author: JUSTICE INGLIS

text:
    THE VILLAGE OF LISLE, Plaintiff-Appellant, v. ACTION OUTDOOR ADVERTISING COMPANY et al., Defendants-Appellees (Michael St. Onge, Defendant).
    Second District
    No. 2 — 88—0957
    Opinion filed September 25, 1989.

      Thomas W. Fawell and John J. Curry, Jr., both of Katten, Muchin & Zavis, of Oak Brook, for appellant.
    James E. Saloga and Robert I. Mork, both of Nadelhoffer, Nagle, Kuhn, Mitchell, Moss & Saloga, of Naperville, and Jamie A. Savaiano, of Simon & Welnhofer, of Oakbrook Terrace, for appellees Chester H. Smith and Judith M. Smith.
    Amy L. Kurland, of Simon & Welnhofer, of Oakbrook Terrace (Paul G. Simon, of counsel), for appellee Action Outdoor Advertising Company.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Village of Lisle (Village), brought this action against defendants, Action Outdoor Advertising Company, Chester H. Smith, Judith M. Smith, and Michael St. Onge, seeking to enjoin defendants from constructing an outdoor advertising sign on the Smiths’ property. The Village’s action was based upon an “Annexation Agreement” between the Village and the Smiths providing for the future annexation of the Smiths’ property by the Village. After the Village’s motion for a temporary restraining order and petition for preliminary injunction were denied, the parties filed cross-motions for summary judgment. The trial court denied the Village’s motion for summary judgment and granted defendants’ motion for summary judgment. The Village now appeals from the trial court's order granting summary judgment in favor of defendants. We affirm.

The Village is an Illinois municipal corporation located in Du Page County. Defendants Chester and Judith Smith are the owners and holders in joint tenancy of property located at 25 W. 241 and 25 W. 253 Ogden Avenue, in unincorporated DuPage County. The Smiths’ property is not contiguous to the Village and is located approximately 648 feet from the Village's corporate limits.

In late 1985 or early 1986, the Smiths obtained approval from Du Page County to have a parcel of the subject property rezoned as a community business district. At that time, the Smiths were asked if they were interested in tapping into the Village sewer system. The Smiths subsequently contacted the Village and expressed their interest in doing so. At the same time, the Smiths agreed to enter into a preannexation agreement. The Smiths subsequently filed a petition for annexation with the Village requesting annexation of their property.

On February 16, 1987, the Village and the Smiths entered into an annexation agreement which provided for the future annexation and zoning of the Smiths’ property when the property becomes contiguous to the Village. The agreement was signed by the Village president and the Smiths and was attested to by the Village clerk. Paragraph 2 of the annexation agreement provided that the Smiths would install, or otherwise construct all landscaping, parking areas, lighting, signage, utilities, structures, or improvements of any kind upon the property in accordance with plans appended to the annexation agreement and determined to have been in accordance with the Village’s code. The agreement further referred to the Smiths’ petition for annexation and provided that the Smiths would not seek annexation by any other municipality and would object to any other municipality’s attempt to annex their property. The Village subsequently passed and approved a resolution authorizing the execution of the annexation agreement.

On October 2, 1987, the Smiths entered into a lease with defendant, Action Outdoor Advertising Company (Action), allowing Action to erect and maintain an outdoor advertising display on the Smiths’ property. Action subsequently obtained a building and use permit from Du Page County for the construction of a 14-foot by 48-foot double-faced sign.

On January 13, 1988, Action began construction of the outdoor sign on the Smiths’ property. Agents of the Village became aware of the construction and immediately served Action with a stop-work order instructing Action to cease and desist from constructing and installing the outdoor sign at that location. Action refused to comply with the stop-work order.

On January 14, 1988, the Village filed the instant action for injunctive and other relief against the Smiths, Action, and Action’s president, Michael St. Onge. The Village’s complaint alleged that construction of the sign on the Smiths’ property was in violation of the annexation agreement executed between the Smiths and the Village. The Village’s complaint further alleged that the construction of the sign at that location frustrated and interfered with the aesthetic and safety goals of the Village and violated the terms of the annexation agreement. The Village sought a preliminary and permanent injunction, damages for breach of contract, and, as against Action and St. Onge, an award of punitive damages. Contemporaneously with filing its complaint for injunctive and other relief, the Village filed an emergency motion for a temporary restraining order. The Village’s motion alleged that the continued construction and installation of the outdoor sign would cause the Village immediate and irreparable injury. The trial court denied the temporary restraining order after a hearing and continued the cause for further proceedings.

On January 27, 1988, the trial court held a hearing on the Village’s motion for entry of a preliminary injunction. At that hearing, the Village dismissed Michael St. Onge as a party defendant. The trial court subsequently entered an order providing for further briefing by the parties and continuing the cause for further proceedings. On February 4, 1988, the trial court entered an order denying the Village’s motion for a preliminary injunction and setting the cause for trial.

The parties subsequently filed cross-motions for summary judgment. On July 21, 1988, the trial court held a hearing on the motions at which time it continued the cause to August 31, 1988, for status and a ruling.

On August 31, 1988, the trial court entered an opinion and order ruling on the cross-motions for summary judgment. In that opinion, the trial court defined the issues as (1) whether the annexation agreement under present circumstances was valid and enforceable; (2) whether the sign restriction provision of the annexation agreement was valid and enforceable; and (3) whether the Village was entitled to injunctive relief. The trial court concluded that the annexation agreement was valid but unenforceable on the basis that the Smiths’ property was not contiguous to the Village’s boundaries and contiguity was a contingency of the annexation agreement’s enforceability. As an alternative basis for ruling in defendants’ favor, the court concluded that section 7 of the Highway Advertising Control Act of 1971 (Ill. Rev. Stat. 1987, ch. 121, par. 507) precluded the Village from prohibiting the sign’s construction. The court noted that the Village could impose regulations on a sign’s size, lighting, and spacing, but concluded that the Village was not entitled to injunctive relief because it failed to establish that the outdoor sign violated any size, lighting, or spacing restrictions. Accordingly, the trial court denied the Village’s motion for summary judgment and granted summary judgment in favor of defendants. The Village then brought this timely appeal.

Summary judgment is properly granted if the pleadings, depositions, admissions, and affidavits on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) The parties in the instant action filed a stipulation of facts, and no issue of fact is raised. Thus, our function as the reviewing court is to determine whether defendants were entitled to judgment as a matter of law. See People ex rel. First National Bank v. City of North Chicago (1987), 158 Ill. App. 3d 85, 104.

The Village contends that the trial court erred in holding the annexation agreement unenforceable. The Village argues that the annexation agreement is valid and therefore enforceable on its terms absent a good defense. We disagree.

Section 11 — 15.1—1 of the Illinois Municipal Code (Code) (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 15.1—1) provides the statutory authority for corporate authorities to enter into annexation agreements. Pursuant to section 11 — 15.1—1, “[t]he corporate authorities of any •municipality may enter into an agreement with one or more of the owners of record of land in any territory which may be annexed to such municipality as provided in Article 7.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 15.1—1.) Section 7 — 1—1 of the Code defines “territory which may be annexed” as “[a]ny territory which is not within the corporate limits of any municipality but which is contiguous to a municipality.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—1.

In the instant action, the Smiths’ property is not contiguous to the Village and therefore could not be annexed pursuant to article 7 of the Code. (See Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—1; People ex rel. City of North Chicago v. City of Waukegan (1983), 116 Ill. App. 3d 88, 93.) Since section 11 — 15.1—1 of the Code (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 15.1—1) only authorizes municipalities to enter into annexation agreements for property “which may be annexed to such municipality as provided in Article 7,” only an agreement regarding contiguous property would be valid.

In addition, the validity of an annexation agreement that purports to allow a municipal authority to exercise its police powers over a noncontiguous tract of property fails when examined in light of the purpose behind the contiguity requirement. The fundamental notion of a municipal corporation is that of unity and continuity, not separated or segregated areas. (People ex rel. Village of South Barrington v. Village of Hoffman Estates (1964), 30 Ill. 2d 385, 387.) This necessity for unity of purpose and facilities forms the very basis for the requirement of contiguity. (30 Ill. 2d at 387.) The purpose of the contiguity requirement is to permit the natural and gradual extension of municipal boundaries to areas which adjoin one another in a reasonably substantial physical sense. (People ex rel. County of St. Clair v. City of Belleville (1981), 84 Ill. 2d 1, 12; People ex rel. Village of Long Grove v. Village of Buffalo Grove (1987), 160 Ill. App. 3d 455, 462.) In that way, delivery of services is more convenient for the city and more efficient for its citizens. City of Belleville, 84 Ill. 2d at 12.

Similarly, the statutory authorization of preannexation agreements serves to further important governmental purposes, such as the encouragement of expanding urban areas and to do so uniformly, economically, efficiently, and fairly with optimum provisions made for the establishment of land use controls and necessary municipal improvements, including streets, water, sewer systems, schools, parks, and similar installations. (Village of Orland Park v. First Federal Savings & Loan Association (1985), 135 Ill. App. 3d 520, 526.) This approach also discourages fragmentation and the proliferation of special districts. 135 Ill. App. 3d at 526.

By allowing the Village in the instant action to enforce its ordinances on a property owner through an annexation agreement where it could not do so through actual annexation would permit the Village to do indirectly what it is prohibited by statute from doing directly. In other words, while the Village cannot annex the Smiths’ property because it is not contiguous to the Village, it nonetheless ' seeks to exercise the same control under an annexation agreement which contemplates future contiguity. It is axiomatic that a party cannot circumvent the purpose of a statute by doing indirectly what it cannot do directly. (In re Petition of the Village of Kildeer to Annex Certain Territory (1988), 124 Ill. 2d 533, 547.) Accordingly, we hold that the annexation agreement in the instant action is invalid and unenforceable as the property which is subject to the agreement is not contiguous to the Village and, as such, is not a proper object of annexation.

In so ruling, we are not unmindful of two cases cited by the trial court in support of that court’s determination that annexation agreements regarding noncontiguous property are valid. (See People ex rel. County of St. Clair v. City of Belleville (1981), 84 Ill. 2d 1; Continental Illinois National Bank & Trust Co. v. Village of Park Forest (1972), 4 Ill. App. 3d 811.) While both of these opinions contain language supporting the trial court’s conclusion, the validity of an annexation agreement was not directly at issue in City of Belleville, and the agreement challenged in Continental Illinois National Bank & Trust Co., unlike the agreement in the instant action, did not purport to allow the municipal authority the power to exercise control over the noncontiguous property. Thus, we do not believe these cases should control our disposition.

In City of Belleville, our supreme court considered the validity of four ordinances involving the annexation of three separate but adjacent tracts of property. (City of Belleville, 84 Ill. 2d at 4-5.) Two of the ordinances were entered with respect to a noncontiguous parcel of property owned by the Catholic Diocese of Belleville. (84 Ill. 2d at 5.) One of those ordinances adopted an annexation agreement between the city and the Catholic Diocese, while the second and subsequent ordinance purported to annex the Catholic Diocese property. (84 Ill. 2d at 5.) The plaintiffs challenged the validity of the ordinances arguing, among other things, that the territory annexed was not contiguous to the city at the time the petitions for annexation were filed. (84 Ill. 2d at 7.) The supreme court agreed, ruling that the express language of sections 7 — 1—3 and 7 — 1—8 of the Code requires that property must be contiguous at the time an annexation petition is filed. (84 Ill. 2d at 11.) Thus, the court held that the ordinances which purported to annex the noncontiguous tracts of property, including the Catholic Diocese property, were invalidly adopted. (84 Ill. 2d at 12.) However, the court went on to state:

“Ordinance No. 3392, which adopted the agreement between the city and the diocese, is not affected by this conclusion. Since that ordinance simply adopts the agreement between the city and the diocese, but does not purport to annex any property, we think its validity is not in serious question here.
* * *
*** Since ordinance No. 3392 does not violate any statute, those portions of the circuit and appellate court judgments that upheld this ordinance are affirmed.” City of Belleville, 84 Ill. 2d at 12-14.

In our opinion, the above-quoted language does not support the validity of the annexation agreement between the Village and the Smiths. The court in City of Belleville was not directly considering the validity of the annexation agreement and did not test the validity of the agreement under sections 7 — 1—1 and 11 — 15.1—1 of the Code which require contiguity. Moreover, the opinion in City of Belleville does not indicate whether the agreement in that case, unlike the agreement in the instant action, permitted the city to exercise extraterritorial powers over the noncontiguous property. Thus, the court’s conclusion that the validity of the ordinance adopting the annexation agreement in that case was “not in serious question” provides little guidance to the issue before us where the validity of the annexation agreement is in serious question.

We are similarly not persuaded by the opinion in Continental lili nois National Bank & Trust Co. v. Village of Park Forest (1972), 4 Ill. App. 3d 811, 817, wherein the Appellate Court for the Third District rejected a challenge to an annexation agreement or “contract” between a property owner and the Village of Park Forest. The annexation agreement in that case provided that the Village would extend a sewer to the property for the owner’s agreement to pay for the service and not petition or agree to permit the annexation of the tract to any other municipal corporation without first petitioning for annexation to the Village. (4 Ill. App. 3d at 817.) In rejecting the plaintiffs’ challenge, the court stated:

“The commitment of [the property owner] to request annexation to defendant before seeking annexation to another municipality is, in legal contemplation, a nullity until the tract in question becomes contiguous to defendant’s boundary. We agree with defendant that under this agreement there is, at this juncture, no way that [the property owner] may compel its properties’ annexation by defendant, and there is no manner in which defendant may unilaterally compel [the property owner] to seek annexation of the property to the Village.” (Emphasis added.) Continental Illinois National Bank, 4 Ill. App. 3d at 817.

As we noted above with respect to the agreement in City of Belleville, the agreement in Continental Illinois National Bank & Trust Co., unlike the agreement in the instant action, does not indicate any manner in which the municipal authority could exercise extraterritorial power over the noncontiguous property. In the case at bar, the annexation agreement purports to allow the Village to exercise extraterritorial control over the Smiths’ use of their property notwithstanding that the property is not contiguous to the Village and therefore not subject to annexation. In our opinion, the nature of such an agreement violates the letter and spirit of the Code requiring contiguity of boundaries before allowing annexation.

The Village nonetheless asserts that section 7 — 1—8 of the Code authorizes corporate authorities to enter into annexation agreements for noncontiguous property. Section 7 — 1—8 of the Code provides that territory not within the corporate limits of a municipality “but which is contiguous to a municipality at the time of annexation” may be annexed to the municipality. (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—8.) The Village argues that the language “contiguous *** at the time of annexation” implies that a municipality may enter into annexation agreements for noncontiguous property. The Village concludes that, since agreements to annex noncontiguous property are valid pursuant to section 7 — 1—8, the terms of such agreements are enforceable regardless of whether the property is contiguous at the time of enforcement. In other words, contiguity is not a condition precedent to enforcement of an annexation agreement. Although the Village concedes that such a rule could result in extraterritorial grants of power, the Village asserts that the Code’s provisions “in and of themselves specifically grant extraterritorial power over property contemplated for annexation.” We disagree.

We note that the underlying basis for the Village’s argument that section 7 — 1—8 authorizes parties to enter into annexation agreements for noncontiguous property is faulty and inapplicable to the instant action. The language “contiguous *** at the time of annexation” was added to section 7 — 1—8 after our supreme court decided People ex rel. County of St. Clair v. City of Belleville (1981), 84 Ill. 2d 1. In City of Belleville, the city sought to annex three adjacent tracts of property, only one of which was contiguous to the city. (84 Ill. 2d at 4-5.) The court invalidated the ordinances purporting to annex the two noncontiguous tracts, stating:

“We realize that this construction requires a municipality desirous of annexing several parcels, only one of which is contiguous to the municipality, to annex each parcel at separate times. In some situations this requirement may appear cumbersome. We can only conclude that the General Assembly has imposed this limitation to prevent a municipality from conducting a wholesale annexation of successive parcels of property where each parcel, other than the first, is not contiguous to, and is more remote from, the original corporate limits.” City of Belleville, 84 Ill. 2d at 11.

After the opinion in City of Belleville was filed, the legislature adopted Public Act 82 — 211, which added the words “at the time of annexation” in the first sentence of section 7 — 1—8 and also added section 7 — 1—48 to the Code. (See Pub. Act 82 — 211, eff. Aug. 14, 1981.) Section 7 — 1—48 authorizes the annexation of multiple parcels of property in a single annexation proceeding; however, that section further provides that an annexation of property which does not comply with the section 7 requirements would not invalidate annexation of the “remainder of the annexed territory, unless the exclusion or disconnection of the non-complying area would destroy the contiguity of the remaining territory.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—48(b).) In other words, section 7 — 1—48 authorizes the annexation of multiple parcels in a single annexation proceeding as long as at least one parcel is contiguous to the annexing municipality and the remaining parcels are contiguous to each other. (See Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—48(b).) Thus, while Public Act 82— 211 authorized the procedure invalidated in City of Belleville, it did not, as the Village suggests, do away with the requirement of contiguity. The instant action does not involve the annexation of successive parcels, and the Village does not argue or otherwise comment on the fact that another parcel of property which is not subject to the annexation agreement separates the Smiths’ property from the Village.

Under these circumstances, enforcement of the zoning provisions of the annexation agreement in the instant action would permit the Village to exercise extraterritorial power over the Smiths’ property. Absent an express grant of statutory authority, a municipality may not exercise extraterritorial governmental power. (Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, 77-78.) The Code’s provisions do not, as the Village contends, grant such authority. We agree with defendants that the practical effect of such a finding would authorize a municipality to enter into an annexation agreement for property anywhere within the State and, pursuant to the agreement, exercise its police power over that property. We do not think such a result was intended by the legislature.

Having concluded that the annexation agreement in the instant action is invalid and unenforceable as it is not authorized by statute, we need not address the alternative basis relied upon by the trial court in entering judgment for defendants. However, it is necessary to comment briefly on the Village’s remaining argument that equitable estoppel precludes defendants from challenging the validity of the annexation agreement. The Village asserts that estoppel should apply since the Smiths, as parties to the agreement, have derived substantial contractual benefits from the agreement. We disagree.

Contracts entered into by a municipality which are expressly prohibited by law are void and cannot be rendered valid by estoppel. (Ligenza v. Village of Round Lake Beach (1985), 133 Ill. App. 3d 286, 291; Stahelin v. Board of Education, School District No. 4 (1967), 87 Ill. App. 2d 28, 41-42.) Section 11 — 15.1—2(f) of the Code provides that annexation agreements may not incorporate any provisions inconsistent with the Code or forbidden by law. (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 15.1—2(f).) As we have noted above, the annexation agreement in the instant action was invalid and not authorized by statute as it did not relate to property contiguous with the Village and therefore resulted in allowing the Village to exercise extraterritorial police powers. Accordingly, the Village cannot now argue that defendants should be estopped from asserting its validity.

Moreover, .even if the Village was authorized to enter into the agreement, equitable estoppel would not apply. Estoppel refers to the reliance by one party on the words or conduct of another so that the party changes his position and suffers harm. (Gary-Wheaton Bank v. Meyer (1984), 130 Ill. App. 3d 87, 95-96.) The record in the instant action, while establishing that the Smiths did receive water and sewer service, also indicates that they paid the Village for those services and, in fact, paid double the normal fee since their property was located outside the Village limits. The Village argues that this payment “does not vitiate the fact that [the Smiths] received substantial benefits under the annexation agreement” since the Smiths “would have never obtained [the benefits] without agreeing to the express terms of the agreement.” This assertion is not supported by the record.

Accordingly, for the reasons set forth above, we affirm the judgment of the circuit court of Du Page County granting defendants’ motion for summary judgment.

Affirmed.

UNVERZAGT, P.J., and DUNN, J., concur.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY SPENCE, Defendant-Appellant.
    Second District
    No. 2 — 88—0851
    Opinion filed September 25, 1989.

      Donald J. Ramsell, of Ramsell & Associates, of Schaumburg, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Robert J. Huguelet, Jr., of Thomas E Courtney & Associates, of Palos Heights (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Timothy Spence, was arrested on October 5, 1987, and charged with driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501(a)(2)), driving with a blood-alcohol concentration of 0.10 or more (Ill. Rev. Stat. 1987, ch. 95½, par. 11— 501(a)(1)), and improper lane usage (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 709). A jury found defendant guilty of all charges, but judgment was entered only on the DUI conviction. The trial court sentenced defendant to 12 months’ probation, 70 hours of public service employment, and imposed a $500 fine. Defendant appeals, raising two issues: (1) whether it was error for the trial court not to allow defendant to impeach his own witness under Supreme Court Rule 238 (107 Ill. 2d R. 238) after the witness had been declared hostile; and (2) whether it was error for the trial court to preclude the impeachment of that witness pursuant to section 115 — 10.1 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.1). Because defendant has not demonstrated that he manifestly suffered prejudice which would require reversal, we affirm.

We recite only those facts pertinent to the issue of the trial court’s failure to allow defendant to impeach his witness. Prior to trial, on May 6, 1988, defendant filed a motion in limine which alleged that the breathalyzer examination should not be admitted into evidence because the examination was not conducted according to the standards promulgated by the Department of Public Health. The motion specifically alleged that the certified control reference sample was assayed falsely.

Dr. Daniel Brown, assistant chief forensic toxicologist for the bureau of forensic sciences of the Department of State Police, testified at the hearing on the motion in limine. Dr. Brown, whom defendant had subpoenaed, testified with respect to the results of an analysis of an alcohol reference solution to be used with an Intoximeter Model 3000, a breath-testing instrument. The results were recorded on a certificate of analysis prepared by the Department of Public Health. The mean value recorded for the Intoximeter Model 3000 was 0.102, while the gas chromatograph analysis had a recorded concentration of 0.1%. The doctor was asked to compare the mean value recorded for the breath-testing instrument with the concentration value recorded for the solution tested on the gas chromatograph. When asked whether the document was scientifically accurate, Dr. Brown replied that, if the document were correct, then either the gas chromatograph was improperly calibrated or the breath-test instrument was improperly calibrated. On cross-examination, Dr. Brown stated that he had not personally prepared the document, nor was he familiar with the way the actual test was conducted in the laboratory; he did not know the number of solutions that were examined to reach a “mean value.”

Dr. Dietmar Grohlich, a supervisor in the toxicology laboratory of the Department of Public Health, was also asked to compare the two values recorded on the certificate of analysis. He opined that there were certain acceptable tolerances that might explain the discrepancies between the gas chromatograph results and the breath analysis instrument reading. Under cross-examination, Dr. Grohlich admitted that the document, on its face, did not accurately reflect the actual gas chromatograph analysis. Dr. Grohlich ultimately concluded that the figure used for the chromatograph concentration was merely an “equivalent” value and that it would have been more accurate to place the actual gas chromatograph results on the certificate. However, he insisted that the concentration “equivalent” in no way invalidated the document, because the alcohol solution that was used was still correctly prepared. The trial court denied defendant’s motion in limine.

At trial, Dr. Brown was called to testify as a defense witness. Dr. Brown stated that he recognized that the same certificate of analysis was a type of document that he was familiar with, but he stated that he was not involved in its preparation. He said that he had no knowledge of the actual solution prepared in this case. Although he was familiar with several breath-testing instruments, he was not familiar with the model in question, the Intoximeter Model 3000, and he could only assume that the Intoximeter ran on the same principle as the other machines.

The defendant moved to examine Dr. Brown as a hostile witness and to question him on his prior inconsistent testimony at the hearing. The State did not object to his being declared a hostile witness but argued that he could not be impeached under Rule 238 because he was not an occurrence witness.

The trial court ruled that Dr. Brown was a hostile witness and that defense counsel could cross-examine him, but impeachment would not be allowed because Dr. Brown was not an occurrence witness. The court apparently relied on the comments found in the Smith-Hurd Illinois Annotated Statutes (Ill. Ann. Stat., ch. 110A, par. 238, Committee Comments, at 521 (Smith-Hurd 1985)).

Using the Intoxilyzer 4011 as an example of a machine that operates on an infrared absorption principle, Dr. Brown was asked to make certain assumptions and to hypothesize regarding the corresponding values between the breath-testing instrument result and the gas chromatograph result that would be expected to appear on the certificate of analysis. Dr. Brown acknowledged that a recorded value of 0.102 on the breath-testing instrument would not correspond to a chromatograph concentration analysis of 0.10 if both instruments were properly calibrated. If the values were the same, it would mean that one of the instruments was inaccurate.

On cross-examination by the State, Dr. Brown said that, based on the information he had before him, he could not draw a conclusion as to what the certificate of analysis actually represented. He did not sign it; he did not prepare it; he did not handle the solutions; and he had no personal knowledge of it.

Our inquiry initially focuses on whether the trial court erred in prohibiting defendant from impeaching his own hostile witness, Dr. Brown, with a prior inconsistent statement even though he was not an occurrence witness. In the pretrial hearing on the motion in limine, Dr. Brown, after comparing the values on the certificate of analysis, opined that, if the certificate were scientifically accurate, then either the chromatograph was improperly calibrated or the breath-test instrument was improperly calibrated. Nevertheless, he acknowledged that he had not personally prepared the document, nor did he know how the testing was actually done in this particular instance. Dr. Brown testified, in hypothetical fashion, that there was a possibility that one of the two instruments was improperly calibrated. He ultimately concluded that he could not say what the certificate of analysis actually represented.

The trial court should have allowed defendant to impeach Dr. Brown’s testimony at trial with Brown’s earlier statement at the hearing. It was error for the trial court to prevent defendant from bringing earlier testimony to the attention of the jury. Supreme Court Rule 238, amended and adopted in April 1982, provides that the “credibility of a witness may be attacked by any party, including the party calling him.” (107 Ill. 2d R. 238.) Prior to the amendment, a party had to demonstrate that he was surprised by the witness’ testimony, and the rule applied only to occurrence witnesses. The new rule liberalizes a party’s ability to impeach his own witness, and the rule has eliminated any reference to occurrence witnesses. (People v. Bolden (1987), 152 Ill. App. 3d 631, 637-38, 504 N.E.2d 835.) The right to impeach a witness with prior inconsistent statements is not unlimited; but where the testimony is damaging, a party can impeach his own witness without having to demonstrate surprise. (People v. Amato (1984), 128 Ill. App. 3d 985, 986-87, 471 N.E.2d 928.) Notwithstanding the comments in the Smith-Hurd Annotated Statutes (Ill. Ann. Stat., ch. 110A, par. 238, Committee Comments, at 521 (Smith-Hurd 1985)), we believe that the rule is no longer limited to occurrence witnesses. See Bolden, 152 Ill. App. 3d at 637-38, 504 N.E.2d at 840.

Having determined that it was error for the trial court to prevent defendant from impeaching his witness, we must next determine whether this constitutes reversible error. The exclusion of evidence designed to impeach a witness or affect his credibility will constitute reversible error where such exclusion is shown to have a prejudicial effect. (People v. Anderson (1977), 51 Ill. App. 3d 621, 623, 366 N.E.2d 900; People v. Boyd (1974), 22 Ill. App. 3d 1010, 318 N.E.2d 212; see also People v. Crosser (1983), 117 Ill. App. 3d 24, 30, 452 N.E.2d 857.) Where there is sufficient competent evidence establishing a defendant’s guilt beyond a reasonable doubt, and defendant cannot show that the error was the basis of the jury’s verdict, the error is harmless, and reversal is not required. (People v. Johnson (1986), 150 Ill. App. 3d 1075, 1083, 502 N.E.2d 304; People v. Chianakas (1983), 114 Ill. App. 3d 496, 505, 448 N.E.2d 620.) A court of review will not presume that prejudice exists. (Hollembaek v. Dominick’s Finer Foods, Inc. (1985), 137 Ill. App. 3d 773, 779, 484 N.E.2d 1237.) It is defendant’s burden to demonstrate prejudice and to establish that there was a reasonable possibility that the error, in light of all the evidence, was a material factor in his conviction. (People v. Johnson, 150 Ill. App. 3d at 1083, 502 N.E.2d at 309; People v. Grant (1979), 69 Ill. App. 3d 940, 945, 387 N.E.2d 1087.) A defendant’s attempt to raise a claim of prejudice must be founded on more than mere conjecture. People v. Velez (1984), 123 Ill. App. 3d 210, 219, 462 N.E.2d 746.

In this case, the error does not require reversal for the reasons that follow. First, it is apparent from our review of the record that defendant was allowed to inquire extensively as to Dr. Brown’s opinion concerning whether the certificate of analysis could have been erroneous. The defendant effectively placed in doubt the accuracy of that document and implied that the breath analysis was at least questionable. By means of leading questions, defendant accomplished indirectly what he could not accomplish by direct impeachment with prior inconsistent statements. We find no manifest prejudice here as a result of the limitation on his ability to cross-examine Dr. Brown. See, e.g., People v. Dowdy (1986), 140 Ill. App. 3d 631, 636, 488 N.E.2d 1326.

Second, the trial court entered a conviction and sentence only on the DUI charge, and no judgment was entered on the charge of having a blood-alcohol concentration of 0.10 or more. Where the jury is properly instructed, it can be reasonably assumed that the jury considered the evidence sustaining the DUI charge independently from the evidence supporting the charge related to the blood-alcohol concentration. (See People v. Foley (1987), 152 Ill. App. 3d 354, 356-57, 504 N.E.2d 254.) Defendant presents no evidence of jury confusion in the record, nor does he complain of the jury instructions given. We will therefore not speculate as to the rationale for the jury’s verdict.

Third, defendant presents an incomplete record which prevents us from determining whether the remaining evidence was so overwhelming that it would have supported the convictions despite the claimed error. (See People v. Wilkerson (1981), 87 Ill. 2d 151, 157, 429 N.E.2d 526; People v. Saulsburry (1989), 178 Ill. App. 3d 857, 863, 533 N.E.2d 1154.) Instead, we have had to limit our inquiry, focusing only on the error itself to see if it might have reasonably contributed to the conviction. As a reviewing court, we are not required to isolate the particular limitation on cross-examination to determine whether reversible error occurred. Rather, we will review the entire record to see if the jury was made aware of adequate factors concerning the relevant areas of impeachment. People v. Harris (1988), 123 Ill. 2d 113, 145, 526 N.E.2d 335.

The record does not disclose the testimony given by the defendant or by the arresting officer, and any doubt arising from the incompleteness of the record will be resolved against appellant. (People v. Anderson (1977), 51 Ill. App. 3d 621, 623, 366 N.E.2d 900.) Additionally, we are satisfied that, based on the record provided, no reasonable doubt exists that the restriction on defendant’s cross-examination of Dr. Brown could have influenced the jury’s determination of guilt. We conclude that the error was harmless. (People v. Scarpelli (1980), 82 Ill. App. 3d 689, 696-97, 402 N.E.2d 915.) Accordingly, we affirm the judgment as to the DUI conviction. In view of our determination that it was harmless error for the trial court to preclude defendant from impeaching Dr. Brown under Rule 238, we need not address his other argument that it was also error to do so pursuant to section 115 — 10.1 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.1).

For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

UNVERZAGT, P.J., and INGLIS, J., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY L. CREST, Defendant-Appellant.
    Second District
    No. 2 — 88—0493
    Opinion filed September 25, 1989.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Robert Agostinelli and Verlin R. Meinz, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, John X. Breslin, and William P. Gibbs, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Jeffrey L. Crest, was found guilty, following a bench trial in the circuit court of Du Page County, of burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1(a)) and was sentenced to an eight-year term of imprisonment.

Defendant raises two issues on appeal relating to the denial of his motion to quash his arrest and suppress evidence: (1) whether the police had articulable facts to justify a stop of the vehicle in which he was a passenger; and (2) whether the police had probable cause to arrest him after searching the trunk of the vehicle.

The facts relevant to deciding the issues raised on appeal were adduced at the hearing on defendant’s motion to quash arrest and suppress evidence and at his trial. According to Marshall Gauer, a police officer for the City of Aurora, he read a burglary report on September 1, 1987, which indicated that electrical wire had been reported stolen earlier that day from a construction trailer owned by Scheffler Electric Company and located near the intersection of Middlebury and 83d Streets in Aurora, Illinois. The report indicates that 30 boxes of No. 14 T.H.N.N. solid wire and one spool of No. 4 T.H.N.N solid wire were taken in the burglary. Later, during the early evening hours on September 1, 1987, Officer Gauer read a printed report of an anonymous telephone call received at the police station. According to the report, the caller indicated that Randy Crest and someone named “Sid” were trying to sell wire, a snowblower, and other stolen property stored in the basement of 60 South Spencer Street in Aurora to raise money to bond defendant, Jeffrey Crest, Randy’s brother, out of jail. The typed summation of the telephone tip indicates that the caller had been contacted by Randy Crest and someone named “Sid” who wanted to sell some copper wire. The report states that the caller observed about 500 pounds of copper wire coated with black plastic.

On September 2, 1987, at about 9 to 9:30 a.m., Gauer received a telephone call from the anonymous informer, who told Gauer that the electrical wire was stored at the Crest home on Spencer Street and that it was going to be moved that day and sold to help get Jeff out of jail. At approximately 11:30 a.m., on September 2, Gauer received another call from the anonymous informer. The caller indicated that Jeff was out of jail and that the items would be moved from the Crest residence within the next couple of hours.

During his tour of duty on September 2, 1987, Gauer periodically monitored the Crest home, which he knew to be at 60 Spencer Street. On one such occasion, at about 2 p.m., Gauer observed an Oldsmobile backed into the driveway of the Crest residence with the trunk lid open and three males standing behind it. Gauer positioned his unmarked police car about 80 to 100 feet south of the Crest home on a cross street. From that position he recognized one of the males as defendant and one as Ronald Carty, both of whom he knew. He then observed the trio carrying several boxes approximately 15 to 18 inches square by 5 to 6 inches deep from the Crest home and placing them into the trunk of the Oldsmobile. Defendant carried one or two of the boxes. One of the boxes was open, and it had electrical wire protruding from it. The trio also placed a wooden stick with red wire wrapped around it and a white bucket into the trunk. All three males got into the Oldsmobile and, with a fourth person driving, left the Crest residence.

Gauer then radioed a marked squad car for assistance as he followed the Oldsmobile in his unmarked car. Gauer then requested the marked squad car to stop the Oldsmobile, which it did.

Gauer and Officer Danny Hornback of the Aurora police department approached the vehicle and ascertained that the driver was Brenda Goggins and that the front seat passenger was Ronald Carty. Defendant and Sidney Carty were seated in the rear of the Oldsmobile. It was subsequently learned that Goggins’ driver’s license was revoked.

Gauer then explained to Goggins that he had observed the three passengers placing wire that he believed was stolen in a burglary into the trunk. Gauer then advised Goggins of her right to refuse consent to a search of the trunk, and she indicated the vehicle belonged to her fiance. Goggins then told Gauer she would like to talk to Ronald Carty before deciding whether to consent to the search of the trunk.

Following her conversation with Ronald Carty, Goggins asked Gauer what would happen to the vehicle if she refused to consent to the search, and Gauer responded that he would tow and impound the vehicle and obtain a search warrant. Goggins responded that she did not want the car towed, that she would not go to jail for anyone, and that Gauer could search the trunk.

Gauer obtained the keys, but could not locate the trunk key on the key ring. Goggins then examined the key ring and indicated that one of the passengers in the Oldsmobile must have it. Defendant and Sidney Carty were then removed from the vehicle and told to empty their pockets on the trunk. The trunk key was not among the contents. Officer Hornback then observed that Ronald Carty’s shoes were untied and, after requesting that he remove his shoes, the trunk key was discovered in one of Ronald Carty’s shoes.

Upon opening the trunk, the officers discovered 10 boxes of T.H.N.N. No. 14 electrical wire, the same type taken in the burglary of the Scheffler Construction Company trailer. Defendant and the other two passengers were placed under arrest for possession of stolen property at that time. Defendant subsequently admitted his involvement in the burglary.

Defendant presented no witnesses at his trial.

Defendant contends on appeal that the initial stop of the Oldsmobile in which he was a passenger was unconstitutional because it was based on an uncorroborated, anonymous telephone tip. He further maintains that even if the subsequent search of the trunk was valid under the fourth amendment, the police did not have probable cause to arrest him after searching the trunk.

The State initially responds that defendant, as a passenger in the vehicle, lacked standing to challenge the constitutionality of the stop of the vehicle. Alternatively, the State, in arguing that the initial stop of the Oldsmobile was constitutional, maintains that the police had probable cause to arrest defendant based on the information known to them prior to the search of the trunk, or, at the very least, the police had articulable suspicion to stop the vehicle for investigatory purposes.

It is well established that a passenger of a vehicle has standing to challenge the stop of the vehicle. (People v. LaGrone (1984), 124 Ill. App. 3d 301, 302-03, 464 N.E.2d 712; People v. Kunath (1981), 99 Ill. App. 3d 201, 203-06, 425 N.E.2d 486; see also People v. Manke (1989), 181 Ill. App. 3d 374, 378-79, 537 N.E.2d 13.) Accordingly, defendant has standing to raise the constitutionality of the initial stop of the vehicle in this case.

The burden of proof, in a motion to suppress evidence, is on the defendant to establish that the search and seizure were unreasonable. (People v. Neal (1985), 109 Ill. 2d 216, 218, 486 N.E.2d 898, 899.) A reviewing court will not reverse the trial court’s finding on a motion to suppress evidence unless the finding is manifestly erroneous. People v. Galvin (1989), 127 Ill. 2d 153, 162, 535 N.E.2d 837.

Although the State argues on appeal that the police had probable cause to arrest defendant prior to stopping the vehicle, we need not reach that issue as we find that the police had articulable suspicion to stop the vehicle. Section 107 — 14 of the Code of Criminal Procedure of 1963 provides that a peace officer may stop a person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, has committed, or is about to commit an offense. (Ill. Rev. Stat. 1987, ch. 38, par. 107 — 14.) This statute codifies the principles established in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. People v. Long (1983), 99 Ill. 2d 219, 228, 457 N.E.2d 1252.

It must be noted that the necessary inquiry in any Terry-type situation is whether the police officer’s conduct was reasonable under the circumstances known to the officer at the time he initiated the stop. (Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883; see also Adams v. Williams (1972), 407 U.S. 143, 148, 32 L. Ed. 2d 612, 618, 92 S. Ct. 1921, 1924; People v. Long (1983), 99 Ill. 2d 219, 227-28, 457 N.E.2d 1252.) To be considered reasonable, an officer’s inferences must be based on more substantial facts than would support a mere hunch. For the police to justify a temporary detention, they must point to specific, articulable facts which, when taken together with natural inferences, make the intrusion reasonable. (People v. Smithers (1980), 83 Ill. 2d 430, 435-36, 415 N.E.2d 327, 331.) Facts and circumstances, which if viewed separately might constitute innocent behavior, may provide reasonable suspicion justifying a Terry stop when considered in their entirety. United States v. Sokolow (1989), 490 U.S __, __, 104 L. Ed. 2d 1, 11-12, 109 S. Ct. 1581, 1586-87.

In the present case, we must consider all of the facts and circumstances known to the officer prior to his stopping the vehicle in which defendant was a passenger, and any reasonable inferences drawn therefrom, in determining the reasonableness of the stop. Such an inquiry necessarily includes the information supplied to Officer Gauer by the anonymous telephone informant.

This court, in a different factual context, recently addressed the propriety of a police officer’s reliance on an informant’s tip in conducting a Terry stop in In re J.J. (1989), 183 Ill. App. 3d 381, 384-85, 539 N.E.2d 764. In In re J.J., we applied the reasoning of the United States Supreme Court in Adams v. Williams (1972), 407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921. In Adams, the Supreme Court, recognizing that informants’ tips vary greatly in their value and reliability, acknowledged that articulable suspicion for a stop may be based not only on an officer’s personal observation but also on information supplied by another person. (Adams, 407 U.S. at 147, 32 L. Ed. 2d at 617, 92 S. Ct. at 1924.) The key determination in deciding whether a stop based on an informant’s tip is reasonable is the reliability of the information. (Adams, 407 U.S. at 147, 32 L. Ed. 2d at 617-18, 92 S. Ct. at 1924.) Where some tips completely lacking in indicia of reliability would warrant either no police response or require further investigation before a stop would be justified, other situations, such as when a victim of a crime seeks immediate police aid and describes his assailant or when a credible informant warns of a specific impending crime, would justify the police making an appropriate response. (Adams, 407 U.S. at 147, 32 L. Ed. 2d at 617-18, 92 S. Ct. at 1924.) The fourth amendment does not require a police officer who lacks the precise level of information necessary to establish probable cause to simply shrug his shoulders and allow a crime to occur or a criminal to escape. Adams, 407 U.S. at 145, 32 L. Ed. 2d at 616, 92 S. Ct. at 1923.

In assessing the reasonableness of the stop in this case, we must necessarily consider the reliability of the information provided by the anonymous telephone caller. While it is true that Officer Gauer possessed certain information regarding the theft of wire and saw defendant and others loading what appeared to be wire in the trunk of an automobile at his home a day after the theft, we do not perceive that information alone to be sufficient to justify Gauer’s stopping of the vehicle. It is the information provided by the telephone caller which significantly contributes to Gauer’s suspicion that certain persons at defendant’s residence were involved in criminal activity. Thus, we first determine the reliability of that information.

Gauer received information from three separate telephone calls, all apparently made by the same person. While there is no direct connection between the informer and defendant, it is reasonable to infer that the informer had personal, or at least inside, information of the activities of the other persons involved. He was able to identify two of the individuals involved; he knew that the wire and other stolen property were stored at defendant’s home; he knew about when it would be moved; and he also knew that defendant had been in jail and had been bonded out. Such detail indicates that the informer had at least some very close connection with or intimate knowledge regarding the imminent sale of wire and other stolen property.

More importantly, however, Officer Gauer did not stop the vehicle based only on the information provided by the informer. Rather, he took steps to corroborate what the informer told him about the wire and other stolen property. He went to the vicinity of where the informer indicated the wire was being stored and observed defendant loading boxes into the trunk of an automobile. One box was open, and the officer observed what appeared to be electrical wire protruding from it. Additionally, one of the three men loaded a wooden stick of electrical wire into the trunk. It is also important to consider that the informer’s last call was at 11:30 a.m,, and indicated that the wire would be moved from its location at defendant’s home on Spencer Street within the next few hours. Officer Gauer observed defendant and his companions moving the wire at approximately 1:55 p.m. Because the officer corroborated many of the details provided by the informer and because the nature of the information provided was such that only someone with knowledge of the criminal activity could have provided it, we find it has the indicia of reliability necessary to provide a basis for Officer Gauer’s articulable suspicion that the persons at defendant’s home were about to transport stolen property.

In assessing the reasonableness of Officer Gauer’s stop of the Oldsmobile, we are not limited to considering, however, only the information provided by the informer. Rather, we must consider all of the facts and circumstances in their entirety in determining whether Gauer had a reasonable suspicion justifying a Terry stop. See Sokolow, 490 U.S. at _, 104 L. Ed. 2d at 11-12, 109 S. Ct. at 1586-87.

In addition to what the informer indicated, that wire and other stolen property were to be sold, Gauer also knew that numerous boxes and one spool of electrical wire had been taken in a recent local burglary. Not only that, but Gauer observed defendant and his companions loading boxes, at least one of which contained electrical wire, and a stick with electrical wire, into the trunk of the Oldsmobile. It ' was reasonable for Gauer to conclude that this wire might be the same wire stolen from the construction site as the theft was just one day previous; the wire was stolen from a location in the same city as defendant’s residence; several boxes of wire were reported stolen; and defendant and the other two persons were observed carrying several boxes, one of which had wire protruding. These facts, although insufficient standing alone to justify stopping the vehicle, when viewed along with the information provided by the telephone tipster and considered with the reasonable inferences drawn therefrom, gave Gauer an articulable suspicion that the persons in the vehicle were involved in criminal activity which justified his stopping the vehicle for investigatory purposes. •

We address next defendant’s contention that Gauer lacked probable cause to arrest him even after the stop and the subsequent search of the Oldsmobile’s trunk. A warrantless arrest is valid only if supported by probable cause. (Ill. Rev. Stat. 1987, ch. 38, par. 107— 2(c); People v. Montgomery (1986), 112 Ill. 2d 517, 525, 494 N.E.2d 475.) Probable cause exists when the totality of the facts and circumstances known to the arresting officer is such that a reasonably prudent person would believe that the suspect is committing or has committed a crime (Montgomery, 112 Ill. 2d at 525, 494 N.E.2d at 477), and it need not be based on evidence sufficient to convict. (People v. Neal (1985), 111 Ill. 2d 180, 193, 489 N.E.2d 845.) Whether probable cause exists is governed by commonsense considerations, and the calculation concerns the probability of criminal activity and not proof beyond a reasonable doubt. (Montgomery, 112 Ill. 2d at 525, 494 N.E.2d at 477-78.) The information relied upon to establish probable cause to arrest, however, must be supported by some indicia of reliability. People v. James (1987), 118 Ill. 2d 214, 222, 514 N.E.2d 998; People v. Tisler (1984), 103 Ill. 2d 226, 237, 469 N.E.2d 147.

If facts supplied by an informant’s tip are essential to a finding of probable cause, the tip must meet standards of reliability before it can be considered in determining probable cause. (Tisler, 103 Ill. 2d at 237, 469 N.E.2d at 153.) Our supreme court has adopted the totality-of-the-circumstances test for probable cause to make a warrantless arrest set forth in Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317, based, in part, on information supplied by an anonymous informer. (Tisler, 103 Ill. 2d at 237-41, 469 N.E.2d at 152-55.) Accordingly, we will apply the Gates approach in determining whether Gauer had probable cause to arrest defendant. This necessarily involves reexamination of the informer’s tips which we discussed in finding articulable circumstances to justify a Terry stop.

The Court in Gates began its analysis by noting that probable cause is a fluid concept depending on the assessment of probabilities in particular factual contexts and cannot be reduced usefully to a neat set of legal rules. (Gates, 462 U.S. at 232, 76 L. Ed. 2d at 544, 103 S. Ct. at 2329.) Informers’ tips, like other evidence available to a police officer, vary greatly in their value and reliability and, as such, should not be assessed by a rigid set of rules. (Gates, 462 U.S. at 232, 76 L. Ed. 2d at 544, 103 S. Ct. at 2329.) Rather, a court should look to various indicia of reliability, in their totality, in assessing the overall reliability of an informer’s tip. Gates, 462 U.S. at 232-34, 76 L. Ed. 2d at 544-45, 103 S. Ct. at 2329-30.

While concluding that an assessment of probable cause should be considered in light of the totality of the circumstances, the Court reiterated the need to consider such factors as the veracity, reliability, and basis of knowledge of the informer, along with any other indicia of reliability in determining the overall reliability of a tip. (Gates, 462 U.S. at 233, 76 L. Ed. 2d at 545, 103 S. Ct. at 2329.) Furthermore, the Gates Court emphasized the importance of corroboration of details of an informant’s tip by independent police work. (Gates, 462 U.S. at 241-45, 76 L. Ed. 2d at 550-52, 103 S. Ct. at 2333-36.) We will, therefore, consider such factors, in their totality, in assessing the reliability of the informer’s tip in this case.

Here, the nature of the information provided by the informer contained numerous details indicative of intimate and future actions of third parties ordinarily not easily predicted. (See Gates, 462 U.S. at 245, 76 L. Ed. 2d at 552, 103 S. Ct. at 2335-36.) The informer indicated that Randy Crest and someone named “Sid” had contacted him in an attempt to sell copper wire to raise money for defendant’s bond, and that the informer had observed about 500 pounds of copper wire coated with black plastic. The informer further stated that Randy Crest was attempting to sell other stolen items stored in the basement of 60 South Spencer Street. The informer also knew that defendant had been arrested and had been bonded out. Additionally, the informer knew about when the wire would be moved from its Spencer Street location. We believe these facts indicate an intimate, possibly firsthand, knowledge of criminal conduct which would not be known or readily ascertainable by the general public. Such intimate knowledge tends to support the reliability of the information and the informant.

We note that defendant argues that the information provided by the informer was not entirely accurate because Randy Crest was not one of the three men observed loading the boxes of wire into the Oldsmobile and because the informer had mentioned a green Ford LTD as a possible vehicle involved, but that no such vehicle was observed at the Spencer Street location. We are unpersuaded by this argument, however, as it is not necessary, in the context of a probable cause determination, that informers be infallible or that their information be perfect. (Gates, 462 U.S. at 245 n.14, 76 L. Ed. 2d at 553 n.14, 103 S. Ct. 2336 n.14.) It is only necessary that the overall content of an informer’s tip be accurate.

Secondly, we emphasize that Gauer did not base his probable cause to arrest defendant entirely on the information provided by the informer. Rather, Gauer took investigative steps in attempting to corroborate the tip. On several occasions he drove by the 60 South Spencer Street location until he observed an Oldsmobile backed into the driveway of that location. He further observed three men, two who were known to him and one being defendant, loading boxes, at least one of which contained wire, into the trunk. He also saw the men place a wooden stick with electrical wire wrapped around it into the trunk. Additionally, he was aware that, as the informer had indicated, the wire was being moved within a couple of hours of his last call.

After completing his observations of the men loading the trunk, Gauer continued his efforts at corroboration by stopping the vehicle and obtaining consent to search the trunk. At that point, he ascertained that the boxes, two of which he had seen defendant carry and place in the trunk, did in fact contain No. 14 T.H.N.N. electrical wire, the type reported to have been taken in the burglary. It was at this point Gauer arrested defendant for possession of stolen property.

Gauer’s investigation, conducted subsequent to the informer’s calls, provided a substantial basis for crediting the information supplied by the caller and reduced the likelihood that the information was given recklessly or prevaricatingly. (See Gates, 462 U.S. at 244-45, 76 L. Ed. 2d at 552, 103 S. Ct. at 2335.) Thus, Gauer’s reliance on the information provided by the caller in developing probable cause to arrest defendant was appropriate under these circumstances.

Gauer was not limited, however, in his assessment of probable cause to the information provided by the telephone tipster. He also knew that numerous boxes and one spool of No. 14 T.H.N.N. electrical wire had been taken in a recent, local burglary. He also observed defendant taking wire from his home and loading it into the Oldsmobile, and he subsequently viewed the boxes of wire in the Oldsmobile which he could readily identify as wire of the same type taken in the burglary.

This additional information, combined with that provided by the informer, clearly gave Gauer probable cause to arrest defendant. Such facts and circumstances need not be sufficient to convict; rather, they need only establish the probability of criminal conduct. (Montgomery, 112 Ill. 2d at 525, 494 N.E.2d at 477-78.) It was reasonable based on the facts and circumstances known to Gauer, and the reasonable infer- . enees to be drawn therefrom, that defendant was involved in the theft of the wire. The warrantless arrest of defendant at the scene of the stop following the search of the automobile trunk did not violate the fourth amendment.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

LINDBERG and McLAREN, JJ., concur.


text:
    LILLIAN BURRGESS KOSROW, Personal Adm’r of the Estate of Mary Ann Hoffman, Deceased, et al., Plaintiffs-Appellees, v. RONALD S. ACKER, Defendant (Jeffrey C. Smith, Defendant-Appellant).
    Second District
    No. 2 — 88—1011
    Opinion filed August 30, 1989.
    Rehearing denied October 26, 1989.

      Myron J. Hall, of Myron J. Hall, Ltd., of Waukegan, for appellant.
    Robert J. Long, Mark B. Belokon, and Marcia A. Korducki, all of Law Offices of Robert J. Long, Ltd., of Antioch, and James Borosso, Richard D. Heytow, and Peter Alfieri, all of Crystal & Heytow, of Chicago, for appellee Carl E. Robinson.
    Robert J. Long, Mark B. Belokon, and Marcia A. Korducki, all of Law Offices of Robert J. Long, Ltd., of Antioch, and Robert J. Schuckit and Robin R. Lunn, both of Keck, Mahin & Cate, of Chicago, for appellee Richard J. Byrne.
    Robert J. Long, Mark B. Belokon, and Marcia A. Korducki, all of Law Offices of Robert J. Long, Ltd., of Antioch, for appellee Lillian Burrgess Kosrow.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiffs, administrators of the estates of Mary Hoffman, Beverly Robinson, and Colleen Byrne, brought suit against Ronald Acker and Jeffrey Smith. Decedents were killed in an auto accident when their car was hit by a Cadillac owned by Smith and driven by Acker. Acker, who was the only occupant of the Cadillac at the time of the accident, admitted liability and does not appeal.

Plaintiffs sued Smith for negligent entrustment of his automobile. At the close of plaintiffs’ case, Smith moved for a directed verdict. This was denied, as was Smith’s motion for directed verdict at the close of all the evidence. The jury found Smith liable for negligent entrustment and awarded Mary Hoffman’s estate $1,005,481; Beverly Robinson’s estate, $504,429; and Colleen Byrne’s estate, $535,233. In a post-trial motion, Smith moved to vacate the denial of his motion for directed verdict and grant judgment in his favor notwithstanding the verdict. Smith appeals the denial of this motion, raising three issues: (1) whether the jury’s verdict was against the manifest weight of the evidence; (2) whether the court erred in allowing testimony of grief and sorrow of the next of kin; and (3) whether the court erred in instructing the jury as to the elements of damage. We address only appellant’s first issue as we find, for the reasons stated below, that the jury verdict cannot stand.

The evidence relevant to this issue includes the following.

Defendant, Jeffrey Smith, testified as follows: At the time of the accident, he was 16. His father had purchased a Cadillac for him in June 1984. He had two sets of keys to the car. No other family members had a set. He kept one set in a locked box in his bedroom closet, and he usually kept the other set with him.

On March 1, he was at home from 3:30 p.m. to 7 p.m. At 7 p.m. he went out with some friends. He did not drive the Cadillac. Instead, he took his father’s Bronco because it had a cassette player. He left his Cadillac keys on his bedroom dresser that night, according to a statement he later made to a police officer. At trial he stated he left his keys in an area in the dresser that was five inches high and deep, not a flat surface of a top of a dresser. He did not talk to Acker at all on March 1. Later that night, during the early morning hours of March 2 while returning home, he came to traffic stopped on Route 176. He saw lights indicating an accident, but he did not see any damaged vehicles. He turned around and took a different route home. Arriving home, he parked the Bronco about 25 feet from where the Cadillac had been parked. He went inside and went to bed. He did not see the Cadillac when he parked the Bronco, but he did not recall looking for it when he came home.

The next morning he was told that Acker had been in an accident with his car. He rode his bicycle to work. After he returned home from work at 4 p.m., he went with his father, at his father’s request, to report the Cadillac stolen. He did not want Acker prosecuted, but he wanted a public record that the car was reported stolen.

Defendant testified that Acker, his stepbrother, lived in his family’s house from November 1984 to March 1985. The family house had two bedrooms upstairs and one bedroom downstairs. There was also a room upstairs that had previously been a bedroom and was now a closet. He shared the downstairs bedroom with his brother, Robert, until Robert moved out sometime before March 1, 1985. Defendant did not share his bedroom with Acker. He said Acker slept on the couch in the living room.

Defendant said there were no times when he let Acker drive his car. Acker asked for the car a number of times, but he refused him permission. Specifically, he did not let Acker drive them to a Union 76 station. Defendant did drive Acker places on a number of occasions. He knew Acker’s license had been suspended for driving under the influence, but he did not recall being told of a family policy to not allow Acker use of the family cars.

Ron Acker testified as follows: He does not recall the accident or how he came into possession of the Cadillac. On March 1, he was at the Smith house from 5 to 7 p.m. He went out at 7 p.m. and came back at about 8:30 p.m. He went back out at about 9:30 p.m. He vaguely remembers pulling the Cadillac out of the driveway. He does not recall asking defendant for his keys, nor did he know where defendant kept his keys.

Acker knew defendant did not want anyone to drive his car. Though defendant never explicitly told him not to drive the Cadillac, he implied so. Acker had driven the car once around the block in January 1985 in connection with repairs he made at defendant’s request. Also,'in June 1984, he started the engine after he worked on the car, but he did not remember driving it at this time. He had been a passenger in the car with defendant at least 10 times, but he never drove. He did not recall driving defendant to a Union 76 station. Before the accident he had been allowed to drive Robert Smith’s Bronco and Christine Smith’s Lincoln Continental when he asked their permission, but he had not driven either car for several months prior to the accident. He stated that no one in the house ever told him he could not drive their car.

Acker testified he slept on the living room couch 50% to 70% of the time he spent in the Smith house. The other times he slept in defendant’s bedroom and on the floor. He did not have use of defendant’s dresser, though he had use of a dresser in the laundry room in the basement and one upstairs.

Robert Smith, defendant’s father, testified as follows: It was common family knowledge that Acker’s license had been suspended for driving under the influence of alcohol. He set a family policy, which he communicated to defendant, that Acker was not allowed to drive any of the family’s vehicles. On March 1, he did not give defendant the keys to the Bronco. He believed defendant took the Lincoln Continental, but he did not see him leave that night. He accompanied his son to the police station to report the car stolen. He heard defendant tell the officer he believed Acker went into his room and took the keys from the top of his dresser, his room meaning defendant’s. Acker rarely slept in defendant’s bedroom. He usually slept on the living room couch.

Christine Smith testified by a video-taped evidence deposition as follows: Acker slept on the couch or the floor in February and March 1985. He did not have his own dresser. She had let him use her car when he asked for permission until she learned he had problems with his license. Then she refused him permission. Defendant knew of Acker’s license problem and knew he was not to let Acker drive his car. She added that defendant never let anyone drive his car to begin with. She never saw Acker drive the Cadillac. She stated that Acker was frequently drunk during the six months prior to the accident. He had asked her permission to use the car when he was drunk and she refused.

Sergeant Arquilla testified that he took the theft complaint made by defendant and his father. He recalled that defendant told him Acker must have gone into his room and taken the keys off his dresser. Defendant said it was in Ron’s room on his dresser. On cross-examination, Arquilla stated that it was merely his interpretation from defendant’s statement that defendant was referring to Ron’s bedroom rather than his own.

Officer Thomas Larkin testified that within six months of the accident he saw Acker driving the Cadillac into a Union 76 Station with defendant as a passenger.

In his first issue on appeal, defendant asks this court to enter judgment for him because the verdict is against the manifest weight of the evidence. We point out, however, that a court will not direct a verdict upon a finding that a jury’s verdict is against the manifest weight of the evidence. Rather, this finding results only in a new trial. (See Mizowek v. De Franco (1976), 64 Ill. 2d 303, 310, citing Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 509 (which held that it had “rather carefully preserved the distinction between the evidentiary situation which will require a new trial (verdict against the manifest weight of the evidence (Lau v. West Towns Bus Co., 16 Ill. 2d 442, 451, cert. den. 361 U.S. 127), and that justifying direction of a verdict or judgment n.o.v.”)).) Under Pedrick, a verdict will be directed only where all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick, 37 Ill. 2d at 510.) Thus, we will consider whether the trial court should have granted judgment n.o.v. under Pedrick.

A person may be liable for negligent entrustment of an automobile where that person entrusts an automobile to one whose incompetency, inexperience or recklessness is known or should have been known by the owner or entrustor of the automobile. (Giers v. Anten (1978), 68 Ill. App. 3d 535, 538; Bensman v. Reed (1939), 299 Ill. App. 531.) The jury was instructed to find defendant liable if defendant gave Acker either express or implied permission at any time to use his auto on March 2. We note that we have found no case law on negligent entrustment of an automobile in Illinois which specifically defines the act of entrustment as the giving of express or implied permission. The cases cited in appellant’s brief (Standard Mutual Insurance Co. v. Sentry Insurance of Illinois, Inc. (1986), 146 Ill. App. 3d 905; MFA Insurance Cos. v. Mendenhall (1980), 205 Neb. 430, 288 N.W.2d 270) that discuss express and implied permission do not involve negligent entrustment. Rather, these cases concern insurance contracts where the operative clause in the contract uses the word “permission.” Thus, these cases are not necessarily controlling here. We believe, nonetheless, that defining entrustment as giving express or implied permission is proper. In Teter v. Clemens (1986), 112 Ill. 2d 252, 257, a case involving negligent entrustment of a gun to a young child, the supreme court cited the Restatement (Second) of Torts §308 (1965), which states:

“Permitting Improper Persons to Use Things or Engage in Activities
It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.”

As cited in Teter, the Restatement (Second) uses the word “permit” to describe the negligent act.

It has been held that permission may be implied. (Lumbermens Mutual Casualty Co. v. Poths (1968), 104 Ill. App. 2d 80; Standard Mutual Insurance Co., 146 Ill. App. 3d 905.) “Implied permission exists where there is an inference or circumstances arising out of a course of conduct or a relationship between the parties whereby there is mutual acquiescence or lack of objection under circumstances that generally would indicate permission.” Standard Mutual Insurance Co., 146 Ill. App. 3d at 909; Lumbermens Mutual Casualty Co., 104 Ill. App. 2d at 89.

We find that in this case the evidence completely fails to establish either express or implied permission. Viewed in a light most favorable to the plaintiff, the evidence shows the following:

(1) a police officer saw Acker driving the car with defendant as a passenger within six months before the accident;
(2) Acker drove the car once around the block in connection with repairs he made at defendant’s request in January 1985;
(3) Acker made repairs to the car in June 1984, and he started the engine;
(4) Acker had been a passenger in defendant’s car with defendant on several occasions;
(5) defendant went out that night driving his father’s vehicle instead of his own car;
(6) Sergeant Arquilla stated defendant said he left his keys in Ron’s room on his dresser;
(7) defendant did not notice that his car was missing when he returned home that night;
(8) defendant reported the car stolen after his father directed him to, but defendant did not want to see Acker prosecuted.

These facts do not establish that defendant gave Acker either express or implied permission to use his car on the day of the accident. Plaintiffs argue that evidence that Acker drove defendant’s car on two prior occasions indicates that he would have had permission on the day of the accident. Negligence may be proved with circumstantial evidence provided that the inferences drawn from the evidence are reasonable. (Laflin v. Estate of Mills (1977), 53 Ill. App. 3d 29, 32.) An inference of negligence cannot be established on inferences which are merely speculative. (Laflin, 53 Ill. App. 3d at 32.) Even assuming that Acker drove the car on these instances with defendant’s permission, we do not believe this supports a reasonable inference that Acker had permission on the day of the accident.

This evidence merely shows two isolated instances where Acker drove defendant’s car. One instance was for the limited purpose of checking repair work done by Acker. Little is known about the other instance, except that a police officer saw Acker driving the car with defendant in the passenger seat. It cannot be reasonably inferred from these two isolated instances that defendant expressly gave Acker permission on the day of the accident. Nor can it be reasonably inferred that these two instances show mutual acquiescence or a lack of objection under circumstances that would indicate that Acker had implied permission. There is no other evidence which establishes that these isolated instances were reflective of a regular practice in which defendant allowed Acker to use his car. Furthermore, there is overwhelming evidence to the contrary. Acker testified that he knew defendant did not want him driving his car. Defendant testified that he did not allow Acker to use his car, and defendant’s stepmother testified that defendant did not let anyone use his car.

Plaintiffs also contend there is sufficient evidence to show that defendant gave permission to Acker on March 1 by leaving his keys for Acker. We disagree. Defendant testified that he left his keys on his bedroom dresser. Acker testified that though he sometimes slept in defendant’s bedroom, he had no access to the dresser and did not feel he could take anything from the dresser. We do not believe that defendant’s act of leaving his keys on his private bedroom dresser is sufficient to establish express or implied permission.

Plaintiffs contend that Sergeant Arquilla’s testimony establishes that defendant left his keys in Acker’s bedroom on Acker’s dresser. We note that if the facts established that Acker had his own bedroom and defendant left the keys on Acker’s dresser, then we would find a strong case for drawing an inference of permission. We do not believe, however, that Sergeant Arquilla’s testimony establishes these facts.

On direct examination, Sergeant Arquilla gave the following testimony regarding defendant’s explanation of how Acker acquired possession of the car keys: “He said as far as he could assume at that time, that when Ron Acker was left at home, he went into his bedroom and had taken the keys from where they were on top of the dresser.”

When asked if defendant made an indication as to whose room and whose dresser, Arquilla responded: “He did. He said it was in Ron’s room on his dresser.” On cross-examination, however, Sergeant Arquilla testified he did not write in quotes what defendant told him, and what he wrote in his report was an impression of what defendant told him. He was merely giving his own interpretation of defendant’s words when he said defendant was referring to Ron’s bedroom rather than his own. Thus, by Arquilla’s admission, defendant did not make the statement that the keys were in Ron’s room on his dresser. Arquilla’s testimony was mere speculation.

We add that the evidence established that Acker did not have his own bedroom with a dresser. Acker testified he slept on the living room couch 50% to 70% of the time. The other times he slept on the floor or in defendant’s bedroom, where he did not have use of defendant’s dresser. Acker did testify that he had use of two other dressers in the house, one in the basement laundry room and one upstairs, but the record does not establish that Acker had a bedroom with a dresser.

The evidence taken in the light most favorable to the plaintiffs fails to establish that defendant negligently entrusted the car to Acker. The evidence so overwhelmingly favors defendant that we find the verdict cannot stand. Defendant’s motion for a directed verdict and judgment n.o.v. should have been granted. Therefore, we reverse without remandment.

Reversed.

INGLIS and NASH, JJ., concur.


author: JUSTICE McLAREN

text:
    ROCKFORD MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. JESSE SHATTUCK et al., Defendants-Appellants.
    Second District
    No. 2 — 89—0042
    Opinion filed September 28, 1989.
    Rehearing denied October 27, 1989.

      Brassfield, Cowan & Howard, of Rockford (Eugene E. Brassfield, of counsel), for appellants.
    Brittain, Ketcham, Strass, Terlizzi, Flanagan, Weir & Johnson, P.C., of Elgin, and Peter T. Sullivan III, of Sreenan, Cain & Sullivan, P.C., of Rockford (Lewis W. Terlizzi and Daniel E. Compton, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendants, Jesse Shattuck, individually, and Jesse Shattuck, as administrator of the estate of Kimberly Shattuck, deceased, appeal from the order of the circuit court of Winnebago County. The court entered judgment in favor of plaintiff, Rockford Mutual Insurance Company (Rockford), on its complaint for declaratory relief. The court found that Rockford was not liable under its policy of insurance. We affirm.

On March 30, 1987, Paul Bouchard was convicted of the murder of Kimberly Shattuck. Bouchard was found guilty but mentally ill. Subsequently, Jesse Shattuck, husband of the decedent, filed a complaint pursuant to the Wrongful Death Act (Ill. Rev. Stat. 1987, ch. 70, pars. 1, 2) and the Survival Act (Ill. Rev. Stat. 1987, ch. 110½, par. 27 — 6). On May 23, 1988, judgment was entered in favor of Jesse Shattuck, administrator of the estate of Kimberly Shattuck, and against Paul Bouchard in the amount of $451,456.60. Rockford filed a complaint for declaratory judgment seeking a finding that it was not obligated to pay any portion of the judgment.

It was stipulated that Bouchard was insured under a homeowner’s insurance policy issued by Rockford. The policy in question contained the following language:

“We will pay on behalf of an Insured for damages resulting from bodily injury or property damage caused by an occurrence, if the Insured is legally obligated.”
“Occurrence in Section II — Liability Coverage, means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage.”
“Liability Medical Payments and Moral Obligation (Coverages W, Y and Z) do not apply to bodily injury or property damage:
1. caused intentionally [emphasis added] by or at the direction of an Insured.”

At trial, Rockford offered into evidence a certificate of conviction establishing that Bouchard had been found guilty of murder and, also, that he was mentally ill at the time of the offense. It was stipulated that Bouchard was represented by counsel in the criminal case and that Bouchard presented a defense of insanity. Rockford rested after presentation of this evidence. Defendants presented testimony from three witnesses: Dr. Anthony D’Souza, a psychiatrist; Dr. Frank Cushing, a clinical psychologist; and Paul Bouchard. Both Dr. D’Souza and Dr. Cushing had testified at Bouchard’s criminal trial in support of his insanity defense. They were of the opinion that Bouchard suffered from paranoid schizophrenia. Each doctor testified that Bouchard’s mental disease rendered him incapable of appreciating or understanding his conduct at the time of the stabbing. Additionally, they both opined that Bouchard could not have formed the intent to bodily injure or kill Kimberly Shattuck due to this mental disease.

Bouchard also testified at trial. He testified that he heard “little voices” and that these voices told him to kill. He also provided a rather detailed account of the events of September 3, 1986. Bouchard stated that he heard the voices telling him to kill Kimberly Shattuck while at school. When he got home from school, he took a survival knife out of a drawer and placed it in a knapsack. He testified that he took the knife because he wanted to kill. Bouchard then phoned his employer to inform him that he was sick and would not be going to work that afternoon. Bouchard testified that he got out of work so he could go out and kill. He then went to the Shattuck residence, entered through an unlocked door and wandered throughout the house. There was no one home at the time. Bouchard heard a car enter the driveway, and he hid in the bathroom. He heard Kimberly and Tracy Shattuck talking in the house. When Tracy left, and Kimberly entered the bedroom, Bouchard jumped out of the bathroom and stabbed Kimberly. Bouchard testified that he only remembered stabbing Kimberly three times. In fact, he stabbed her more than 50 times. He then told Kimberly he was sorry. He did this because he realized what he had done.

Bouchard then fled and encountered a woman in an alley behind a Kwik-Buy store. He told the woman that he had been in a fight and asked for a towel to clean the blood from his hands, arms and face. He then entered the store, went into the rest room and washed up. He took off the clothes he was wearing and discarded them along with the knife in a wastebasket. He put on a pair of jeans that he had in the knapsack and left the store.

When he returned home, he changed clothes and went to work. At work he encountered Tracy Shattuck, also an employee. He exchanged greetings with her and may have told her that he had been to her house. He stayed at work briefly, told the manager that he was sick and returned home. He placed his bloodstained shoes in the basement and took a shower. Later that evening, the police escorted Bouchard to the police station for questioning. He did not admit involvement in the crime.

The court, sitting without a jury, found that Bouchard’s conviction of murder was prima facie, but not conclusive, evidence of the facts upon which the conviction was based. The court, after considering all the evidence, found that defendants’ evidence had not rebutted plaintiff’s prima facie case. The court, using a subjective test, found that Bouchard was not insane at the time of the offense but mentally ill. Therefore, he was able to appreciate the wrongful nature of his acts and conform his conduct to the requirements of the law. The court concluded that the murder of Kimberly Shattuck was an intentional act and, therefore, Rockford was not liable under its policy of insurance. Defendants appeal these findings.

A court’s findings in a bench trial will not be disturbed unless they are manifestly against the weight of the evidence. (Greene v. City of Chicago (1978), 73 Ill. 2d 100, 110; Merchants National Bank v. The Old Second National Bank (1987), 164 Ill. App. 3d 11, 13.) The court below provided this court with clear and concise statements of its findings. For the reasons set forth below, we find that the court’s findings are not against the manifest weight of the evidence.

Proof of a criminal conviction is admissible in a civil case as prima facie evidence of the facts upon which the conviction was based. (Thornton v. Paul (1978), 74 Ill. 2d 132, 151; Aetna Casualty & Surety Co. v. Dichtl (1979), 78 Ill. App. 3d 970, 978.) The statute under which Bouchard was convicted states:

“A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another ***.” (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a)(1), (a)(2).)

Intent is defined by statute as follows:

“A person intends, or acts intentionally or with intent, to accomplish a result or engage in conduct described by the statute defining the offense, when his conscious objective or purpose is to accomplish that result or engage in that conduct.” (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 4.)

Therefore, by introducing the certificate of conviction, plaintiff has established a prima facie case that Bouchard’s acts were intentional.

Defendants contend that the certificate of conviction entered into evidence amounted to a rebuttable presumption that Bouchard’s acts were intentional. Defendants assert that once they presented the testimony of Dr. D’Souza, Dr. Cushing, and Bouchard, this presumption was rebutted and disappeared. Thus, the only evidence left for the court to consider was the uncontradicted testimony of the witnesses who testified that Bouchard could not have intended his actions.

The flaw in defendants’ argument is that they equate a prima facie case with a rebuttable presumption. Defendants cite no authority for this contention. A rebuttable presumption may create a prima facie case as to a particular issue in question. (Diederich v. Walters (1976), 65 Ill. 2d 95, 100.)

“ ‘A presumption is not evidence and cannot be treated as evidence. *** They are indulged in only to supply the place of facts.’ ” Diederich, 65 Ill. 2d at 102, quoting Coal Creek Drainage & Levee District v. Sanitary District (1929), 336 Ill. 11, 31.

Contrary to defendants’ contentions, the fact that defendants placed into evidence testimony that rebutted plaintiff’s prima facie case does not cause the prima facie case to disappear as it would a rebuttable presumption. It simply raises a question of fact to be resolved by the trier of fact. Even when a presumption does arise and is rebutted, a factual question remains. (See Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 456.) The trial court correctly noted that the criminal conviction established a prima facie case that Bouchard’s actions were intentional.

This prima facie evidence is clearly sufficient to support the finding that Bouchard acted intentionally. Additionally, Bouchard testified that he excused himself from work so that he could go out and kill Kimberly Shattuck. Bouchard testified that his purpose in going to the Shattuck residence was to kill. He testified to the steps he took prior to the stabbing and his actions after the incident. He discarded his clothes and the murder weapon to avoid detection. This testimony and the prima facie case established by the certificate of conviction form a sufficient basis upon which the court could have concluded that Bouchard’s conscious objective or purpose was to stab and kill Kimberly Shattuck.

The defendants recount in detail the expert testimony of Dr. D’Souza and Dr. Cushing. Both of these experts stated the opinion that Bouchard could not have formed the intent to stab Kimberly Shattuck. Therefore, defendants conclude that the court could not find that Bouchard acted intentionally. A trier of fact, in this case the court, is not required to accept the ultimate opinion of an expert. (People v. Palmer (1985), 139 Ill. App. 3d 966, 974; People v. Ware (1980), 88 Ill. App. 3d 115, 119.) The court found that the testimonial evidence presented by defendants did not overcome plaintiff’s prima facie case that Bouchard acted intentionally. The court, correctly using a subjective test (see Dichtl, 78 Ill. App. 3d at 976), found that Bouchard acted intentionally. This decision was clearly not against the manifest weight of the evidence. Therefore, the exclusionary clause in the insurance policy is effective, and the judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

UNVERZAGT, P.J., and LINDBERG, J., concur.