text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRELL D. HOKE, Defendant-Appellant.
    Fourth District
    No. 4—90—0428
    Opinion filed May 9, 1991.

      Daniel D. Yuhas and John Anthony Palombi, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Tony Lee, State’s Attorney, of Paxton (Kenneth R Boyle, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On May 18, 1990, following a bench trial in the circuit court of Ford County, defendant Darrell D. Hoke was convicted of four counts of reckless homicide. (Ill. Rev. Stat. 1987, ch. 38, par. 9—3(a).) On June 25, 1990, the court sentenced defendant to a single term of 10 years’ imprisonment. He appeals, contending (1) the evidence did not support the verdict, and (2) various procedural errors were made. We affirm.

Each count of the information charged defendant with the death of a different victim, all arising from the same automobile collision. Each count alleged that defendant’s conduct was reckless because he (1) operated a motor vehicle with a blood-alcohol content of greater than 0.10; (2) drove at a greater than reasonable speed; and (3) disregarded a stop sign, thereby causing his vehicle to strike another vehicle causing the death of a person. The primary factual issue at trial was whether the defendant was the driver of the vehicle which crashed into the other vehicle.

The following facts were undisputed. On June 2, 1989, at approximately 8 p.m., a dark-colored Oldsmobile automobile failed to obey a stop sign located in a rural intersection of Ford County, and collided head-on with a red Chevrolet pickup truck. Following the collision, defendant was found lying facedown in a ditch north of the Oldsmobile. Jamie Swank was found on the floor of the passenger side of the Oldsmobile, and Rex Prewitt, Sr., and his son Joshua were found underneath the Oldsmobile. Rex Prewitt, Jr., and Matthew Hoke were found in the backseat of the Oldsmobile. The driver of the pickup truck, Swank, Rex Prewitt, Sr., and Joshua all eventually died from their injuries sustained in the collision.

Two witnesses, who arrived first on the scene, testified defendant was the only person who received facial injuries. Several State’s witnesses testified they observed defendant and the other adult occupants of the Oldsmobile drinking beer throughout the day of the accident. The witnesses also testified that Swank was driving the Oldsmobile at that time. At the scene of the accident, a number of beer cans were found inside and outside the Oldsmobile, as well as in a cooler in the rear of the car.

An accident reconstructionist testified as follows: (1) he calculated the speed of the Oldsmobile to be at a minimum of 59 miles per hour, and the speed of the pickup truck to be at a minimum of 55 miles per hour, at the time of the collision; (2) the skid marks found at the intersection of the collision revealed the driver of the Oldsmobile made little attempt to stop the car prior to impact; and (3) damage to the steering wheel and column indicated the driver was thrown into the steering wheel. At the conclusion of the State’s case, the court received in evidence, over defense objection, a document indicating that as a result of a blood test taken in a hospital emergency room after the collision, defendant had a blood-alcohol content of 0.147 grams per deciliter. Receipt of this evidence created the most intricate ruling in this case.

Direct evidence that defendant was driving the Oldsmobile came entirely from the testimony of two six-year-old boys, defendant’s son Matthew Hoke and Rex Prewitt, Jr. (Rex Jr.). After separate hearings, the court found both competent to testify but stated Rex Jr. was a “marginal case” because of his inability to remember and narrate events that transpired earlier in the year.

At trial, Rex Jr. testified as follows: (1) Jamie Swank was driving the Oldsmobile earlier on the day of the accident; (2) all the occupants of the Oldsmobile were out by a bridge and Swank fell from a tree and injured himself; (3) Swank could no longer drive and so defendant drove the car after Swank’s fall; (4) defendant was driving at the time of the collision; (5) he could not remember where Swank fell from the tree or what he was doing there; and (6) he denied that at the time of the collision they were attempting to bring Swank to the hospital.

The State then called six-year-old Matthew Hoke as a witness. Matthew began by testifying he did not remember who was driving the Oldsmobile at the time of the accident. Matthew then testified as follows: (1) Swank fell from a tree onto glass and injured his head and stomach; (2) at the time of the collision they were attempting to bring Swank to the hospital; and (3) he told the police that defendant was driving at the time of collision. Matthew then nodded affirmatively when asked whether defendant was driving at the time of the accident.

Defendant’s tactics consisted mostly of attempting to show that Rex Jr.’s family tried to influence him to believe defendant was the driver of the Oldsmobile. Defendant did not testify. The major thrust of defendant’s contention that the evidence could not support a finding defendant’s guilt had been proved beyond a reasonable doubt centered upon the weakness of the testimony of the boys. He maintains Matthew was equivocal and Rex Jr. unreliable. Defendant maintains Rex Jr. made a prior statement to a police officer which was inconsistent with his trial testimony, but no evidence was presented of such a statement. In contending the evidence is sufficient to prove defendant was the driver of the Oldsmobile, the State relies partially on evidence that only defendant had facial injuries indicating his face, mouth, and chest hit the steering wheel of the Oldsmobile. The steering wheel had been damaged in a way some described as indicating the driver’s body had been driven into it.

Defendant claims the foregoing argument is too conjectural to have much weight. He maintains his described injuries could have occurred when he hit the ground or could have resulted from his face coming into contact with a headrest. However, the court had the opportunity to hear the testimony of the two boys and witness their demeanor and manner while on the stand. Determination of their credibility was almost entirely that court’s function. That testimony, together with whatever corroboration that court might find in the circumstances of defendant’s injuries, was fully sufficient for a reasonable trier of fact to find, beyond a reasonable doubt, that defendant was driving the Oldsmobile at the time of the collision. People v. Collins (1985), 106 Ill. 2d 237, 261-62, 478 N.E.2d 267, 277.

Defendant further maintains that even if the court found he was driving the Oldsmobile and was intoxicated at the time of the collision, he was not acting recklessly because he was trying to help Swank, who was injured. The evidence was disputed as to where the occupants of the Oldsmobile were headed at the time of the collision. Matthew Hoke testified they were headed for a hospital, while Rex Jr. stated they were taking Swank home. Either way, the desire to help Swank would not have justified driving while intoxicated or running the stop sign, even if an emergency existed which would negate the recklessness of driving at a high speed.

The evidence of defendant’s guilt was such that a reasonable trier of fact could convict. Collins, 106 Ill. 2d at 261-62, 478 N.E.2d at 277.

Defendant next argues that the trial court erred when, over defendant’s objection, it received into evidence a written medical report indicating defendant had a blood-alcohol content of 0.147 grams per deciliter. This evidence was received pursuant to section 11 — 501.4 of the Illinois Vehicle Code (Code), which states as follows:

“Admissibility of written blood alcohol test results conducted in the regular course of providing emergency medical treatment. (a) Notwithstanding any other provision of law, the written results of blood alcohol tests conducted upon persons receiving medical treatment in a hospital emergency room are admissible in evidence as a business record exception to the hearsay rule only in prosecutions for any violation of Section 11 — 501 of this Code or a similar provision of a local ordinance, or in prosecutions for reckless homicide brought under the Criminal Code of 1961, when each of the following criteria are met:
(1) the blood alcohol tests were ordered by a physician on duty at the hospital emergency room and were performed in the regular course of providing emergency medical treatment in order to assist the physician in diagnosis or treatment;
(2) the blood alcohol tests were performed by the hospital’s own laboratory; and
(3) the written results of the blood alcohol tests were received and considered by the physician on duty at the hospital emergency room to assist that physician in diagnosis or treatment.
(b) The confidentiality provisions of law pertaining to medical records and medical treatment shall not be applicable with regard to blood alcohol tests performed under the provisions of this Section in prosecutions as specified in subsection (a) of this Section. No person shall be liable for civil damages as a result of the evidentiary use of blood alcohol test results under this Section, or as a result of that person’s testimony made available under this Section.” Ill. Rev. Stat. 1989, ch. 95½, par. 11—501.4.

The emergency room doctor who treated defendant on the evening of the accident was called by the State to lay the foundation for the admissibility (under section 11 — 501.4 of the Code) of the blood-alcohol tests performed on the defendant. That doctor testified that a blood-alcohol test was done in the regular course of his treatment of defendant and was used to assist him in that treatment. Other evidence established that the tests were performed by the hospital’s laboratory.

On appeal, defendant renews the argument he made in the trial court, which is that section 11 — 501.4 of the Code conflicts with Supreme Court Rule 236 (134 Ill. 2d R. 236), is unconstitutional as a result of that conflict and, accordingly, could not serve as the basis for the admissibility of the defendant’s blood-alcohol test results. We disagree.

Supreme Court Rule 236 states as follows:

“(a) Any writing or record, whether in the form of any entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but shall not affect its admissibility. The term ‘business,’ as used in this rule, includes business, profession, occupation, and calling of every kind.
(b) Although medical records or police accident reports may otherwise be admissible in evidence under the law, subsection (a) of this rule does not allow such writings to be admitted as a record or memorandum made in the regular course of business.” 134 Ill. 2d R. 236.

Defendant argues that section 11 — 501.4 of the Code conflicts with Supreme Court Rule 236 because that section provides for the admissibility of certain medical records — the written results of blood-alcohol tests conducted upon persons receiving medical treatment in a hospital emergency room — as a business record exception to the hearsay rule, whereas Supreme Court Rule 236 provides that, “[although medical records *** may otherwise be admissible in evidence^] *** this rule does not allow such writings to be admitted [as a business record exception to the hearsay rule].” (134 Ill. 2d R. 236(b).) However, careful reading of these two provisions reveals this claimed conflict to be illusory.

Section 11 — 501.4 of the Code provides that written results of blood-alcohol tests conducted upon persons receiving medical treatment in a hospital emergency room are admissible in evidence as a business record exception to the hearsay rule, but only under very limited circumstances. Those limited circumstances are set forth in subsections (1), (2), and (3) of section 11 — 501.4(a) of the Code and were designed to insure that the written results of these blood-alcohol tests would be trustworthy and reliable. That section ensures trustworthiness and reliability by requiring the timely involvement of the physician actually treating the person whose blood test results are at issue. The legislature obviously concluded that if these blood-alcohol test results are sufficiently trustworthy and reliable for the emergency room physician to use and consider when deciding what treatment is appropriate, then those results are sufficiently trustworthy and reliable to be received into evidence at a later trial. We note that a further limitation upon the admissibility of such test results is that section 11 — 501.4 of the Code applies only in prosecutions for reckless homicide, such as in the present case, or for driving while under the influence of alcohol, other drug, or combination thereof, in violation of section 11 — 501 of the Code (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501).

This analysis makes clear that the admissibility under section 11 — 501.4 of the Code of such blood-alcohol tests as a business record exception to the hearsay rule occurs only after the other statutory prerequisites have been met. Accordingly, section 11 — 501.4 is not in conflict with Supreme Court Rule 236 because section 11 — 501.4 imposes requirements for admissibility unrelated to a document’s admissibility under the business record exception to the hearsay rule, which is all that Supreme Court Rule 236 addresses.

In People v. Williams (1988), 124 Ill. 2d 300, 529 N.E.2d 558, the supreme court similarly addressed a defendant’s argument that a statutory enactment (giving the State the right under section 114— 5(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114—5(c)) to a substitution of judge) was unconstitutional because it conflicted with Supreme Court Rule 21(b) (107 Ill. 2d R. 21(b) (providing for general administrative authority in the chief judge of the circuit)), and stated the following:

“[A]ll legislation carries with it a strong presumption of constitutionality. [Citations.] Section 114 — 5(c), at. issue here, is no exception. The legislature cannot enact statutes ‘solely concerning court administration or the day-to-day business of the courts’ [citations], but may enact statutes complementing the authority of the judiciary [citations]. If legislation conflicts with a rule of the judiciary, our court will seek to reconcile the legislation with the judicial rule. [Citations.] Where, however, a statute ‘directly and irreconcilably conflicts with a rule of this court on a matter within the court’s authority, ’ the rule will'prevail over the statute.” (Williams, 124 Ill. 2d at 305-06, 529 N.E.2d at 560.)

Williams stands for the proposition that courts should conclude that a statute conflicts with a supreme court rule only when the statute and the rule are directly and irreconcilably in conflict, and that before so concluding the court must “seek to reconcile the legislation with the judicial rule.” (Williams, 124 Ill. 2d at 306, 529 N.E.2d at 560.) We find section 11 — 501.4 of the Code and Supreme Court Rule 236 to be not in conflict at all, much less “directly and irreconcilably.”

Defendant next argues that the trial court erred when it permitted Rex Jr. and Matthew Hoke, two six-year-old children, to testify because their testimony did not demonstrate that each child was sufficiently mature to appreciate the moral duty to tell the truth. As previously noted, the court found both children competent to testify based upon hearings it conducted on that question. Defendant argues that because “there was no evidence” to indicate that either of the children understood that he had a moral duty to tell the truth, the trial court should not have permitted either to testify. We are unpersuaded.

We note that this trial took place after section 115 — 14, dealing with witness competency, was added to the Code of Criminal Procedure of 1963 (Criminal Code) by Public Act 85—1190 (Pub. Act 85—1190, §3, eff. Jan. 1, 1989; 1988 Ill. Laws 1480, 1483 (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 115—14)). That new section states as follows:

“Witness Competency, (a) Every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter, except as provided in subsection (b).
(b) A person is disqualified to be a witness if he or she is:
(1) Incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand.him or her; or
(2) Incapable of understanding the duty of a witness to tell the truth.
(c) A party may move the court prior to a witness’ testimony being received in evidence, requesting that the court make a determination if a witness is competent to testify. The hearing shall be conducted outside the presence of the jury and the burden of proof shall be on the moving party.” Ill. Rev. Stat. 1989, ch. 38, par. 115—14.

In People v. Trail (1990), 197 Ill. App. 3d 742, 555 N.E.2d 68, this court construed the above section as follows:

“We interpret this new section as a legislative determination to discard the body of law that had developed regarding witness competency, particularly the more rigid of those former rules, such as always requiring competency hearings for prospective witnesses under 14 years of age.” (Trail, 197 Ill. App. 3d at 748, 555 N.E.2d at 72.)

We reaffirm our holding in Trail and add that the argument defendant makes in this case is part of that “body of law that had developed regarding witness competency” that we determined in Trail the legislature intended to discard.

By enacting section 115 — 14 of the Criminal Code, the legislature deemed every person qualified to be a witness unless he or she is incapable of either expressing himself or herself so as to be understood (Ill. Rev. Stat. 1989, ch. 38, par. 115—14(b)(1)) or of understanding the duty of a witness to tell the truth (Ill. Rev. Stat. 1989, ch. 38, par. 115—14(b)(2)). That statute provides that the burden of proof on the question of a witness’ competency shall be on the party who is challenging that competency by requesting the court to make a determination if the witness is competent to testify. (Ill. Rev. Stat. 1989, ch. 38, par. 115—14(c).) Accordingly, the defendant in the present case has the argument backwards: it was his burden to establish that the children who testified were incapable of understanding the duty of a witness to tell the truth. If, as defendant claims, there was no evidence regarding the ability of the children to understand the duty of a witness to tell the truth, then defendant has failed to meet his burden under the statute.

We further note the trial court has the superior opportunity to take into account the demeanor of a witness when determining his or her competency, and a determination that a witness is competent will be overturned only when it appears the trial court has abused its discretion. (People v. Garcia (1983), 97 Ill. 2d 58, 75, 454 N.E.2d 274, 280.) Our review of the record in this case demonstrates no abuse of the trial court’s discretion in letting either of these children testify.

Defendant’s final claim of error arises from the court’s consideration of the statements volunteered by defendant during the prosecutor’s closing argument. During that argument, the following colloquy occurred:

“[Prosecutor]: Your Honor, the driver of the Oldsmobile ate that steering wheel.
DEFENDANT: Yes, my ribs did too. All of them were broke.”

Following the finish of the prosecutor's closing argument, defendant again interrupted by saying “I’m sorry that I was trying to save a person and I did that. I don’t even remember it.”

In speaking before announcing its decision, the trial court noted that defendant’s foregoing statements tended to indicate he was the driver of the Oldsmobile. The court then stated:

“I am firmly convinced that this would have been my same decision without these statements of you, Mr. Hoke. But in the human mind, I can never be sure. I just feel compelled to point out that, again, even though I am 99 percent convinced that I would have made the same decision even without those statements, I would be lying if I said I didn’t or that I ignored them. I don’t think the human mind can do that.”

Defendant maintains the trial court improperly considered the statements as evidence of an admission by defendant he was the driver of the Oldsmobile. In support of his argument, defendant cites People v. Foss (1990), 201 Ill. App. 3d 91, 94-95, 559 N.E.2d 254, 256, wherein the court said it was improper for the prosecutor to ask the jury to watch the defendant’s reactions during the trial as certain of the State’s witnesses testified. The Second District Appellate Court in Foss stated the following: “Defendant’s demeanor, in any respect other than when he is testifying, does not constitute evidence in the case.” Foss, 201 Ill. App. 3d at 95, 559 N.E.2d at 256.

For two reasons, we need not decide whether we agree with Foss. The first reason is because, even if the court’s consideration of the outburst as evidence would have been improper, we are satisfied the court did not consider the outbursts as evidence. The other reason is that consideration of bodily activity by a defendant who has not testified is much different from consideration of a defendant’s direct statement in open court.

The forthright statement by the court indicates a high degree of certainty it had chosen to eliminate consideration of the statement contained in the outburst. The court was merely speaking to the inherent inability of the human mind to completely discard information put before it. Even if the information contained in the outburst could not properly be considered, a defendant who improperly puts such information before a trier of fact must bear the burden of any subtle prejudice that results. Any other rule would permit an accused to nullify any trial by putting such information before a trier of fact.

Cases such as Foss, People v. Jenko (1951), 410 Ill. 478, 102 N.E.2d 783, United States v. Schuler (9th Cir. 1987), 813 F.2d 978, and Good v. State (Tex. Crim. App. 1986), 723 S.W.2d 734, have been concerned with the consideration by the trier of fact of in-court conduct of an accused which, unlike here, did not involve a direct statement. No such case involving a direct statement by an accused not made on the witness stand has been called to our attention. Clearly if the statement here had been made while the State could still put on evidence, and if the existence of the statement was not deemed evidence, the State could have put the matter before the jury by the testimony of anyone who was in the courtroom and heard the statement. The latter procedure would seem to be an unnecessarily roundabout way of placing the existence of the statement before the jury. Here, the case is complicated by the fact the statement occurred after proofs had closed.

Because we are satisfied the court did not give consideration to the statement in question of defendant, we need not decide whether consideration would have been proper when the statement was made after the close of evidence. We are not holding such consideration would not be proper.

We affirm for the reasons stated.

Affirmed.

LUND, P.J., and STEIGMANN, J., concur.


source: Caselaw Access Project

author: JUSTICE SPITZ

license: Public Domain

text:
      In re W.B., JR., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. William Baker, Sr., Respondent-Appellant).
    Fourth District
    Nos. 4—90—0705, 4—91—0076 cons.
    Opinion filed May 8, 1991.

      Lynne R. Feldman, of Kirtley-Pavia-Marsh, P.C., of Urbana, for appellant.

      Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Diana Lenik, of Urbana, guardian ad litem.

   JUSTICE SPITZ

delivered the opinion of the court:

Respondent appeals a trial court order removing custody of W.B., Jr., from him and awarding custody to the child’s mother. We affirm.

On June 27, 1990, the State filed a two-count petition in the Champaign County circuit court which alleged in count I that J.B., C.B., and W.B., Jr., were neglected-abused minors under the age of 18 whose environment is injurious to their welfare when they reside with their parents, William Baker, Sr., and/or Theresa Taylor. At the time of the petition, W.B., Jr., was six years old, J.B. was one year old, and C.B. was three months old. Count II alleged that the parents create a substantial risk of physical injury to the children by other than accidental means, and that these acts by the parents would be likely to cause impairment of the emotional health or bodily functions of the minors. The petition sought a shelter-care hearing.

A shelter-care hearing was held on June 27, 1990. Present at the hearing were Baker and Taylor, who informed the trial court that they had an attorney, but that the attorney could not be present at the hearing. The court noted that Baker and Taylor were at a disadvantage not having an attorney, but informed them that the law provided the hearing had to be held within 48 hours of the time the Department of Children and Family Services (DCFS) took protective custody of the children. The court was unavailable the next day and proceeded with the hearing.

Evidence presented at the hearing revealed that Baker is the father of the three children, and Taylor, with whom he was living, is the mother of J.B. and C.B. Nancy Fitzgerald, who was living in Nevada, is the biological mother of W.B., Jr. All three children lived with Baker and Taylor. Sandra Potzer, a child-protection investigator with DCFS, testified that on June 13, 1990, she received a report alleging that J.B., C.B., and W.B., Jr., were at a substantial risk of injury. That report alleged that there had been a serious domestic dispute between Baker and Taylor, and that Taylor had pursued a protective order, but later dropped it and returned with the children to live with Baker. Potzer unsuccessfully attempted to see the children at their home upon receiving this report.

On June 25, 1990, a relative of the children contacted Potzer and stated that Taylor had asked the relative to temporarily care for J.B. and C.B. because Taylor needed a few days to search for a new residence for her and the children to live without Baker. Potzer called Taylor that same day and asked to speak to her about the children. Taylor informed Potzer that she and Baker were looking for a new residence for both of them and that Potzer should call later. Potzer then went to Baker’s residence with an investigator from the Champaign County sheriff’s department, and there found Baker, Taylor, and W.B., Jr. Potzer spoke to these three about a police report Taylor filed on May 22, 1990.

Taylor told Potzer that several days before May 22, Baker verbally and physically abused her, threatened her with a knife and gun, and cut her with the knife. Taylor also told Potzer that Baker tied her legs up, gagged her, and raped her. The three children were at home while these events occurred. Baker told Potzer that he was peeling potatoes and that Taylor turned around abruptly and bumped into the knife, cutting her hands. Taylor responded that Baker threatened her with the knife and that she was cut trying to take the knife away. Baker confirmed tying Taylor up and placing her on the bed so she would not get away. Baker indicated that he had been drinking that night. Taylor obtained an order of protection after this incident but later dropped it because she and Baker planned to get married. The two also indicated that they were being evicted and that there were lice and opossum in the trailer.

Potzer also interviewed W.B., Jr., alone. W.B., Jr., indicated that when Baker and Taylor fight, Taylor gets hurt. W.B., Jr., saw his dad cut Taylor with a knife and punch her. Taylor later had a black eye. This fighting made W.B., Jr., sad and scared. W.B., Jr., went into the kitchen with Potzer and described being in the room when his father pulled a knife off the counter. According to W.B., Jr., Baker pushed Taylor down, picked up a knife, and cut Taylor. W.B., Jr., denied that Baker was using the knife to cut potatoes or anything else. W.B., Jr., also described Baker putting a gun on Taylor’s stomach and pulling the trigger. However, there were no bullets in the gun. W.B., Jr., further described how Baker poured soda on Taylor.

Potzer next testified that there was a previous report for medical neglect. An investigation dated October 12, 1988, revealed that W.B., Jr., had a high level of carbon monoxide poisoning from a broken furnace. Baker and Taylor removed W.B., Jr., from the hospital against medical advice when he was being treated for the poisoning. Another report was filed on November 29, 1988, this time for substantial risk of physical injury. This report involved a domestic dispute between Baker and Taylor in an operating motor vehicle. Taylor reported to DCFS that Baker had physically abused her and that he had kicked W.B., Jr., grabbed him by the throat, and shaken him.

Potzer also testified that she spoke to W.B., Jr.’s biological mother, Fitzgerald, on June 26, 1990. Fitzgerald told Potzer that the last time she had seen W.B., Jr., was when he was five months old, but that she had had some telephone contact with him. Fitzgerald also told Potzer that she had not had contact with W.B., Jr., because Baker took him away from her when W.B., Jr., was five months old. Baker had told Fitzgerald numerous times that if she ever attempted to obtain custody of W.B., Jr., he would kill the child and then kill her. Fitzgerald also told Potzer that she had lived with Baker for approximately one year and, during that time, he had physically abused her, beat her, tied her hands and feet together, gagged her, and choked her.

After the State finished examining Potzer, the court asked Taylor and Baker each if they had any questions for Potzer. Taylor declined, but Baker asked Potzer several questions. After asking Potzer several questions, however, Baker stated that he was having no luck and needed an attorney. Baker then informed the court that his attorney told him to ask for an extension so that the attorney could be present. The attorney did not indicate to Baker when he could be at the hearings. The court noted that it was too late to ask for a continuance since the evidence had already been presented.

The court acknowledged that the evidence was uncontested and very preliminary, but found that due to the emotional harm and physical danger portrayed, it was a matter of immediate and urgent necessity that a temporary custodian be appointed. An order for temporary custody was entered on June 27,1990.

On July 26, 1990, Taylor stipulated to the allegation of the petition contained in count I, that J.B. and C.B. were her children, and that they were neglected. At that same hearing, Fitzgerald stipulated to the allegation in count I, that W.B., Jr., was her son and that he was neglected. Baker was also supposed to stipulate, but changed his mind the morning of the hearing. The court set an adjudicatory hearing for Baker for November 19, 1990. Adjudicatory orders were entered August 4, 1990, concerning Taylor’s and Fitzgerald’s stipulations.

On September 6, 1990, Fitzgerald’s dispositional hearing was held. At this hearing, the court noted that there had been no adjudication as to Baker yet, and as such, the court did not have the benefit of factual determinations with regard to the allegations pertaining to him. However, the court also noted that it had the benefit of two home and background reports, which included substantial information about Baker and his relationship to the mothers of the three children. The court further noted that Baker had the opportunity at the current hearing, as well as the two other hearings, to adduce any evidence he may have had to contravene the allegations made in the dis-positional reports. The only evidence Baker put forth was his disagreement with the dispositional reports.

The court next noted that both respondent mothers had stipulated to the facts contained in the allegations, which the court took as persuasive evidence that problems of domestic violence and environmental neglect occur. The court then found Baker unable and unfit for reasons other than financial circumstances alone to care for, protect, and train W.B., Jr. (The court later reversed this finding of unfitness at the hearing, noting that it would be unfair to make the decision without an adjudicatory hearing.) The court went on to note that the only evidence to suggest that Fitzgerald was unable to exercise custody of W.B., Jr., was her lengthy absence from him. However, the court also noted that Fitzgerald’s recent reunion with W.B., Jr., was very warm and appropriate, and that Fitzgerald also has had custody of another son, D.B., since 1984, which suggested that she was not an “inappropriate parent.” The court concluded that it could find no legal basis for withholding custody or depriving Fitzgerald of custody of W.B., Jr. The court found W.B., Jr., to be neglected and made him a ward of the court. Custody of W.B., Jr., was removed from the father, Baker, not due to any finding of unfitness or inability, but because of the best interests of W.B., Jr., that he be placed with Fitzgerald. Fitzgerald was appointed custodian of W.B., Jr., and guardianship was given to DCFS.

On November 19, 1990, Baker’s adjudicatory hearing was held. The court noted a report from the Nevada Department of Human Resources and Welfare which recommended against placement of W.B., Jr., with Fitzgerald. Concerns of the report included the fact that Fitzgerald has or had a relationship with Baker’s brother, Donald, and that Donald was in prison at the current time; Fitzgerald did not have insurance for W.B., Jr.; and Fitzgerald did not have an appropriate residence. The court noted that the custody decision was difficult, and was one which could legitimately be criticized by both sides. However, the court found several compelling factors present in Fitzgerald’s life, despite the negative factors, which indicated she should be granted custody. First, Fitzgerald had custody of another son, D.B., and the State of Nevada apparently had no concern with that. This led the court to wonder why Fitzgerald could not supply a proper home for W.B., Jr., when she could apparently do so for D.B. The court further noted that steps taken the previous summer by DCFS and Fitzgerald had helped the situation, and that W.B., Jr., had done well since living with his mother. Although Fitzgerald’s relationship with W.B., Jr., was not ideal, the court found it to be the best alternative available. Thus, the court continued custody of W.B., Jr., with Fitzgerald. The court noted, however, that this placement was subject to change upon the disposition as to respondent Baker.

Later at the hearing, Baker stipulated to the allegations contained in count I of the petition. The court set a dispositional hearing for December 20, 1990.

At Baker’s dispositional hearing on December 20, DCFS recommended continuing the current arrangement of custody. Baker’s attorney, noting that Baker was incarcerated at the present time, although he was present in court, stated that Baker agreed with the DCFS recommendation, or at least did not object to it. Baker’s attorney also noted that Baker had agreed, although not entirely, with the reports concerning the abuse and danger of the environment to the children. The court then found Baker unfit and unable, for reasons other than financial circumstances alone, to care for, protect, train, or discipline the respondent minors and removed custody of the minors from Baker. Baker subsequently filed this appeal, which concerns only the removal of custody of W.B., Jr.

On appeal, Baker makes three arguments, all of which are without merit. First, Baker argues that the trial court failed to comply with sections 601 through 610 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, pars. 601 through 610). Specifically, Baker argues that the court erred in awarding custody of W.B., Jr., to Fitzgerald without any petition on file by Fitzgerald for custody of W.B., Jr., and without an adjudication as to him, the custodial father. Baker argues that section 601 of the Act provides that a court has jurisdiction to determine child custody matters if the following occurs: (1) a parent files a petition for custody; or (2) a person other than a parent files a petition for custody, but only if that child is not in the physical custody of his parents. (Ill. Rev. Stat. 1989, ch. 40, par. 601.) Baker argues that nothing in the record indicates that Fitzgerald ever filed a petition with the court.

Baker fails to realize, however, that procedures under the Act are not the exclusive means by which the trial court acquires jurisdiction in child custody cases. Child custody proceedings may also be initiated under the Juvenile Court Act of 1987 (Juvenile Act) (Ill. Rev. Stat. 1989, ch. 37, par. 801—1 et seq.). Section 2—13 of the Juvenile Act provides that a petition for wardship may be filed by the State’s Attorney, alleging that the minor is abused, neglected, or dependent, and that it is in the best interests of the minor and of the public that he be adjudged a ward of the court. (Ill. Rev. Stat. 1989, ch. 37, par. 802—13.) Here, the State’s Attorney’s office filed a petition for wardship on June 27, 1990, alleging that W.B., Jr., J.B., and C.B. were neglected and abused. Thus, the circuit court of Champaign County acquired jurisdiction in this case. In re Lehmann (1989), 186 Ill. App. 3d 592, 595, 542 N.E.2d 754, 756.

Baker also argues here that section 610 of the Act requires a motion to modify custody as well as findings by the court, by clear and convincing evidence, that a change has occurred in the circumstances of the child or his custodian, and that modification is necessary to serve the best interests of the child. Baker claims that neither Fitzgerald nor the State made such motion and that the evidence was not sufficient to support a change of custody. Concerning the evidence, Baker argues that the court made its decision before it had the Nevada report, which recommended against awarding - custody to Fitzgerald, and before he had his dispositional hearing.

Again, Baker cites the wrong act, as proceedings were held pursuant to the Juvenile Act, rather than the Act. Under the Juvenile Act, the court followed the proper procedure to find W.B., Jr., neglected, make him a ward of the court, remove custody from Baker, and award custody to Fitzgerald. We further note that Baker stipulated to the allegations in count I of the petition, thus admitting his neglect, and agreed, or at least did not object, to the court’s order at his dispositional hearing.

Baker’s second issue on appeal is that the trial court manifestly abused its discretion in determining it was in W.B., Jr.’s best interest that custody be awarded to Fitzgerald. Baker argues, without citation to statute or authority, that the following facts reveal the court’s error: (1) Fitzgerald left W.B., Jr., with Baker when W.B., Jr., was five months old; (2) Fitzgerald had a pattern of living with abusive and bad men; (3) Fitzgerald currently resides with Baker’s brother, Donald, who was convicted in 1978 for armed robbery and was incarcerated for another serious offense at the time of the hearings; (4) Fitzgerald has no medical coverage or independent residence; (5) the State of Nevada recommended against placement of W.B., Jr., with Fitzgerald; and (6) DCFS recommended retaining guardianship of the minor with DCFS. Baker further argues that he had cared for W.B., Jr., without any help from Fitzgerald, for six years, and at the time of the September 14, 1990, order, there was no adjudication that W.B., Jr., was neglected by being in an environment injurious to his welfare when residing with his father.

We initially note that in making this argument, Baker neglects to note obvious factors in opposition to those he cites. First, while Baker claims that Fitzgerald left W.B., Jr., with him when W.B., Jr., was five months old, Baker fails to mention that Fitzgerald claimed that Baker took W.B., Jr., away from her and threatened to kill both W.B., Jr., and her if she tried to get W.B., Jr., back. Considering the evidence detailing Baker’s history of violence, this threat does not seem unrealistic. And, while Fitzgerald had a pattern of living with abusive men, Baker fails to note that he was one of these abusive men. Moreover, while Fitzgerald was living with Baker’s brother, Donald, who was incarcerated at the time of the hearings, the court noted that Donald had not been abusive toward Fitzgerald when the two lived together.

In child custody proceedings under the Juvenile Act, the best interest of the child is the standard and the trial court is vested with wide discretion. (In re J.K.F. (1988), 174 Ill. App. 3d 732, 733-34, 529 N.E.2d 92, 93.) The trial court’s opportunity to observe the demeanor and conduct of the parties and witnesses must be given great weight. Thus, the determination of the trial court will not be disturbed unless it is against the manifest weight of the evidence. (J.K.F., 174 Ill. App. 3d at 734, 529 N.E.2d at 93-94.) The court in the instant case had an admittedly difficult decision to make concerning W.B., Jr. However, after reviewing all the evidence, and noting that W.B., Jr., and Fitzgerald were getting along well, the court determined it would be in the best interests of W.B., Jr., to place custody of the child with his mother rather than with foster parents. The trial court did not consider Baker to be a placement alternative. The trial court did not abuse its discretion. Moreover, we note that at his dispositional hearing, Baker agreed, or at least did not object, to the court’s order.

Finally, Baker argues on appeal that it was a violation of due process to require him to act as his own counsel at the June 27, 1990, shelter-care hearing. Again, this argument is without merit. Baker argues that State intervention sufficiently undercutting a parent’s fundamental liberty interest and free personal choice in matters involving family life or which has divisive impact on family relations requires strict adherence to requirements of procedural due process. (In re J.M. (1988), 170 Ill. App. 3d 552, 565, 524 N.E.2d 1241, 1250.) Due process requires that a minor and his parents receive many of the same constitutional protections in a juvenile proceeding as a party receives in a civil or criminal proceeding. In re R.P. (1981), 97 Ill. App. 3d 889, 891, 423 N.E.2d 920, 922.

However, the Illinois Supreme Court has held that in proceedings on a petition to terminate parental status and appoint a guardian to consent to adoption, the parents have no constitutional right to counsel. (People v. Lackey (1980), 79 Ill. 2d 466, 468, 405 N.E.2d 748, 749; In re Adoption of Hoffman (1975), 61 Ill. 2d 569, 338 N.E.2d 862, cert. denied (1976), 425 U.S. 958, 48 L. Ed. 2d 202, 96 S. Ct. 1738.) If due process does not mandate the right to counsel in a proceeding to terminate parental rights, it follows that the right to counsel is not constitutionally required during a shelter-care hearing, which determines only whether a minor requires temporary placement outside the home. This view is supported by the case of In re Polovchak (1983), 97 Ill. 2d 212, 454 N.E.2d 258, where the supreme court gave no indication that the parent’s lack of counsel at a hearing where the trial court appointed a temporary custodian of the minor constituted a violation of due process.

Baker also argues that section 2 — 15 of the Juvenile Act provides that a parent “is entitled to have an attorney present at the hearing on the petition.” (Ill. Rev. Stat. 1989, ch. 37, par. 802—15(2).) However, the “hearing” referred to in section 2 — 15 is one in which a final determination on the petition is made, not the shelter-care hearing. Sections 3 — 11 and 3 — 12 of the Juvenile Act, which refer to shelter-care hearings and the notice required for those hearings, do not mention any right of counsel for respondents. Ill. Rev. Stat. 1989, ch. 37, pars. 803—11, 803—12.

Accordingly, the decision of the trial court is affirmed.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


author: JUSTICE McCULLOUGH

text:
      In re S.D., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Earl H. Dillman, Respondent-Appellant).
    Fourth District
    No. 4—90—0599
    Opinion filed May 9, 1991.

      Lynne R. Feldman, of Kirtley-Pavia-Marsh, P.C., of Urbana, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Harvey Welch, of Urbana, guardian ad litem.

   JUSTICE McCULLOUGH

delivered the opinion of the court:

The parental rights of respondent Earl H. Dillman to S.D. were terminated by the trial court on July 24, 1990, after a finding that respondent failed to (1) make reasonable efforts and progress toward the return of S.D. to his care; and (2) demonstrate a reasonable degree of interest, concern, or responsibility for S.D.’s welfare. (Ill. Rev. Stat. 1989, ch. 40, pars. 1501(D)(m), (D)(b).) S.D.’s mother, Katherine Overstreet, surrendered her parental rights to S.D. on July 9, 1990. Respondent appeals from the termination order and raises the following issues for our consideration: (1) whether respondent was denied effective assistance of counsel at the hearing on March 21, 1989, adjudicating S.D. an abused minor by reason of sexual abuse by respondent; and (2) whether the finding of unfitness and termination of respondent’s parental rights is against the manifest weight of the evidence. We affirm.

In light of the issues presented, a full recitation of the facts and history of this case is necessary.

On December 12, 1988, a two-count petition was filed alleging S.D., a four-year-old girl, was neglected due to an injurious environment when she resided with respondent and abused due to sexual abuse committed by respondent. Count I was dismissed after the adjudicatory hearing. Count II alleged respondent fondled S.D. and engaged in sexual intercourse with her. S.D. was taken into shelter care on December 12,1988.

At the adjudicatory hearing on March 21, 1989, S.D. testified in the judge’s chambers using anatomically correct dolls and described how respondent “hopped on” her, inserted his penis (“peepee”) into her vagina (“peepee”), moved back and forth and made faces at her. S.D. also reported she told respondent to “get off” of her because he was too heavy. S.D. stated she had seen respondent “pee” before and the “pee” was white. Jeanne Rice, a social worker for the Department of Children and Family Services (DCFS), testified that S.D. lived alone with respondent and respondent had five older children by a previous marriage. Respondent was divorced from S.D.’s mother. Rice interviewed S.D. on December 11, 1988, and reported S.D. told her of the sexual abuse by respondent. S.D.’s statements at the interview with Rice were consistent with her court testimony. S.D. told Rice the sexual acts took place “a lot of times” and before the respondent’s older children came to visit respondent on the weekends.

Sandra Potzer, a child-protection investigator for DCFS, testified that when she interviewed respondent on December 12, 1988, he denied the sexual abuse and stated someone was making S.D. say those things. Potzer interviewed S.D. on December 12, 1988, and S.D. again reported that respondent had engaged in sexual acts with her. When S.D. used anatomically correct dolls to demonstrate to Potzer what occurred, she chose a female child doll and an adult male doll to demonstrate the sexual acts.

Respondent, represented by counsel, did not present any evidence at the adjudicatory hearing.

The trial court found S.D.’s testimony credible and corroborated by the testimony of the DCFS workers. Further, given the graphically detailed nature of S.D.’s statements reported to many different persons, the trial judge reasoned it was unlikely S.D. was reporting sexual acts she saw on TV. The trial judge also noted S.D.’s apparent affection for and closeness to respondent made it unlikely S.D. was fabricating the events. The trial judge found S.D. had been sexually abused by respondent.

At the dispositional hearing on April 24, 1989, S.D. was removed from respondent’s care and made a ward of the court. Respondent was ordered, inter alia, to cooperate fully with any course of therapy or counseling recommended by DCFS. Respondent was advised of his right to appeal the findings of sexual abuse and removal of S.D. from his care. Respondent filed a notice of appeal on May 24, 1989. Respondent’s appeal was dismissed by this court on September 20, 1989, for failure to file the record on appeal as required by Supreme Court Rule 326 (134 Ill. 2d R. 326). In re S.D. (4th Dist. Sept. 20, 1989), 4-89—0453 (order of dismissal).

Review hearings were held on October 23, 1989, and April 2, 1990. At the October 1989 hearing, the court admonished respondent about his inconsistency in visiting S.D. and his failure to continue regular counseling to address the sexual abuse problems. Respondent continued to deny the abuse occurred and viewed himself as a victim of life’s circumstances. A review report prepared by DCFS indicated S.D. continued to have problems dealing with the past sexual abuse by respondent and she maintained her version of events of the abuse. At the hearing on April 2, 1990, the court considered a DCFS review report which reflected respondent continued to deny the sexual abuse and had no stable home or job. The court directed all prior orders were to remain in effect.

A supplemental petition seeking termination of respondent and Katherine Overstreet’s parental rights to S.D. was filed on April 2, 1990. In pertinent part, the petition alleged respondent failed to (1) maintain a reasonable degree of interest, concern, or responsibility for S.D.; (2) make reasonable efforts to correct the conditions which led to the removal of S.D.; and (3) make reasonable progress toward the return of S.D. to his care.

At a hearing on June 27, 1990, Ronald Matthew, a clinical psychologist, testified he conducted a psychological evaluation of respondent in February 1989 and concluded respondent is a passive-aggressive person who presents himself to others in the best possible light and avoids unacceptable feelings. Respondent is concerned about how others perceive him and needs and seeks the attention, approval, and affection of others. Also, respondent is a dependent person who is insecure with women. Matthew stated respondent never admitted to sexually abusing S.D. Matthew opined counseling would help a person who has sexually abused a child and admitting the act is an important component of any successful counseling. Matthew stated where a sexual abuser does not admit the past abuse, there is a risk the abuse will reoccur. Matthew stated respondent exhibits appropriate parenting skills but this is not inconsistent with being a sexual abuser of a child.

On cross-examination, Matthew stated he did not recommend group-oriented counseling for respondent with other perpetrators of sexual abuse because, based on his February 1989 evaluation of S.D., he did not find any psychologically confirming evidence of sexual abuse. On redirect, Matthew reiterated his evaluation of respondent was completed before the adjudicatory hearing in March 1989 when S.D. testified in court regarding the sexual abuse.

Gary Laumann, a marriage and family therapist, testified he counseled respondent from May to August' 1989. The counseling sessions began as weekly visits but after mid-June 1989, respondent did not contact Laumann or cancelled scheduled sessions. During this period, respondent refused to admit he sexually abused S.D. and told Laumann he thought he was being framed by his ex-stepdaughter and ex-mother-in-law. Laumann reported respondent repeatedly saw himself as a victim in his relationships with women and in his jobs. Between August 1989 and November 27, 1989, Laumann had no counseling sessions with respondent because respondent did not schedule any sessions as he was required to. During two sessions in February 1990, Laumann confronted respondent with sexual abuse charges by reading the transcript of S.D.’s court testimony to him. After reading the transcript of the first session, respondent stated, “Well, it’s sad to hear that.” At the second session, respondent vehemently denied the sexual abuse occurred. Thereafter, respondent continued to deny the sexual abuse occurred. Laumann opined further counseling would not change respondent’s perspective on the sexual abuse issue.

On cross-examination, Laumann indicated respondent’s denial of sexuál abuse was very strong. He stated it was possible respondent did not even remember the incidents of abuse. Laumann stated respondent could benefit from group therapy or hypnosis in regard to admitting the sexual abuse.

Marjorie Marlott, a child-welfare specialist for DCFS, became involved with respondent and S.D. in March 1989 when she was a caseworker for Catholic Social Services. Marlott stated respondent refused to admit he sexually abused S.D. Marlott stated respondent was not consistent from March 1989 to September 1989 in keeping appointments with her and his housing and job situation was not stable throughout the period. Further, respondent did not consistently maintain weekly visits with S.D.

Tim Lappin, a social worker for DCFS, testified he began working on respondent’s case in December 1989. Lappin worked on the March 1990 administrative case review of respondent. Lappin recalled that at the administrative case review on March 15, 1990, respondent denied that he sexually abused S.D. Respondent told Lappin that if he admitted the abuse, he would be calling his older children, who consistently reported that respondent “would not do such a thing,” liars. Lappin stated respondent was not employed in March 1990.

Carla Dumas, a caseworker for the foster care division of Catholic Social Services, testified she began working with respondent in February 1990. Dumas also reported respondent had not admitted to sexually abusing S.D. Dumas reported respondent exhibits adequate parenting skills in his visits with S.D. and he completed successfully a parenting class.

Respondent testified he found a residence which he shares with his mother and sister. Respondent stated he had not admitted sexually abusing S.D. because “I cannot admit to something I do not remember doing.” On cross-examination, respondent stated he did not abuse S.D.

The trial court found respondent unfit for failing to make reasonable efforts to correct the conditions which led to a finding of abuse, for failing to make reasonable progress toward the return of S.D. to his care, and for lacking a reasonable degree of interest, concern, or responsibility for S.D. At the dispositional hearing on the supplemental petition, respondent’s parental rights to S.D. were terminated.

Respondent’s first contention is that his trial counsel was ineffective for not interviewing and presenting witnesses favorable to him at the adjudicatory hearing in March 1989. Specifically, respondent maintains Dr. Buetow, a pediatrician who interviewed S.D. in December 1988, should have been called because her conclusions after interviewing S.D. and respondent’s older children supported his claim that he did not sexually abuse S.D. Respondent points to Dr. Buetow’s report, wherein she indicated S.D. was prone to fantasy, and to notes of a DCFS caseworker who reported Buetow believed the respondent’s older children who stated nothing happened between S.D. and respondent. Respondent argues the older children should have been called to testify in his behalf, as well as Dr. Matthew, who also concluded in March 1989 that S.D. probably was not molested by respondent.

The State argues respondent is barred from raising this issue because it should have been raised in an appeal within 30 days of the April 1989 dispositional order. Since the first appeal in this case was dismissed, respondent is barred from raising the issue in this appeal. We agree with the State.

As noted, respondent appealed the removal of S.D. from his custody because of sexual abuse in May 1989. That appeal was dismissed because respondent did not file the record in this court. Supreme Court Rule 326 authorizes the reviewing court to dismiss an appeal where the record on appeal has not been filed as required by the rule. In In re Tucker (1976), 45 Ill. App. 3d 728, 359 N.E.2d 1067, the court concluded a claim of error which occurred in the initial delinquency proceedings could not be raised in an appeal involving the proceedings for revocation of the delinquent’s probation where the minor did not earlier appeal the order of probation entered on the adjudication of delinquency. (See also In re Brown (1977), 48 Ill. App. 3d 171, 367 N.E.2d 707 (appellate court may not consider error in initial delinquency proceedings in appeal concerning sentence entered on revocation of probation); In re Marriage of Betts (1989), 190 Ill. App. 3d 961, 547 N.E.2d 686 (order of dismissal on first appeal bars litigant from raising issues involved in first appeal in later appeal).) Supreme Court Rule 369(b) provides that where an appeal is dismissed, other proceedings may be conducted as if no appeal had been taken. (134 Ill. 2d R. 369(b).) We conclude the dismissal of respondent’s earlier appeal precludes this court from considering any issue regarding the initial proceedings in this case. Parenthetically, we believe the presentation of those witnesses respondent relies on would not have changed the trial court’s finding that respondent sexually abused S.D.

Respondent next argues the finding that he is an unfit parent and the termination of his parental rights are against the manifest weight of the evidence. We disagree.

A finding of parental unfitness must be supported by clear and convincing evidence. (In re Paul (1984), 101 Ill. 2d 345, 461 N.E.2d 983.) Parental rights and responsibilities are of deep human importance and will not be lightly terminated. (In re R.B.W. (1989), 192 Ill. App. 3d 477, 548 N.E.2d 1085.) A finding of unfitness will not be disturbed by the reviewing court unless it is against the manifest weight of the evidence. (In re Boolman (1986), 141 Ill. App. 3d 508, 511, 491 N.E.2d 1, 3.) The rationale underlying the standard is the trial court’s opportunity to view and evaluate the parties and their testimony is superior to that of the reviewing court. Accordingly, the trial court’s finding should be given great deference. In re Brown (1981), 86 Ill. 2d 147, 152, 427 N.E.2d 84, 87.

The trial court found respondent unfit for failing to make reasonable efforts to correct the conditions which were a basis for removal of S.D., or to make reasonable progress toward the return of S.D. to his care within 12 months of the adjudication of abuse (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(m)), and for failing to demonstrate a reasonable degree of interest, concern, or responsibility for S.D. (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(b)). Reasonable progress is an objective determination and requires a parent to make at a minimum, measurable or demonstrable movement toward the return of a child. (In re Austin (1978), 61 Ill. App. 3d 344, 350, 378 N.E.2d 538, 542.) The benchmark for determining reasonable progress is the situation which triggered the child’s initial removal. (In re Bennett (1980), 80 Ill. App. 3d 207, 212, 399 N.E.2d 735, 738.) Reasonable effort is a subjective judgment based upon the amount of effort which is reasonable for a particular person. In re Doolan (1981), 101 Ill. App. 3d 322, 324, 427 N.E.2d 1348, 1349.

The evidence established respondent completed some of the goals established in the DCFS client-service plans but adamantly refused to admit to sexually abusing S.D. Whether or not S.D. was sexually abused was not an issue in the proceedings on the supplemental petition and is not an issue before this court. The counsellors involved in this case established respondent’s acknowledgement of the abuse was critical to the full recovery for S.D. from the trauma she suffered from the abuse and was required before respondent would be reunited with S.D. Further, failure to admit the abuse could lead to additional incidents of sexual abuse if respondent and S.D. were reunited. Regardless of respondent’s persistence of denial, in determining whether respondent was an unfit parent, the trial judge weighed the credibility of the witnesses and considered all of the evidence, including respondent’s refusal to acknowledge the abuse. The trial judge commented as follows in the last hearing:

“I had the benefit of sitting and watching and listening to this little girl testify. I remember as she re-enacted her own abuse with the anatomically correct dolls sometimes referred to as sexual abuse dolls. I remember as she described it verbally and I remember the look on her face. I remember her emotional reaction and that child wasn’t lying. I don’t believe Doctor Matthew ever had the benefit of sitting there and watching this child re-enact her own sexual abuse. *** I, frankly, find nothing to suggest that it would be in the best interests of this six year old little girl to condemn her to reside with the man who has sexually abused her, who denies it; who has rejected and refused all help, and all attempts to help and to condemn that child to live with a family that doesn’t believe her. I, frankly, am unmoved by sympathy here, and, unlike the State, I would question the love of an adult father who would do this to a child in the first instance, and then would reject all efforts to help him correct the problem, deal with it, and, more importantly, help this child to complete her emotional recovery from the sexual abuse. I seriously wonder if she will ever be able to fully recover without acknowledgement by the man who abused her that, in fact, it was done; that it was his fault, it was not her fault. *** [TJhis case causes me less pause than most others, and I have no doubt as to what is in [S.D.j’s best interests, and that is to grant the prayer of the petition and terminate parental rights.”

We conclude the trial court’s order finding respondent an unfit parent in terminating his parental rights was supported by the evidence.

For the foregoing reasons, the order of the trial court is affirmed.

Affirmed.

LUND, P.J., and SPITZ, J., concur.


text:
    DIX MUTUAL INSURANCE COMPANY, as Subrogee of Roy Mitchell Estate, Plaintiff-Appellant, v. TERRENCE LaFRAMBOISE, Defendant-Appellee.
    Fourth District
    No. 4—90—0704
    Opinion filed May 9, 1991.
    Monica E. Rackauskas, Mark E. Condon, and Peter W. Schoonmaker, all of Condon & Cook, of Chicago, for appellant.
    John A. Beyer and Steven D. Ziegler, of Satter, Ewing, Beyer & Spires, of Pontiac, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Dix Mutual Insurance Company filed a subrogation action against defendant Terrence LaFramboise to recover damages it paid for a fire loss suffered at the premises defendant leased from plaintiff’s subrogor, the Roy Mitchell estate (estate). Plaintiff appeals from the dismissal of its first-amended complaint pursuant to section 2— 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2—619) and argues the trial court erred in finding this subrogation action is barred because defendant is a coinsured with the estate under plaintiff’s policy of insurance. We reverse.

Defendant and J.S. Ludwig, acting landlord for the estate, entered into a lease agreement on September 15, 1986, for the house located on the Mitchell farm in Vermilion County, Illinois. The lease provided defendant was to assume the risk for his personal property. The lease also included the following language: “Landlord, J.S. Ludwig, will not be respondsible [sic] for fire, wind, or water damage.” The lease did not contain a yield-back or yield-up clause or any express language concerning insurance. The leased premises were damaged by fire on May 9, 1987, when defendant was removing paint from the exterior of the house with a power stripper. Plaintiff paid $40,579 to the estate under the terms of an insurance policy issued to the estate. The insurance policy is not a part of the record.

Defendant filed a motion to dismiss plaintiff’s first-amended complaint pursuant to section 2 — 619 of the Code. Defendant alleged plaintiff’s amended complaint was barred by an affirmative matter avoiding the legal effect of plaintiff’s claim; namely, that defendant was a coinsured with the estate and, therefore, an action for subrogation could not be maintained. The trial court granted the motion with prejudice and stated its earlier order dismissing the original complaint for failure to state a cause of action still applied. In the earlier order, the court found (1) defendant was a coinsured with the estate under the policy and, therefore, a subrogation action could not be maintained; (2) there was no allegation defendant agreed to accept responsibility for his own negligence; (3) the obtaining of insurance by the estate evidenced the parties’ intent that defendant would not be liable for damage caused by his own negligence; and (4) that when a landlord obtains insurance on rental real estate, it is understood the tenant is also an insured party. The trial court also noted the conflict in the Illinois cases addressing the issue but determined the cases supporting defendant’s position were better reasoned.

Plaintiff appeals the dismissal of its complaint pursuant to section 2 — 619 and argues that since the lease agreement did not exempt defendant from liability for damages caused by his own negligence, the common law rule that a tenant is responsible for his own negligence is applicable. Plaintiff maintains the recent decision from the Third District Appellate Court, Fire Insurance Exchange v. Geekie (1989), 179 Ill. App. 3d 679, 534 N.E.2d 1061, correctly states the rule and is, therefore, applicable to this case.

Defendant contends a decision from the First District Appellate Court, Continental Casualty Co. v. Polk Brothers, Inc. (1983), 120 Ill. App. 3d 395, 457 N.E.2d 1271, is controlling and urges the modern trend is to find, in the absence of an express agreement that a tenant is responsible for his negligence, that a tenant is a coinsured under a landlord’s policy of insurance. Defendant also maintains the fact that the estate obtained insurance is an important factor to be considered.

It is axiomatic that for a right of subrogation to exist, the subrogor must possess a right which he could enforce against a third party and that the subrogee must seek to enforce the subrogor’s right. (Continental Casualty, 120 Ill. App. 3d 395, 457 N.E.2d 1271.) In the case presented, it must be determined whether the landlord can sue the tenant-defendant for damages resulting from the fire he caused to the leased premises.

It is well established in Illinois that in the absence of an express agreement to the contrary, a tenant is liable for damage to the leased premises resulting from his failure to exercise due care. (Ford v. Jennings (1979), 70 Ill. App. 3d 219, 387 N.E.2d 1125; Barr v. Cutler (1978), 64 Ill. App. 3d 518, 381 N.E.2d 413.) Where a lease does not expressly provide that a lessee is to be free from liability for fires resulting from his own negligence, the intent of the parties regarding the lessee’s liability must be gleaned from considering the instrument as a whole. One Hundred South Wacker Drive, Inc. v. Szabo Food Service, Inc. (1975), 60 Ill. 2d 312, 314, 326 N.E.2d 400, 401; Cerny-Pickas & Co. v. C.R. Jahn Co. (1955), 7 Ill. 2d 393, 396, 131 N.E.2d 100, 102-03.

Yield-up or yield-back provisions in leases prescribe the conditions in which the leased premises must be found at the time the lease is terminated. (Englehardt v. Triple X Chemical Laboratories, Inc. (1977), 53 Ill. App. 3d 926, 928, 369 N.E.2d 67, 69.) Leases which contain a yield-back clause specifically excepting fire damages as well as ordinary wear and tear from a. lessee’s liability have been held to exculpate a lessee for fires caused by the lessee’s negligence. (Ford, 70 Ill. App. 3d 219, 387 N.E.2d 1125; Cerny-Pickas, 7 Ill. 2d 393, 131 N.E.2d 100.) Where there is no yield-back clause or that clause is silent regarding fires, the entire contract is scrutinized. First National Bank v. G.M.P., Inc. (1986), 148 Ill. App. 3d 826, 828, 499 N.E.2d 1039, 1041; Continental Casualty, 120 Ill. App. 3d 395, 457 N.E.2d 1271.

A complete review of the reported cases addressing these issues is necessary.

In Cerny-Pickas, premises leased to defendant were destroyed by fire. The lease provided lessor was to pay for the fire insurance and the lessee was responsible for increases in fire insurance premiums due to the nature of the lessee’s business. The lease also provided lessor could terminate the lease if the premises became untenantable by fire or other casualty. The yield-back clause excepted fire from the lessee’s liability. The court determined the yield-back clause exonerated lessee from, liability for fires caused by its own negligence and the lease as a whole evidenced the parties’ intent that the lessor looked solely to insurance as compensation for fire damage.

In Englehardt, given that the yield-back provision in the lease specifically stated lessee was responsible for fires negligently caused, the court relied on the Cerny-Pickas reasoning and determined the lessor could recover damages from the lessee.

As noted, defendant relies on a case from first district, Continental Casualty. There, the yield-back clause did not exempt fire but the court determined that the lease as a whole evidenced an intent that the lessor obtain fire insurance covering the lessee and its acts of negligence. The lease provided that if the leased building was totally destroyed by fire, as occurred, the lessor would be responsible for the repairs. Another provision governed partial damage by fire and the lessor’s obligation to repair was conditioned on the fire happening without any fault of the lessee. Since the whole building was destroyed, the lessor’s fire insurer had no subrogation claim against the lessee. The Continental Casualty court also stated the key factor, in determining whether the parties to a lease intended to exculpate the lessee’s negligence is the allocation of insurance burdens as evidenced by the terms of the lease.

In First National Bank, the court concluded, after considering the entire lease, that the lessee was responsible for negligently caused fires. The lease in question contained a yield-back clause which did not except fires and no provisions regarding which party was responsible for obtaining insurance. While various other provisions in the lease supported a construction that the lessee was responsible for its negligence, one provision supported the lessee’s position that he was not so responsible. However, the court determined the lease as a whole evidenced the parties’ intent that the lessee was liable for its negligent acts.

In Geekie, relied upon by the plaintiff, the court overruled an earlier third district case, Anderson v. Peters (1986), 142 Ill. App. 3d 182, 491 N.E.2d 768. Both cases involved an oral lease and it was undisputed that both tenants were responsible for the fire which damaged the leased premises. In Geekie, both landlord and tenant had obtained separate insurance policies to cover fires. In Geekie, the court held there was no evidence the landlord intended to exonerate the tenant for his negligence and, therefore, the tenant was liable and a subrogation action by landlord’s insurer could be maintained against the tenant. The Geekie court overruled Anderson, where the court had abrogated the common law rule and held, in the absence of an agreement to the contrary, a tenant was a coinsured of the landlord and, thus, no subrogation action against the tenant could be maintained.

Before it was overruled, two appellate cases relied in part on Anderson and determined the defendant-lessee was a coinsured of the landlord-insured. In McGinnis ex rel. C.I.E. Service Corp. v. LaShelle (1988), 166 Ill. App. 3d 131, 519 N.E.2d 699, the lease contained a provision directing that the tenant was to pay the insurance when it came due. The court determined this provision meant the tenant was to pay the premiums on the insurance policies obtained by the landlord, and the fact that the landlord obtained insurance on the day the lease was executed was evidence of the parties’ intent that the tenant be a coinsured under the landlord’s policy. Similarly, in Reich v. Tharp (1987), 167 Ill. App. 3d 496, 521 N.E.2d 530, the court determined the defendant was a coinsured with the plaintiff, given that the parties agreed in writing defendant would be a named coinsured, although that act never took place. In reaching its decision, the Reich court noted Anderson and the trend in landlord-tenant cases to deny subrogation and find the parties coinsured under the landlord’s policy.

A recent Federal case, Regent Insurance Co. v. Economy Preferred Insurance Co. (C.D. Ill. 1990), 749 F. Supp. 191, reviewed Illinois law on these issues and determined the Cerny-Pickas case sets forth the rule. There, two insurance companies issued policies insuring the subject rental premises which were destroyed by fire. Plaintiff's company sought a declaratory judgment that no right of subrogation existed under Illinois law in favor of the defendant-landlord’s insurer. The court reviewed McGinnis, Anderson, Geekie, and Cerny-Pickas and concluded, as the supreme court did in Cerny-Pickas, that a tenant is a coinsured only when there is something in the lease which can be interpreted as exonerating the tenant from his own negligence. (Regent, 749 F. Supp. at 195.) The lease in Regent contained no yield-back clause or any provisions stating the tenant was exculpated from liability for his negligent acts. Thus, the common law rule that a tenant was responsible for fire damage was applicable and defendant had a valid subrogation claim against the tenant.

We conclude Cerny-Pickas sets forth the rule on these issues. The lease in the case presented contains no yield-back provision. It does, however, contain express language that the landlord shall not be responsible for damage caused by fire. This language is similar to that in Englehardt, First National Bank, and Regent. Thus, we find the trial court erred in dismissing plaintiff’s complaint on the basis that plaintiff had no subrogation claim against defendant.

For the foregoing reasons, the order of the trial court is reversed and this cause is remanded for further proceedings.

Reversed and remanded.

LUND, P.J., and SPITZ, J., concur.


author: JUSTICE SPITZ JUSTICE GREEN,

text:
      In re ESTATE OF ARTHUR N. GOTT, Deceased (Amy Boorom, Plaintiff-Appellant, v. Jeffrey D. Burgoyne, Adm’r of the Estate of Arthur N. Gott, Deceased, Defendant-Appellee).
    Fourth District
    No. 4—90—0838
    Opinion filed May 9, 1991.

      GREEN, J., dissenting.
    Robert E. Cummins, of Kidwell, Cummins, Bast & Dunst, of Mattoon, for appellant.
    William A. Sunderman, of Brainard, Bower & Kramer, of Charleston, for appellee.
   JUSTICE SPITZ

delivered the opinion of the court:

This court allowed a request to present this interlocutory appeal by the plaintiff Amy Boorom from an order in limine entered in the circuit court of Coles County. (134 Ill. 2d R. 308.) The defendant herein is Jeffrey D. Burgoyne, administrator of the estate of Arthur N. Gott, deceased.

Plaintiff’s complaint requests an award of damages for personal injuries that allegedly occurred as a result of a battery allegedly inflicted upon her by decedent. On the motion of defendant, the trial court entered an order in limine finding the Dead Man’s Act (Act) (Ill. Rev. Stat. 1989, ch. 110, par. 8—201) renders the following evidence inadmissible or the witness incompetent to testify thereto:

(1) evidence relating to decedent’s conduct as described by plaintiff to Dr. Gaylin D. Lack, including that contained in a medical history given to Lack;
(2) the testimony of Judith Culp, R.N., and her “incident report,” describing the incident of May 11, 1987, both of which are based on plaintiff’s oral representations; and
(3) testimony or evidence from nurse’s aid Judy Pennefather regarding statements made by plaintiff shortly after the incident to the effect that decedent struck plaintiff.

While the record on appeal is far from complete, it is obvious there were no independent eyewitnesses to the incident and that plaintiff is trying to prove the decedent did in fact strike her through the testimony of the persons to whom she spoke following the incident. The plaintiff’s argument focuses on the fact that medical history, business records such as the incident report, and spontaneous declarations or excited utterances such as plaintiff’s statement to Pennefather are generally considered to be exceptions to the rule against admitting hearsay into evidence.

However, the only issue before this court is whether the trial court properly ordered the exclusion of the evidence on the basis of the Act. The Act provides, in relevant part:

“In the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability ***.” (Ill. Rev. Stat. 1989, ch. 110, par. 8—201.)

Plaintiff does not contend that the evidence subject to the order in limine fits any of the enumerated statutory exceptions to the Act. Ill. Rev. Stat. 1989, ch. 110, par. 8—201.

While this court does not intend to predetermine for the trial court the admissibility of any of this evidence in the event a hearsay objection is interposed at trial, it is rather difficult to see how plaintiff is prejudiced by the exclusion from the medical history of any reference to plaintiff identifying decedent as the person who struck her. Although it is true, as plaintiff asserts, that treating physicians are generally allowed to testify concerning statements made by the injured person if the statements are made during treatment or upon an examination made prior to and without reference to initiation of a lawsuit (Greinke v. Chicago City Ry. Co. (1908), 234 Ill. 564, 85 N.E. 327), the reliability of such statements is premised on the belief that the person seeking proper medical diagnosis and treatment would not be motivated to lie about the patient’s medical history, past or present symptoms, pain, or sensations. (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §803.8, at 638 (5th ed. 1990).) However, the identification of a particular perpetrator has absolutely nothing to do with seeking proper medical care and, therefore, the reliability of a statement to the effect that a specific individual is responsible for the injury remains in doubt unless some other exception to the rule against hearsay applies.

In any event, the purpose of the Act is to ensure a fair trial where one of the parties is unable to testify. The Act is not designed to disadvantage the living, but it is designed to protect estates against fraudulent claims being made by putting the parties on equal footing. In re Adoption of Garrison (1981), 93 Ill. App. 3d 670, 417 N.E.2d 787; Morse v. Hardinger (1976), 34 Ill. App. 3d 1020, 341 N.E.2d 172.

The question presented in this case is whether a plaintiff can avoid the application of the Act and prove liability substantially through her own statements to third parties concerning the incident, an event about which plaintiff could not directly testify. Plaintiff cites several cases to support her argument that the trial court misapplied the Act. The cases relating to the hearsay exceptions need not be discussed. The cases in which the Act was applied are distinguishable from the case at bar. In Mangan v. F.C. Pilgrim & Co. (1975), 32 Ill. App. 3d 563, 336 N.E.2d 374, plaintiff’s decedent died during the pendency of the suit. In Mangan, the court considered a treating physician’s testimony that a medical history included plaintiff’s decedent’s statement that while at home she saw a mouse in the kitchen, was frightened, and fell, injuring her left hip. After assuming for the sake of argument that this evidence was not properly admitted, the reviewing court found no prejudice because the testimony was merely corroborative and cumulative of other evidence. Furthermore, the issue concerning whether such testimony was barred by the Act was waived since no such objection had been made at trial.

Plaintiff’s cited case of Clifford v. Schaefer (1969), 105 Ill. App. 2d 233, 245 N.E.2d 49, is also distinguishable because plaintiff, a guest passenger, pursued an action against the executor of the host motorist and against the owner and operator of the other vehicle involved in the collision. The court held the Act did not bar the testimony of the investigating police officer concerning a statement made by the host motorist to the effect that he saw the other vehicle approaching but he thought he could safely make his left turn into a restaurant driveway. By its very language the Act clearly does not bar the testimony of independent witnesses to statements made by the party who is now unable to testify because of death or disability. Belfield v. Coop (1956), 8 Ill. 2d 293, 134 N.E.2d 249, involved a will contest. At the direction of an attorney, one of the devisees took a recorder to the hospital to make a recording of the conversation with the testator prior to execution of the will. The trial court reasoned that since the devisee was not a competent witness under the Act, the recording was also incompetent. The Illinois Supreme Court disagreed. Since a competent witness overhearing the conversation would not have been disqualified by the Act, the recording device stands in the place of such a competent witness and the Act does not render the recording inadmissible. The Belfield court relied on Garras v. Davis (1908), 234 Ill. 326, 84 N.E. 924, in which a witness testified to having heard a conversation between a daughter and testatrix in an action by the daughter to contest the will.

None of these cases are controlling in the case at bar. The facts are clearly distinguishable.

The purpose of the Act being to avoid fraud, the purpose of the Act ought not to be frustrated merely because a person acting fraudulently may have made out-of-court rather than in-court statements. This is not to suggest in any way that we believe plaintiff is attempting to perpetrate a fraud. And it is recognized that the application of the Act is often harsh, applying to legitimate claims in order to ensure that other, fraudulent claims are not successfully prosecuted. Nevertheless, in order to promote the legislative intent and to further encumber the presentation of fraudulent claims, the Act should be construed to require that the nonparty witnesses can testify to the events or conversations involving a now deceased party only if they actually observed such events and conversations, and cannot testify to what a surviving party had to say about the event or conversation. A party should not be allowed to do by indirect means that which she is prohibited from doing directly. Nor are we persuaded that a different result is required by plaintiff’s argument that the Act is designed to render specific witnesses incompetent rather than specific evidence inadmissible. (See M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §606.2, at 316 (5th ed. 1990).) The Act does not prevent the witness from testifying at all. Instead, the Act restricts what the witness may testify about. If the protection of the statute is waived by the opposing party, then the witness would be competent to testify to the very matters about which the Act would otherwise have prevented the witness from testifying.

Accordingly, the order in limine of the circuit court of Coles County is affirmed and the cause is remanded for further proceedings.

Affirmed and remanded.

LUND, P.J., concurs.

JUSTICE GREEN,

dissenting:

I agree with the majority that nothing directly on point has been cited to us concerning the question of whether testimony by a competent witness as to an otherwise admissible statement by a declarant is inadmissible if the declarant was incompetent to testify because of the Act. I disagree with the majority’s determination that the testimony offered here would be inadmissible even if the testimony qualified as an exception to the hearsay rule. As does the majority, I do not pass upon the extent to which that testimony may qualify in that respect. I would reverse the order excluding the testimony on the theory it violated the Act and remand so that the circuit court can, at an appropriate time, pass upon any hearsay objection.

As the majority correctly sets forth, the Act is designed to protect estates against fraudulent claims being made by putting the parties on equal footing. (Garrison, 93 Ill. App. 3d 670, 417 N.E.2d 787; Morse, 34 Ill. App. 3d 1020, 341 N.E.2d 172.) However, the offered evidence here is sought to be introduced under the medical history, business records, spontaneous declaration, or excited-utterance exceptions to the hearsay rule. If the evidence qualifies under these exceptions, that occurs because the requirements for those exceptions sufficiently guarantee the trustworthiness so that the availability of the declarant is unnecessary for admissibility. (M. Graham, Cleary & Graham’s. Handbook of Illinois Evidence §803.1 (5th ed. 1990).) Because of stricture of those requirements, testimony as to plaintiff’s prior statements meeting those requirements would have much less propensity for fraud than would the direct testimony of plaintiff produced at trial after she has had time to contemplate fabrications.

The express prohibition of the Act extends only to the testimony of an incompetent witness and not to testimony of others as to a statement by an incompetent witness. The Third District Appellate Court, has noted that the Act has been criticized by commentators (2 Wigmore, Evidence §§578, 578a (Chadbourn rev. ed. 1979); E. Cleary & M. Graham, Handbook of Illinois Evidence §606.1, at 244-45 (3d ed. 1979); S. Gard,. Illinois Evidence Manual, Rule 405 (1963)), as setting forth “an anachro-: nistic approach, which should be removed.” (In re Estate of Babcock (1983), 119 Ill. App. 3d 482, 492, 456 N.E.2d 671, 677.) We should not extend the rule by inference to a situation no -more analogous than that here.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AARON E. BIER, Defendant-Appellant.
    Fourth District
    No. 4—90—0616
    Opinion filed April 23, 1991.
    Randell S. Morgan, of Kinate & Morgan, of Fairbury, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant Aaron E. Bier was convicted in a bench trial of obstructing justice (Ill. Rev. Stat. 1989, ch. 38, par. 31—4) and sentenced to three years’ imprisonment, the sentence to be served consecutive to a sentence defendant received for reckless homicide. Defendant appeals his conviction and sentence and argues (1) the trial court erred in finding there was probable cause to stop defendant’s vehicle; and (2) the three-year sentence constitutes an abuse of discretion. We affirm.

In the late afternoon on October 25, 1989, the van defendant was driving was stopped by Officer Lutes, a Normal police officer. Lutes testified, without objection, that he stopped defendant after receiving a radio transmission from the McLean County sheriff’s department that defendant had earlier bonded out from their department and left driving a black Ford van on a revoked driver’s license. Lutes stopped a van meeting the description and asked the driver for his driver’s license, to which the defendant responded “he didn’t have it with him at that time.” The officer then asked defendant “what his name was.” Defendant objected to this question, arguing there was no “probable cause to stop a vehicle,” that the radio transmission from one policeman to another is not probable cause to stop a vehicle. Defendant’s attorney further argued the officer did not testify the “car did anything in causing it to be pulled over” but relied “upon the police transmission.”

The prosecutor responded the defendant had an opportunity to make a motion to suppress and that point of the case had already passed.

Defendant’s attorney answered he did not file a motion to suppress but could raise the issue “at any point in the trial until the Court rules upon it; and *** there has been no requirement in writing, or other direction by the Court, that I have to file a Motion to Suppress of any sort. Since this is not a jury trial it is not necessary to keep that from the trier of the fact.”

The trial court responded an arraignment order entered December 5, 1989, “admonished the defendant *** to file and set for hearing any and all pretrial motions *** within 14 days after the People complied with this Discovery Order.” The court further stated the motion to suppress should have been filed pursuant to that order, noting it could be filed later during trial if it was appropriate. “There is nothing in this record that would indicate *** the defense did not have sufficient information *** to make that judgment prior to trial; that is that they just found out that information at this time.” The court suggested waiver but further stated there was “sufficient probable cause to make a stop.” Defendant’s attorney made no further response and the cause proceeded.

Defendant, relying on Whiteley v. Warden of Wyoming State Penitentiary (1971), 401 U.S. 560, 28 L. Ed. 2d 306, 91 S. Ct. 1031, and United States v. Hensley (1985), 469 U.S. 221, 83 L. Ed. 2d 604, 105 S. Ct. 675, argues the trial judge erred in finding there was “probable cause” to stop him. The State relies initially on the waiver rule as stated by the trial judge. On the merits, the State argues the test to determine -whether the stop of defendant was proper is whether the officer had a_ reasonable suspicion defendant violated the law, not whether the officers had probable cause to stop defendant. In any event, the State contends it presented sufficient evidence in support of the stop of defendant.

We first consider the timeliness of defendant’s motion to suppress. Section 114 — 12 of the Code of Criminal Procedure of 1963 (Code) provides in pertinent part:

“Motion to Suppress Evidence Illegally Seized.
* * *
(b) The motion shall be in writing and state facts showing wherein the search and seizure were unlawful. ***
* * *
(c) The motion shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion.” (Ill. Rev. Stat. 1989, ch. 38, par. 114-12.)

This statute directs the motion to suppress evidence shall be in writing and made before trial unless the two stated exceptions apply. The requirement that the motion be made before trial springs from a policy that a court should not be required to “ ‘stop the orderly progress of the trial even to investigate the question whether the method of obtaining possession of the offered evidence was in violation of the [defendant’s] constitutional rights.’ ” (People v. Johnson (1967), 38 Ill. 2d 399, 402, 231 N.E.2d 447, 449, quoting People v. Winn (1927), 324 Ill. 428, 441, 155 N.E. 337, 341.) We note approvingly the arraignment order entered in this case, directing defendant “to file and set for hearing any and all pretrial motions *** within 14 days after the People complied” with the discovery they were ordered to present to defendant. The determination of a particular time frame within which defendant is to file a pretrial motion to suppress evidence is fully consistent with and authorized by section 114—12 of the Code. (Ill. Rev. Stat. 1989, ch. 38, par. 114—12.) The fact that this was a bench trial does alleviate some problems inherent in a jury trial but the provisions of section 114—12 still apply.

The defendant’s motion to suppress, presented during trial, was untimely and the trial court was fully justified in rejecting it upon that sole ground without addressing its merits. Because we affirm that action of the trial court, we likewise need not address the merits of defendant’s motion. In holding that the trial court did not abuse its discretion, we note that the State answered defendant’s discovery request on December 26, 1989, and revealed two police officers would testify for the State and provided a copy of the police report which clearly reflected the basis for the stop of defendant’s van. The trial was held May 17, 1990, almost five months later. We, therefore, find this issue is waived. People v. White (1985), 134 Ill. App. 3d 262, 479 N.E.2d 1121; People v. Jones (1971), 2 Ill. App. 3d 236, 276 N.E.2d 477, aff'd on other grounds (1972), 52 Ill. 2d 247, 287 N.E.2d 680.

Next, defendant argues his three-year sentence constitutes an abuse of discretion and asks this court to reduce it. The State argues the defendant waived any issue as to his sentence because he did not file a motion for reduction of sentence in the trial court. On the merits, the State maintains no abuse of discretion occurred in this case.

In this case, a joint sentencing hearing was conducted at which defendant was sentenced for the instant offense and for reckless homicide. Defendant filed a motion in the trial court for reduction of the five-year sentence imposed for reckless homicide but did not so challenge the three-year sentence for obstructing justice. We find defendant waived this issue due to his failure to file a post-sentencing motion for this offense. (People v. Williams (1989), 180 Ill. App. 3d 294, 535 N.E.2d 993.) On the merits, the sentence imposed is within the sentencing range for a Class 4 felony. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(a)(7).) Moreover, while the sentence may be heavy, when considering the circumstances that defendant was driving with a revoked license after he was convicted of reckless homicide, and the deference and discretion afforded trial courts in sentencing (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541), we find no abuse of discretion.

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

Affirmed.

LUND, P.J., and STEIGMANN, J., concur.