text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ANDREW JURIS, Defendant-Appellee.
    Second District
    No. 2—88—0751
    Opinion filed October 19, 1989.
    Roger T. Russell, State’s Attorney, of Belvidere (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Andrew Juris, was charged via information with criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13(a)(1)) on January 7, 1988. The State amended the information on April 15, 1988, to apply an enhanced sentencing provision (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13(b)), which became effective January 1, 1988. This amended sentencing section allowed enhancement of the sentence for criminal sexual assault from a Class 1 felony to a Class X felony for “[a] second or subsequent conviction for a violation of this Section or under any similar statute of this State or any other state for any offense involving criminal sexual assault that is substantially equivalent to or more serious than the sexual assault prohibited under this Section.” (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13(b).) Defendant moved to dismiss the amended information, and the trial court, after a hearing, struck the enhancement language, along with the term “Class X felony,” from the information. The State appeals from this action.

Defendant was convicted in 1979 of the Class 1 felony of attempted rape. The State sought to use this conviction as the basis for enhancing defendant’s sentence upon conviction of the criminal-sexual-assault charge. On appeal, the State contends that the crimes of attempted rape and criminal sexual assault are “substantially equivalent,” thus allowing use of the enhancement provision.

The State interprets section 12 — 13 as allowing enhancement for any offense involving criminal sexual assault that has a penalty substantially equivalent to or more serious than that prescribed in section 12 — 13. The State argues that since both the old offense of attempted rape and the new offense of criminal sexual assault are both Class 1 felonies (Ill. Rev. Stat. 1983, ch. 38, pars. 8 — 4(c)(2), 11 — 1(c); Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13(b)), the offenses are “substantially equivalent.” We disagree with the State’s interpretation, and we affirm the trial court.

The cardinal rule of statutory construction is to ascertain and give effect to the intent and meaning of the legislature.. (People v. Boykin (1983), 94 Ill. 2d 138, 141.) The language used in the statute is the primary source of legislative intent. (People v. Sierra (1984), 122 Ill. App. 3d 822, 824.) Where the statutory language is clear and unambiguous, the function of the court is to enforce the statute as enacted. (Harvey Firemen’s Association v. City of Harvey (1979), 75 Ill. 2d 358, 363.) Any ambiguities in a penal statute, especially in the case of enhancement provisions, must be resolved in the defendant’s favor. People v. McCarty (1983), 94 Ill. 2d 28, 34-35; Sierra, 122 Ill. App. 3d at 824.

Section 12 — 13(b) provides for enhancement for a second or subsequent conviction “for any offense involving criminal sexual assault that is substantially equivalent to or more serious than the sexual assault prohibited under this Section.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13(b).) Thus, it is the elements of the offense, and not the penalty for the offense, which must be compared to the section 12 — 13 criminal sexual assault.

Such a comparison clearly shows that the offense of attempted rape is not substantially equivalent to or more serious than the offense charged here. Criminal sexual assault requires an act of sexual penetration. (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 13(a)(1), (a)(2), (a)(3); People v. Morgan (1986), 149 Ill. App. 3d 733, 738.) Attempted rape did not require penetration; the offender simply must have intended to accomplish intercourse by force against the victim’s will and must have taken a substantial step toward accomplishing his purpose. (People v. Hanley (1977), 50 Ill. App. 3d 651, 659.) The absence of the element of penetration renders the offense of attempted rape inferior to criminal sexual assault. Attempted rape is an inchoate offense; by definition it is an incomplete effort to commit rape. The incomplete effort is not equivalent to the completed effort. The amended information was properly dismissed.

For these reasons, the circuit court of Boone County is affirmed.

Affirmed.

INGLIS and REINHARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD JUSTICE McLaren,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CYNTHIA BRODEUR, Defendant-Appellee.
    Second District
    Nos. 2—88—0807, 2—88—1117 cons.
    Opinion filed October 19, 1989.

      McLAREN, J., dissenting.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    George J. Bakalis, of Civinelli, Bakalis & Culliton, of Bloomingdale, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

The State has appealed two orders of the circuit court of Du Page County arising from the prosecution of defendant, Cynthia Brodeur, for driving while under the influence of alcohol (DUI) (Ill. Rev. Stat. 1987, ch. 95V2, par. ll-501(a)(2)).

Following her DUI arrest and the summary suspension of her driver’s license for her refusal to complete a blood-alcohol test, defendant filed a petition to rescind the statutory summary suspension of her driver’s license (Ill. Rev. Stat. 1987, ch. QBVa, par. 2— 118.1). After a hearing on the petition, the trial court, Judge Robert A. Cox, entered an order in favor of defendant finding no reasonable grounds for the DUI arrest. The State filed a notice of appeal of that order (107 Ill. 2d R. 301), and that appeal is docketed as case No. 2 — 88—0807. Defendant then filed a motion to quash her arrest in the underlying DUI case, which the trial court, Judge Brian F. Telander, granted on the basis of collateral estoppel. The State filed a certificate of impairment and a notice of appeal (107 Ill. 2d R. 604(a)), and that appeal is docketed as case No. 2 — 88—1117. We granted the State’s motion to consolidate these appeals.

The issue for review is essentially the same for both appeals and arises from the same set of facts. The issue is whether the trial court’s finding that the officer did not have probable cause to arrest defendant for DUI was against the manifest weight of the evidence in the rescission of the statutory summary-suspension hearing and manifestly erroneous in the hearing on the motion to quash arrest. The State did not present any additional evidence in the second hearing, and the trial court, after reviewing the transcript of the first hearing, granted the motion to quash on the basis of collateral estoppel.

At the first hearing, defendant called Officer Daniel A. Gabriel, a 13-year veteran of the Addison police department, as a witness. He testified that in responding to an automobile accident call at 7:49 p.m. on February 2, 1988, he observed a tow truck with slight rear-end damage partially on the shoulder of the road. He observed defendant’s vehicle 60 feet into a field adjacent to Route 53 with extensive front-end damage. The officer was unable to recall if the windshield of defendant’s vehicle was cracked. Defendant was the only person in the car, and she was observed sprawled out across the front-seat area, partially in the driver’s seat and partially in the passenger seat. She was conscious, appeared to be injured and complained of pain. The officer believed she had a wound about her face. The driver of the tow truck involved in the accident testified that within seconds after making a left turn onto Route 53 he was struck from behind by defendant’s car.

There was a strong odor of alcohol upon her breath when she spoke. Her eyes were red and bloodshot, and her speech was slurred. He asked her if there was anyone else in the car to which she responded that there was not. She stated that she was the driver of the car. In response to the officer’s request that she produce her driver’s license, she stated that it was in her purse in the backseat. The officer then arrested her for DUI.

Defendant was then transported to a hospital by emergency personnel. Officer Gabriel also went to the hospital. After he read the “warnings to motorists” to defendant, who was in the emergency room, he asked defendant to submit to the drawing of blood to determine the extent of its alcohol concentration. She repeatedly declined his request.

During cross-examination of Officer Gabriel by the assistant State’s Attorney, Officer Gabriel testified that at the hospital there was a strong odor of alcohol on defendant’s breath, and he described her manner as “cocky, carefree, refusing treatment, attempting to get off the gurney.” At one point, she had to be held down at the hospital in order to be treated.

The officer further testified that, upon driving her back to the police station, he determined that it was her birthday and that she spontaneously told him that she was out celebrating at an area hotel. She stated she had consumed approximately four to six vodka drinks and was returning home at the time of the accident.

The officer further testified that when he read her the warning to motorists he asked her to read it along with him. She refused to indicate if she understood it. She crumpled up the paper and threw it on the floor several times.

The officer was asked whether at the time he arrested defendant for DUI he had an opinion as to her sobriety. He stated that based upon his hundreds of observations of persons under the influence, she was intoxicated and unfit to operate a motor vehicle upon the public highways of the State. When further asked on what factors he based his opinion, he stated his overall investigation of the accident, “including the impact damage of the vehicles, the odor of alcohol on her breath, the bloodshot eyes, her demeanor after the accident, her demeanor in the emergency room of the [hospital] and her statements, her voluntary statements on what she had consumed while celebrating her birthday.” The officer never conducted any sobriety tests.

On redirect examination, defendant’s counsel elicited from the officer that he had already placed defendant under arrest before his conversation with defendant occurred while driving her from the hospital to the police station and before his observations of her in the hospital emergency room.

The trial court stated after arguments of counsel:

“I find in favor of the Defendant on the basis that at the time that the Defendant was arrested, the officer did not have reasonable grounds to believe that the Defendant was driving while under the influence of alcohol. The observations which he indicated and the statements all came after the Defendant had been arrested.” (Emphasis added.)

The State contends that the trial court’s finding in the statutory summary suspension hearing, that the officer did not have reasonable grounds to arrest defendant for DUI, and upon which the second judge relied in the suppression hearing, was against the manifest weight of the evidence. In this regard, the State argues that this experienced officer’s observations of defendant at the scene before he arrested her for DUI when he smelled a strong odor of alcohol upon her breath, saw that her eyes were bloodshot and red, noticed her speech was slurred, and viewed the accident scene, were sufficient to establish reasonable grounds to arrest her for DUI. Defendant primarily responds that the trial court’s decision was not against the manifest weight of the evidence.

In a statutory summary suspension rescission hearing, the motorist initially bears the burden of proof (People v. Orth (1988), 124 Ill. 2d 326, 341, 530 N.E.2d 210), and the trial court’s finding in that regard will not be reversed unless it is against the manifest weight of the evidence. (Orth, 124 Ill. 2d at 341, 530 N.E.2d at 217.) “Reasonable grounds,” as it is used in the situation of a DUI arrest, is synonymous with probable cause. (People v. Sanders (1988), 176 Ill. App. 3d 467, 470, 531 N.E.2d 61; People v. Wingren (1988), 167 Ill. App. 3d 313, 319, 521 N.E.2d 130, 134; see also People v. Tisler (1984), 103 Ill. 2d 226, 236-37, 469 N.E.2d 147.) To determine whether the reasonable grounds/probable cause requirement has been met, a court must determine whether a reasonable and prudent person, having the knowledge possessed by the officer at the time of the arrest, would believe defendant committed the offense. (Tisler, 103 Ill. 2d at 237, 469 N.E.2d at 153.) The officer’s factual knowledge, based on his prior police experience, is relevant to the probable cause determination. (Tisler, 103 Ill. 2d at 237, 469 N.E.2d at 153.) Whether the probability of criminal activity exists is not governed by technical legal rules, but rather, it is a determination based upon commonsense considerations that are factual and practical. Tisler, 103 Ill. 2d at 236, 469 N.E.2d at 153.

In the present case, the officer testified that he observed defendant’s vehicle 60 feet off the roadway in a field. The vehicle had extensive front-end damage, and the officer observed a tow truck, partially on the shoulder, with slight rear-end damage. A reasonable person would conclude that defendant’s vehicle had been in a rear-end collision with the tow truck.

Furthermore, the officer observed defendant to have red, bloodshot eyes, slurred speech and the strong odor of alcohol on her breath. She further admitted she was the driver of the vehicle and was the only one present in the vehicle.

We believe Officer Gabriel, a 13-year veteran police officer, had probable cause to believe defendant had driven her vehicle while under the influence of alcohol. Red, bloodshot eyes, slurred speech and the strong odor of alcohol on defendant’s breath are certainly facts which would lead a reasonable person to conclude that defendant was under the influence of alcohol. (See People v. Wingren (1988), 167 Ill. App. 3d 313, 320-21, 521 N.E.2d 130; see also People v. Sanders (1988), 176 Ill. App. 3d 467, 470, 531 N.E.2d 61; People v. Wagner (1987), 152 Ill. App. 3d 34, 37, 504 N.E.2d 121.) Additionally, defendant had clearly been in a motor vehicle accident, which the officer could have reasonably surmised had been caused, at least in part, by her intoxication. (See Wingren, 167 Ill. App. 3d at 321, 521 N.E.2d at 135; see also Sanders, 176 Ill. App. 3d at 470, 531 N.E.2d at 64; Wagner, 152 Ill. App. 3d at 37, 504 N.E.2d at 123.) When all of these facts and circumstances are viewed in their entirety, especially by a 13-year veteran police officer who had observed intoxicated individuals on hundreds of occasions, it was reasonable to conclude that defendant had committed the offense of driving while under the influence of alcohol.

While we disagree with the ultimate finding of the trial court on the issue of probable cause to arrest defendant for DUI, we note the apparent misinterpretation of the officer’s testimony by the trial court. The trial court concluded that there was no probable cause because the arresting officer’s observations “all came after the Defendant had been arrested.” Operating under this incorrect premise, the trial court understandably concluded that there was no probable cause to arrest defendant. As can be seen from the record, however, the officer testified that, prior to arresting defendant at the scene, he observed defendant to have bloodshot eyes, slurred speech and a strong odor of alcohol on her breath, and that her vehicle had been in a rear-end collision. The trial court does not appear to have discounted the unrebutted testimony of Officer Gabriel, so that court’s determination was not based upon a lack of credibility of the officer.

Consequently, as the trial court’s finding of no reasonable grounds for the DUI arrest is against the manifest weight of the evidence, we reverse the order of rescission of defendant’s statutory summary suspension. Because the order granting the motion to quash the arrest was based on the same no probable cause determination, that order is manifestly erroneous and is also reversed, but this cause is remanded for further proceedings.

No. 2 — 88—0807, Reversed.

No. 2 — 88—1117, Reversed and remanded.

LINDBERG J., concurs.

JUSTICE McLaren,

dissenting:

In my opinion the majority has either reduced probable cause to a mere suspicion or has disregarded the “U” in DUI. Two trial court judges found no probable cause as to the motion to quash arrest and no reasonable grounds as to the motion to rescind the summary suspension, respectively.

In People v. Bafia (1983), 112 Ill. App. 3d 710, 716, this court discussed the phrase “reasonable grounds” as contained in the Illinois implied consent law and stated:

“ ‘Reasonable grounds’ and ‘probable cause’ for purposes of arrest are synonymous [citations] and is [sic] present where the facts and circumstances known to the arresting officers are sufficient to warrant a man of reasonable caution to believe an offense has been committed by the person arrested. This standard requires more than mere suspicion, but does not require the officer to have in hand evidence *** to convict. *** The determination of whether an officer has sufficient information on which to properly act is based upon all of the facts and circumstances of each case and in a manner which is not unduly technical.”

A definition of probable cause is much less important than the facts of the case at hand. Nevertheless, courts, particularly in judging probable cause for arrest, have attempted to define the term. A frequently used definition comes from Brinegar v. United States (1949), 338 U.S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302, where, partly relying upon language from Carroll v. United States (1925), 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280, the court declared that probable cause exists where the facts and circumstances within the officers’ knowledge and of which they" had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.

Quantifying probable cause is difficult. Many courts have said that what is required is more than mere suspicion but less than is necessary to convict. See, e.g., People v. Jones (1959), 16 Ill. 2d 569, 573.

In most DUI prosecutions other than those initiated under the per se law, the primary issue will be whether the evidence proves the defendant to be “under the influence.” Mere consumption of alcoholic beverages does not establish intoxication. (People v. Togher (1970), 127 Ill. App. 2d 141 (abstract of opinion).) Further, testimony that the breath of the accused smelled of alcohol is not sufficient to prove that a person was intoxicated. People v. Thomas (1975), 34 Ill. App. 3d 578, 580; People v. Winfield (1973), 15 Ill. App. 3d 688, 690.

The law prohibits a person from driving a vehicle after having consumed an amount of alcohol that has caused him “ ‘not to be himself, so as to be excited from it, and not to possess that clearness of intellect and control of himself that he otherwise would have’ ” (People v. Leiby (1952), 346 Ill. App. 550, 554, quoting Osborn v. Leuffgen (1942), 381 Ill. 295, 299), or, as has been repeated in a number of cases, “less able, either mentally or physically, or both, to exercise clear judgment, and with steady hands and nerves operate an automobile with safety to himself and to the public.” People v. Seefeldt (1983), 112 Ill. App. 3d 106, 108; People v. Sullivan (1971), 132 Ill. App. 2d 674, 677; Winfield, 15 Ill. App. 3d at 690; People v. Wheatley (1972), 4 Ill. App. 3d 1088, 1090.

The findings of the trial judge will not be overturned on appeal unless such findings are palpably against the manifest weight of the evidence. (In re Trainor (1987), 156 Ill. App. 3d 918, 921.) “A judicial finding of fact is not against the manifest weight of the evidence unless from the record an opposite conclusion is clearly evident.” People v. Jacquith (1984), 129 Ill. App. 3d 107, 117.

The facts in this case are few due in great part to the arresting officer’s lack of deliberation prior to making the arrest. The accident appears to have been caused by the tow truck operator, who failed to yield while turning left. The accident does not manifestly imply that the defendant was “under the influence.” The officer observed a bleeding head wound which reasonably could have caused the slurred speech. The slurred speech does not manifestly imply “under the influence.”

The odor of alcohol may imply the “consumption of alcohol” but that is the only inference that may be drawn. (People v. Holtz (1974), 19 Ill. App. 3d 781, 788.) I submit the same and only inference regarding consumption of alcohol may be drawn from bloodshot eyes. “Bloodshot eyes” and “odor of alcohol” are qualitative rather than quantitative analyses. Qualitative analysis is to detect an element or substance in a sample. Quantitative analysis is to determine the amounts of elements or groups in a sample. (Webster’s Third New International Dictionary 1858, 1859 (1981).) I am aware of no authority stating that depending upon the strength or weakness of the odor or the extent of bloodshot eyes, a reasonable person could extrapolate and reasonably opine as to “under the influence.”

Thére are cases such as Holtz, in which, depending upon the strength or weakness of the odor or the extent of bloodshot eyes, a reasonable person could extrapolate and reasonably opine as to whether alcohol had been consumed. Every case in which probable cause was sustained contained additional evidence in the nature of admissions and/or observations of the defendant or observations of defendant’s vehicle, which established “under the influence” as defined above. The cases cited by the majority fall into this category. (See People v. Sanders (1988), 176 Ill. App. 3d 467, 468 (defendant’s breath smelled of alcohol, his speech was slurred, his eyes were glassy, and he admitted he fell asleep behind the wheel and ran off the road, and he was argumentative); People v. Wingren (1988), 167 Ill. App. 3d 313, 316-17 (defendant’s breath smelled of alcohol, her speech was slurred, her eyes were glassy and red, and she failed two sobriety tests, staggered, and had to use a wall to hold herself up); People v. Wagner (1987), 152 Ill. App. 3d 34, 36 (defendant’s breath smelled of alcohol, his speech was slurred and he admitted that he had drunk six beers and two shots).) In the case at bar, the officer had probable cause to believe the defendant drove a vehicle and had consumed alcohol at the time he effected the arrest. At best, he had a suspicion that the defendant was under the influence. Significantly, none of the additional facts present in the above cited cases were present here. He did not inquire if the defendant had been drinking; he did not observe her driving the car; he did not observe her outside the car; no sobriety tests were given. Precipitously, the officer effected the arrest upon mere suspicion, not upon probable cause.

I am unable to agree with the majority’s determination that the decisions of the trial court were manifestly erroneous or against the manifest weight of the evidence.

In conclusion, I believe the majority has either misapplied the proper standard of review or it has reduced probable cause to mere suspicion.

As an aside, the issue of collateral estoppel is inappropriate in this appeal. The second trial judge allowed the State to present any evidence it desired. The State said it had no other evidence to present other than the transcripts of the prior hearing. Such a procedure does not constitute collateral estoppel because the State had a full hearing to the extent it so desired.

Therefore, I would affirm the trial courts and must accordingly dissent.


author: JUSTICE LINDBERG

text:
    STEVE A. WASIELEWSKI, Plaintiff-Appellant, v. W. GILLIGAN et al., Defendants-Appellees.
    Second District
    No. 2—88—0999
    Opinion filed October 18, 1989.
    Rehearing denied November 22, 1989.
    Edward J. Walsh, Jr., and John Kennedy, both of Walsh & Knippen, Chartered, of Wheaton, for appellant.

      Bruce S. Terlep, of Wildman, Harrold, Allen & Dixon, of Wheaton, and Lenard C. Swanson, of Wildman, Harrold, Allen & Dixon, of Chicago, for appellee W. Gilligan.
    Ian H. Levin and Samuel J. Betar III, both of Kamensky & Rubinstein, of Lincolnwood, for appellee A. Arain.
    Terrence K. McGrath, of O’Reilly, Cunningham, Norton & Mancini, of Wheaton, for appellee H.M. Kawanaga.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, Steve A. Wasielewski, appeals the trial court’s order denying his motion to reconsider the dismissal with prejudice of his medical-malpractice complaint against defendants, Drs. W. Gilligan, H.M. Kawanaga and A. Arain, for failure to comply with the documentation requirements of section 2 — 622 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 622). On appeal, plaintiff contends that the trial court’s dismissal of his complaint with prejudice, pursuant to section 2 — 622, was an abuse of the trial court’s discretion because: (1) plaintiff satisfied all the documentation requirements of section 2 — 622, albeit outside the time established in the statute; (2) the trial court had discretion to permit late filings of required documents pursuant to section 2 — 622; and (3) section 2 — 622 does not require a trial court to dismiss a plaintiff’s complaint with prejudice for failure to comply with its requirements.

From 1977 through 1985, plaintiff received medical treatment for back problems from defendants, Drs. Gilligan, Kawanaga, and Arain. On October 21, 1985, plaintiff first became aware that injuries he sustained to his hips might be the result of negligent medical treatment rendered by defendants. On January 30, 1987, plaintiff filed a medical-malpractice complaint against defendants in Cook County. Due to his inability to obtain a medical expert, plaintiff voluntarily dismissed his suit in Cook County without prejudice on May 8, 1987.

On April 28, 1988, plaintiff filed a second medical-malpractice complaint against the three defendants in Du Page County. Plaintiffs new counsel attached an affidavit to the complaint, pursuant to section 2 — 622(a)(2) of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2— 622(a)(2)), which stated that the statute of limitations on plaintiff’s cause was about to expire and the medical consultation required by this section could not be obtained before such expiration date. All defendants filed motions to dismiss plaintiff’s complaint based upon, inter alia, his failure to comply with the documentation requirements of section 2-622(a)(l) (Ill. Rev. Stat. 1987, ch. 110, par. 2-622(a)(l)).

On August 30, 1988, plaintiff filed a “certificate of merit” prepared by a physician licensed to practice in the State of Illinois which stated the physician’s opinion that plaintiff’s cause was meritorious. The next day, the parties argued defendant Gilligan’s motion to dismiss, which the trial court granted with prejudice for reasons stated in a letter of opinion dated September 1, 1988. During the hearing, plaintiff’s counsel stated that he had not yet filed the attorney’s affidavit required by section 2 — 622(a)(1) because he conceded that the health professional who had provided plaintiff’s consultation did not practice in the same specialty as defendants. Thus, counsel was unable to affirm that he had consulted and reviewed the facts of the case with a health professional who practiced in the same specialty as defendants as required by the statute.

Plaintiff filed a timely motion to reconsider the trial court’s dismissal of the complaint as to Dr. Gilligan. On September 15, 1988, the parties presented argument on the remaining defendants’ motions to dismiss and plaintiff’s motion to reconsider. The trial court dismissed the complaint as to the remaining defendants with prejudice for reasons stated in a letter of opinion and order, both dated September 20, 1988. In another order issued one week later supported by a third letter of opinion, the court stated its denial of plaintiff’s motion for reconsideration “shall remain in effect.” Plaintiff’s timely appeal ensued.

The issue on appeal is whether the trial court abused its discretion in dismissing plaintiff’s medical-malpractice complaint with prejudice for failure to comply with the documentation requirements and time limits established in section 2 — 622 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 622).

The supreme court has recently considered a similar issue in McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 520 N.E.2d 293, in which the court provides a concise summary of the applicable provisions of section 2 — 622:

“Section 2 — 622(a)(1) (Ill. Rev. Stat. 1985, ch. 110, par. 2— 622(a)(1)) provides that in any action for medical malpractice the plaintiff must attach to the complaint an affidavit stating that he has consulted with a health professional in whose opinion there is a ‘reasonable and meritorious cause’ for the filing of the action. In addition, the plaintiff must also attach the written report of the health professional indicating the basis for his determination. Section 2 — 622(a)(2) (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 622(a)(2)) allows for a 90-day extension for the filing of the affidavits if the statute of limitations is near expiration, and section 2 — 622(a)(3) (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 622(a)(3)) provides that if the plaintiff is having difficulty obtaining necessary medical records he is given 90 days upon receipt of the medical records in which to file the affidavits. Section 2 — 622(g) (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(g)) provides that ‘failure to file a certificate required by this Section shall be grounds for dismissal under Section 2 — 619.’ ” (121 Ill. 2d at 190-91, 520 N.E.2d at 294-95.)

Thus, section 2 — 622 requires a medical-malpractice plaintiff to attach one of three types of affidavit to his complaint upon filing: (1) the subsection (a)(1) affidavit and accompanying written report certifying the meritoriousness of the cause of action; or (2) the subsection (a)(2) affidavit stating the imminent expiration of the statute of limitations and the plaintiff’s inability to provide a subsection (a)(1) affidavit and accompanying written report prior to such expiration; or (3) the subsection (a)(3) affidavit stating the plaintiff’s inability to obtain certain medical records which the plaintiff needs for the review and consultation required in subsection (a)(1). The statute further provides dismissal as a sanction against plaintiffs who failed to file “a certificate.” Although “certificate” is not defined, the clear language of section 2 — 622 indicates that the certificate is the subsection (a)(1) affidavit which is to be prepared by the plaintiff or his counsel. See Huff v. Hadden (1987), 160 Ill. App. 3d 530, 534, 513 N.E.2d 541, 544; see also Abbey v. Ravingdranathan (1987), 160 Ill. App. 3d 161, 163, 513 N.E.2d 131, 133.

In MeCastle, the plaintiff failed to file any affidavit with his medical-malpractice complaint, and the trial court granted the defendants’ motions to dismiss with prejudice. The supreme court considered the sole issue of whether the trial court’s order was reversible error. The MeCastle court considered the legislative history of section 2 — 622 and concluded that the legislature did not intend to require dismissal with prejudice. The court stated:

“Requiring that section 2 — 622 dismissals be with prejudice would be a triumph of form over substance. It would elevate a pleading requirement designed to reduce frivolous lawsuits into a substantive defense forever barring plaintiffs who initially fail to comply with its terms. We decline to ascribe such intentions to the legislature.” McCastle, 121 Ill. 2d at 193, 520 N.E.2d at 296.

In Walter v. Hill (1987), 156 Ill. App. 3d 708, 509 N.E.2d 804, a decision filed shortly before MeCastle, the appellate court discussed the legislative history and intent of section 2 — 622 at length. In Walter, the plaintiff failed to attach any affidavit to her medical-malpractice complaint, and the defendant moved to dismiss. The plaintiff then sought leave to file the subsection (a)(1) affidavit asserting the meritoriousness of her claim to which defendant objected. She later amended her request, stating she wanted to file a subsection (a)(2) affidavit indicating her inability to obtain a medical expert’s opinion regarding the meritoriousness of her action prior to the expiration of the statute of limitations. This request was made 64 days after the complaint was filed. The complaint was dismissed with prejudice. On review, the appellate court stated that a plaintiff’s lack of any affidavit at the filing of her complaint was not fatal as the statute provided a “safety valve.” (Walter, 156 Ill. App. 3d at 710, 509 N.E.2d at 806.) The court opined that the legislature did not intend section 2 — 622 to impose a further restriction upon medical-malpractice plaintiffs in addition to the statute of limitations so that it would cut off all rights to relief, but rather the statute “only puts a requirement of meritoriousness on the pending suit.” (156 Ill. App. 3d at 710, 509 N.E.2d at 806.) Thus, the appellate court determined that precluding Walter’s suit would not carry out the legislative intent of section 2 — 622. It held that the section does not mandate dismissal with prejudice because the Code of Civil Procedure is to be construed liberally so as to guard parties’ substantive rights pursuant to section 1 — 106 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 1 — 106). (Walter, 156 Ill. App. 3d at 711, 509 N.E.2d 806.) Additionally, the court stated that section 2 — 619 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619) does not require a dismissal with prejudice on the basis of a technical deficiency in pleadings. 156 Ill. App. 3d at 711, 509 N.E.2d at 806.

The Walter court held the plaintiff’s failure to timely provide a section 2 — 622(a)(1) affidavit to be merely a minor technical error and, even though Walter should have included a section 2 — 622(a)(2) affidavit with her complaint at the time of filing if she needed more time, the trial court would have been well within its discretion to permit her to submit such an affidavit late. The court stated:

“This course of action would have most fully fulfilled the legislative goal of protecting the substantive rights of the parties while at the same time keeping with the spirit of section 2 — 622 and its purpose of deterring nonmeritorious litigation.” 156 Ill. App. 3d at 711, 509 N.E.2d at 806.

Thus, we note the indisputable purpose of section 2 — 622 is to deter the filing of frivolous medical-malpractice lawsuits and to insure the meritoriousness of those causes which are filed. This purpose has been recognized by the supreme court in McCastle and the appellate court in Walter as well as Hagood v. O’Conner (1988), 165 Ill. App. 3d 367, 371, 519 N.E.2d 66, 69, Hauk v. Day (1988), 167 Ill. App. 3d 758, 761, 521 N.E.2d 1243, 1244, Whamond v. McGill (1988), 168 Ill. App. 3d 66, 70, 522 N.E.2d 211, 214, Alford v. Phipps (1988), 169 Ill. App. 3d 845, 859, 523 N.E.2d 563, 572, Shanks v. Memorial Hospital (1988), 170 Ill. App. 3d 736, 738, 743, 525 N.E.2d 177, 179, 181, and Relaford v. Kyaw (1988), 173 Ill. App. 3d 1034, 1037, 527 N.E.2d 1328, 1330. Further, it is well established that a medical-malpractice plaintiff’s failure to comply with the documentation requirements of section 2 — 622 does not mandate dismissal with prejudice. McCastle, 121 Ill. App. 3d at 193, 520 N.E.2d at 296; Blalark v. Chung (1988), 177 Ill. App. 3d 541, 543, 532 N.E.2d 518, 520; Bassett v. Wang (1988), 169 Ill. App. 3d 663, 668-69, 523 N.E.2d 1020, 1023-24.

Plaintiff correctly points out that noncompliance with section 2 — 622 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 622) does not require the trial court to dismiss the complaint with prejudice. (McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 192-93, 520 N.E.2d 293, 295-96; Relaford v. Kyaw (1988), 173 Ill. App. 3d 1034, 1037, 527 N.E.2d 1328, 1330.) Instead, the trial court is given the discretion to determine whether the pleadings comply with section 2 — 622 of the Code. (McCastle, 121 Ill. 2d at 193, 520 N.E.2d at 296.) The trial court’s determination as to the sufficiency of the pleadings depends on the facts and circumstances of each case. (Alford v. Phipps (1988), 169 Ill. App. 3d 845, 854-55, 523 N.E.2d 563, 569.) Absent a manifest abuse of discretion, the trial court’s determination will not be reversed on appeal. McCastle, 121 Ill. 2d at 194, 520 N.E.2d at 296; Moss v. Gibbons (1989), 180 Ill. App. 3d 632, 638, 536 N.E.2d 125, 129.

A review of the facts in the case at bar reveals that plaintiff initially filed a medical-malpractice complaint against the three defendant-doctors on January 30, 1987, in the circuit court of Cook County. On May 8, 1987, plaintiff voluntarily dismissed the complaint, apparently due to plaintiff’s inability to or unwillingness to secure and pay for a physician to review the case. On April 28, 1988, plaintiff refiled the complaint against the same three physicians in the circuit court of Du Page County. Plaintiff attached an affidavit to the complaint stating that he was unable to obtain a consultation as required by section 2 — 622(a)(1) of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2— 622(a)(1)) and was given 90 days to file the certificate. (See Ill. Rev. Stat. 1987, ch. 110, par. 2 — 622(a)(2).) Plaintiff did not file the certificate within the 90-day period, and the trial court subsequently dismissed the complaint.

The trial court did realize that it had discretion in the matter but made its decision to dismiss the complaint with prejudice, instead of allowing plaintiff to amend the complaint. In the trial court’s second letter of opinion, it stated:

“While this violation of the Rule seems to be one that can be corrected at the discretion of the court as are each of the other aforementioned shortcomings, as I stated before in my Letter of Opinion of September 1, 1988 I believe that the cumulative effect of these errors is such that the plaintiff is not entitled to have this court exercise discretion in his behalf.”

The court took the particular facts and unique circumstances of this case into consideration before determining that the complaint should be dismissed. Thus, this is not a case in which the trial court should be reversed because it erroneously believed that the Code mandated a dismissal with prejudice. (See McCastle, 121 Ill. 2d at 194, 520 N.E.2d at 296; Alford, 169 Ill. App. 3d at 859, 523 N.E.2d at 272; Bassett v. Wang (1988), 169 Ill. App. 3d 663, 669, 523 N.E.2d 1020, 1024; Walter v. Hill (1987), 156 Ill. App. 3d 708, 710-11, 509 N.E.2d 804, 806.) The court’s determination was not a manifest failure to exercise its discretion, and its dismissal was not an abuse of discretion.

Two recent decisions have upheld a trial court’s decision to dismiss a medical-malpractice complaint with prejudice for noncompliance with section 2 — 622 of the Code. In Batten v. Retz (1989), 182 Ill. App. 3d 425, 538 N.E.2d 179, the plaintiff failed to timely file the physician’s certificate of merit, and the trial court dismissed the complaint with prejudice. The court refused to allow the plaintiff to amend the complaint because the plaintiff failed to offer evidence to show good cause for the late filing of the certificate. (Batten, 182 Ill. App. 3d at 428, 538 N.E.2d at 182.) The appellate court affirmed, holding that the trial court did not abuse its discretion in dismissing the complaint with prejudice. Batten, 182 Ill. App. 3d at 430, 538 N.E.2d at 183.

Likewise, in Moss v. Gibbons (1989), 180 Ill. App. 3d 632, 536 N.E.2d 125, the trial court dismissed the plaintiff’s complaint with prejudice for failing to timely file the physician’s certificate. The court refused to allow the plaintiff additional time to amend the complaint and file the certificate. (Moss, 180 Ill. App. 3d at 635, 536 N.E.2d at 127.) The appellate court affirmed, holding that the trial court acted within its discretion in denying leave to amend the complaint and in dismissing the action with prejudice. Moss, 180 Ill. App. 3d at 639, 536 N.E.2d at 129.

Plaintiffs failure to file the required physician’s certificate is not a mere technical deficiency. Plaintiff filed malpractice actions in two different circuit courts approximately 15 months apart, each time receiving the statutory 90-day extension to file the certificate of merit. Plaintiff failed to file a certificate of merit within either 90-day period. The trial court was not required to exercise its discretion in favor of plaintiff given the numerous opportunities plaintiff had to comply with section 2 — 622 of the Code.

We affirm the judgment of the circuit court.

Affirmed.

DUNN and INGLIS, JJ., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DAVID MICHAEL KINNEY, Defendant-Appellee.
    Fourth District
    No. 4—88—0948
    Opinion filed October 5, 1989.

      Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE LUND

delivered the opinion of the court:

On October 9, 1988, following an arrest for a traffic violation, the vehicle of defendant David Kinney was towed, with an inventory search being conducted. A handgun was found in the glove compartment, which resulted in defendant being charged with the offense of unlawful use of weapons. (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1.) On December 9, the circuit court of Macon County granted defendant’s motion to suppress. The State appeals.

Defendant’s testimony was that on October 9 at 1:30 a.m., he was stopped by Officer James Stenger for a speeding violation he did not commit. Stenger asked him, since he had a Florida license, to sign the ticket. Defendant asked one question, and Stenger told him that he would be taken to the station to post a cash bail. At that point, he was handcuffed and put in a police car. The police searched and towed his car, finding a gun, according to defendant, in the locked glove compartment. At no time did the police ask him if he wanted his car inventoried or towed.

Stenger’s testimony was that he stopped defendant for speeding and, after telling defendant he would do so, commenced writing a ticket. While he did so, he stayed in his police car. Several times, defendant came back to his car and yelled at him. When asked to sign the promise to comply on his ticket, defendant refused, saying they could take him to the jail because he was not posting bond. At this time, due to his belligerent attitude, defendant was handcuffed and taken to the station to post a cash bond. Stenger had defendant’s car towed. It is departmental policy that a routine inventory be conducted on the contents of a vehicle and of any damage it may sustain prior to the vehicle’s being towed. During this inventory, according to Stenger, the gun was found in the unlocked glove compartment. Officer Doug Taylor’s testimony corroborated Stenger’s concerning defendant’s refusal to sign his ticket.

The court granted the motion to suppress, though it is unclear on what grounds this decision was based. In announcing its decision, the court stated:

“While a Police Department has or can have a procedure for an inventory search, every inventory search is restricted, if you want to, as far as necessity and extent.
The arresting officer in this case indicated, one; he had no probable cause to believe anything illegal was in the car.
There is no evidence to indicate that the Officer was in fear of anything. There is nothing in here to indicate that the defendant could not drive the automobile to the Police Department, as we all know occurs probably every shift of every day. In fact, there was no reason to tow the car. There was no reason to inventory the car.
It is apparent, and I don’t know what the nature of it is, but there are other, at least, unstated problems.
* * *
Here you have an individual who was given a traffic ticket and, if he chooses to' post the bond, then he can post the bond. And the Officer, himself, said it was only after that that I arrested him. For what?
Evidence and arguments heard. Motion To Suppress is allowed.”

Thus, it appears the court concluded: (1) the officer, by taking defendant into custody, committed unlawful arrest; and (2) the inventory search was improper.

The standard for appellate review of a decision on a motion to suppress is whether the findings of the trial court were manifestly erroneous. People v. Nogel (1985), 137 Ill. App. 3d 392, 396, 484 N.E.2d 516, 519.

Initially, we observe the court was mistaken concerning its characterization of defendant’s arrest. Admittedly, the officers testified that they placed defendant under arrest when he was handcuffed and transferred to the station to post bond after he refused to sign his ticket. However, that is not when the arrest occurred. A key element in determining if a subject is under arrest is whether there is an actual restraint of the subject, or if he has submitted to custody. (People v. Scarpelli (1980), 82 Ill. App. 3d 689, 694, 402 N.E.2d 915, 921.) Another important element of a valid arrest is that the evidence must show the officer intended to effect the arrest, and the defendant so understood. (See People v. Wipfler (1977), 68 Ill. 2d 158, 165, 368 N.E.2d 870, 872.) In the case at bar, it is clear that Stenger stopped defendant’s vehicle, intending to issue defendant a citation for a violation of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 1— 100 et seq.), and that defendant understood that. This was when the arrest occurred.

This determination is supported by the fact that once Stenger had determined to issue a traffic citation, defendant was required to post bail. (See Ill. Rev. Stat. 1987, ch. 95V2, par. 6-306.4; 107 Ill. 2d R. 526.) The posting of bail is a concomitant obligation to an arrest. Thus, it is evident defendant was under arrest at the time Stenger advised him a ticket would be issued, and the difficulties afterwards involved the posting of the required bail.

Defendant, as an out-of-State licensed driver from a State belonging to the nonresident violator compact (Ill. Rev. Stat. 1987, ch. 95V2, par. 6 — 800 et seq.), had two options after his arrest. These were to be brought without unnecessary delay before a court of jurisdiction, or to execute a written promise to comply. (Ill. Rev. Stat. 1987, ch. 95V2, par. 6 — 306.4.) Once he refused to sign the promise to comply, it became necessary to provide bail as provided in Supreme Court Rules 526 and 553 (107 Ill. 2d Rules 526, 553), or wait incarcerated until a judge became available, which would have been, due to the hour, the next day at the earliest. In. either case, since it is required that a cash bail be posted at a government facility (see 107 Ill. 2d R. 553(a)), it was necessary defendant be transported to the police station.

The court seems to suggest that this could have been accomplished by allowing defendant to drive, his vehicle to the jail following the police car, which it believed is customary. We have no doubt that often, as a courtesy, this is allowed. However, the evidence establishes that a heated confrontation was occurring. Even defendant acknowledged they had words. In such a case, it is not unreasonable that the police would choose to physically transport defendant themselves, rather than run the risk of defendant fleeing or other problems. The point to remember is that, even though defendant was charged with a “minor” offense, he was still under arrest and had to post bail. We find no difficulty with the police decision.

Once the police decided to do this, they were faced with the problem of what to do with defendant’s car. It was 2 a.m., and there was nobody to take control of it. Accordingly, the car was towed.

Stenger testified it was police departmental policy that when a car was to be towed, the officer perform a routine inventory of the contents of the vehicle and any damage to it. During this inventory, the gun was found in the glove compartment. There is a dispute concerning whether the glove compartment was locked. However, pursuant to Colorado v. Bertine (1987), 479 U.S. 367, 93 L. Ed. 2d 739, 107 S. Ct. 738, that is immaterial.

In Bertine, the Court determined that during an inventory search, the police officers could open closed containers. The only requirement is that the police be acting pursuant to standard procedures in performing the inventory search. The Court noted that once the vehicle is seized, the police become responsible for the vehicle and its contents. By determining the precise nature of the property, the Court observed that the police would be helped against claims of theft, vandalism, or negligence. Finally, the Court noted that, even if other arrangements for the vehicle’s security could be made, such as storage in a secure lot or arrangements made by the driver, this did not invalidate the inventory search:

“And while giving Bertine an opportunity to make alternative arrangements would undoubtedly have been possible, we said in Lafayette:
‘[T]he real question is not what “could have been achieved,” but whether the Fourth Amendment requires such steps ***.
‘The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative “less intrusive” means.’ [Citation.] [Emphasis in original.]
[Citations.] We conclude that here, as in Lafayette, reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment, even though courts might as a matter of hindsight be able to devise equally reasonable rules requiring a different procedure.” Bertine, 479 U.S. at 373-74, 93 L. Ed. 2d at 747, 107 S. Ct. at 742.

In the present case, the uneontroverted evidence establishes that Stenger performed the search pursuant to departmental policy. While the evidence on this point was not as clear as it could have been, we find it to be sufficient. Thus, even if the glove compartment was locked, the search, pursuant to Bertine, was valid.

Reversed and remanded.

McCULLOUGH, P.J., and SPITZ, J., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIJUAN MOORE, Defendant-Appellant.
    Fourth District
    No. 4—88—0279
    Opinion filed October 5, 1989.

      Daniel D. Yuhas and Jane Raley, 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 Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

The defendant, Tijuan Moore, was convicted of murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)) after a jury trial in the circuit court of Champaign County. The circuit court then entered judgment and sentenced the defendant to a 40-year term of imprisonment. The defendant now appeals his conviction and sentence. We affirm.

The following evidence was presented at trial.

Anthony Newbern (Newbern), the homicide victim, worked as a produce clerk at Richard’s Food Store in Champaign, Illinois. Shortly after 7 a.m. on October 3, 1987, a black man entered the store and shot Newbern in the back as he stood working in the produce department. Newbern died in surgery later that same day.

To establish the identity of the defendant as that gunman, the prosecution called several store employees to testify as occurrence witnesses at trial.

Pamela Harper (Harper), a store cashier, testified an unknown black man had been her sole customer immediately before the shooting incident. She did not pay close attention to the man during this brief transaction. Harper later realized that customer had been the gunman. She provided the police with a rough description. Harper could not thereafter identify the defendant as the gunman in lineup.

Robert Gullion (Gullion), the assistant manager, testified he saw the gunman shoot Newbern in the back as Newbern stood working in the produce department of the store. He provided the police with a detailed description and later identified the defendant as the gunman in lineup and in court.

The prosecution next called several witnesses to testify to the hostile relationship between the defendant and Newbern.

Rosie Slaughter, the girlfriend of Newbern, testified she witnessed a fight between these two men six days before the shooting incident. In that fight, the defendant, aided by several of his associates, stabbed Newbern in the back with a small knife.

Vicki Phagan (Phagan), a former girlfriend of the defendant, testified, over the objection of the defense, that the defendant and Newbern had each made threats against the other man. Phagan testified she overheard the defendant and his associates threaten to harm Newbern approximately two weeks before the shooting incident. She also testified Newbern had threatened to vandalize her trailer in retaliation against the defendant on the day before the shooting incident.

Sheila Harvey (Harvey), the former girlfriend of the employer of the defendant, testified she overheard these two men discuss Newbern on several occasions. She heard the defendant threaten to harm Newbern on the day before the shooting incident. Harvey later heard the defendant accept a compliment for his role in the murder of Newbern.

The defendant took the stand on his own behalf. He denied taking part in any actual or threatened criminal conduct against Newbern. As an alibi, the defendant testified he had been living in another town for almost a week at the time of the shooting incident. He contended Gullion was mistaken in his identification. Several associates of the defendant later corroborated his alibi testimony.

The prosecution then called Danny Williams (Williams) to testify as a rebuttal witness. Williams, a long-time friend of Newbern, testified he saw the defendant and several of his associates at Richard’s Food Store two days before the shooting incident.

As a preliminary matter, we address the merits of a motion to strike that was ordered to be taken with this case on appeal.

In contrast to his strategy at trial, the defense now attempts to discredit the identification testimony of the witnesses for the proseeution on a scientific basis. To that end, the defense cites both legal and psychological authority as to the fallibility of eyewitness identifications in his brief on appeal.

In Illinois, the trustworthiness of eyewitness identifications is a matter resting within the province of the jury. For this reason, scientific evidence is not admitted to discredit the testimony of a witness. (People v. Perruquet (1983), 118 Ill. App. 3d 339, 344, 454 N.E.2d 1051, 1055; see also People v. Brown (1981), 100 Ill. App. 3d 57, 71-72, 426 N.E.2d 575, 584-85; People v. Clark (1984), 124 Ill. App. 3d 14, 21-22, 463 N.E.2d 981, 987.) At the same time, we view the inclusion of such authorities in the brief permissible, and deny the prosecution’s motion to strike.

Relying on People v. Outlaw (1978), 67 Ill. App. 3d 327, 384 N.E.2d 898, the defendant initially contends the circuit court erred in refusing to allow him to impeach Gullion with evidence Harper had misidentified him in a corporeal lineup.

In Outlaw, a case involving the prosecution for aggravated battery and attempt (murder) of a police officer, the circuit court precluded the defense from calling eyewitnesses who would have testified they were unable to identify the defendant as the assailant in a lineup. On review, the appellate court remanded the case for a new trial. The appellate court reasoned the circuit court had improperly excluded relevant evidence in the case as the testimony of those witnesses who were unable to identify the defendant reflected adversely on the credibility of the witnesses who made a positive identification. Outlaw, 67 Ill. App. 3d at 331, 384 N.E.2d at 901-02.

The circuit court did not err in excluding testimony to the effect Harper tentatively misidentified a man other than the defendant as the gunman in a lineup. Such testimony would not exculpate the defendant. It is undisputed that that man could not have committed this offense as he was already in police custody at the time of the shooting incident. Instead, the introduction of this testimony would only have created needless speculation in the minds of the jurors that an as yet unknown man shot Newbern. (People v. Welch (1961), 22 Ill. 2d 558, 177 N.E.2d 160; People v. James (1979), 70 Ill. App. 3d 629, 388 N.E.2d 221.) The circuit court did not abuse its discretion in excluding the misidentification testimony from the consideration of the jury.

The testimony of a single credible eyewitness is sufficient to sustain a conviction. To do so, however, it must be clearly established the witness identified the defendant under circumstances permitting a positive identification. People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, 1320.

Gullion was a credible identification witness for the prosecution. Gullion had a superior opportunity to observe the gunman throughout the entirety of the shooting incident. He watched the gunman approach, shoot at Newbern, and leave the grocery store. He then provided the police with a reasonably accurate description as to the innate physical characteristics of the gunman. After noting minor cosmetic changes in appearance, Gullion immediately identified the defendant as the gunman at a lineup later in the month. (People v. Townes (1985), 130 Ill. App. 3d 844, 850-51, 474 N.E.2d 1334, 1338-39.) We find the testimony of this eyewitness sufficient to sustain the conviction of the defendant.

The defendant also contends the circuit court erred in admitting evidence Newbern threatened the girlfriend of the defendant.

At trial, the prosecution called Phagan, the former girlfriend of the defendant, to testify as a motive witness against the defendant. She testified Newbern threatened to vandalize her trailer to retaliate against the defendant for his role in an earlier stabbing incident. Phagan went on to testify she in turn informed only members of her immediate family about this threat. Her testimony was later corroborated by two witnesses who had accidentally overheard part of the exchange between Phagan and Newbern on the day before the shooting incident.

The defense unsuccessfully argued this testimony was irrelevant to show any motive on the part of the defendant to shoot Newbern. Its argument rested on the failure of the prosecution to establish direct communication of this threat to the defendant. The prosecution responded to this argument with circumstantial evidence as to the existence of a “rumor grapevine” within the confines of the trailer park community.

The test of the admissibility of evidence is whether it is relevant to prove the offense charged in the case. “Relevancy is established where [the evidence] offered tends to prove a fact in controversy or renders a matter in issue more or less probable.” (Marut v. Costello (1966), 34 Ill. 2d 125, 128, 214 N.E.2d 768, 769.) Thus, evidence which even slightly tends to show that the defendant had a motive to kill the victim is relevant in a murder case. People v. Gougas (1951), 410 Ill. 235, 238-39, 102 N.E.2d 152, 154.

We believe the jury could reasonably infer that the defendant had been informed of the threat against his girlfriend. This inference may be drawn from the fact the defendant had again been heard to threaten Newbern later that same day. Absent such information, the defendant had no reason to continue his threats against Newbern since he had been the one who prevailed in the earlier stabbing incident. Further, the inference to be drawn from the evidence of a “rumor grapevine” in the community was of some value. (See People v. Jones (1982), 108 Ill. App. 3d 880, 884-85, 439 N.E.2d 1011, 1015-16.) The circuit court did not abuse its discretion in admitting this evidence on the motive of the defendant.

The defendant next contends the circuit court unreasonably restricted his attempt to impeach Williams on cross-examination.

The prosecution called Williams as a rebuttal witness at trial. As a preliminary matter, the prosecution established that Williams had a felony charge pending against him. The prosecution also established that Williams had not received any promise of leniency in that disposition for his testimony in the instant action. Williams then testified he saw the defendant and several of his associates at the grocery store where Newbern was then working two days before the shooting incident. This testimony, to the extent credible to the jury, discredited the alibi of the defendant.

The defense sought to impeach Williams on cross-examination by showing he was prejudiced against the defendant. To this end, the defense attempted to question Williams about the criminal conduct underlying the felony charge pending against him. Williams did not confirm the posited criminal conduct. The defense thereafter unsuccessfully moved to reopen its case to present evidence that the felony charge pending against Williams arose on criminal conduct against the girlfriend of the defendant.

Although the defendant premises his argument on constitutional grounds (U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8; see also Pointer v. Texas (1965), 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065; People v. Tennant (1976), 65 Ill. 2d 401, 358 N.E.2d 1116), we need only address the evidentiary principles of impeachment to decide this issue.

In general, the defendant is allowed wide latitude on cross-examination to attempt impeachment of any witness testifying against him. (People v. Mason (1963), 28 Ill. 2d 396, 403, 192 N.E.2d 835, 838-39.) Showing bias, interest, or other improper motive on the part of a witness is an accepted method of impeachment. (People v. Barr (1972), 51 Ill. 2d 50, 280 N.E.2d 708; People v. Kellas (1979), 72 Ill. App. 3d 445, 452, 389 N.E.2d 1382, 1389.) Thus, cross-examination for such impeachment is a matter of right, subject to the discretion of the circuit court to reasonably limit inquiry to a proper subject matter. Delaware v. Van Arsdall (1986), 475 U.S. 673, 679, 89 L. Ed. 2d 674, 683, 106 S. Ct. 1431, 1435.

Our review of the record indicates the circuit court allowed the defense sufficient latitude in its attempt to impeach Williams on cross-examination. The jury was well-informed of the potential for bias on the part of Williams. First, the jury knew Williams had been charged with a felony. Second, the jury knew Williams was an associate of the victim and bore animosity toward the defendant. It is apparent, given the potential risk of self-incrimination, Williams would not voluntarily confirm any evidence about his alleged criminal conduct upon further inquiry. (See People v. Roberson (1964), 30 Ill. 2d 168, 195 N.E.2d 722; People v. Nally (1985), 134 Ill. App. 3d 865, 869-70, 480 N.E.2d 1373, 1377.) Such inquiry would have invited an unnecessary “minitrial” on the felony charge pending against Williams. Under these circumstances, the defendant did not show sufficient reason for the circuit court to reopen its case. People v. Shore (1984), 129 Ill. App. 3d 443, 458, 472 N.E.2d 512, 521.

The defendant further contends the circuit court erred in allowing Phagan to testify she overheard part of a conversation between the defendant and his associates wherein they threatened to harm Newborn.

The testimony at issue appears in the record as follows:

“Q. [Prosecution]: What did you hear? What conversation did you hear in that meeting?
A. [Witness]: That Andy Brown and Tony [Newbern] had crossed them and they had to be taken care of.
Q. What were they — did they state how they were going to be taken care of?
A. No.
Q. Do you recall what words they used?
A. Just taken care of.
Q. Was [Tijuan Moore] participating in that conversation?
A. Yes.
Q. And was Roy Taylor participating in that conversation?
A. Yes.”

The defense argues this testimony constitutes inadmissible hearsay. The prosecution contends this testimony constitutes admissible nonhearsay as implied admissions of the defendant. We agree with the argument of the prosecution.

An implied admission arises from circumstances where the defendant voluntarily chooses not to object to a statement implicating him in criminal conduct. (People v. McCain (1963), 29 Ill. 2d 132, 135, 193 N.E.2d 784, 786.) Such an admission is treated as an exception to the rule against hearsay. (People v. Newbury (1972), 53 Ill. 2d 228, 234, 290 N.E.2d 592, 596.) The underlying rationale for this treatment is that an innocent party would affirmatively object to all incriminating statements. McCain, 29 Ill. 2d at 135, 193 N.E.2d at 786.

The jury could properly determine from the evidence that the defendant concurred in the threat against Newbern. (See People v. Bush (1963), 29 Ill. 2d 367, 372, 194 N.E.2d 308, 311-12.) Phagan testified the defendant and his associates held a meeting in the living room of her trailer approximately two weeks before the shooting incident. Although they attempted to exclude her from this meeting, Phagan overheard part of their conversation about Newbern. Phagan further identified the defendant as an active participant in this conversation. This conversation, given its threat of harm to Newbern, would be immediately objected to by an innocent party. The circuit court did not err in allowing this testimony.

The defendant last contends the circuit court did not accord adequate weight to his potential for rehabilitation in imposing sentence.

Illinois incorporates the rehabilitative potential of the accused as a factor in prescribing penalties. (See Ill. Const. 1970, art. I, §11; Ill. Rev. Stat. 1987, ch. 38, par. 1001 — 1—2.) This factor is not, however, entitled to any greater weight than the remaining factors. (People v. Gaines (1981), 88 Ill. 2d 342, 382, 430 N.E.2d 1046, 1066; People v. Reid (1987), 160 Ill. App. 3d 491, 493, 513 N.E.2d 517, 518.) The circuit court may, in its discretion, determine and impose the sentence on the defendant in excess of the minimum provided by statute.

The circuit court sentenced the defendant to a 40-year term of imprisonment for the offense of murder. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a).) Murder is a felony offense. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a).) A sentence of imprisonment for this offense shall be not less than 20 years nor more than 40 years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(1)(a).) The sentence imposed is within the maximum limits of the penalty statute.

The appellate court is empowered to reduce sentences imposed by the circuit court through Supreme Court Rule 615(b)(4). (107 Ill. 2d R. 615(b)(4).) This power will be used only where the circuit court has abused its discretion in the determination and imposition of sentence. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.) “[A]n abuse will be found to exist if the sentence imposed is at variance with the spirit and purpose of the law, or greatly disproportionate to the nature of the crime.” People v. Reznick (1986), 141 Ill. App. 3d 593, 597, 491 N.E.2d 444, 446.

The record indicates the circuit court exercised informed discretion in sentencing the defendant. The circuit court considered the mitigating factors offered by the defense. The defendant, age 27, was a high school dropout with a sporadic employment history. He had no prior criminal record. The circuit court also considered the aggravating factors offered by the prosecution. The defendant had a preexisting hostile relationship with Newbern which culminated in the coldblooded premeditated execution of an unarmed man in public. After carefully weighing both sets of factors, the circuit court sentenced the defendant to the maximum term of imprisonment allowed by statute. The circuit court did not abuse its discretion in sentencing the defendant. See People v. Kindelan (1986), 150 Ill. App. 3d 818, 824-25, 502 N.E.2d 422, 426-27.

The judgment and sentence of the circuit court of Champaign County are affirmed.

Affirmed.

SPITZ and GREEN, JJ., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
      In re MARRIAGE OF SUSAN LOUISE ZIEMER, n/k/a Susan Louise Walker, Petitioner-Appellee, and MILO JOSEPH ZIEMER, Respondent-Appellant.
    Fourth District
    No. 4—89—0134
    Opinion filed October 5, 1989.

      Johnson, Frank, Frederick & Walsh, of Urbana (Gregory L. Ryan, of counsel), for appellant.
    Monroe, Wilson, Dyar, Moss & Statzer, of Decatur, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

On September 1, 1988, this court affirmed a trial court order which restricted respondent Milo Ziemer’s overnight visitation with his daughter and ordered him to pay $250 in attorney fees. (In re Marriage of Ziemer (4th Dist. 1988), No. 4 — 88—0256 (unpublished order under Supreme Court Rule 23).) On October 6, 1988, Susan Ziemer, petitioner, filed a petition for fees incurred as a result of the appeal. Her attorney fees and costs in defending the appeal were $1,907.32. The trial court ordered Milo to pay $1,500 of that amount. Milo appeals arguing the trial court abused its discretion in that it did not adequately consider Susan’s current husband’s income, her income alone did not show an inability to pay the attorney fees, he was unable to pay fees, and the trial court erred in finding he had transferred property to avoid imposition of attorney fees.

We affirm.

The parties submitted statements of assets and liabilities. Although Susan had remarried, she prorated her and Mindy’s expenses and did not include expense amounts for Steven Walker, her current husband. Susan had a net income from her employment of $820 per month. She received $300 per month from Milo as child support, though stated Milo’s payments were sporadic. Milo admitted he was $844 in arrears in his payments. Susan and Mindy’s monthly expenses were $1,080. Susan admitted the $175 car payment expense was deducted from Steven’s check. Steven also gave her an additional $200 per week. However, she paid $65 of this money to support Steven’s child.

Susan and Steven jointly owned a home valued at $33,000 with a $12,564 mortgage. They had $500 in equity in a separate parcel of real estate, with a $19,500 joint debt. They had several other joint debts. Milo listed $1,475 in monthly expenses and $3,401 in debts. He had been unemployed for the week prior to the hearing but expected to be reemployed. When working, he earned $18.75 per hour as an electrician with a weekly take-home pay of $506. When not working, he received $230 per week in unemployment compensation. In 1986 and 1987, respectively, Milo had an adjusted gross income of $35,039 and $33,724.

Milo admitted that during the prior appeal, he gave real estate to his father. Milo testified the real estate was worth $8,000. He admitted he had previously valued it at $20,000 and did not have any indebtedness regarding the real estate.

The trial court found Susan lacked sufficient financial resources to pay her attorney fees and Milo had the ability to pay the fees. It also found Milo dissipated assets by giving realty to his father. Milo had a good job as an electrician, though his work was seasonal. In denying Milo’s motion for reconsideration, the court noted Milo’s conduct necessitated Susan’s legal proceedings to protect Mindy. The modification arose as a result of Milo’s practice of showering with eight-year-old Mindy and sleeping in the same bed with her.

An award of attorney fees is a matter within the sound discretion of the trial court, and its decision will not be disturbed on appeal, absent an abuse of discretion. (In re Marriage of Stockton (1988), 169 Ill. App. 3d 318, 523 N.E.2d 573.) Attorney fees are the primary responsibility of the person for whom the services are rendered. (In re Marriage of Rink (1985), 136 Ill. App. 3d 252, 483 N.E.2d 316.) A person seeking an award of fees must establish that he is unable to pay the fees and the other party is able to pay them. (Stockton, 169 Ill. App. 3d 318, 523 N.E.2d 573; In re Marriage of Westcott (1987), 163 Ill. App. 3d 168, 516 N.E.2d 566.) It is not necessary that the spouse seeking fees be destitute; it is sufficient that the payment would exhaust his estate or strip him of his means of support or undermine his economic stability. (In re Marriage of Piccione (1987), 158 Ill. App. 3d 955, 956, 511 N.E.2d 1157, 1158.) The court may properly consider that one party’s conduct precipitated the proceedings. In re Marriage of Cotton (1984), 103 Ill. 2d 346, 469 N.E.2d 1077.

Section 508(a) of the Illinois Marriage and Dissolution of Marriage Act provides that the court, after considering the financial resources of the parties, may order either spouse to pay the attorney fees necessarily incurred by the other spouse in defense of an appeal. (Ill. Rev. Stat. 1987, ch. 40, par. 508(a).) Milo argues the trial court abused its discretion because Steven’s employment income was available as a resource for the payment of Susan’s attorney fees. Therefore, Milo argues Susan does not lack the financial ability to pay her own fees. We find no authority for Milo’s argument. Steven does not have a legal obligation to pay fees incurred by Susan in connection with proceedings regarding visitation between her daughter and her former husband. Additionally, we note the trial court did consider that Steven gave Susan $135 per week to use for expenses.

Milo next argues Susan’s income exceeds her expenses; therefore, she is able to pay her own fees. Susan earned $820 per month. She was supposed to receive an additional $300 per month as child support. However, Milo’s payments were sporadic, and Milo agrees he was in arrears in the child support payments. Susan and Mindy’s expenses were approximately $1,080. If the court subtracts the automobile payment, Susan and Mindy’s expenses are $905 per month. Susan’s income would exceed her expenses by $215 if Milo paid child support. Milo’s net monthly income when working was $2,177.60 and monthly expenses of $1,475. Although Milo had not been working for a week prior to the hearing, he expected to return to work soon. His work was somewhat seasonal, although he was employed by a reputable firm. Additionally, Milo had given away an asset which was worth at least $8,000 and possibly worth $20,000.

Susan’s total costs and fees were $1,907.32 of which Milo was ordered to pay approximately three-fourths, $1,500. A court of review will not substitute its judgment for that of the trial court in matters of discretion unless abuse of that discretion is found. The spouse seeking fees need not be destitute or exhaust her economic resources. (See Piccione, 158 Ill. App. 3d 955, 511 N.E.2d 1157.) The court properly considered that Milo’s conduct necessitated legal proceedings to protect Mindy. (Cotton, 103 Ill. 2d 346, 469 N.E.2d 1077.) In Cotton the court, quoting Kuhns v. Kuhns (1972), 7 Ill. App. 3d 884, 886, 288 N.E.2d 884, 886, stated:

“ ‘In determining whether an allowance of fees is proper, it is necessary to examine the circumstances which initiate the invocation of judicial proceedings for relief. ***
It is clear that plaintiff, by her own misconduct, precipitated these post-decree proceedings. *** Although the record reveals that defendant is possessed of more income and assets than plaintiff, we believe that it would be inequitable and unfair to further punish defendant by requiring him to pay fees to plaintiff’s attorneys.’ ” Cotton, 103 Ill. 2d at 362, 469 N.E.2d at 1085.

In determining a request for attorney fees, it is proper for the court to give consideration to who precipitated the need for the legal fees. That the action was initiated by Susan because of Milo’s conduct does not require a different result. Likewise, defense of the appeal by Susan was necessitated by that same conduct. No abuse of discretion occurred in the instant case.

For the above reasons, we affirm the trial court.

Affirmed.

KNECHT and STEIGMANN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT C. BLEITNER, Defendant-Appellant.
    Fourth District
    No. 4—88—0944
    Opinion filed October 5, 1989.

      Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Terence M. Madsen and Nathan R Maddox, Assistant Attorneys General, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Following a jury trial in Adams County, the defendant, Robert C. Bleitner, was convicted of unlawful use of weapons (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1(a)(7)), conspiracy to commit murder (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 2(a)), and attempt (first degree murder) (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4(a)). Defendant was sentenced to concurrent terms of imprisonment of 28 years for the offense of attempt (first degree murder) and 5 years for the offense of unlawful use of weapons. No sentence was imposed on the conspiracy offense. Defendant has appealed contending: (1) the trial court erred in finding him fit to stand trial; (2) the initial stop and search of his automobile by the police was improper; and (3) evidence of motive was erroneously admitted.

. The convictions arose from a June 2, 1988, attempt by defendant to place a pipe bomb on the car of Charles H. Burch, Calhoun County’s State’s Attorney. The evidence presented at trial showed in March of 1988, Burch began an investigation of defendant for the criminal sexual assault of defendant’s 17-year-old stepdaughter. This investigation resulted in an indictment on April 29, 1988. Thereafter, defendant’s wife, Theresa Bleitner, sent her other two minor daughters to a shelter home. The girls had previously resided with Theresa Bleitner and defendant though they were the subject of a juvenile neglect proceeding.

Defendant expressed his aggravation resulting from the neglect proceedings and the' charges of sexual assault to the children’s guardian ad litem, John W.. Guntren. Defendant told Guntren he had made a “list” of people to “get,” which included the judge presiding over these matters; Charles Burch, the State’s Attorney; several employees of the Department of Children and Family Services; and the attorneys involved in these cases. In discussing what he meant by his statements, defendant declared they "would all be sorry. After unsuccessfully attempting to file criminal charges against Burch for his actions in the sexual assault and neglect cases, defendant stated to Guntren he was going to make Burch number one on his list.

To determine where Burch resided, defendant followed a car driven by Burch’s wife to théir rural residence located outside Hamburg, Illinois, on the bluffs of the Mississippi River hear the intersection of county road No. 2 and' Sunset. Road. From the information obtained, defendant drew a map of the area which he used in coordinating his plan. Defendant’s. plan was to tape the pipe bomb which he had made to the gas tank of the State’s Attorney’s Ford Escort and to affix a heat sensor to the tail pipe. Defendant discussed his plans with his 18-year-old son, Robert H. Bleitner, and his son’s 15-year-old friend, who was then living with the Bleitners. Defendant told his son the bombing was because of the sexual assault case.

On the evening of June 1, 1988, defendant’s wife and minor friend drove defendant and his son to a location within one or two miles of where Burch resided. Upon letting defendant and his son out of the car, she and the minor returned to their home. The defendant and his son were wearing camouflage clothing and camouflage paint on their faces and hands. They entered Burch’s property through a wheat field carrying a homemade pipe bomb, duct tape, wire cutters, binoculars, and a marine hand-held radio. Part of the way into the property defendant instructed his son to wait in the shadow of a utility pole and to keep a lookout for the State’s Attorney with his binoculars. Defendant proceeded toward the residence by crawling through the wheat field.

As defendant approached the residence, Burch’s dog, which was outside, started barking loudly and constantly. At about 11:25 p.m., Burch ultimately came outside to investigate, but finding nothing wrong, returned inside his home. As a result, defendant aborted his plan to attach the bomb to the car at that time. Defendant returned to his son’s location at the utility pole and they exited Burch’s property. On the way out, defendant removed the cover from a utility pedestal and randomly cut telephone wires. By using a prearranged signal over the hand-held radio, defendant summoned his wife to drive to the area to pick up himself and his son. The defendant’s wife and the minor left their 'home and drove the same route to retrieve defendant and his son.

Due to other unrelated investigations, Calhoun County police had the Bleitner residence under surveillance that evening. The Bleitner residence is located in Hamburg, a small village of approximately 300 people located near the Mississippi River. The officers began their surveillance at approximately 1 a.m. on June 2, 1988. At 1:40 a.m., the house lights extinguished. Defendant’s wife and the minor exited the residence, entered their car and drove off. The police followed them with their squad car lights off. The Bleitner vehicle proceeded south on county road No. 2. After approximately 22 miles and 50 minutes of driving, the Bleitner car stopped and the dome light came on for about 20 seconds. The car had stopped approximately 200 feet from a farm house and machine shed. The defendant’s car proceeded in the same direction for a little way, turned around and headed back toward town. At this time, the officers activated their headlights and flashing red lights and stopped the vehicle. When the vehicle was stopped, the officers discovered defendant and his son had joined Theresa Bleitner and the minor in the car. Defendant and his son were wearing camouflage clothes and camouflage paint. In plain view on the front seat between defendant and his wife was a pipe bomb in a clear plastic bag. When defendant left his car as ordered, the officers seized the bag.

Upon processing the defendant and his family at headquarters, the police tried to telephone Burch, as they knew his residence was nearby. Upon being unable to do so, they went to his house and awakened him. At daybreak, the police and Burch observed a fresh path from the driveway to the road through the wheat field. Eventually the cut telephone wires were discovered and repaired. A crime lab expert matched the cut wires to pliers attributed to defendant.

Other evidence at trial disclosed the bomb was live, functional as connected, and capable of exploding. Items seized from the defendant’s house and car, pursuant to a search warrant, produced similar component parts for comparable bombs.

We now address the issues raised by defendant. Fitness to stand trial has two aspects. To be fit, a defendant must be able (1) to understand the nature and purpose of the proceedings against him and (2) to assist in preparing in his defense. (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 10.) No question is raised about the first part of the standard. All witnesses stated defendant understood the nature of the proceedings, and defendant does not contend otherwise. The only question concerns defendant’s ability to assist in his own defense.

Defendant was examined by Drs. Domino and Griffith. Dr. Griffith is a third-year resident in psychiatry who worked under Dr. Domino’s supervision. Their report was prepared in conjunction and each reached the same conclusion. The doctors found defendant unfit to stand trial, stating defendant suffers from manic episodes and a paranoid personality disorder. In their opinion, such illnesses would prevent defendant from fully cooperating with his attorney due to lack of candor or the supplying of misleading information. Dr. Domino testified at the fitness hearing and confirmed the report.

Relying on People v. Williams (1980), 87 Ill. App. 3d 860, 490 N.E.2d 439, defendant contends the trial court erred in rejecting the sole medical evidence and in substituting its own personal observations. The only evidence received in Williams regarding the defendant’s fitness was from two psychiatrists who found defendant unfit. The Second District Appellate Court held such a rejection was not warranted merely from the court’s exposure to defendant or from its commonsense interpretation of psychiatric opinions. Unlike Williams, additional evidence on the issue of defendant’s fitness was presented in the case at bar.

In terms of other evidence, the State presented lay witnesses who testified as to defendant’s fitness. Deputy Atterberry, a jailer and dispatcher at the Calhoun County jail, testified to numerous phone calls and visits between defendant and his attorney. He also testified that after communicating with his attorney, defendant would want to share the information with other family members. Atterberry testified about his personal contacts with defendant and gave the opinion defendant knew exactly what was going on and felt he was going to get away with what he had done. He also expressed the opinion defendant was able to assist his attorney. Calhoun County Sheriff Stacy Ferguson testified about his contacts with defendant and expressed the opinion defendant understood the nature of the proceedings against him and was able to assist in his defense. Ferguson noted defendant always prepared a list or notes prior to communicating with his attorney. The State also introduced defendant’s sworn testimony at the bail-reduction hearing as evidence of his fitness to understand and cooperate.

Nonexperts who have .had an opportunity to observe a person may give their opinions-of mental condition or capacity based on facts observed, including conversations. Such lay opinions may overcome an expert opinion. (People v. Chatman (1986), 145 Ill. App. 3d 648, 495 N.E.2d 1067.) Additionally, the mere fact a psychiatrist expressed the opinion defendant was unfit does not mandate a similar finding by the trial court. The ultimate issue is for the trial court, not the experts, to decide. The credibility and weight to be given psychiatric testimony in a fitness hearing are for the trier of fact. (People v. Bilyew (1978), 73 Ill. 2d 294, 383 N.E.2d 212.) The trial court should analyze and evaluate the factual basis for the expert’s opinion rather than relying on the ultimate opinions themselves.

Numerous aspects of the factual basis failed to support the experts’ opinions in this case. The psychiatrist saw defendant only two times for a total of 2 hours and 20 minutes. Defendant understood the purpose of the visits. He knew who his attorneys were and expressed an opinion about an attorney in one case being better than the one in another case. He understood the charges against him, the role of the judge, jury, and prosecutor, the plea-bargaining system, the nature of motions to suppress, and that his lawyer’s role was to help him. Defendant understood court procedures, the possible penalties that might attach to the charges he faced, and the likely outcome of prosecution. The psychiatrist had not observed defendant interact with his counsel before forming his opinion and, therefore, had no personal knowledge of his ability to cooperate with counsel. No physical exam, psychological tests, or intelligence tests were performed. Ninety-five percent of the information on which the diagnosis was based was provided solely by defendant. The psychiatrist stated the diagnosis was not definite and defendant did appear to have some ability to cooperate with his attorney. The court asked defense counsel to make a record of how defendant was unable to assist in his defense. Counsel did not cite any of the problems noted by the psychiatrist.

The psychiatric testimony offered was not persuasive even absent the countervailing lay testimony. A review of the record suggests the psychiatrist was evaluating the defendant’s sanity rather than his ability to cooperate. We do not suggest the psychiatrist misperceived his role, but that his evaluation was more enlightening as to defendant’s personality than as to his ability to cooperate.

The trial court’s own observations of defendant during the fitness hearing were consistent with the lay testimony offered as to defendant’s ability to cooperate. The trial court in this case did not err in finding the defendant fit to stand trial. The trial judge carefully considered the totality of evidence before him, and properly considered the testimony of both the expert and lay witnesses. The trial court gave proper deference to the expert’s opinion but was not bound to it in light of other evidence received. Bilyew, 73 Ill. 2d at 302, 383 N.E.2d at 215.

Defendant alleges the stop of his vehicle was illegal and the evidence seized should have been suppressed. A police officer may stop a person in a public place for a reasonable amount of time when the officer reasonably infers from the circumstances that the person has committed, is committing, or is about to commit an offense. (Ill. Rev. Stat. 1987, ch. 38, par. 107 — 14.) A reasonable stop must be based upon objective, articulable facts coupled with rational inferences, rather than upon an officer’s subjective, nonspecific hunch. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; People v. McGowan (1977), 69 Ill. 2d 73, 370 N.E.2d 537.) The facts and circumstances as a whole must lead to the conclusion the situation confronting the police officer is so removed from the ordinary that a competent police officer would be expected to act quickly to maintain the status quo. (McGowan, 69 Ill. 2d at 77-78, 370 N.E.2d at 539-40.) The probable cause required to arrest or search is not required for a stop. People v. Smithers (1980), 83 Ill. 2d 430, 415 N.E.2d 327.

• 5 From the testimony elicited at the suppression hearing, the trial court correctly found the stopping of defendant’s car was the result of reasonable inferences based upon objective, articulable facts. A surveillance of defendant’s home was being conducted due to the possible involvement of its occupants in previous crimes. On May 20, 1988, the police received information defendant’s son was involved in a theft from a pickup truck. On May 30, 1988, the police received a report a river cabin had been broken into and a Snapper riding mower had been stolen. Shortly thereafter, defendant’s son was observed operating a Snapper riding mower at defendant’s home. A riding lawnmower had never been observed at the residence before. Other residents told the police defendant’s son had supposedly found the riding mower near the cabin that was broken into. On July 1, 1988, the police received an anonymous phone call informing them the Bleitners had been leaving for several nights between one and two in the morning and returning home early in the morning hours. Several break-ins of cabins and sheds located near the river had been occurring. The road which defendant’s wife and minor traveled at 1:40 a.m. was a secondary road which was primarily gravel. The road ran along the Mississippi River but did not lead to either a bridge or ferry crossing. The road was known not to be used at this hour, and it was reasonably believed the Bleitners did not have any family or business interests in the area. After 50 minutes of driving, the Bleitner car stopped and the dome light came on for about 20 seconds. When it stopped, the car was located approximately 200 feet from a farm house and machine shed. The car turned around and proceeded back toward town.

The reasonable inference from these facts was that the Bleitners were engaging in criminal activity, and the action by the police in stopping the car was permissible. The requirements of Terry and section 107 — 14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 107 — 14) were clearly met in this case. The police had objective, articulable facts from which they could reasonably infer an offense had been committed or was about to be committed.

On a motion to suppress evidence, the defendant has the burden to make a prima facie showing the evidence was obtained by an illegal search and seizure. (People v. Neal (1985), 109 Ill. 2d 216, 486 N.E.2d 898.) A reviewing court will not reverse the trial court’s finding on a motion to suppress unless it is determined to be manifestly erroneous. (People v. Holloway (1981), 86 Ill. 2d 78, 426 N.E.2d 871.) Such errors are not found here. In fact, this stop was clearly proper and the allegation of error is without merit.

Defendant contends in order to show motive it was only necessary for the jury to know defendant had been charged with a felony and to admit anything more prejudiced the jury. The State’s theory of the case was defendant acted in retaliation against Burch for the charge of sexual assault. To prove motive the State introduced evidence concerning the sexual assault charges. This evidence included testimony from Burch involving confrontations with defendant concerning the charges and testimony from John W. Guntren, who was appointed guardian ad litem for defendant’s other two stepdaughters. The appointment occurred after the sexual abuse charges were filed. Guntren testified defendant said he was going to get the State’s Attorney as a result of the sexual abuse charges and juvenile proceedings. Defendant’s son also testified accordingly.

As a general rule, evidence of other crimes, i.e., wrongful conduct for which the defendant is not on trial, is inadmissible to prove the defendant has a propensity to commit the charged criminal offense. (People v. Lehman (1955), 5 Ill. 2d 337, 125 N.E.2d 506.) The rationale underlying this rule is such evidence overpersuades the jury the defendant is a bad person deserving punishment. People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.

There are exceptions to the general rule. Evidence of other crimes committed by defendant is admissible to show modus operandi, intent, identity, motive, absence of mistake, or if it is relevant for any purpose other than to show the propensity to commit crime. (People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821.) To be competent, motive evidence must tend to establish the existence of the motive relied upon. (People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840.) The testimony as to the sexual abuse charges and defendant’s reaction does tend to establish the existence of a motive. It was not offered or received to establish a propensity on the defendant’s part to commit crime.

The probative value of motive evidence must be weighed against its prejudicial impact. (People v. Reimnitz (1979), 72 Ill. App. 3d 761, 391 N.E.2d 380.) Evidence of other crimes or charges can substantially prejudice the case of defendant.

The evidence here showed defendant’s animosity toward Burch grew in correlation with the progression of the sexual abuse charges. The State’s evidence was limited and did not exceed the boundaries necessary to establish this fact. Defendant’s repeated statements to get the State’s Attorney due to the sexual abuse charges give such evidence substantial weight. The jury was instructed upon the receipt of the evidence and at the close of trial to consider the motive evidence only for its limited purpose. Defendant has not demonstrated the jury did otherwise. The probative value of this motive evidence outweighs any prejudicial impact, and it was properly admitted.

Affirmed.

LUND and STEIGMANN, JJ., concur.