author: JUSTICE SPITZ

text:
    BOARD OF REGENTS OF REGENCY UNIVERSITIES, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4—90—0275
    Opinion filed February 6, 1991.

      Richard J. Coffee II, of Sangamon State University, of Springfield, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert Ruiz, Solicitor General, and Jerald S. Post, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    Stephen A. Yokich, of Cornfield & Feldman, of Chicago, for respondent University Professionals of Illinois.
   JUSTICE SPITZ

delivered the opinion of the court:

The petitioner, Board of Regents of Regency Universities (Regents), appeals a decision of the Illinois Educational Labor Relations Board (IELRB) which held that Sangamon State University (SSU) committed two unfair labor practices. (Board of Regents of Sangamon State University, 6 Pub. Employee Rep. (Ill.) par. 1049, Nos. 89— CA — 0030—S, 89 — CA—0035—S (Illinois Educational Labor Relations Board, Mar. 12, 1990).) The bases for this decision were the hearing officer’s findings, adopted by the IELRB, that SSU reneged on two oral agreements made during the course of collective bargaining. We affirm.

On February 21, 1989, respondent Sangamon State University/ University Professionals of Illinois Local 4100, IFT/AFT, AFL-CIO (UPI or the union), filed an unfair labor practice charge against the Regents. This charge alleged that during the course of negotiations, SSU’s chief negotiator, Durward Long, agreed to a union request for “release time” for the union’s president and grievance officer. According to the charge, this was to be an “agreement outside the agreement,” because Long did not want the Regents to know that he had given the union release time. However, after ratification of the parties’ agreement, Long allegedly refused to honor the release time provisions to which the parties had agreed.

In an additional unfair labor practice charge filed February 27, 1989, the union alleged that during negotiations, SSU’s chief negotiator agreed to provide salary equity adjustments and agreed that subsequent to contract ratification, the union and SSU would bargain a procedure to distribute the salary equity adjustments. At the time the charge was filed, however, SSU allegedly refused to meet with the union to bargain this procedure.

On the basis of the above charges, the IELRB’s Executive Director filed an unfair labor practice complaint against the Regents. At a hearing held on July 20, 1989, the union’s first witness was its local chapter president, Ron Ettinger. He testified that salary equity for faculty members had been a part of the union’s contract proposals since the beginning of contract negotiations with SSU. Ettinger stated that at an August 25, 1988, meeting between him and Durward Long, who was SSU’s president and chief contract negotiator, Long stated that he did not feel that the Regents would be agreeable to salary equity adjustments. Long stated, however, that he would be willing to set up a “side agreement” calling for the distribution of up to $20,000 in salary equity adjustments on January 1, 1989, and to negotiate a process for identifying those in need of salary equity adjustments. According to Ettinger, Long promised to bring a letter setting forth the terms of the agreement concerning salary equity adjustments to a negotiating session set for the next day, August 26. Long did not bring such a letter to the August 26 negotiating session, but agreed to produce it subsequently. Ettinger testified that at the August 26, 1988, negotiating session, the parties’ negotiating teams entered into an agreement providing for (1) a $20,000 fund for salary equity adjustments and (2) further negotiations as to the distribution of that sum.

Ettinger stated that after the August 26, 1988, negotiating session, he made several fruitless requests to Long for a letter setting forth the agreement on salary equity adjustments. Finally, on November 11,1988, Long sent Ettinger a letter which read in part:

“This is a confirmation of the University Administration’s commitment to develop an administrative process and criteria to be utilized for making equity adjustments in salary. As we committed, the Administration will do everything possible to develop by the end of the fiscal year a system by which persons may be considered for salary adjustments for equity purposes. Further, the Administration will consult with the UPI Local representative on the system being considered.”

This letter made no mention of the total sum to be expended on salary equity adjustments. Ettinger further testified that on December 11, 1988, he received a letter from Ted Heidloff, who is assistant vice-chancellor for personnel administration with the Regents, which he (Ettinger) interpreted as meaning that the Regents and SSU would not negotiate further with respect to the parties’ existing contract and would negotiate only with respect to a successor agreement. On January 26, 1989, Ettinger sent Heidloff a written demand for bargaining as to salary equity adjustments, and in a letter dated February 2,1989, Heidloff, on behalf of the Regents, refused this request.

Ettinger further testified that at a negotiating session held on September 5, 1988, Durward Long agreed to provide release time for Ettinger and the local union’s grievance officer (Pat Langley) while they were engaged in union activity. As with the agreement concerning salary equity adjustments, Long did not want this agreement to be included in the parties’ written contract. Rather, Long inquired whether the union would agree to the handling of release time for these two union officials through the noninstructional assignment (NIA) process. (An NIA is an assignment of a faculty member to duties other than teaching. Faculty members who have an NIA teach a reduced number of courses during the semester in question.) Ettinger stated that at the September 5, 1988, negotiating session, the parties agreed that release time for Ettinger and Langley would be handled through the NIA process and that Long would support this.

Ettinger testified that on November 17, 1988, his request for an NIA for union activities was approved by SSU’s vice-president for academic affairs, which is normally the last step in the approval process for NIAs. However, after the beginning of the spring 1989 semester, Ettinger received a phone call from Durward Long in which Long stated that he was withdrawing Ettinger’s NIA for union activities.

Also testifying on the union’s behalf was its grievance officer, Pat Langley. She stated that she was present at the September 5, 1988, negotiating session and that there was no doubt in her mind that at that session, SSU agreed to grant the union’s grievance officer an NIA for the spring semester of 1989. However, her NIA request for that semester was not approved.

The union's final witness was Barbara Hayler, who was a member of the union’s bargaining team. She testified that she was present at the August 26, 1988, negotiating session. She stated that during that session, Durward Long indicated that he was unwilling to include provisions concerning salary equity adjustments in the parties’ contract, but that he was willing to make commitments regarding that matter in a letter and to develop a process for making salary equity adjustments outside the contract. Hayler summarized her understanding of the parties’ agreement concerning salary equity adjustments as follows:

“President Long committed himself and the University to making available up to $20,000.00 at midyear for the purpose of equity adjustments, and further *** he committed himself to working with the Union during the fall semester to develop a process by which inequities could be determined and the appropriate payments or appropriate equity adjustments in salary could be made.”

The Regents’ first witness was Carl Long, who is vice-president for business administrative services at SSU. He testified that he participated in contract negotiations with the union, and that at the negotiating sessions which he attended between August 10 and September 5, 1988, SSU did not agree to either release time for union officials or to expenditure of $20,000 for salary equity adjustments. On cross-examination, Carl Long acknowledged that no negotiations regarding the issue of salary equity adjustments took place after December 7, 1988. He did agree that Durward Long committed himself to sending a letter to the union stating SSU’s intention to consult with the union regarding the methodology and process of determining salary equity adjustments, but he did not recall discussion of a specific time frame within which to provide such a letter. Carl Long further testified, on cross-examination, that he was present at all contract negotiation sessions during July and August 1988, but that he was not in the room during all portions of the bargaining sessions. He acknowledged that he was not present at the August 25, 1988, private discussion between Durward Long and Ettinger or at any of the other private meetings between Durward Long and Ettinger during the pertinent time period.

The only other witness to testify on the Regents’ behalf was SSU’s president, Durward Long. Long stated that between August 15 and September 5, 1988, he did not agree with the union’s bargaining team to expend $20,000 for equity adjustments to faculty salaries. On cross-examination, Long stated that prior to the conclusion of the collective-bargaining agreement between SSU and the union, he made a commitment to SSU’s faculty senate to develop a process for salary equity adjustments and repeated that commitment to the union’s negotiators. He acknowledged telling the union’s negotiators that he would put that commitment in writing. During the cross-examination of Long, the following dialogue occurred concerning what Long had done to implement the commitment concerning salary equity which he previously described:

“Q. Now what, if any, steps have you taken as we sit here to develop that system?
A. The Union has rejected this as part of the agreement by bringing the unfair labor practice regarding sums of money committed and they have indicated that this is not their understanding of the agreement.
Q. So you — well, yeah, but you told me just a minute ago that you made a commitment to the Faculty Senate?
A. That’s correct.
Q. What have you done with respect to your commitment to the Faculty Senate?
A. We have analyzed the salaries and developed, and are developing a — a plan.
Q. Do you, does anything exist that’s public as of now?
A. No.
Q. When did you make that commitment to the Faculty Senate?
A. In the spring of 1987—
Q. So-
A. -‘88.
Q. So it’s been over two years?
A. No, ‘88.
Q. So it’s been over a year—
A. That’s correct.”

Long also denied that an agreement was made in September 1988 providing for release time for union officials, although he acknowledged that this was a subject of the negotiations and that he provided an NIA to Ettinger during the fall semester of 1988, in exchange for an agreement to continue collective bargaining. Long further denied telling any member of the union’s bargaining team that he wanted to keep any provisions or agreements from the Regents.

In a recommended decision and order filed November 28, 1989 (Sangamon State University Board of Regents, 5 Pub. Employee Rep. (Ill.) par. 1177, Nos. 89-CA-0030-S, 89-CA-0035-S (Illinois Educational Labor Relations Board, hearing officer’s recommended decision and order, Nov. 28, 1989) (hereinafter 5 Pub. Employee Rep. (Ill.) par. 1177 (hearing officer’s recommended decision))), the hearing officer found the union’s witnesses were more credible. Based on the evidence presented, the hearing officer found that SSU orally agreed:

“1. To resolve the issue of release time outside the contract and grant the UPI chapter president and grievance officer NIA’s during the spring, 1989 semester, and
2. To use $20,000 for equity raises in fiscal year 1989[,] to provide UPI with a letter memorializing this ‘commitment’ and to bargain a process under which these funds would be distributed.” (5 Pub. Employee Rep. (Ill.) par. 1177, at IX— 428 (hearing officer’s recommended decision).)

The hearing officer held, though, that there was no explicit agreement to set aside $20,000 for equity raises in a fund.

The hearing officer concluded that the Regents’ conduct violated section 14(a)(5) and, derivatively, section 14(a)(1) of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1989, ch. 48, pars. 1714(a)(5), (a)(1)). With respect to the release time issue, the hearing officer found that the union had been led to believe (1) the existing terms and conditions of employment allowed release time for the union’s president and grievance officer during the spring semester, and (2) it was therefore unnecessary for this matter to be covered in the parties’ contract. The hearing officer held that in later denying the union officials’ requests for release time, SSU changed the terms and conditions of employment as the parties understood them, without notice or opportunity to bargain with respect to the change.

The hearing officer further determined that the issue of salary equity adjustments falls within the ambit of wages and is therefore a mandatory subject of bargaining. The hearing officer found SSU breached its duty to bargain as to this matter by not continuing to bargain as to the manner in which salary equity adjustments were to be distributed and by refusing the union’s direct demands that bargaining continue as to this subject.

On December 15, 1989, the Regents filed exceptions to the hearing officer’s recommended decision and order. In their exceptions, the Regents contended that the hearing officer’s decision is contrary to the manifest weight of the evidence. The Regents specifically argued that the hearing officer placed too great an emphasis on the testimony of union president Ron Ettinger, and improperly applied the “missing-witness” rule. In a brief in support of their exceptions filed December 22, 1989, the Regents also asserted the hearing officer improperly relied on notes which union officials testified were made by them during the course of the contract negotiations. The Regents asserted these notes were not supported by any foundation in the record, and that there was no testimony that the notes were discussed by the parties or were routinely maintained. Also, the Regents contended that the hearing officer impermissibly shifted the burden of proof from the union, as charging party, to the Regents.

On March 12, 1990, the IELRB issued an opinion and order affirming the hearing officer’s recommended decision and order. (Board of Regents of Sangamon State University, 6 Pub. Employee Rep. (Ill.) par. 1049, Nos. 89-CA-0030-S, 89-CA-0035-S (Illinois Educational Labor Relations Board, Mar. 12, 1990).) The IELRB declined to disturb the hearing officer’s findings as to the credibility of witnesses and also held that the hearing officer properly applied the “missing-witness” rule.

On April 16, 1990, the Regents filed á petition for review of the IELRB’s opinion and order.

Before addressing the substantive issues, we must first determine whether this court has jurisdiction to consider this appeal. In the “statement of jurisdiction” section of the IELRB’s brief, it is suggested that this court lacks jurisdiction if a 30-day time period for the filing of petitions for review of IELRB orders applies. In their reply brief, the Regents state that they relied on prior decisions in filing their petition for review more than 30 days after the IELRB’s decision. The Regents further assert that in light of a statement in the IELRB’s opinion and order that there is a 35-day time limit for filing of petitions for review of IELRB orders in the Fourth District Appellate Court, the IELRB should be estopped from asserting that the Regents’ petition for review was not timely filed.

The IELRB filed its opinion and order in this cause on March 12, 1990, and the Regents filed their petition for review 35 days later, on April 16, 1990. In American Federation of State, County & Municipal Employees, Council 31 v. Illinois State Labor Relations Board (1990), 196 Ill. App. 3d 238, 553 N.E.2d 415, appeal denied (1990), 133 Ill. 2d 551, 561 N.E.2d 685, this court declined to dismiss a petition for review of an order of the Illinois State Labor Relations Board which was filed 33 days after the order was entered. This court stated, “Surely, prudent counsel will now file for administrative review in the appellate court within the [30-day] time frame set forth in Supreme Court Rule 303(a). We should not prejudice those who did not do so in the past.” Council 31, 196 Ill. App. 3d at 248, 553 N.E.2d at 421.

When the Regents filed their petition for review in the present case, several decisions (e.g. Board of Education of Jacksonville, School District No. 117 v. Illinois Educational Labor Relations Board (1989), 183 Ill. App. 3d 972, 539 N.E.2d 882; Hardin County Education Association v. Illinois Educational Labor Relations Board (1988), 174 Ill. App. 3d 168, 528 N.E.2d 737; City of Benton Police Department v. Human Rights Comm’n (1986), 147 Ill. App. 3d 7, 497 N.E.2d 876) either implicitly suggested or explicitly held that there is a 35-day time limit for filing petitions for review of administrative agency orders in cases such as this, where the legislation creating a right of review does not specify a time frame for seeking review. At least one other decision,' however, held that a 30-day time limit applies. (County of Cook v. Illinois Local Labor Relations Board (1989), 189 Ill. App. 3d 1057, 551 N.E.2d 229, appeal allowed (1990), 131 Ill. 2d 558.) This court’s opinion in Council 31 was filed on March 28, 1990; the petition for rehearing in that case was denied on May 15, 1990, the IELRB’s opinion in this case issued pn March 12, 1990, suggesting the Regents had 35 days to file an appeal with this district, and the Regents in fact filed for review on April 16, 1990. Under these circumstances, dismissal of this appeal because a 30-day time limit for filing a petition for review applied would serve no useful purpose. To the contrary, such a result would penalize counsel for following what was accepted precedent when the petition was filed and would thus be unfair and inequitable. (See Central City Education Association v. Illinois Educational Labor Relations Board (1990), 199 Ill. App. 3d 559, 557 N.E.2d 418, appeal allowed (1990), 133 Ill. 2d 553.) Under the facts of this case, we hold that the Regents’ petition for review was timely filed and that this court has jurisdiction to consider the issues properly presented for review.

On appeal, the Regents argue that the hearing officer’s findings of fact and assessments of the witnesses’ credibility are against the manifest weight of the evidence and that the “missing-witness” rule was misapplied in this case. The Regents also contend the facts as found by the hearing officer do not establish, as a matter of law, that SSU committed unfair labor practices. However, the latter argument was not included in the Regents’ exceptions to the hearing officer’s recommended decision and order. The Regents have therefore waived this argument (see Moore v. Illinois State Labor Relations Board (1990), 206 Ill. App. 3d 327, 338-39, citing II C. Morris, The Developing Labor Law 1710-11 (2d ed. 1983)), and we need consider only the Regents’ arguments relating to (1) the sufficiency of the evidence to support the hearing officer’s findings of fact and assessments of the witnesses’ credibility, and (2) the hearing officer’s application of the “missing-witness” rule.

The Regents argue that the hearing officer’s credibility determinations are arbitrary, capricious, and unsupported by the record. In support of this argument, the Regents assert: (1) the hearing officer stated no specific reasons for his credibility findings; (2) the credibility of SSU’s witnesses was not impeached by other competent evidence; (3) “[i]t is arbitrary and capricious for the IELRB to use the fact that the parties are in dispute over an issue as a basis for finding one party less credible than the other”; (4) in reaching his conclusions, the hearing officer ignored the testimony of SSU’s witnesses and the documentary evidence presented by SSU, and “bootstrapped a finding on credibility by ignoring the evidence”; (5) because the Regents were unable to offer an alternative account of events which they assert never occurred, the hearing officer based his credibility assessments on the inability of the Regents to prove a negative; and (6) it is not reasonable to believe, as the hearing officer allegedly found, that (a) SSU agreed to the union’s demand for release time without a quid pro quo after steadfastly maintaining a contrary position for 14 months, and (b) SSU also agreed to salary equity adjustments after granting the union 95% of its initial salary demand.

The IELRB argues that the hearing officer relied on far more than the existence of a dispute between the parties in making his credibility determinations, and asserts that the hearing officer stated an adequate basis for his findings concerning the credibility of the witnesses. The union asserts that in view of (1) the extreme deference which should be accorded to factual findings of administrative agencies, and (2) the evidence which clearly supports the hearing officer’s findings, the IELRB’s decision should be sustained.

We hold the evidence fully supports the hearing officer’s findings of fact and assessments of the witnesses’ credibility. This is a classic example of the kind of case in which each side presents a different version of the relevant events, and in which the trier of fact must necessarily determine the credibility of the witnesses based in part on his observations of their demeanor while testifying. In an administrative review proceeding such as this, courts may not reweigh the evidence. Rather, the weight to be given the evidence and the determination of the witnesses’ credibility are primarily within the province of the administrative agency. The administrative agency’s findings of fact are deemed prima facie true and correct, and the sole function of a reviewing court is to determine whether the administrative agency’s decision is contrary to the manifest weight of the evidence. Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110; Jackson v. Board of Review (1985), 105 Ill. 2d 501, 475 N.E.2d 879.

In the present case, the hearing officer provided an adequate basis for his conclusion that the union’s witnesses were more credible than SSU’s. The hearing officer observed that the union introduced into evidence written memoranda which established when its contract proposals were presented, and which corroborated the union’s account of events which occurred at the bargaining table. The hearing officer noted that by contrast, SSU offered only unsupported assertions of its witnesses that no oral agreements were reached. This portion of the hearing officer's findings is in turn supported by the documents introduced into evidence at the administrative hearing. The documents which the union presented contain numerous written and dated notations, while SSU’s exhibits consist mostly of typewritten copies of various SSU contract proposals which contain almost no handwritten notations.

The hearing officer also found that while the demeanor of the union’s witnesses was “forthright and credible,” the testimony of SSU’s witnesses, particularly, Durward Long, was less credible than that of the union’s witnesses. The hearing officer found that the demeanor of Durward Long was “one of condescension towards the union” (5 Pub. Employee Rep. (Ill.) par. 1177, at IX — 428 (hearing officer’s recommended order)), and concluded Durward Long was primarily concerned with justifying his own actions. A review of the testimony presented at the administrative hearing reveals that the record fully supports the hearing officer’s determination that the union’s witnesses were more credible than those of SSU. One segment of the testimony which suggests that SSU’s witnesses were less than credible is the previously quoted portion of Durward Long’s testimony on cross-examination concerning SSU’s salary equity commitment and what had been done to effectuate that commitment. In addition to this testimony, our review of the record reveals numerous other statements by SSU’s witnesses which would have provided a basis for discounting their testimony. The testimony which impugns the credibility of SSU’s version of the relevant events also demonstrates that the hearing officer’s assessments of the witnesses’ credibility were based on more than simply the fact that the parties were in dispute as to various matters.

Contrary to the Regents’ contentions, SSU was not improperly required to prove a negative. Rather, the union presented evidence that certain agreements were made, and SSU denied that this occurred. Once the complainant in a proceeding such as this presents a prima facie case that various agreements were made, the opposing party always has, in effect, the burden of proving a negative— that there were no agreements. However, this is not an impermissible burden to place on the opposing party.

There is also no merit in the portion of the Regents’ argument based on the assertion that the union provided no quid pro quo for the agreements as to salary equity adjustments and release time. The record establishes that the union provided concessions for both of the oral agreements the hearing officer found the parties made. •Ron Ettinger testified that the union initially requested release time for approximately eight or nine bargaining team members and then reduced that demand to release time for five bargaining team members. The parties ultimately agreed to release time for only two bargaining team members. Moreover, it can be inferred from Ettinger’s testimony that the union reduced its original salary demands in exchange for SSU’s agreement to provide a package of salary increases, including $20,000 for salary equity adjustments to be provided pursuant to a separate side agreement. There is thus sufficient evidence of concessions for SSU’s agreements to provide release time for two union officials and salary equity adjustments.

The Regents further contend that in making his findings of fact, the hearing officer misapplied the “missing-witness” rule. Ron Ettinger, the union’s president, testified that in early September 1988, he had a conversation with Dr. Michael Ayers, who is SSU’s vice-president for academic affairs and contract administrator. Ettinger stated that Ayers “remembered the [salary equity] commitment, [and] said that *** he would do what he could to find out about the equity letter.” Ettinger testified on cross-examination that Ayers “acknowledged the equity commitment on several occasions and that [a conversation on October 4, 1988] was one of them.” Furthermore, Pat Langley, the union’s grievance officer and a member of the union’s bargaining team, testified that Ayers “was around” during the September 5, 1988, negotiating session, and the Regents acknowledge in their brief that “Dr. Ayers was present at some points in the negotiations.” On the basis of the “missing-witness” rule, the hearing officer drew an inference that Dr. Ayers’ testimony would have been unfavorable to SSU.

In arguing that the “missing-witness” rule was misapplied in this case, the Regents point out that the union suggested Dr. Ayers would have testified as to events after the conclusion of the negotiations, while the focus of the union’s evidence was the alleged agreements made prior to the conclusion of the contract negotiations. Also, the Regents state that Dr. Ayers did not make any agreements with the union and assert that Ettinger did not state which version of the parties’ agreement Ayers “remembered” or “acknowledged.” Furthermore, the Regents observe (1) that neither side called as witnesses all members of its bargaining team, and (2) that the Regents called as witnesses Durward Long and Carl Long, who were the SSU representatives most heavily involved in the negotiations here at issue. The Regents assert that SSU had no basis for assuming Dr. Ayers’ testimony would be required, and that under the facts of this case, Ayers’ testimony would have been cumulative at best. Also, the Regents contend that there are no indications that Ayers was unavailable to the union and that, arguably, a negative inference should be drawn against the union for failing to call Ayers to support Ettinger’s testimony.

The IELRB states that there is no question SSU had the power to produce Dr. Ayers, and asserts that SSU offered no reason for its failure to do so. The IELRB argues that only Dr. Ayers could have rebutted Ettinger’s testimony concerning his conversations with Dr. Ayers, and that Dr. Ayers must have had some understanding of the nature of the commitments which were discussed in his conversations with Ettinger. The IELRB asserts that the hearing officer’s reliance on the “missing-witness” rule was not a manifest abuse of discretion, and notes that this rule was only one of the bases underlying the hearing officer’s credibility determinations.

The “missing-witness” rule is based on the principle that failure of a party to produce evidence favorable to it gives rise to a presumption against that party. (Tepper v. Campo (1947), 398 Ill. 496, 76 N.E.2d 490.) The rule does not apply if it appears that the testimony of one not called as a witness would merely have been cumulative. McCormick, Evidence §272 (3d ed. 1984); see also Hicks v. Hendricks (1975), 33 Ill. App. 3d 486, 342 N.E.2d 144.

An acknowledgment after the conclusion of collective-bargaining negotiations by a representative of one of the parties that an agreement has been reached concerning a particular matter is obviously a significant factor in determining whether an agreement concerning that matter has been reached. Although SSU may not have been aware of a need to call Dr. Ayers as a witness prior to Ettinger’s testimony, Ettinger’s statements to the effect Ayers acknowledged the existence of a salary equity agreement should have alerted SSU to the need to call Ayers as a witness. If necessary, SSU should have requested a recess or a continuance of the administrative hearing for this purpose.

Contrary to the Regents’ contentions, Dr. Ayers’ testimony would not have been cumulative. He is the only person who could have rebutted Ettinger’s testimony that he (Ayers) acknowledged the existence of a salary equity agreement. Absent SSU providing any explanation for its failure to call Dr. Ayers as a witness, the hearing officer did not err in inferring that his testimony would have been unfavorable to SSU.

The evidence fully supports the hearing officer’s findings of fact, as adopted by the IELRB.

The IELRB’s opinion and order is affirmed.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROGER A. WALDRON, Defendant-Appellant.
    Fourth District
    No. 4—90—0470
    Opinion filed February 7, 1991.

      Daniel D. Yuhas and Gary R Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald D. Bernardi, State’s Attorney, of Pontiac (Kenneth R Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Following a bench trial in the circuit court of Livingston County, defendant Roger Waldron was convicted of the offense of driving while license revoked (DWR) (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 303) and was thereafter sentenced to a term of 364 days’ imprisonment. Defendant appealed, and this court reversed and remanded the judgment of the trial court. (People v. Waldron (4th Dist. 1989), No. 4—88—0770 (unpublished order under Supreme Court Rule 23).) After a jury trial, defendant was again found guilty of the foregoing offense and was sentenced to a term of 364 days’ imprisonment with full credit for 364 days previously served. Defendant appeals from and we affirm his conviction.

At defendant’s trial, Dwight police officer Tim Henson testified that on October 14, 1987, he saw defendant’s car parked in a handicapped zone. After observing that the car displayed no handicapped parking permit, Henson ran a license check which revealed that the car was registered to the defendant, whose driver’s license had been revoked in Illinois. Some time later, Henson observed the defendant enter his car and drive out of the parking lot. After Henson stopped the vehicle, defendant gave him a Kansas driver’s license. Henson’s check revealed that defendant did, in fact, have a Kansas driver’s license. However, Henson noticed several areas of misleading information on the Kansas license. He testified that defendant’s date of birth, eye color, and weight were different when he compared the information on the Kansas license with the information on the Illinois license. Henson issued defendant a citation for DWR.

Following Henson’s testimony, the State admitted into evidence People’s exhibit No. 1, which is a certification by the Illinois Secretary of State that defendant’s driving privileges were revoked on May 22, 1980, and that the revocation was in effect on October 14,1987.

Defendant testified that he could not explain the discrepancies in the two licenses because, in order to receive his Kansas license, he had to turn in his Illinois license "which they got the information off of.” On cross-examination, defendant was shown People’s exhibit No. 2, which is a Kansas driver’s license application bearing defendant’s signature dated September 25, 1985. Defendant admitted that his height and eye color were not the same on his Illinois license and his Kansas license application. The Kansas license application also contains a series of questions, the first of which reads, “Is your license suspended or revoked?” The response checked on the application is “No.”

On appeal, defendant concedes that he was driving on the highways of this State -with a revoked Illinois license, but contends that he was not proved guilty beyond a reasonable doubt. We disagree. When presented with a challenge to the sufficiency of the evidence, it is not the function of this court to retry the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) Once the defendant has been found guilty of the charged crime, the fact finder’s role as weigher of the evidence is preserved through a legal conclusion that, upon judicial review, all the evidence is to be considered in the light most favorable to the prosecution. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.) The relevant question is whether, after viewing the evidence in such a fashion, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789; Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.

It is well settled that the only elements necessary to prove the offense of driving a motor vehicle after the revocation of one’s driving privileges are (1) the act of driving a motor vehicle on the highways of this State, and (2) the fact of the revocation of the driver’s license or privilege. (People v. Turner (1976), 64 Ill. 2d 183, 185, 354 N.E.2d 897, 898; People v. Papproth (1977), 56 Ill. App. 3d 683, 686, 371 N.E.2d 1097, 1099.) The proper issuance of a foreign license under article VII of the Illinois Vehicle Code (Code) entitled “Driver License Compact” (Ill. Rev. Stat. 1989, ch. 951/2, pars. 6 — 700 through 6 — 708), terminates an Illinois revocation in the same way that issuance of an Illinois license under section 6 — 208 of the Code (Ill. Rev. Stat. 1989, ch. 951lz, par. 6— 208) terminates an Illinois revocation. (People v. Hutson (1989), 178 Ill. App. 3d 836, 838, 533 N.E.2d 1128, 1129, cert. denied (1989), 126 Ill. 2d 563.) However, if one purposely conceals the fact of the previous revocation of his license in order to mislead the authorities and prevent them from properly determining whether he should be granted a license, he may not interpose a license so procured as a defense to the charge of driving while his license was revoked. Turner, 64 Ill. 2d at 187, 354 N.E.2d at 899; Papproth, 56 Ill. App. 3d at 688, 371 N.E.2d at 1100.

In Turner and Papproth, the defendants presented improperly obtained Blinois licenses as a defense to the charge of DWR. Although Turner and Papproth are distinguishable in this manner, this distinction provides no basis for reversing defendant’s conviction. There is no reason to find that a license fraudulently obtained in another State is a valid defense to a charge of driving on a revoked license in Illinois. This court’s decision in People v. Jordan (1980), 85 Ill. App. 3d 589, 406 N.E.2d 1135, lends support to our conclusion.

Defendant argues that the evidence fails to support a finding that he was attempting to perpetrate a fraud in obtaining his Kansas license. He contends that, like the defendant in Papproth, he obtained his license through an honest mistake rather than an act calculated to deceive. A misrepresentation in order to constitute a fraud must consist of a statement of material fact, false and known to be so by the party making it, made to induce the other party to act, and, in acting, the other party must rely on the truth of the statement. (Roth v. Roth (1970), 45 Ill. 2d 19, 23, 256 N.E.2d 838, 840.) The evidence supports a finding of fraud.

People’s exhibit No. 1 includes the certification of the Blinois Secretary of State that all statutory notices of revocation were properly given. The matter of defendant’s knowledge of the revocation was an issue for the trier of fact. The additional discrepancies between the Blinois and Kansas licenses provided the jury with further evidence from which to infer that defendant’s statement that his license was not revoked was not the product of an honest mistake or confusion. In sum, the jury could properly infer that the defendant knew his Blinois license was revoked, that he informed the Kansas Secretary of State that it was not revoked in order to induce the issuance of a license, and that the Kansas Secretary of State issued a driver’s license in reliance upon his misrepresentation.

Accordingly, we conclude that the evidence was sufficient to prove the elements of the charged offense beyond a reasonable doubt.

Affirmed.

SPITZ and McCULLOUGH, JJ., concur.


text:
    CATHERINE M. COULTAS, Plaintiff-Appellant, v. THE CITY OF WINCHESTER, Defendant-Appellee.
    Fourth District
    No. 4—90—0542
    Opinion filed February 7, 1991.

      Thomson, Mann, Mann, Mitchell & McNeely, P.C., of Jacksonville (Charles E. McNeely, of counsel), for appellant.
    Deborah L. Rose, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Springfield, for appellee.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Plaintiff Catherine Coultas appeals from the judgment of the circuit court of Scott County entered on a jury verdict in favor of defendant, the City of Winchester (City), in her action to recover damages for personal injuries sustained in a fall on a city sidewalk. We affirm.

On Saturday, October 31, 1987, plaintiff tripped and fell as she walked down a newly constructed wheelchair ramp on a public sidewalk. As a result of her fall, plaintiff suffered a fractured patella of the right knee. Plaintiff brought an action to recover damages for her injuries, naming as defendants the City of Winchester and George Brown, the general contractor who had constructed the ramp. Brown was later dismissed as a defendant upon plaintiff’s motion.

The cause proceeded to trial where the following facts were established. In October 1987, the defendant and a group of property owners hired Brown to remove an old section of sidewalk in the downtown area of Winchester and replace that section with a new sidewalk. Additionally, Brown was to remove the curb at the north end of the sidewalk where it intersected with Lynn alley and install a wheelchair ramp. Defendant’s custom was to split the cost of a new sidewalk between the City and the owners of the property adjacent to the new sidewalk. Bill Cumby, chairman of the streets and alleys committee, informed Brown that, as lowest bidder, he was awarded the job. Cumby stated that no one from the City was assigned to inspect the work.

Dan Hankins, superintendent for streets and alleys, assigned City employees to haul broken concrete away from the work site. Hankins did not inspect the job because he did not consider that to be part of his duties. Brown completed the work on Wednesday, October 28, or Thursday, October 29, 1987, and put up barricades at each end of the sidewalk. He removed the barricades late in the afternoon on Friday, October 30,1987.

At about 1:30 p.m. on Saturday, October 31, 1987, plaintiff left Baker’s Pharmacy and walked north toward the IGA store on the new sidewalk. As she walked down the wheelchair ramp into Lynn alley, she stubbed her toe and fell on her right knee. Although plaintiff did not see what caused her fall, Paul Newberry, who was walking behind her, testified that a concrete protrusion was in her path at the bottom of the ramp where she fell. He described the protrusion as an odd-shaped piece of concrete about six inches long and two to three inches high.

Plaintiff moved for a directed verdict on the issue of notice, contending that, as a matter of law, the defendant had notice of the condition in which the work was left. The court denied plaintiff’s motion and instructed the jury as follows:

“A municipality shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.”

On appeal, plaintiff contends that the trial court erred in denying her motion for a directed verdict on the issue of notice. We disagree.

The liability of a municipal corporation is governed by the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1987, ch. 85, par. 1 — 101 et seq.). The Act has essentially continued common-law duties respecting the liability of a municipality in the maintenance of its public ways and adds no new duties to those which existed prior to its codification. (Ross v. City of Chicago (1988), 168 Ill. App. 3d 83, 87, 522 N.E.2d 215, 218, appeal denied (1988), 121 Ill. 2d 586, 526 N.E.2d 839; Charpentier v. City of Chicago (1986), 150 Ill. App. 3d 988, 996, 502 N.E.2d 385, 390.) Section 3-102(a) of the Act provides:

“(a) Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.” Ill. Rev. Stat. 1987, ch. 85, par. 3 — 102(a).

Constructive notice is present where a defective condition exists for such a length of time that public authorities, by the exercise of reasonable care and diligence, might have known of the condition. (Pinto v. DeMunnick (1988), 168 Ill. App. 3d 771, 774, 523 N.E.2d 47, 50; Baker v. City of Granite City (1979), 75 Ill. App. 3d 157, 161, 394 N.E.2d 33, 35; Livings v. City of Chicago (1975), 26 Ill. App. 3d 850, 854, 326 N.E.2d 170, 174.) It is generally a question of fact for the jury to determine whether a defective condition has existed for a sufficient period of time prior to the injury and was of such a character for the City to be deemed to have constructive notice. However, where the facts are undisputed and but one reasonable inference can be drawn from them, it then becomes a question for the court. (Pinto, 168 Ill. App. 3d at 774, 523 N.E.2d at 50; Livings, 26 Ill. App. 3d at 854, 326 N.E.2d at 174.) In the instant case, the question of notice was properly left to the jury.

Plaintiff contends that “[i]t has long been held in Illinois that a municipality which causes work to be done, whether by its own employees or by an independent contractor, has notice of the condition in which the work was left, whether that condition is safe or dangerous.” Plaintiff cites numerous cases as authority for the foregoing proposition, all of which are distinguishable from this case.

The cases plaintiff cites in which a municipality was charged with notice of an injury-causing defect or obstacle in a public way fall into two distinct factual categories. In Dziewatkowski v. City of Chicago (1969), 109 Ill. App. 2d 405, 248 N.E.2d 734, and City of Chicago v. Brophy (1875), 79 Ill. 277, the municipality itself had performed the work which caused the dangerous condition resulting in the plaintiff’s injury. In Village of Jefferson v. Chapman (1889), 127 Ill. 438, 20 N.E. 33, City of Chicago v. Johnson (1869), 53 Ill. 91, Cole v. City of East St. Louis (1910), 158 Ill. App. 494, and Lau v. City of Chicago (1910), 153 Ill. App. 50, the plaintiffs were injured at construction sites prior to the completion of the work. All of these decisions note that it is the duty of the municipality to exercise reasonable care to prevent injury to passersby at such construction sites. The Chapman, Cole, and Lau decisions all characterize the construction undertaken as “dangerous” and turn upon the long-standing rule that the duty to keep an inherently danger ous condition safe cannot be delegated by a municipality. (Chapman, 127 Ill. at 447, 20 N.E. at 37; Cole, 158 Ill. App. at 500; Lau, 153 Ill. App. at 53-54.) The Chapman court, for example, explained that “one who authorizes a work which is necessarily dangerous, and the natural consequence of which is an injury to the person or property of another, is justly to be regarded as the author of the resulting injury.” (Chapman, 127 Ill. at 444, 20 N.E. at 36.) Although the Johnson court does not characterize the construction site as inherently dangerous, it is noteworthy that the plaintiff in Johnson was injured in a deep ditch which was excavated on the side of a roadway. Johnson, 53 Ill. at 91-92.

In the instant case, the evidence indicates that the construction which resulted in the injury-causing defect was performed by an independent contractor. Hence, Dziewatkowski and Brophy provide no authority for charging the defendant with notice. Further, the work was completed when the plaintiff sustained her injuries. Thus, the defendant’s power to delegate the duty to keep the construction site safe as the work progressed was not at issue. In sum, plaintiff has provided no compelling authority to support her contention that the trial court should have held, as a matter of law, that the defendant had notice of the injury-causing condition. As the construction site was unbarricaded less than 24 hours before the plaintiff sustained her injuries, the jury could properly have concluded that the defective condition did not exist for a sufficient period of time prior to the injury for the defendant to be deemed to have constructive notice of the flaw in the concrete.

To charge the City with notice of a dangerous condition either created or not remedied by the independent contractor would be adding a condition to section 3 — 102(a) that is best left to the legislative process.

Affirmed.

GREEN and STEIGMANN, JJ., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS J. McKAY, Defendant-Appellant.
    Fourth District
    No. 4—90—0030
    Opinion filed February 7, 1991.

      Daniel D. Yuhas and John J. Hanlon, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

Section 6 — 2(a) of the Criminal Code of 1961 (Code) provides that a “person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity *** to conform his conduct to the requirements of law.” (Ill. Rev. Stat. 1987, ch. 38, par. 6 — 2(a).) The primary issue in this case concerns the imposition of that defense to a charge of reckless homicide (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(a)) and related offenses under circumstances where the evidence showed the accused suffered from a “schizoaffective disorder” but was also extremely intoxicated at the time of the occurrence involved. The case was tried at bench. The court rejected the insanity defense and found the defendant guilty of reckless homicide and driving under the influence of intoxicating liquor (DUI) (Ill. Rev. Stat. 1987, ch. 951/2, par. 11— 501(a)(2)) but mentally ill (Ill. Rev. Stat. 1987, ch. 38, par. 6 — 2(c)).

The prosecution was initiated by an indictment brought against the defendant Thomas J. McKay in the circuit court of Champaign County on May 4, 1989. The offenses were alleged to have occurred on April 15, 1989. On January 4, 1990, the court imposed concurrent sentences of imprisonment of five years for reckless homicide and three years for DUI. On appeal, defendant contends the court erred (1) in not acquitting defendant on the grounds of insanity, and (2) in imposing a sentence too severe under the mitigating circumstances. We affirm the conviction and the sentence.

We set forth the tragic circumstances of April 15, 1989, only to the extent necessary to explain the background under which the insanity defense was presented. Defendant had obtained possession of an automobile he had purchased and had been driving it. That afternoon he had been at Clinton Lake in De Witt County, where he had rented a boat. Evidence indicated that during this time defendant had driven the boat in such a way as to create a wake in an area where that was prohibited, irritating other persons and engaging in an exchange of angry words and obscenities with them. Later, at approximately 9 p.m., defendant attended a party and, by then, had become very intoxicated. A person at the party took away his car keys but defendant had another set and, using that set, he drove off in his automobile. A witness testified that at about 9:50 p.m. he saw defendant’s car, traveling at a high rate of speed, hit a street lamp and later stop at a stop sign. The witness testified defendant’s car proceeded five blocks farther, swerving into oncoming lanes, almost hit another vehicle and then stopped at a red light.

Eventually, defendant crashed into the rear of an automobile which was properly stopped in a left-turn lane waiting to make such a turn. Defendant’s vehicle then swerved to the right, crashed through a brick wall, and entered a beauty shop. The driver of the car awaiting the turn was killed and her passenger severely injured. Two people who came into the beauty shop to try to help defendant testified he expressed concern about the beer he had in his car and requested their help in removing it before it was found by police. Other witnesses corroborated the reckless manner in which defendant had been driving. Undisputed evidence showed that at the time of the collision, defendant had a blood-alcohol content of .38, a figure so high that it would be fatal to many people. Evidence also indicated that at the scene of the collision (after it had taken place) and later, at a hospital, defendant was quite combative and assertive.

Defendant’s father testified defendant had entered the United States Navy while a senior in high school and, after approximately two years, defendant was admitted to the Norfolk Navy Hospital-first for alcohol problems, but doctors there soon decided he had serious mental problems. According to defendant’s father, defendant complained of headaches and a buzzing in his head at this time. Apparently, defendant was discharged from the Navy in 1987 or 1988 and returned home. His father described various behaviors by defendant which appeared paranoid and out of touch with reality. The father also explained defendant failed to take the medicine prescribed for him, contending it caused more headaches.

Dr. Lawrence Jeckel, a psychiatrist, testified he had studied the various available medical records concerning defendant and the information about defendant on which testimony had been presented. He had also interviewed defendant for approximately one hour at the Champaign County Correctional Center, and talked on a telephone with defendant’s parents. Dr. Jeckel testified he believed defendant was suffering from a mental disease or defect in 1986 and that had continued until the present. He then testified to an opinion that, at the time of the collision, defendant was suffering from three mental diseases or defects: He described the three as underlying “schizoaffective disorder,” “acute alcohol intoxication,” and “alcohol dependence.”

Dr. Jeckel described the “schizoaffective disorder” as one which “blends into manic-depressive illness.” He indicated defendant was in the manic phase at the time of the collision. Irritability, impatience, a flight of ideas accompanied by a “real push to action” were listed as characteristics of this phase. Dr. Jeckel also stated defendant’s other two disabilities were demonstrated by the high blood-alcohol content he had at the time of the collision and his long-standing tendency to drink very large amounts of alcohol.

Dr. Jeckel testified on direct examination that in his opinion, as a result of the three mental defects he had described, defendant was not “able to conform his conduct” to the requirements of law. He then stated: “[T]he underlying, the most prominent underlying problem for both [defendant’s] alcohol intake and his mental state is a very serious mental illness which has been called schizoaffective disorder, and that because of this disorder was not under control and that this led to this, Mm, becoming out of control and the subsequent accident.” (Emphasis added.) However, despite the causal relationship which Dr. Jeckel deemed to exist between defendant’s schizoaffective disorder and the collision, on cross-examination Dr. Jeckel was unable to say whether, without defendant being intoxicated, his schizoaffective disorder would have prevented him from performing such functions of safe driving as stopping at stop lights at the time of the collision. Dr. Jeckel also stated that despite defendant’s condition he might have stopped when crossing signals were red, but he might also have stopped when they were green.

In explaining its decision, the trial court stated in part:

“Regardless of the analysis in People v. Free [(1983), 94 Ill. 2d 378, 447 N.E.2d 218], and regardless of the argument which, I think, correctly states the evidence that there was no testimony that the schizoeffective [sic] disorder standing alone, in any way, prevented the Defendant from conforming his conduct to the requirements of the law. I look at all of the circumstances in this case, all of the evidence, and irrespective of Dr. Jeckel’s testimony, I am not persuaded that the Defendant has established by a preponderance of the evidence that at the time of these offenses he was unable to conform his conduct to the requirements of law.
It is a fact that there were times during this tragic evening and the operation of that automobile in such an erratic fashion that the Defendant clearly was, based on the testimony of the witnesses, able to conform his conduct to the requirements of the law. He did stop at times when it was appropriate to stop. There were times when he was not speeding. There were times when he was not weaving in the automobile. When asked about that, I simply have to feel that Dr. Jeckel in his response, ‘Well, he might have stopped if the light was green, too’ is simply too equivocal a response to that vital issue on the evidence in this case. And I simply have to believe that it is not proved by a preponderance of the evidence that the Defendant lacked the ability to conform his conduct to the requirements of the law. When focusing down on that single issue beyond the evidence altogether, the evidence is just not there as is required to be. And accordingly, I find that the Defendant has not sustained that defense.” (Emphasis added.)

The defense maintains the court recognized defendant’s schizoaffective disorder, but erroneously determined it did not prevent defendant from conforming his conduct to the requirements of law. The defense also maintains the court erred in failing to give sufficient consideration to defendant’s alcohol dependency. The court’s statement might indicate it deemed that even in defendant’s extremely intoxicated condition, he still had the power to conform his conduct to the requirements of law because he had made some prior stops at required places. We need not pass upon whether the convictions can be upheld on that basis. We are not holding they cannot. Rather, we uphold the convictions because the court’s findings inherently included a finding that the defendant’s power to conform his conduct to legal requirements was not destroyed by his schizoaffective disorder. We conclude that under the law of this State, any loss of ability of defendant to conform his conduct because of his intoxication, and any alcohol dependency he possessed, does not bear upon the insanity defense he offered.

In People v. Free (1983), 94 Ill. 2d 378, 447 N.E.2d 218, the court affirmed a conviction of murder and attempt (rape). Prior to the imposition of the death penalty, evidence was introduced that the accused, at the time of the killing, suffered from a psychosis resulting from drug ingestion. The supreme court held the trial court properly refused an instruction on the insanity defense. The supreme court explained:

“Simply stated, a voluntary intoxication or a voluntary drugged condition does not raise the defense of insanity, but is governed by section 6 — 3 and may be used to negate the existence of the mental state which is an element of the crime. (Ill. Rev. Stat. 1977, ch. 38, par. 6 — 3.) A voluntary intoxication or a voluntary drugged condition precludes the use of the insanity defense unless the mental disease or defect is traceable to the habitual or chronic use of drugs or alcohol (State v. Toth (1977), 52 Ohio St. 2d 206, 371 N.E.2d 831) and such use results in a ‘settled’ or ‘fixed’ permanent type of insanity.” (Emphasis in original.) Free, 94 Ill. 2d at 407-08, 447 N.E.2d at 232.

The primary case cited by the Free court in support of the foregoing pronouncement was People v. Cochran (1924), 313 Ill. 508, 145 N.E. 207. There, a man was convicted of murdering his wife. Evidence was presented indicating (1) he had a delusion his wife was conspiring against him, and (2) that he had been treated in the past for alcoholism apparently resulting from drinking bootleg whiskey. No evidence was presented indicating that defendant was intoxicated at the time of the killing. The jury was instructed that if the defendant was sane and drank intoxicating liquor knowing of its harmful effect and thereby became insane, and because of that insanity, killed his wife, the jury should find him guilty. In holding the giving of the instruction was reversible error, the supreme court stated:

“There is evidence in the record that while in the insane asylum at Wichita Falls plaintiff in error was suffering from an attack of insanity from which a patient never recovers. By instruction No. 7 the jury might be led into the erroneous belief that if plaintiff in error was sane prior to his incarceration in the insane asylum at Wichita Falls, that he then voluntarily drank intoxicating liquor knowing that it would make him insane, that he then became insane as the result of drinking such intoxicating liquor and that that insanity continued down to the time he killed his wife, such insanity would not be a defense even though it was to such an extent that he was not able to distinguish between right and wrong, or, being able to distinguish between right and wrong, had not sufficient mentality and will power to refrain from doing the act which resulted in the death of his wife. Long continued habits of intemperance which produce permanent mental diseases amounting to insanity, which so weaken and impair the mind that one committing an offense has not mind enough at the time to know right from wrong and has not sufficient mind and power of will to refrain from doing the act, relieve a person from responsibility under the law. Insanity of this sort and thus produced is the same, in law, as insanity arising from other causes.” (Emphasis added.) Cochran, 313 Ill. at 517-18, 145 N.E. at 211.

Clearly, under Free, defendant’s high degree of intoxication at the time of the collision was not a “mental disease or mental defect” recognized by section 6 — 2(a) of the Code as a ground of insanity exonerating defendant of criminal responsibility for the collision. Careful examination of the language of Free and Cochran also negates his alcohol dependency from constituting such exonerating insanity. The Free court stated that such insanity must be “traceable” to “habitual use” and must result in “a ‘settled’ or ‘fixed’ ” permanent type of insanity, and the Cochran court indicated the type of alcoholism involved must permanently deprive the person afflicted of the ability to conform that person’s conduct to the requirements of law. Here, the evidence gives no indication that most of the time, particularly when sober, defendant, although acting strangely, was unable to conform his conduct to the requirements of law. Dr. Jeckel testified that rather than defendant’s alcohol dependency creating his schizoaffective disorder, his alcohol dependence developed as a result of and as a defense to that disorder.

The defense does not dispute that standing alone defendant’s impairment because of his intoxication could not stand as an insanity defense. In response to the State’s pointing out that Dr. Jeckel could not say the schizoaffective disorder alone produced an inability in the defendant to conform his conduct, the defense points out that Dr. Jeckel did stress that the schizoaffective disorder was the principal feature in bringing about defendant’s condition. The defense also emphasizes the interrelationship between the three disorders which Dr. Jeckel found. However, no case has been called to our attention where a recognizable disease or disability, insufficient of itself to destroy the ability to conform the conduct of an accused to the requirements of law, has been held to constitute the insanity defense when accompanied by a voluntary intoxication of the accused. While Dr. Jeckel explained defendant’s choice of drinking heavily of intoxicants arose because of his schizoaffective disorder, Dr. Jeckel did not indicate defendant’s consumption of intoxicants was involuntary.

The law in Illinois does not favor intoxication as an excuse for criminal conduct. Intoxication negates specific intent only when it is “so extreme as to suspend the power of reason and render [a person] incapable of forming” such an intent. (Ill. Rev. Stat. 1987, ch. 38, par. 6 — 3(a).) When involuntarily produced, intoxication which deprives a person “of substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law” is an affirmative defense. (Ill. Rev. Stat. 1987, ch. 38, par. 6 — 3(b).) In People v. Rogers (1988), 123 Ill. 2d 487, 508-10, 528 N.E.2d 667, 677-78, the supreme court held that a condition of intoxication arising from addiction is not involuntary within the foregoing legislation and is not a basis for the insanity offense unless of the type described in Free.

Defendant correctly points out that this court, in People v. Janecek (1989), 185 Ill. App. 3d 89, 540 N.E.2d 1139, and the First District Appellate Court, in People v. Garcia (1987), 156 Ill. App. 3d 417, 509 N.E.2d 600, appeal denied (1987), 116 Ill. 2d 566, and People v. Arndt (1980), 86 Ill. App. 3d 744, 408 N.E.2d 757, have upset convictions on review and required findings of not guilty by reason of insanity in cases where the testimony of psychiatrists testifying for the defense had not been seriously refuted. However, those were not cases where the accused was intoxicated and the evidence was uncertain as to whether diseases or defects of the defendant, other than the defendant’s intoxication, were sufficient to deprive the defendant of the substantial capacity described in section 6 — 2(a) of the Code.

Here, to do so would require us to go further than to reject the trial court’s determination the defendant’s capacity to conform his conduct was proved by the fact he had made some of the required stops. We would also be required to adopt a dangerous rule, permitting imposition of the insanity defense by a person who had a disease or defect which impaired but did not destroy his substantial capacity to distinguish right from wrong or to conform his conduct to law when, after becoming severely intoxicated, either of those capacities was destroyed.

Section 6 — 2(e) of the Code provides that a defendant has the burden of proving an insanity defense by a preponderance of the evidence. (Ill. Rev. Stat. 1987, ch. 38, par. 6 — 2(e).) Thus, upon presentation of evidence of the defense, the State need not negate the defense beyond a reasonable doubt as is required of other affirmative defenses. (Ill. Rev. Stat. 1987, ch. 38, par. 3 — 2.) This court, in Janecek (185 Ill. App. 3d 89, 540 N.E.2d 1139), and the Second District Appellate Court in People v. Martin (1988), 166 Ill. App. 3d 428, 519 N.E.2d 1085, have set aside convictions and required defendants to be found not guilty by reason of insanity when the determination of the circuit court rejecting the insanity defense was deemed contrary to the manifest weight of the evidence. Recently, in People v. Beehn (1990), 205 Ill. App. 3d 533, 563 N.E.2d 1207, this court again held that when the defense of insanity is raised under section 6 — 2(e) of the Code and rejected by the trier of fact, a reviewing court should set aside the conviction because of the insanity of the defendant only when the finding of the trier of fact on that issue is contrary to the manifest weight of the evidence.

Here, the decision of the court convicting defendant and finding him mentally ill is not contrary to the manifest weight of the evidence. Thus, defendant is not entitled to a finding of not guilty by reason of insanity.

The thrust of defendant’s argument concerning the, sentence is that imposition of a sentence of five years for reckless homicide, which was the maximum sentence for that offense, was a breach of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Defendant, citing People v. Gibbs (1977), 49 Ill. App. 3d 644, 364 N.E.2d 491, maintains the sentencing court must have rehabilitation as an objective of a sentence and asserts that defendant has shown a desire to become rehabilitated and can better be rehabilitated while not subject to incarceration. Dr. Jeckel testified at sentencing that a much better program to treat defendant’s schizoaffective disorder and alcohol dependence could be given him than that which he received from the Veterans Administration.

Recently in People v. Mott (1990), 204 Ill. App. 3d 573, 561 N.E.2d 1380, this court remanded for resentencing in a case where a defendant convicted of a reckless homicide resulting in two deaths was given concurrent extended-term sentences of eight years’ imprisonment. There, as here, the defendant drove recklessly at a time when impaired by a mental condition. There no voluntary use of large quantities of alcohol was involved. The defendant showed no arrogance as to persons trying to stop her from driving, nor as to others on the highway. There, we deemed the court’s decision to impose punishment to clearly overemphasize retribution. Here, the court gave adequate consideration to the defendant’s mental problems, but also considered the defendant’s long-term unwillingness to confront his problems with alcohol. In Mott, the court expressed no concern as to the rehabilitative potential of the defendant. Here, the court considered that question and expressed justifiable doubt as to defendant’s rehabilitative potential. The sentence here was based on proper considerations, did not place too much emphasis on retribution, and was not a breach of discretion.

As we have indicated, we affirm both the conviction and the sentence.

Affirmed.

LUND, P.J., and McGULLOUGH, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY STEFFENS, Defendant-Appellant.
    Fourth District
    No. 4—90—0291
    Opinion filed February 7, 1991.

      Harold M. Jennings, of Jennings, Novick, Ensign & Ostling, of Bloomington, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

On January 30, 1990, defendant Gary Steffens was found guilty by a jury sitting in the circuit court of McLean Coimty of possessing a rosette rivet which has not yet been attached to, or which has been removed from, the original vehicle, in violation of section 4 — 103(a)(5) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 951/2, par. 4 — 103(a)(5)). He was subsequently sentenced to two years’ conditional discharge. Defendant now appeals.

The trial commenced on January 29, 1990. Edward Shumaker testified that he has been employed by the Illinois State Police for an excess of 20 years. Since 1987, he has served in the vehicle identification and auto theft section. He has had various training sessions concerning rosette rivets, some occurring in 1970 at the State Police Academy.

Once he was assigned to his present position, he had more training and refresher courses every three months at the academy. (Not every course involved rosette rivets.) They also went to the Chrysler plant in Belvidere in 1988 to observe the use of rosette rivets. This trip was sponsored by the Vehicle Identification Bureau of the Illinois State Police. While there, they observed the workers attach the vehicle identification number (VIN) plates to cars using the rosette rivets. This is done in a secure area of the plant. He described unused rosette rivets as being approximately two inches long, with the rivet head having a rose-petal design. This is why it is called a rosette rivet.

He explained that the rosette rivets are key in determining whether the VIN plates have been altered. The rosette rivets are unique, and they are not available to the public. Since 1965, all American-made General Motors ears have used them exclusively to attach the VIN plates. Chrysler and Ford began using them a couple of years later. Foreign cars made outside the United States use only circular pop-head rivets. However, foreign cars assembled in the United States use the rosette rivets. Thus, in looking at a VIN plate to determine its authenticity, the first items to be examined are the rivets to make certain they are rosette rivets. Shumaker estimated that over his career he has seen rosette rivets in excess of 10,000 times.

On June 23, 1989, he and several other officers were assigned to the Corvette Corrall, a Corvette show at the Bloomington fairgrounds. This is a large show with an excess of 50,000 visitors and 300 vendors. They toured the vendors, looking for stolen parts and other suspect conduct. Shumaker then obtained some money from headquarters and proceeded to defendant’s booth. Defendant had a sign which stated he had rose-head rivets for sale at the price of two for $50. Shumaker explained that “rose head” is a street name for rosette rivets. Shumaker asked defendant if he had any rosette rivets for sale. Defendant answered affirmatively and explained these were genuine stainless-steel factory rosette rivets. Shumaker examined them and observed that they were, in fact, rosette rivets. He paid for them and then arrested defendant. Upon inquiry, defendant explained he purchased a bag containing 65 of these at a flea market in Lorraine, Ohio. The State rested.

Defendant’s first witness was a 20-year police veteran with an interest in classic cars. He stated he had never heard of a rosette or rose-head rivet. He did acknowledge that the handling of cases involving altering or switching of VIN plates has become more of a specialty area in which he has not been involved. Defendant’s wife and father-in-law testified concerning the purchase of the rivets at the flea market in 1983.

Defendant testified that he has been involved in the restoration of Corvettes for a number of years. Prior to that, he was a police officer for nine years. In 1983 he was not yet in the restoration business, but he was involved in sports-car racing. That summer, he went to the flea market in Ohio and purchased five bags of rivets at $2 per bag. He was not interested very much in the bag with this type of rivets. He was looking for some large-headed rivets which he purchased. In response to the question of why he purchased the rivets in question, he explained, “I had recognized the rivets from having been a police officer and knew that they could be valuable.”

Later, defendant ran an advertisement in a national magazine advertising a number of Corvette parts, including “snowflake” rivets, which he offered for $20 a pair. He called them that because they looked like a snowflake. He sold one pair, and the rest he brought with him to the Corvette Corrall. He referred to them in his sign as rose-head rivets because that is what the one buyer had called them earlier. In explaining the unusual markup of $50 per pair for the rivets, he explained that large markups in the Corvette restoration business are not unusual. He then testified to various examples of products he procured cheaply or for free, and the exorbitant prices he received for them. The first time he heard the phrase “rosette rivet” was when he was arrested.

On cross-examination, he stated that beginning in 1966 all Corvettes used rivets of this type to secure the VIN plates. He admitted knowing this type of rivet is used on Corvettes. He explained that one purpose of the Corvette Corrall was to certify Corvettes as being rebuilt using original parts or facsimiles. This certification could increase the value by $20,000. The car could obtain the certification if it used these rivets or reasonable facsimiles.

The jury found defendant guilty. The court, observing defendant had no prior record, placed defendant on a two-year conditional discharge and ordered him to pay a $300 fine. This appeal followed.

Defendant first raises several constitutional challenges to which some general principles apply. All statutes are presumed to be constitutional. (People v. Bales (1985), 108 Ill. 2d 182, 188, 483 N.E.2d 517, 519; Sayles v. Thompson (1983), 99 Ill. 2d 122, 124-25, 457 N.E.2d 440, 441-42.) The party challenging a statute has the burden of clearly establishing a constitutional violation. (People v. O’Donnell (1987), 116 Ill. 2d 517, 521, 508 N.E.2d 1066, 1068.) The supreme court has repeatedly emphasized that it is the court’s duty to construe acts of the legislature so as to affirm their constitutionality and validity if it can reasonably be done, and, further, if their construction is doubtful, the doubt will be resolved in favor of the validity of the law challenged. O’Donnell, 116 Ill. 2d at 521-22, 508 N.E.2d at 1068; Bales, 108 Ill. 2d at 188, 483 N.E.2d at 520; Continental Illinois National Bank & Trust Co. v. Illinois State Toll Highway Comm’n (1969), 42 Ill. 2d 385, 389, 251 N.E.2d 253, 257.

Defendant first asserts the statute he was prosecuted under violates his due-process rights because it is unconstitutionally vague. Defendant observes a rosette rivet is not defined by statute or case law. Therefore, he maintains, it is impossible for a person to know if he possesses one and if he violates the statute.

There are two requirements under the due-process-vagueness standard when the first amendment is not involved. (Bales, 108 Ill. 2d at 188, 483 N.E.2d at 520.) First, the statute must give a person of ordinary intelligence a reasonable opportunity to know what conduct is lawful or unlawful. (O’Donnell, 116 Ill. 2d at 522, 508 N.E.2d at 1068.) Second, the statute must provide standards to avoid arbitrary and discriminatory enforcement and application by police officers, judges, and juries. (O’Donnell, 116 Ill. 2d at 522, 508 N.E.2d at 1068.) The determination of whether a statute is void for vagueness must be made in the factual context of each case. (Bales, 108 Ill. 2d at 189, 483 N.E.2d at 520; People v. Garrison (1980), 82 Ill. 2d 444, 454, 412 N.E.2d 483, 488.) In such cases, the underlying requirement of due process is that an individual cannot be held to have violated a statute unless he could reasonably be expected to understand that his particular conduct was proscribed. Garrison, 82 Ill. 2d at 454, 412 N.E.2d at 488-89.

The statute in question reads:

“It is a violation of this Chapter for:
* * *
(5) A person to knowingly possess, buy, sell, exchange, give away, or offer to buy, sell, exchange or give away, any manufacturer’s identification number plate, mylar sticker, federal certificate label, State police reassignment plate, Secretary of State assigned plate, rosette rivet, or facsimile of such which has not yet been attached to or has been removed from the original or assigned vehicle. The provisions of subsection (a) of this Section shall not apply to police officers while in official performance of their duties, or to a manufacturer’s authorized representative who is replacing any manufacturer’s identification number plate, mylar sticker or Federal certificate label by the manufacturer of the vehicle or any essential part thereof.” Ill. Rev. Stat. 1989, ch. 95x/2, par. 4 — 103(a)(5).

It is a fundamental principle that in construing statutes, the judicial role is to ascertain and give effect to the intent of the legislature. (O’Donnell, 116 Ill. 2d at 522, 508 N.E.2d at 1068.) In seeking to determine legislative intent, a court should not read a particular provision in isolation, but rather must construe each provision in light of this statute as a whole. (O’Donnell, 116 Ill. 2d at 523, 508 N.E.2d at 1068.) Thus, in O’Donnell, the court, while observing that the section in question standing by itself might be unconstitutional, used the entire drivers’ licensing law to interpret the section and found it constitutional.

The possession of rosette rivets is proscribed in a section of the Code referred to as “Anti-Theft Laws” (Ill. Rev. Stat. 1989, ch. 951/2, pars. 4 — 100 through 4 — 108). The purpose of these laws is to protect automobile owners against theft, and to protect the general public against the commission of crimes involving stolen automobiles. (People v. One 1979 Pontiac Grand Prix Automobile (1982), 89 Ill. 2d 506, 510, 433 N.E.2d 1301, 1302.) The rivets are specifically referred to in the section dealing with car identification numbers. Three of the five identification pieces named in the section use the word “plate” (manufacturer’s identification number plate, State police reassignment plate, Secretary of State assigned plate). (Ill. Rev. Stat. 1989, ch. 95V2, par. 4 — 103(a)(5).) A “rivet” is defined as a headed metal bolt used for uniting two pieces of metal by passing the shank through a hole in each, and then beating or pressing the plain end to form another head. (Webster’s Ninth New Collegiate Dictionary 1018 (1989).) “Rosette” is defined as an ornament designed to resemble a rose. (Webster’s Ninth New Collegiate Dictionary 1024 (1989); see also The American Heritage Dictionary 1071 (1982).) Thus, we find that by the use of the phrase “rosette rivet,” the legislature intended it to mean the rose-headed rivet used to fasten these identification plates to the vehicles. This definition is further supported by the phrase “which has not yet been attached to or has been removed from the original or assigned vehicle,” and by the next sentence, which excludes from coverage the manufacturer’s representative who is replacing the identification numbers. Accordingly, we conclude that the statute has no vagueness problem.

Defendant next contends the penalty classification provided for the instant violation, a Class 2 felony (Ill. Rev. Stat. 1989, ch. 95½, par. 4 — 103(b)), is unconstitutional in that it violates the due process and proportionate penalty clauses of the Illinois Constitution. Ill. Const. 1970, art. I, §§2, 11.

The courts, while acknowledging that those sections place some restraint on the power of the legislature to establish penalties for crimes have, nonetheless, been reluctant to invalidate penalties prescribed by the legislature. (People v. Steppan (1985), 105 Ill. 2d 310, 319, 473 N.E.2d 1300, 1305.) It is well established that under the State’s police power, the legislature has wide discretion to prescribe penalties for defined offenses. (People v. Morris (1990), 136 Ill. 2d 157, 161, 554 N.E.2d 235, 236.) The legislature, institutionally, is more aware than the courts of the evils confronting our society and, therefore, more capable of gauging the seriousness of various offenses. Steppan, 105 Ill. 2d at 319, 473 N.E.2d at 1305.

When reviewing a statute under the due-process clause (Ill. Const. 1970, art. I, §2), the test focuses on the purpose and objectives of the enactment in question. (Morris, 136 Ill. 2d at 162, 554 N.E.2d at 236.) The supreme court has required only that the penalty prescribed for the particular crime be reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety, and general welfare. Morris, 136 Ill. 2d at 162, 554 N.E.2d at 236; Steppan, 105 Ill. 2d at 319, 473 N.E.2d at 1305.

The standard of review under the proportionate penalty clause (Ill. Const. 1970, art. I, §11) was stated in People v. Gonzales (1962), 25 Ill. 2d 235, 240, 184 N.E.2d 833, 835, quoting portions of People ex rel. Bradley v. Illinois State Reformatory (1894), 148 Ill. 413, 420-22, 36 N.E. 76, 79:

“This court has traditionally been reluctant to override the judgment of the General Assembly with respect to criminal penalties. It indicated at an early date that the constitutional command that ‘penalties shall be proportioned to the nature of the offense’ would justify interference with the legislative judgment only if the punishment was ‘cruel,’ ‘degrading’ or ‘so wholly disproportionate to the offense committed as to shock the moral sense of the community.’ ”

As noted earlier, the section in question is contained in article I, chapter 4, of the Code, which is entitled “Anti-Theft Laws” (Ill. Rev. Stat. 1989, ch. 95V2, pars. 4 — 100 through 4 — 108). The purpose of these provisions is to protect the public by discouraging car theft, especially that done by organized rings. It is for this reason that the car-identification-number system and the use of YIN plates has developed. It is recognized that the absence of rosette rivets is the first indication in any investigation that something may be wrong with the vehicle. (See People v. Suk (1990), 220 Cal. App. 3d 952, 269 Cal. Rptr. 676; State v. Bonner (1986), 77 Or. App. 572, 714 P.2d 245; State v. Sollars (Mo. Ct. App. 1986), 706 S.W.2d 485; Spears v. State (1978), 38 Md. App. 700, 382 A.2d 616; People v. Von Werne (1977), 41 N.Y.2d 584, 362 N.E.2d 982, 394 N.Y.S.2d 183.) Accordingly, possession of these rivets would be of great value to car thieves as a first line of defense from detection. It is for this reason they are not available to the public. It is also this legitimate State interest which this statute and its penalty are designed to correct. We conclude that since the possession of these rivets by unauthorized persons would defeat their salutory purpose, the authorized penalty is reasonably designed to remedy this problem. We find no violation of either the due-process clause or the proportionate-penalty clause of the Illinois Constitution. There is also no violation of the constitutional prohibition against cruel and unusual punishment. We acknowledge the possible penalty is severe. However, being mindful of the fact that the legislature is in a better position to gauge the seriousness of offenses and the necessary remedies, we conclude this is properly a legislative determination.

Defendant’s final constitutional challenge is that the statute is unconstitutional because it violates the equal protection provisions of the Illinois Constitution. He notes that according to Shumaker’s testimony, the type of rivets used on Toyotas manufactured in Japan are not rosette rivets, and possession of them is therefore not illegal. He maintains “[t]his classification that has arisen between people with GM rivets and others rests on grounds wholly irrelevant to the goal of eliminating organized vehicle thieves and their alteration of VIN plates.”

The equal protection clause does not deny States the power to treat different classes of persons in different ways. People v. Bradley (1980), 79 Ill. 2d 410, 416, 403 N.E.2d 1029, 1031.

“The standards under which this proposition is to be evaluated have been set forth many times by this Court. Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective.” McGowan v. Maryland (1961), 366 U.S. 420, 425, 6 L. Ed. 2d 393, 398-99, 81 S. Ct. 1101, 1105.

Defendant believes the unequal treatment is between those possessing rivets used in cars built outside the United States and those possessing rosette rivets. However, the evidence establishes that all cars built in the United States, even those of foreign ownership, use the rosette rivets. Thus, the majority of cars use these rivets. Therefore, the classification is relevant to a valid State purpose, curtailing theft and resale, and defeats the constitutional challenge.

Defendant next asserts he was denied a fair trial by various court rulings.

First, he complains that Shumaker was an expert witness and the State failed to disclose his status as such as is required by Supreme Court Rule 412 (107 Ill. 2d R. 412). He notes that noncompliance with discovery rules constitutes error when there is a showing of prejudice. People v. Scheidt (1986), 142 Ill. App. 3d 844, 847, 492 N.E.2d 248, 251.

Initially, the record reveals that defendant did not raise this objection at trial, nor did he raise this specific argument in his post-trial motion. Accordingly, this issue is properly considered waived. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1129-30.) Further, Shumaker was listed as a witness, and his reports and grand jury testimony were given to defendant on August 10, 1989. In Scheidt (142 Ill. App. 3d at 847-48, 492 N.E.2d at 251), the court stated:

“It is difficult to see how defendant was prejudiced by this failure to disclose. He knew that the police officers would be testifying at trial. He also knew from other discovery the nature of the items seized from his person, his van and his house. It could not have come as a surprise that some or all of the officers would have experience in investigating bookmaking operations. For the same reasons, the failure to reveal qualifications was not prejudicial.”

This analysis applies equally well to the current situation. There is no error.

Defendant next complains about the foundation of Shumaker as an expert. He does not believe the trooper’s experience, which consisted “of a few police classes and a tour through a Chrysler plant,” is sufficient to make him an expert.

Expert testimony will be admitted if the expert has some knowledge or experience which will aid the court or jury in arriving at determinations on the issues and if the subject matter is sufficiently beyond the common experience. (People v. Server (1986), 148 Ill. App. 3d 888, 897, 499 N.E.2d 1019, 1025-26.) The indicia of expertise is not a given level of academic qualifications, but whether the expert has knowledge and experience beyond the average citizen which would assist the jury in evaluating the evidence. (People v. Douglas (1989), 183 Ill. App. 3d 241, 254, 538 N.E.2d 1335, 1343.) Irrespective of how specialized knowledge was acquired, whether through education, training, experience, or a combination of each, if the witness possesses such knowledge, he may testify. (Douglas, 183 Ill. App. 3d at 254, 538 N.E.2d at 1343.) This determination is directed to the sound discretion of the trial court and will only be disturbed when it constitutes an abuse of that discretion. People v. Bradley (1988), 172 Ill. App. 3d 545, 550, 526 N.E.2d 916, 920.

It is unclear from the record whether Shumaker was called as an expert or was testifying as the arresting officer who has had experience in this field. However, assuming he is an expert witness, a proper foundation has been laid. The evidence establishes that Shumaker has over 20 years with the State Police, has received special training and refresher courses, was taken to the Chrysler plant, and has seen in excess of 10,000 rosette rivets. This is sufficient.

Defendant next contends he was improperly limited in his cross-examination of Shumaker. Defendant asked Shumaker if he had ever arrested anyone in Illinois for possession of rosette riyets or rose-head rivets, and whether he had ever been involved in prosecution of a rosette-rivet case resulting in conviction before. In each case, an objection was sustained.

It is difficult to see how the fact that this may be the first rosette-rivet case Shumaker has involved in, or the fact there were acquittals in other cases, would be proper impeachment. The question is the ability of Shumaker to identify a rosette rivet. The fact a defendant has been acquitted has no direct bearing on that ability. There could be a number of reasons for the acquittal other than Shumaker’s ability to properly identify a rosette rivet. If defendant wished to know if Shumaker had ever misidentified a rivet, he should have asked more directly.

Defendant’s last assertion on this issue is that the court improperly prevented him from presenting exhibits to the jury. He specifically refers to defendant’s exhibits which are pictures showing VIN plates and the rivets on two 1985 Toyotas. These pictures were used during the cross-examination of Shumaker, who testified that one picture was definitely not of a rosette rivet and that he could not tell on the other because the picture was not clear.

Defendant wished to introduce the pictures to show how similar those rivets are to the rosette rivets, as a means of attacking Shumaker’s credibility. However, Shumaker had already stated they were not rosette rivets. Therefore, unless they were actually rosette rivets, they could not be beneficial in attacking his testimony. Since there was no evidence establishing that they were rosette rivets, it appears the pictures are not helpful to the jury for their asserted purpose. Since this foundation was missing, they were properly found inadmissible.

Defendant last argues he was denied a fair trial by defective jury instructions. He argues the instructions are deficient, in that they do not define the term “rosette rivet.” Therefore, it is up to the jury to decide what is or is not a rosette rivet.

The jury was presented ample evidence of what a rosette rivet is, and Shumaker identified the rivets in question as being such. The jury can rely on this evidence, just as it can when a forensic scientist testifies that a substance contains an illegal drug. There was no error in the instructions.

For the aforementioned reasons, the conviction and sentence of defendant Gary Steffens are affirmed.

Affirmed.

GREEN and McCULLOUGH, JJ., concur.