that the vehicle is stolen. (Ill. Rev. Stat. 1989, ch. 95½, par. 4—103; People v. Abdullah (1991), 220 Ill. App. 3d 687, 690, 581 N.E.2d 67.) The question of knowledge is a question of fact to be resolved by the trier of fact. (People v. Abdullah, 220 Ill. App. 3d 687, 581 N.E.2d 67.) The question of a witness’ credibility and the weight to be given the evidence are also matters within the province of the trier of fact. People v. Ambrose (1988), 171 Ill. App. 3d 87, 91, 525 N.E.2d 536.

Here, the police observed at the scene, immediately after apprehending defendant, that the steering column had been peeled. (See People v. Abdullah, 220 Ill. App. 3d at 691 (element of knowledge can be properly inferred from the condition of the vehicle, including peeled steering column); People v. Ferguson (1990), 204 Ill. App. 3d 146, 152, 561 N.E.2d 1118.) A defendant cannot “ignore the obvious and then assert his ignorance as a defense.” (People v. Williams (1976), 44 Ill. App. 3d 143, 147, 358 N.E.2d 58.) Moreover, flight from the stolen motor vehicle is evidence tending to show that defendant knew the vehicle was stolen. People v. Whitfield, 214 Ill. App. 3d 446, 573 N.E.2d 1267 (attempt to flee and peeled steering column show knowledge); People v. Wehrwein (1989), 190 Ill. App. 3d 35, 545 N.E.2d 1005 (police officer saw defendant driving stolen vehicle, defendant abandoned vehicle on side of road when police began to follow him, and vehicle was tampered with and had parts missing); People v. Kennedy (1989), 191 Ill. App. 3d 86, 547 N.E.2d 634 (officers testified that they saw defendant driving stolen vehicle, chased defendant when he fled on foot, and caught him within one or two blocks).

Defendant maintains that the State failed to prove that the Buick had been stolen. Evidence that the vehicle was stolen came from the police officer’s testimony that his check of the car’s vehicle identification number disclosed that the car belonged to Morgan. Morgan testified that the car was owned by her and that she had not given defendant permission to drive it. See People v. Whitfield, 214 Ill. App. 3d 446, 573 N.E.2d 1267.

Defendant argues that the record is silent as to whether Morgan’s son was involved in stripping the steering column and whether Morgan’s son knew defendant or the other two men in the car. Morgan testified that the only person to whom she gave permission to use the car was her son, to whom she had given the keys to the car. The trier of fact was not required to believe the unreasonable scenario that Morgan’s son stripped the steering column in order to start the car, when he had been given keys to the car and permission to use it. Cf. People v. Gordon (1990), 204 Ill. App. 3d 123, 561 N.E.2d 1164 (conviction for possession of stolen motor vehicle reversed where owner testified that he was very close to one of the passengers in the car which defendant was driving, and that if he had known the passenger had his car, he would not have reported it stolen; defendant drove the car in broad daylight in a public area where the car was known; the keys were in the ignition; defendant made no attempt to flee when stopped by the police; and evidence revealed that defendant had ridden with the same passenger in that car on at least one previous occasion); In re T.A.B. (1989), 181 Ill. App. 3d 581, 537 N.E.2d 419 (conviction for possession of stolen motor vehicle reversed where evidence merely revealed that defendant took his foster father’s car without permission and drove it around in a joyriding escapade).

Defendant also contends that the State failed to prove beyond a reasonable doubt that defendant was in a car owned by Morgan. Morgan testified she owned a 1980 Buick with a VIN of 4M47WAH151913. She did not testify as to the color or specific make of Buick, or whether it was two-door or four-door model. Randle testified it was “about” a 1980 two-door Buick, but he did not recall the car owner’s name, the car’s color or its YIN. Defendant argues: “This scant evidence is insufficient to establish a necessary link between the two vehicles.”

It is not necessary to prove ownership of a stolen vehicle. (People v. Whitfield, 214 Ill. App. 3d 446, 573 N.E.2d 1267; People v. Fernandez (1990), 204 Ill. App. 3d 105, 561 N.E.2d 1131; People v. Tucker (1989), 186 Ill. App. 3d 683, 694-95, 542 N.E.2d 804.) However, there must be proof that someone other than defendant had a superior interest in the car identified in the indictment. (People v. Fernandez, 204 Ill. App. 3d 105, 561 N.E.2d 1131; People v. Tucker, 186 Ill. App. 3d at 691-92.) When evidence of ownership is used to show the car was stolen, there must be evidence that defendant possessed the same vehicle which was owned by complainant. (People v. Fernandez, 204 Ill. App. 3d at 108-09; People v. Tucker, 186 Ill. App. 3d at 694-95.) In lieu of proof of ownership, chain of custody evidence, linking the recovered car to the car named in the indictment, may form the basis of a proper inference of identification. People v. Fernandez, 204 Ill. App. 3d 105, 561 N.E.2d 1131.

Here, the police recovered a 1980 Buick which was in defendant’s possession. Several hours later, Morgan identified the recovered car at the police station. The police report and the criminal information list the same license plate number for the Buick; and the criminal information and Morgan’s testimony include the same YIN for the Buick. Several hours after the police recovered the car, Morgan came to the police station and the car was released to her. This evidence is sufficient to establish a chain of custody showing that the car from which defendant fled was the same car listed in the indictment. See People v. Whitfield, 214 Ill. App. 3d 446, 573 N.E.2d 1267 (identification sufficiently established with evidence that recovered car with certain YIN matched YIN of car stolen from owner, and police officer’s testimony provided chain of custody evidence where car he apprehended defendant in was returned to owner later that day); People v. Balthazar (1989), 187 Ill. App. 3d 964, 968, 543 N.E.2d 994 (identification sufficiently established with evidence of chain of custody that the Monte Carlo from which defendant fled was the Monte Carlo released to the car’s owner at the police station shortly thereafter).

Defendant relies on People v. Fernandez, where the court reversed a conviction for possession of a stolen motor vehicle because the State failed to prove that the car named in the indictment was the car in defendant’s possession. The parties stipulated that the complainant would testify only that she owned a 1984 Mazda with a particular VIN. The indictment only listed a 1984 Mazda owned by complainant. The only other evidence was the testimony of a woman who stated that she saw a red Mazda RX7 in her garage, which she had rented, being stripped of its parts by defendant and others. However, in Fernandez, unlike the present case, the complainant never testified that the recovered car belonged to her. No evidence in the record established that the red Mazda defendant possessed and the red Mazda named in the indictment were the same. Absent either proof of ownership, or a chain of custody showing that someone other than defendant had a superior interest in the car, the “identification evidence was too tenuous to support defendant’s conviction for possession of a stolen motor vehicle.” People v. Fernandez, 204 Ill. App. 3d at 109.

Defendant also relies on People v. Hope (1979), 69 Ill. App. 3d 375, 387 N.E.2d 795, where the court reversed a conviction for possession of a stolen motor vehicle because the testimony showed only that a 1976 white Oldsmobile 98 was reported stolen and defendant was arrested in a 1976 white Oldsmobile 98. There was no evidence of certificate of title to show ownership or that the car bore the same VIN as the recovered car or a chain of custody showing the recovered car was returned to and accepted by the owner. It was not even clear whether the owner recovered his car prior to the date on which defendant was apprehended in possession of a stolen car. People v. Hope, 69 Ill. App. 3d at 380.

In viewing the evidence in a light most favorable to the State, we find that any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt. We will not overturn the conviction.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McNULTY, P.J., and LORENZ, J., concur.