author: JUSTICE BUCKLEY JUSTICE CAMPBELL,

text:
    CLIFFORD LAUNIUS, Plaintiff-Appellant, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF DES PLAINES et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—89—2577
    Opinion filed March 18, 1991.
    Rehearing denied May 8, 1991.

      CAMPBELL, J., dissenting.
    Stanley H. Jakala, of Berwyn, for appellant.
    Richard A. Marten, of Chicago, for appellees Board of Fire and Police Commissioners of the City of Des Plaines, A.C. Wilson, Herman Herzog, and William J. Connolly.
    Klein, Thorpe & Jenkin, Ltd., of Chicago (Patrick A. Lucansky, of counsel), for appellee Joseph Kozenczak.
   JUSTICE BUCKLEY

delivered the opinion of the court:

This action on administrative review arises from charges brought by defendant Joseph Kozenczak, chief of police of the City of Des Plaines, against Clifford Launius (plaintiff), a police officer of the Des Plaines police department (the department), for his conduct in leaving his assigned post on August 14, 1987. Following a hearing before defendant the Board of Fire and Police Commissioners of the City of Des Plaines (the Board), the Board found that plaintiff had violated various department rules and regulations and discharged plaintiff from service. On appeal from the circuit court’s order affirming the Board’s decision, plaintiff contends that he did not receive a fair and impartial hearing before the Board, that the Board’s findings are against the manifest weight of the evidence, and that the sanction of discharge is arbitrary, capricious and unreasonable.

In the early morning hours of August 14, 1987, plaintiff left his wife and two children, ages eight months and five years, at their townhouse in Wheeling, Illinois, and drove to the police station to begin the 7 a.m. to 3 p.m. second watch. He was aware en route to the station that an excessive amount of rain had fallen overnight and that a number of roadways were impassible due to standing water. On his 6:45 a.m. arrival, plaintiff was assigned to the complaint desk and switchboard, where he was required to transfer to the dispatcher telephone calls from citizens requesting information and assistance.

Between 7:30 and 7:45 a.m., officers assigned to the desk and those on the street were advised of the implementation of the city’s emergency traffic plan, which requires traffic accident victims to report accidents at the police station. At 8:25 a.m., the mayor ordered the chief of police to the emergency command center, a coordinating center for department heads.

At approximately 7:30 a.m., plaintiff, upon noticing the heavy rainfall, telephoned his wife and requested that she check their basement for water. His wife reported no water in the basement, but stated that the lake across the street had overflowed its banks and flooded the street. Between 8 a.m. and 8:15 a.m., plaintiff’s wife telephoned plaintiff to inform him that water was at that time seeping into the basement and that the lake’s overflow had progressed to the front lawn and garage. Plaintiff again contacted his wife between 9 a.m. and 9:10 a.m., at which time his wife excitedly reported the continuance of the spread of water toward the house and the continuance of water accumulation in the basement.

Plaintiff then informed Lieutenant Ronald K. Diehl that flooding was becoming a problem at his home and that, as a result, he might have to leave. Diehl refused to give plaintiff permission to leave. When plaintiff approached Diehl a second time, around 9:25 a.m., Diehl again denied plaintiff’s request to leave. Plaintiff replied that his home, wife, and children were more important than “this place,” and then stated that he would wait awhile.

At approximately 9:45 a.m., when plaintiff telephoned his wife, she stated in a hysterical voice that water was at the doorstep and that water was pouring in through the window wells. Between 9:45 a.m. and 10 a.m., plaintiff changed from his uniform into civilian clothes and left the police department without receiving permission to do so.

At the time of plaintiff’s departure, five other police officers, including two sergeants and Lieutenant Diehl, were stationed at the desk area where the three-line switchboard was located. Plaintiff was observed by the chief of police, Diehl and Captain Clark as he left the station and heard them mention his name in a conversation amongst themselves. Plaintiff’s position was replaced within a half an hour from his departure, and no incoming telephone calls were left unanswered.

The evidence at the hearing conflicted regarding the details surrounding plaintiff’s departure. Plaintiff testified that, when he first approached Diehl regarding the problem, Diehl stated that his wife should “start bailing.” Diehl denied making such a remark. Plaintiff also stated that Diehl did not respond when he spoke with him a third time and requested that he speak to the chief of police on his behalf. Diehl denied speaking with plaintiff following the second conversation.

At the hearing, Diehl described the situation at the department the morning of plaintiff’s departure. The department was taking incoming telephone calls, but could not make any outgoing calls. The officers were barely able to keep up with the flood-related inquiries. No squad cars were available to answer calls, and officers could not respond to all the power and alarms going off in the city. Because they could not call in additional manpower, officers on the street drove to the homes of officers living in the city to tell them to report to the station. The two sergeants manning the desk area at the time described the situation as “very hectic” and “very busy.”

When plaintiff arrived at the entrance to his subdivision after the 45-minute, eight-mile drive to his townhouse development, he could not proceed farther. Although the rain and the spread of water had ceased by this time, plaintiff had to walk the quarter mile to his home in water levels he estimated as ranging from ankle depth to chest high. When plaintiff reached his home, he first checked his family’s safety, then checked his basement, which sustained minimal damage due to the four to six inches of water, and shortly after 11 a.m. checked on his neighbors.

Witnesses at the hearing further described the conditions at the townhouse development that day. Plaintiffs wife, who was five feet 2 inches in height, estimated the water in the street outside her home to be waist high at the time she spoke to plaintiff that morning. She testified that cars were unable to enter or exit the development until the next day. Plaintiff’s neighbor stated that the water level, estimated to be 2V2 to 3 feet high in the street at 9 a.m., did not subside until late afternoon. Plaintiff estimated that the water level on the street near his. townhouse, as depicted in photographs taken by him sometime after 2 p.m., varied from one foot to two feet.

Plaintiff spent the remainder of the afternoon until dusk filling and hauling sandbags around his and his neighbors’ homes because more rain was expected and a flash-flood warning was in effect until 2 p.m. Plaintiff could not make outgoing calls from 11 a.m. until the early evening. At approximately 9:30 p.m., Officer Timothy Veit telephoned plaintiff at his home to inform him of the 12-hour shifts at the station. Plaintiff telephoned the watch commander, Lieutenant Storm, at 9:50 p.m. to advise him of his availability for duty. Storm told plaintiff that plaintiff was put on emergency suspension with pay.

At the hearing, the parties presented evidence regarding the existence of emergency conditions and plaintiff’s knowledge of such at the time of his departure. Plaintiff testified that he left a non-emergency switchboard and that he did not receive any emergency calls on that date. He was never informed of the existence of an emergency and was not informed of 12-hour shifts, which would indicate emergency conditions, until Veit’s telephone call at 9:30 p.m. Plaintiff was aware that, sometime late in the afternoon of August 14, an emergency command center for the Wheeling police department and public works department was established at the clubhouse near his townhouse. In plaintiff’s opinion, there was no emergency at the time he left the police station.

Sergeant Neal explained that the switchboard, not the area, is classified as “non-emergency” because emergency calls are generally taken in another area, although emergency calls quite often come into the switchboard. Diehl testified that the city was in a state of emergency on the morning of August 14, but admitted that a formal declaration of emergency was never announced and that he never informed plaintiff of the existence of a state of emergency. The chief of police testified that he gave the order to implement the 12-hour shifts, but it was not implemented until Captain Sturlini’s arrival at the station at approximately 10:30 or 11 a.m.

At the hearing, the Board also heard charges against plaintiff stemming from a June 17, 1987, incident with a motorist. At approximately 6 a.m. on that morning, plaintiff stopped a car for driving in excess of the speed limit. Louis Sheffield, the driver of the car, inquired into plaintiff’s purpose for stopping the car. Plaintiff did not respond, but instead requested Sheffield’s driver’s license. Plaintiff then informed Sheffield he was going 61 miles per hour in a 40-mile-per-hour zone and told him to return to his car.

When Sheffield leaned against his car, plaintiff ordered him inside his vehicle over the public address system. On plaintiff’s return to the car, Sheffield leaned out of his door and stated that plaintiff had a bad attitude. Sheffield testified that plaintiff began to get “hyper,” agitated and excited. Sheffield said, “[F]orget it, give me the fuckin’ ticket,” and threw the ticket on the dashboard. Sheffield testified that he was agitated because of plaintiff’s tone of voice and plaintiff’s failure to listen to his reasons for speeding.

The testimony of plaintiff and Sheffield conflicted at the hearing regarding the physical contact made thereafter. Plaintiff testified that Sheffield struck plaintiff’s hand when he handed him the ticket. He responded by grabbing Sheffield’s hand, turning it over, and extending it out. He then used his right hand to push against Sheffield’s left shoulder to prevent him from opening the door.

Sheffield and Billy Clifford, the passenger in the car, immediately following the incident proceeded to the police station and signed a complaint against plaintiff;

When plaintiff arrived at the station later, he inquired of Lieutenant Diehl whether “the beef had come in yet.” Sergeant Neal testified that he heard plaintiff state, upon being informed that the complaint had been filed, “Smartass, I should have broke his arm.” Neal prepared a written memorandum dated June 18, 1987, reflecting the remark. Plaintiff denied that he said “[S]martass” and explained that the latter comment was just an off-the-cuff remark to a fellow officer.

On appeal, we first address plaintiff’s contention that he was denied a fair and impartial hearing. Plaintiff argues that, despite admonishments given by the Board’s attorney, the Board was prejudiced by outside matters. Plaintiff asserts that Chairperson Wilson’s reported comments in a local newspaper article, “[i]t’s very difficult to try and not to be prejudiced when everybody and their brother has an opinion,” demonstrates the insufficiency of the admonishments.

Without a showing to the contrary, State administrators are assumed to be capable of judging a particular controversy fairly on the basis of its own circumstances. (Collura v. Board, of Police Commissioners (1986), 113 Ill. 2d 361, 370, 498 N.E.2d 1148, 1152.) The required showing to overcome the presumption of administrative regularity is set forth in Citizens For a Better Environment v. Pollution Control Board (1987), 152 Ill. App. 3d 105, 111-12, 504 N.E.2d 166, 171. Plaintiff must show by clear and convincing evidence “that the official has an unalterably closed mind in matters critical to the disposition of the proceeding.”

Plaintiff has not demonstrated by clear and convincing evidence that Wilson had an unalterably closed mind. The unsubstantiated hearsay comments did not state that Wilson himself found it difficult not to be prejudiced, and the same article quotes Wilson’s response to people who try to “bend his ear” as “we can’t listen.” There being no showing to the contrary, we cannot say that plaintiff was denied a fair and impartial hearing.

Plaintiff next argues that the findings of the Board are against the manifest weight of the evidence. Our role on administrative review of an agency’s decision to discharge a public employee is limited to, first, determining whether the agency’s finding of guilt is contrary to the manifest weight of the evidence, and, second, to determine if the findings of fact provide a sufficient basis for the agency’s conclusion that cause for discharge is warranted. Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101, 105, 449 N.E.2d 115, 117; Bultas v. Board of Fire & Police Commissioners (1988), 171 Ill. App. 3d 189, 193, 524 N.E.2d 1172, 1174.

Review under the first inquiry requires a court to consider the agency’s findings of fact to be prima facie true and correct, although the court has a duty to examine the evidence in an impartial manner and to set aside findings unsupported in fact or unsupported by substantial evidence in the record. (Dugan’s Bistro, Inc. v. Daley (1977), 56 Ill. App. 3d 463, 467, 371 N.E.2d 1116, 1119.) The Board in the case at bar found plaintiff violated the following rules and regulations as a result of his conduct on August 14, 1987:

“9. *** Rule 310.02 of the Rules and Regulations entitled ‘Unbecoming Conduct,’ in that having been denied permission to leave his assigned post and go home *** [plaintiff] did state words to the effect that his family was more important than his job. [Plaintiff] then left his assigned post and [sic] the Des Plaines Police Station. *** [Plaintiff] did not return to duty on August 14, 1987 and was out of contact with the Police Department for approximately 12 hours.
10. *** Rule 310.30 of the Rules and Regulations entitled ‘Performance of duty,’ in that [plaintiff] failed and refused to perform his duties as a police officer for the City of Des Plaines when he left the City three hours after his eight-hour shift began, in defiance of his superior officer[’s] *** order denying [his] request to go home.
11. *** Rule 310.16 of the Rules and Regulations entitled ‘Duty Responsibilities, ’ in that [plaintiff] failed to respond to his superior officer's] order denying [plaintiff’s] request to go home *** [and] remaining out of contact with the Police Department and, therefore, did not subject himself to duty.
***
13. *** Rule 320.30 of the Rules and Regulations entitled ‘Relief,’ in that on that date, [plaintiff] failed to remain at this assigned post and on duty until he was properly relieved by another member of the Police Department or was dismissed by competent authority.
14. *** Rule 320.50 of the Rules and Regulations entitled ‘Absence from Duty,’ in that *** [plaintiff] failed to appear for duty from approximately 10:00 a.m., the time he left the Des Plaines police station without permission and in defiance of Lt. Diehl’s order, to 3:00 p.m., the time his duty shift ended.
* * *
17. *** Rule 310.24 of the Rules and Regulations entitled ‘Insubordination, ’ in that [plaintiff], while on duty and after receiving *** his superior officer’s lawful order that he not leave his post to go home, deliberately refused to obey said lawful order, left his assigned post *** and went to his home in Wheeling, Illinois.”

Plaintiff does not dispute the Board’s finding that he left his assigned post without permission and remained out of contact from the police department or that this conduct would be a sufficient basis for finding that plaintiff violated the above-stated department regulations. Plaintiff, though, disputes certain other factual findings which he claims the Board relied on to find cause for dismissal, namely, that a state of emergency existed when plaintiff left his assigned post and that plaintiff’s departure had an adverse effect on the police department.

The Board asserts that plaintiff’s admission of the existence of a city-wide emergency when he left his post, as well as evidence of the circumstances surrounding plaintiff’s departure, supports the Board’s finding that plaintiff left his post during a state of emergency. The chief of police, on the other hand, argues that plaintiff was not discharged because a state of emergency existed in the city, but rather because plaintiff abandoned his assigned post contrary to a lawful order of his superior officer.

In paragraph 5 of the “Second Amended Statement of Charges,” the chief of police alleged “[t]hat on August 14, 1987, a state of emergency existed in the City of Des Plaines due to the extreme amount of rain which caused widespread flooding throughout the City of Des Plaines.” Although the Board did not expressly find that plaintiff left his post during a state of emergency, it noted, in paragraph 21, that plaintiff “acknowledged that as a result of his conduct in abandoning his post on August 14, 1987, during a city-wide emergency, his fellow officers can no longer rely on him to carry out his assigned duties and to always be there when they need him.” In paragraph 20 of its discharge order, the Board also states that plaintiff left his assigned post on a day when “approximately nine (9) inches of rain fell on the City, resulting in a city-wide emergency.” In finding plaintiff guilty of “Unbecoming Conduct” in paragraph 9 of the order, the Board further notes that plaintiff’s conduct brought the Department into disrepute “at the very time when officers were needed to handle a major disaster in the City of Des Plaines.”

We note that the discharge order states that the Board relied on all its findings of fact and guilt in finding “cause for the officer no longer occupying his position.” In light of the factual findings set forth above, we conclude that the Board considered the existence of emergency conditions in reaching its decision to discharge plaintiff.

While the record supports a finding that the City experienced severe weather conditions and at some point invoked emergency plans on August 14, 1990, a finding that plaintiff was aware of a state of emergency or that he abandoned his post during a state of emergency is not supported by the evidence. When plaintiff left the station between 9:45 and 10 a.m., in the presence of his superiors, he was not informed of a declaration of emergency. The 12-hour shifts, testified to by defendants’ expert as being indicative of emergency conditions, were not implemented until after his departure. In addition, irrespective of the classification of the switchboard, plaintiff testified that he received no emergency calls before he left the switchboard and that five other persons were present in the area who could have operated the three-phone switchboard.

We do not believe that plaintiff’s knowledge of the heavy rainfall and flooding and of the department’s implementation of an emergency traffic plan at the time he left his post is sufficient evidence to find a state of emergency or to impute knowledge of such to plaintiff. Nor do we believe that such findings can be upheld from plaintiffs affirmative responses to opposing counsel’s inquiry of whether he breached his sworn duty when he “abandoned [his] post on August 14 during a city-wide emergency” and to the statement that his fellow police officers can no longer rely upon him as a result of his conduct “in abandoning [his] post on August 14 during a city-wide emergency.” These multifaceted questions contain the undisputed fact that plaintiff left his assigned post without permission, and plaintiff’s clear position throughout the hearings was that emergency conditions did not exist at the time of his departure.

Accordingly, insofar as the Board found that a state of emergency existed on plaintiff’s departure or that plaintiff was aware of the existence of a state of emergency, those findings are against the manifest weight of the evidence.

As to the finding that plaintiff’s departure had an adverse effect on the police department, the Board specifically found that plaintiff’s conduct “brought the Department into disrepute and reflected discredit upon the plaintiff, at the very time when officers were needed to handle a major disaster in the City of Des Plaines.” The only expert testimony in this regard was from Glenn R. Murphy, a law enforcement consultant, who testified that plaintiff’s actions in leaving his assigned post during a state of emergency adversely affects the administration of the agency. Murphy stated that disobeying lawful orders undermines the command structure of the agency and that such conduct during emergency situations detrimentally affects the morale of the agency and the community relations of the department with its constituencies. Because the expert’s opinion was premised upon the circumstances of an officer leaving an assigned post during a state of emergency — circumstances found above to be unsupported by the evidence — the expert’s testimony does not provide a basis for upholding the Board’s finding that plaintiff’s conduct brought the department into disrepute.

We turn now to the Board’s findings as to the June 17, 1987, motorist incident. While the Board found that plaintiff used reasonable force to defend himself in the June 17 traffic incident, it found that plaintiff violated rule 380.54 of the rules, entitled “Conduct toward the Public,” “in that when issuing a traffic citation to Louis B. Sheffield, [plaintiff] failed to remain courteous and orderly, and failed to remain calm, regardless of provocation to do otherwise.” Rule 380.54 provides that “Members and employees shall be courteous and orderly in their dealings with the public. They shall perform their duties quietly, avoiding harsh, violent, profane or insolent language and shall always attempt to remain calm, regardless of provocation to do otherwise.”

The Board rejected Sheffield’s claim that plaintiff was not justified in using force at the scene. The remainder of Sheffield’s testimony does not support a finding that plaintiff did not act orderly at the scene. Nor does the evidence as to plaintiff’s remarks at the police station support the finding. The remarks were not made in plaintiff’s dealings with the public since they were made outside the presence of the motorists and public. In any event, the Board did not base its discharge sanction on the June 17, 1987, incident, but relied “particularly [on its] findings pertaining to [plaintiff’s] conduct on August 14,1987.”

In summary, the Board’s findings that plaintiff violated numerous department regulations in leaving his assigned post without permission are supported by the evidence. Insofar as the Board relied on the fact that plaintiff left his assigned post during a state of emergency, the fact that plaintiff’s conduct brought the department into disrepute, and any rule violations resulting from the June 17, 1987, motorist incident, those findings are against the manifest weight of the evidence.

Under the second phase of our inquiry, we must determine whether the Board’s valid findings provide a sufficient basis for cause for discharge. Our role in this regard is not that of a supercommission, which may substitute its judgment as to the more fitting sanction. Rather, we are confined to determining whether the agency’s findings are related to the requirements of the service and not so trivial as to be arbitrary or unreasonable. Walsh, 96 Ill. 2d at 105, 449 N.E.2d at 117; Humbles v. Board of Fire & Police Commissioners (1977), 53 Ill. App. 3d 731, 734, 368 N.E.2d 1049, 1051; Petraitis v. Board of Fire & Police Commissioners (1975), 31 Ill. App. 3d 864, 868, 335 N.E.2d 126, 130.

In examining the case law pertinent to our inquiry, we have discovered that, in reviewing administrative discharge orders, the conduct must be evaluated under the circumstances of each case, and that no precise rules or definitions may be drawn as to what conduct will be found to constitute cause for discharge. Reviewing courts, however, are assisted by the general guideline that the “conduct must constitute some substantial shortcoming which renders [the] continuance in office detrimental to the discipline and efficiency of the service, and which the law and sound public opinion recognize as good reason for the officer to no longer hold his position.” Onesto v. Police Board of the City of Chicago (1980), 92 Ill. App. 3d 183, 187, 416 N.E.2d 13, 16; Coursey v. Board of Fire & Police Commissioners (1967), 90 Ill. App. 2d 31, 37, 234 N.E.2d 339, 341-42; Christenson v. Board of Fire & Police Commissioners (1980), 83 Ill. App. 3d 472, 476, 404N.E.2d 339, 341.

In considering plaintiff’s conduct here and comparing it to the conduct found to warrant or not to warrant discharge in prior appellate court decisions, we find that plaintiff’s conduct is not such that the continuation of his employment would be detrimental to the discipline and efficiency of the police department, or such that sound public policy would mandate that plaintiff be discharged.

Present in the cases found by Illinois appellate courts to warrant discharge, and absent from the case at bar, are the type of actions which reflect dishonesty or a flaw in integrity or character and which carry an implication that the officer is unfit to serve as a police officer. In Coursey v. Board Fire & Police Commissioners (90 Ill. App. 2d 31, 234 N.E.2d 339), the discharged police officer left his assigned beat and the village limits without being relieved, and evidence was presented that the officer’s purpose was to attempt sexual misconduct with minors he was escorting home after curfew. The court noted that the officer did not offer justification for his conduct or notify the department of his absence and that the gravity of his act was intensified by a similar incident six months earlier. The court also stated that the officer’s actions seriously weakened the plan of community protection by disabling the officer from responding quickly to threats to life and property within his jurisdiction. Coursey, 90 Ill. App. 2d at 37, 234 N.E.2d at 342.

In Bokowski v. Civil Service Comm’n (1971), 1 Ill. App. 3d 174, 273 N.E.2d 625, the discharged Chicago fireman, in defiance of previous orders, left his assigned apparatus for a period between two and three hours while he went to an alcohol-serving dance hall located outside the hearing of fire alarm indicators. The fireman was later involved in an altercation after a witness observed him being escorted from the women’s washroom.

The discharged police officer, in Green v. Board of Fire & Police Commissioners (1980), 87 Ill. App. 3d 183, 408 N.E.2d 1187, slept in his squad car for two hours while assigned to patrol and disobeyed an order to return to the police station. The court noted that the officer offered no excuse for his conduct, that his conduct was “a serious case of neglect of duty,” that the department’s resources had to be diverted from other activities in an attempt to locate him, and that a broadcast over the State police radio network was necessitated. Green, 87 Ill. App. 3d at 187, 408 N.E.2d at 1190-91.

In contrast to the conduct in the above cases, the officer’s misconduct here does not reflect a flaw in integrity or character. Plaintiff’s actions were motivated by concern for the safety of his wife and two small children. Furthermore, plaintiff did not deceive his superior officers, unlike the cases where the officer left an assigned jurisdiction without notification, thereby jeopardizing the protection of the community in that area. Plaintiff left the desk area containing three telephone lines where five other officers were present and brought his departure to the attention of his superiors. Finally, as indicated previously, although serious flooding conditions existed at the time, the evidence does not demonstrate a state of emergency at the time plaintiff left or that plaintiff was aware of a state of emergency.

The circumstances present here are more analogous to Christenson (83 Ill. App. 3d 472, 404 N.E.2d 339) and Humbles (53 Ill. App. 3d 731, 368 N.E.2d 1049), where courts found discharge to be unwarranted. In Christenson, an officer violated department rules by using his police vehicle while on duty for a personal errand 15 miles outside the city and lied to a superior officer about the personal business. The court there noted several mitigating factors, including the fact that the officer was confronted with an emergency situation concerning criminal damage to his valuable horses, the fact that the officer put another officer in charge rather than abandon his responsibilities, the fact that no emergency existed in the city, and the fact that the officer worked an hour after his shift. Christenson, 83 Ill. App. 3d at 477, 404 N.E.2d at 342.

The police officer in Humbles lied to his superior officer that he was attending court on police business when his actual business was his personal divorce case. He also disobeyed his superior’s order to wait and proceed to court with him. Although the court recognized that the misconduct might tend to interfere with the discipline and efficiency of the police department, it concluded the sanction of discharge was not warranted. The court stated that the purpose of the officer’s deception was to avoid a subject of embarrassment to himself and that the single incident did not carry an implication that the officer was unfit to serve as an officer or have an effect of lowering police morale or public confidence.

Plaintiff’s concern for his family’s welfare is even a greater mitigating circumstance than the concern for property in Christenson or the concern of embarrassment in Humbles. In addition, absent here is the aggravating circumstance of deceptive conduct present in those cases. No other aggravating circumstances exist here to justify discharge. While the circuit court noted that plaintiff did not return to the station after he had seen to the safety of his house and family, we do not believe this fact justifies discharge. Only a few hours remained on plaintiffs assigned shift and plaintiff was not aware of the imposition of 12-hour shifts. Moreover, the misconduct here involved a single incident, unlike cases upholding discharge sanctions where the officer has a history of flagrant, deliberate, and continuing disobedience of orders which would undermine the authority and weaken the structure of the organization. See Martin v. Matthys (1986), 149 Ill. App. 3d 800, 808, 501 N.E.2d 286, 292.

For the reasons expounded above, we hold that the circuit court erred in finding the Board’s decision to be related to the requirements of service. We alternatively find that sufficient evidence was presented as to a penalty imposed against another police officer for his misconduct during the same period of flooding to demonstrate that the Board’s decision was arbitrary and unreasonable.

Officer Czyzewski, who was off duty on August 14, 1987, was contacted by a superior between 8:40 and 8:50 a.m. and ordered to report to duty, despite his repeated protests that his street was impassable. Czyzewski refused by responding with an obscenity. Czyzewski was given a four-day suspension for insubordination, and no charges were brought for his failure to report. The circuit court found that the actions of the two police officers were markedly different in that plaintiff was punished for leaving his assigned post, while Czyzewski was suspended for swearing at a superior who had insisted that Czyzewski report to work even though he was off duty and “hemmed in” by water.

We find little significance in the fact that Czyzewski was off duty at the time. The necessity of police officers to report to duty on command is no less important to the efficiency of the department than the necessity of police officers to remain on assigned duty. The circuit court’s reliance on testimony that Czyzewski was “hemmed in” by water is inconsistent with its reliance on its finding that plaintiff should have returned to the station after reaching his home and family under the flooding conditions. Plaintiff’s conduct here is not so markedly different from Czyzewski’s conduct to warrant such a more severe sanction. Both officers disobeyed orders from their superiors and did not work on assigned shifts.

Notwithstanding our findings that the sanction of discharge was unrelated to the needs of the department and arbitrarily and unreasonably imposed, plaintiff’s conduct in disobeying a superior officer’s orders and leaving an assigned post was not excused under the circumstances and discipline was warranted. The discipline necessarily inherent in a police department would be destroyed if each officer is permitted to subjectively determine whether he believes an order to be lawful or reasonable. See Martin, 149 Ill. App. 3d at 808, 501 N.E.2d at 292.

Accordingly, the sanction of discharge imposed by the Board is vacated. Pursuant to the scope of our limited review, we remand this matter to the Board for consideration of an alternative, more appropriate sanction. See Kreiser v. Police Board (1977), 69 Ill. 2d 27, 370 N.E.2d 511; Christenson, 83 Ill. App. 3d 472, 404 N.E.2d 339; Citrano v. Department of Registration & Education (1980), 90 Ill. App. 3d 937, 414 N.E.2d 74; Basketfield v. Daniel (1979), 71 Ill. App. 3d 877, 390 N.E.2d 492.

Reversed and remanded.

MANNING, P.J., concurs.

JUSTICE CAMPBELL,

dissenting:

I respectfully dissent for two reasons. First, the findings of the Board in regard to whether an emergency existed on August 14, 1987, are not against the manifest weight of the evidence.

Findings and conclusions of an administrative agency on questions of fact are to be held prima facie true and correct. (Ill. Rev. Stat. 1987, ch. 110, par. 3—110.) Where an opposite conclusion is not clearly evident, the decision cannot be reversed; that an opposite conclusion might be reasonable is not sufficient. (Kvidera v. Board of Fire & Police Commissioners (1989), 192 Ill. App. 3d 950, 960, 549 N.E.2d 747, 753; Keen v. Police Board (1979), 73 Ill. App. 3d 65, 70, 391 N.E.2d 190, 194-95.) Moreover, conflicts in testimony and the credibility of witnesses are properly left for the Board to resolve. (Price v. Board of Fire & Police Commissioners (1985), 139 Ill. App. 3d 333, 339, 487 N.E.2d 673, 677.) The Board’s findings cannot be reversed unless we are able to say that ‘‘all reasonable and unbiased persons, acting within the limits prescribed by the law and drawing all inferences in support of the finding[s], would agree that the finding[s] [are] erroneous.” (Emphasis added.) Sheehan v. Board of Fire & Police Commissioners (1987), 158 Ill. App. 3d 275, 287, 509 N.E.2d 467, 476.

The majority holds today that there is insufficient evidence to support the findings in the Board’s order discharging the plaintiff. The contested findings include: paragraph 20 of the discharge order, which found that plaintiff abandoned his assigned post when “approximately nine (9) inches of rain fell on the City, resulting in a city-wide emergency”; paragraph 21, which finds that plaintiff “acknowledged that as a result of his conduct in abandoning his post on August 14, 1987, during a city-wide emergency, his fellow officers can no longer rely on him to carry out his assigned duties and to always be there when they need him”; and paragraph 9, which finds that plaintiff’s conduct brought the Des Plaines police department into disrepute “at the very time when officers were needed to handle a major disaster in the City of Des Plaines.”

The record contains substantial evidence in support of the Board’s finding that there was a city-wide emergency at the time plaintiff abandoned his post. Lieutenant Diehl’s testimony supports this finding. Plaintiff himself acknowledged that he left his post during an emergency. Plaintiff was aware that there was excessive rainfall and that a number of roadways were impassible as a result. Plaintiff was assigned to the complaint desk at 6:45 a.m., and the officers assigned to the desk were subsequently advised of the implementation of the City’s emergency traffic plan.

The police were barely able to keep up with flood-related calls; officers were unable to respond to the power outages and alarms that resulted from the flood conditions. The police were also unable to make outgoing calls and consequently could not call additional officers to duty except by driving out to their homes.

Nevertheless, plaintiff telephoned his wife three separate times that morning. The record also provides ample support for the inference that the reason plaintiff was concerned about his family was the flooding occurring in his neighborhood. Implicit in today’s decision is that the flooding was somehow a serious enough danger to justify plaintiff’s decision to abandon his assigned post, in defiance of the direct order of his superior, yet simultaneously not so obvious a danger as to allow the Board to find that plaintiff was aware of emergency conditions.

The evidence appearing in the record which suggests that an emergency did not exist is plaintiff’s testimony that in his opinion, there was no emergency at the time he left. This testimony is contrary not only to the testimony of Lieutenant Diehl, but also to plaintiff’s own acknowledgement that he left during a city-wide emergency. Plaintiff stated that there were five other persons who could have manned the switchboard following his departure, although the record reflects that plaintiff walked away from his duties as an officer during a situation where the police department sought more officers, not fewer.

The majority chooses to discount Lieutenant Diehl’s opinion that emergency conditions existed because he also stated that there had been no formal declaration of a “state of emergency.” The majority also discounts the expert testimony that plaintiff’s dereliction of his duties would adversely affect the police department because it was supposedly premised on the existence of a “state of emergency.” The record contains no evidence that the expert was referring only to situations where there was a formally declared “state of emergency.” The majority opinion finds that when plaintiff abandoned his post, “he was not informed of a declaration of emergency” (211 Ill. App. 3d at 554), but offers no suggestion of who would be required to issue such a declaration or what the declaration must encompass in order to support a finding that a “state of emergency” existed or that plaintiff was aware of it. (Cf. Ill. Rev. Stat. 1987, ch. 127, pars. 1104(b) (definition of “disaster”), 1108 (authorizing Governor to declare “disaster emergencies”), 1113 (authorizing principal executive officer of municipality to declare “local disaster emergencies”).) The majority further fails to cite any authority for the proposition that there must be a formal declaration of a “state of emergency” before the Board could find that the conditions which existed were such that plaintiff knew or should have known that it would be a severe dereliction of duty to leave his post.

Given this record, it is my opinion that a reasonable and unbiased person, drawing all inferences in favor of the findings, could find that emergency conditions existed and that plaintiff was aware of them when he abandoned his post for personal reasons. (Sheehan, 158 Ill. App. 3d at 287, 509 N.E.2d at 476.) At most, the evidence conflicted regarding the existence of emergency conditions and plaintiff’s knowledge of such at the time of his departure. The Board chose to resolve the conflicting evidence against plaintiff; we cannot choose otherwise. (Price, 139 Ill. App. 3d at 339, 487 N.E.2d at 677.) The majority’s contrary finding may be reasonable, but it does not warrant a reversal in this case. Kvidera, 192 Ill. App. 3d at 960, 549 N.E.2d at 753; Keen, 73 Ill. App. 3d at 70, 391 N.E.2d at 194-95.

Second, I dissent because plaintiff’s discharge is legally supportable regardless of whether a “state of emergency” had been declared or existed. In reviewing police discharges, the question for the appellate court is whether the sanction is unreasonable, arbitrary or unrelated to police service, not whether this court would have levied a lesser sanction. (See Kloss v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 252, 258, 449 N.E.2d 845, 849.) The wisdom, necessity or propriety of any action regarding the administration of a police force is the province of the municipality and will not be reversed unless a manifest and palpable abuse of discretion is shown. (Braje v. Board of Fire & Police Commissioners (1985), 139 Ill. App. 3d 90, 487 N.E.2d 91.) This court has long held that an officer who disobeys a proper order of a superior may be discharged. E.g., Zinser v. Board of Fire & Police Commissioners (1961), 28 Ill. App. 2d 435, 172 N.E.2d 33.

The cases the majority classifies as involving “actions which reflect dishonesty or a flaw in integrity or character” (211 Ill. App. 3d at 557) are not distinguishable from the instant appeal on those grounds. For example, in Coursey v. Board of Fire & Police Commissioners (1967), 90 Ill. App. 2d 31, 234 N.E.2d 339, there was evidence that an officer attempted sexual misconduct with minors, but the board made no finding concerning that alleged attempt. (Coursey, 90 Ill. App. 2d at 41, 234 N.E.2d at 343.) In Bokowski v. Civil Service Comm’n (1971), 1 Ill. App. 3d 174, 273 N.E.2d 625, an officer was charged with neglect of duty, being absent from duty without permission and entering a place where liquor was sold while on duty for reasons unrelated to service. There was no charge alleging improper conduct concerning a fight or a women’s washroom. In Green v. Board of Fire & Police Commissioners (1980), 87 Ill. App. 3d 183, 408 N.E.2d 1187, this court upheld the discharge of an officer who slept for two hours on patrol and disobeyed an order to return to the station. As in Green, a diversion of police resources was required by the plaintiff’s behavior in this case. Moreover, Green did offer an excuse, though it was rejected as “no defense” by this court. Green, 87 Ill. App. 3d at 187, 408 N.E.2d at 1191.

The majority likens this case to Christenson v. Board of Fire & Police Commissioners (1980), 83 Ill. App. 3d 472, 404 N.E.2d 339, and Humbles v. Board of Fire & Police Commissioners (1977), 53 Ill. App. 3d 731, 368 N.E.2d 1049. These comparisons must rely on the supposed requirement of a “state of emergency.” In Christenson, the officer tried to stay in radio contact with the station and “[h]is presence was not compelled by any emergency.” (Christenson, 83 Ill. App. 3d at 477, 404 N.E.2d at 342.) The record here does not indicate that plaintiff tried to stay in contact with the station.

In Humbles, there was no indication that the officer’s action would lower police morale or undermine public confidence in the police. (Humbles, 53 Ill. App. 3d at 735, 368 N.E.2d at 1051.) In this case, the Board heard expert testimony on the issue, testimony the majority rejects as falsely premised.

The majority alternatively finds sufficient evidence regarding the conduct of another officer to indicate that the Board’s penalty regarding plaintiff was arbitrary and unreasonable. The conduct of the other officer is not before this court. Sufficient cause for discharge may exist regardless of whether another officer received different treatment. (Sheehan, 158 Ill. App. 3d at 287, 509 N.E.2d at 476.) Moreover, one could logically conclude that the lesser sanction in the other case militates as much in favor of the lesser sanction being unreasonable. The majority also finds the circuit court’s reliance on testimony that the off-duty officer was “hemmed-in” by water inconsistent with its finding that plaintiff should have returned to the station after checking on his family. Yet this supposed inconsistency would be justified if the finder of fact decided that the other officer was in fact “hemmed-in” and plaintiff was not. This court is not the finder of fact. Furthermore, it would appear that a similar inconsistency would then be manifest in finding that the flooding in plaintiff’s neighborhood was severe enough to justify abandoning his post, but not severe enough in the other parts of the city to find that emergency conditions existed.

In sum, today’s decision does not give sufficient weight to the reality that the police department is a paramilitary organization with a chain of command. (Martin v. Matthys (1986), 149 Ill. App. 3d 800, 501 N.E.2d 286.) A rule permitting each officer to subjectively determine whether he believes an order to be lawful and reasonable would destroy the discipline necessarily inherent in a paramilitary organization such as the police department (Phillips v. Hall (1983), 113 Ill. App. 3d 409, 447 N.E.2d 418; Williams v. Police Board (1972), 8 Ill. App. 3d 345, 290 N.E.2d 669; Coursey, 90 Ill. App. 2d 31, 234 N.E.2d 339) and would thwart the authority and respect which is the foundation of the effective and efficient operation of a police force. (See Myers v. Cook County Police & Corrections Merit Board (1978), 67 Ill. App. 3d 223, 384 N.E.2d 805.) Plaintiff’s conduct cannot be excused. The discipline imposed was clearly related to the needs of the Des Plaines police department, given the facts and circumstances of this case.

For all of the aforementioned reasons, I would affirm the judgment of the Board and the circuit court.


source: Caselaw Access Project

author: PRESIDING JUSTICE MANNING

license: Public Domain

text:
    WINONA SCHOOL OF PROFESSIONAL PHOTOGRAPHY, Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE, Defendant-Appellee.
    First District (1st Division)
    No. 1—88—3385
    Opinion filed March 18, 1991.
    Rehearing denied May 7, 1991.

      McBride, Baker & Coles and Vedder, Price, Kaufman & Kammholz, both of Chicago (Paul D. Frenz, Henry S. Allen, and William F. Walsh, of counsel), for appellant.
    Roland Burris, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and William H. London, Assistant Attorney General, of Chicago, of counsel), for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

The appellant, Winona School of Professional Photography (hereinafter Winona), is an Illinois not-for-profit corporation wholly owned by the Professional Photographers of America, a trade association. Since 1984, Winona has operated as a private photography school out of a facility in Mt. Prospect, Illinois. In March 1985 Winona applied for a real estate tax exemption that was denied by the Illinois Department of Revenue (hereinafter Department) on October 31, 1985.

Thereafter, Winona filed a request for a formal hearing for review of the Department’s denial, and an administrative hearing was held in May 1986. Winona presented several witnesses at the hearing: Robert Evans, a private consultant and professor of education at University of Illinois at Champaign-Urbana; William Hazard, a professor at Northwestern University; Ed Delmastro, an instructor in the photography technical program within the School of Technical Careers at Southern Illinois University (Southern) and instructor at Winona; Robert Becker, chief executive officer at Winona; Elisabeth Landis, an employee at Lexecon; and Philip Kummerer, director of finance at Winona. Mr. Evans and Mr. Hazard, who were recognized as expert witnesses, testified that although technical and vocational education in Illinois effectively began in 1917 during World War I, it has only recently become a part of the scheme of post-secondary public education in the State and that Winona offers a course of study which currently fits in that scheme. Evans testified that there are about 47 community colleges, each offering a substantial vocational and technical program. Additionally, since 1965, which marks the commencement of the development of community colleges, technical institutes have been established at Southern Illinois University and at the University of Illinois. Evans further testified that technical education within certificate programs at public institutions is .designed exclusively to provide technical skills and that Winona duplicates the best of Illinois’ public technical programs.

Professor Hazard testified that the photography programs at several colleges parallel the program at Winona and that there is no difference in the educational objectives of the schools. Hazard prepared a chart that compared Winona’s offerings with various State-supported- photography programs, defined as a “sequence of courses” that build one upon the other.

Becker testified that Winona offers courses in management, marketing and sales as well as photography courses and that the course of instruction is .sequential. The average length of a class at Winona is one week; however, a one-week course at Winona provides as many hours of instruction as semester courses offered by public institutions because the courses begin at 8 in the morning and last into the night, each day. Becker stated that the teaching technique at Winona is a combination of lectures and hands-on instruction, and the school offers recognition in the form of a certificate of completion, rather than a degree.

Delmastro testified that the course content of the Winona program is essentially the same as the skills and training that would be required to complete the Photographic Production Technology (hereinafter PPT) program at Southern. A student who has completed a course at Winona may obtain credit or a waiver from taking a required course from Southern.

Following the hearing, the administrative law judge found that Winona’s witnesses’ testimony was of “dubious value,” yet she concluded that Winona qualified as a school and recommended tax exemption. The Department declined to follow the law judge’s recommendation, finding that Winona failed to prove it was a school and denied Winona’s claim for a property tax exemption.

Winona then filed a complaint for administrative review in the circuit court of Cook County on May 8, 1987. Thereafter, Winona’s claim for an exemption for 1985 was consolidated into the 1984 case. The circuit court affirmed the decisions of the Department denying Winona’s applications for exemptions for 1984 and 1985.

On appeal, Winona asserts that its property is exempt from taxation because it operates a school within the meaning of section 19.1 of the Revenue Act of 1939 (hereinafter Act) (Ill. Rev. Stat. 1985, ch. 120, par. 500.1). The Department contends that the issue is properly phrased as whether the trial court properly affirmed the Department’s denial of Winona’s request for exemption on the ground that such denial was not against the manifest weight of the evidence.

We initially preface our discussion with the observation that no disputed testimony or documentary evidence was presented at the hearing. Winona’s witnesses testified as to how they believed Winona fit into the definition of a school, and although their testimony was characterized as “dubious,” it was not challenged for truthfulness or accuracy.

Because the relevant facts are uncontradicted, “[t]he issue before us is not whether the Department’s decision was against the manifest weight of the evidence. When the facts upon which a decision of tax exempt status rests are undisputed, whether property is exempt is a question of law.” (Cook County Masonic Temple Association v. Department of Revenue (1982), 104 Ill. App. 3d 658, 660, 432 N.E.2d 1240.) Thus, the decision as to whether the property is exempt “depends solely upon an application of the appropriate legal standard to the undisputed facts.” Illinois Central Gulf R.R. Co. v. Department of Local Government Affairs (1983), 95 Ill. 2d 111, 129, 447 N.E.2d 315.

Article IX, section 6, of the 1970 Illinois Constitution provides in relevant part:

“The General Assembly by law may exempt from taxation only *** property used exclusively for *** school, religious, cemetery and charitable purposes.” (Ill. Const. 1970, art. IX, §6.)

Accordingly, pursuant to section 19.1 of the Act, the legislature has exempted “all property of schools, *** including the real estate on which the schools are located and any other real property used by such schools exclusively for school purposes.” Ill. Rev. Stat. 1985, ch. 120, par. 500.1.

As a result, the courts have strictly construed statutes granting tax exemptions (Telco Leasing, Inc. v. AUphin (1976), 63 Ill. 2d 305, 347 N.E.2d 729), and all questions regarding the tax exempt status of property are resolved in favor of taxation. (Board of Certified Safety Professionals of the Americas, Inc. v. Johnson (1986), 112 Ill. 2d 542, 494 N.E.2d 485; Highland Park Hospital v. Department of Revenue (1987), 155 Ill. App. 3d 272, 507 N.E.2d 1331; Illinois Cereal Mills, Inc. v. Department of Revenue (1976), 37 Ill. App. 3d 379, 346 N.E.2d 69.) Moreover, the burden of proving the right to a property tax exemption is upon the person seeking it (Milward v. Paschen (1959), 16 Ill. 2d 302, 308, 157 N.E.2d 1), and he or she must prove by clear and conclusive evidence the right to an exemption. (People ex rel. Kelly v. Avery Coonley School (1957), 12 Ill. 2d 113, 115, 145 N.E.2d 80.) Each individual claim for tax exemption must be determined from the facts presented. People ex rel. County Collector v. Hopedale Medical Foundation (1970), 46 Ill. 2d 450, 264 N.E.2d 4; MacMurray College v. Wright (1967), 38 Ill. 2d 272, 230 N.E.2d 846; Turnverein “Lincoln” v. Board of Appeals (1934), 358 Ill. 135, 192 N.E.780.

The determination whether a private institution is a school for tax exemption purposes is based upon a two-part test enumerated by the Illinois Supreme Court in Ray Schools-Chicago-Inc. v. Cummins (1957), 12 Ill. 2d 376, 146 N.E.2d 42, and refined in the companion case Coyne Electrical School v. Paschen (1957), 12 Ill. 2d 387, 146 N.E.2d 73. In Coyne, the court enunciated:

“On the basis of the foregoing decisions it is manifest that two things are necessary to qualify a private institution for tax exemption as a school: first, a course of study which fits into the general scheme of education founded by the State and supported by public taxation; second, a course of study which substantially lessens what would otherwise be a governmental function and obligation.” (Coyne, 12 Ill. 2d at 392.)

The court later elaborated in Illinois College of Optometry v. Lorenz (1961), 21 Ill. 2d 219, 171 N.E.2d 620, that a private school need not duplicate the program of a public school in order to gain tax exemption; rather, its course of study need only fit the general scheme of education provided in tax-supported schools.

It is in reliance on Lorenz that Winona urges its course of study fits into the general scheme of education currently provided in public institutions. Winona argues that the Public Community College Act (Ill. Rev. Stat. 1985, ch. 122, par. 101—1 et seq.) obligates public community colleges in Illinois to provide courses in technical fields and that the course of study offered at Winona compares to the courses of study offered at the various technical programs at State-supported institutions. Specifically, Winona contends that its (1) curriculum, (2) methods and intensity of instruction and (3) scope and end results of operations (see Lorenz, 21 Ill. 2d 219) qualify it as a “school” within the current ordinary and accepted meaning of the term.

We disagree with Winona’s argument because the record below demonstrates that it fails to satisfy the requirements for property tax exemptions set forth in Coyne. Moreover, we find that Winona’s reliance upon Lorenz is misplaced. In reaching our conclusion, we find the reasoning advanced in the recent decision of American College of Chest Physicians v. Department of Revenue (1990), 202 Ill. App. 3d 59, 559 N.E.2d 774, to be both persuasive and dispositive here. In distinguishing Lorenz from its factual scenario, this court in American College of Chest Physicians stated:

“[T]hat school [Illinois College of Optometry] was held to be exempt from taxation because the courses taught there duplicated those taught by the tax-supported University of Illinois and its medical school. *** [T]he courses taught at the College of Optometry were ‘equally as comprehensive and exacting’ as those taught in State-supported universities and were required before one could become qualified to practice optometry ***.
* * *
In the present case, plaintiff did not *** provide the comprehensive course of study presented by the College of Optometry. While plaintiff’s executive director testified that plaintiff was the primary source of post-graduate education in pulmonary medicine, he also testified that plaintiff’s courses lasted only two to five days and that they were not required in order to be licensed in Illinois.” American College of Chest Physicians, 202 Ill. App. 3d at 65-66.

In the present case, Winona similarly did not provide the comprehensive course of study presented by the College of Optometry. Its witnesses testified that although there were a few two-week courses and several weekend courses, the average length of a class at Winona was one week. Witnesses presented catalogs of Winona and those of other institutions to show similar course content. However, Winona did not offer any degrees or any particular general course of study. Students did not follow a prescribed course of study and were not given a grade; however, if they completed a course, they were given a certificate. As a wholly owned subsidiary of the Professional Photographers of America, a trade association, in 1984 Winona received about half of its funds from the association’s members or their equipment suppliers, and one-half from tuition, of which 60% was received from association members. Although some of Winona’s courses could be transferred to other educational institutions for course credit, it offered the majority of its courses only in photography and related subjects. Winona was not accredited in 1984. Winona did not offer systematic instruction in useful branches of learning by methods common to institutions of learning. Neither did it demonstrate that it was the primary source of post-graduate education in photographic course of instruction or that its instruction substantially lessened the burden of taxation occasioned by the public school system. See generally Johnson, 112 Ill. 2d 542 (where the court held that a nonprofit corporation which issued certificates to safety professionals who passed its examinations was not a tax exempt organization).

Moreover, Winona’s proposition that it provided training that would otherwise have to be furnished by the government is equally without merit. Winona urges because the Public Community College Act obligates technical education in the State, it lessens this burden by providing courses in the technical field of photography which thereby reduces the State’s tax burden of maintaining public photographic education programs. The Public Community College Act provides in pertinent part:

“101 — 2. Definitions
* * *
(e) ‘Comprehensive community college program’: A program offered by a community college which includes (1) courses in liberal arts and sciences and general education; (2) adult education courses; and (3)courses in occupational, semi-technical or technical fields leading directly to employment. At least 15% of all courses taught must be in fields leading directly to employment, one-half of which courses to be in fields other than business education.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 122, par. 101—2(e).

While the Public Community College Act provides for the establishment of technical programs in community colleges, it also mandates: (1) a comprehensive community college program, where such program includes courses in liberal arts and sciences and general education, in adult education, and in occupational, semi-technical or technical fields and (2) that the program lead directly to employment. Unlike Lorenz, Winona has failed to establish that its course of instruction is required by individuals seeking to gain employment in the photography field or that its course of instruction leads directly to employment in the photographic field. Neither does the record show that it offers any courses in general education or adult education.

Accordingly, in construing the facts in this case, we conclude that Winona neither fits into the general scheme of education founded by the State as set forth in Coyne and the Public Community Act nor substantially lessens a governmental function and obligation. Thus, its property does not fall within the statutory exemption for property used for school or other educational purposes.

For the above reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FELICIA MILLER, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—2425
    Opinion filed March 18, 1991.

      George C. Howard, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Matthew L. Mahoney, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Defendant, Felicia Miller (hereinafter Felicia), appeals from a conviction for attempted murder. The following facts were adduced at trial. Arthur Carroll (hereinafter Arthur) testified that on the evening of May 3, 1986, he and Felicia had a chance meeting in a bar on the southside of Chicago. While they had not seen each other for approximately two years and were not currently dating one another, they proceeded to spend the next few nights together at several hotels. After three nights together, Arthur made an effort to leave the hotel room. Felicia resisted this effort and eventually Arthur abandoned his effort to leave. Each day both Felicia and Arthur went to their respective jobs and met again each evening at a hotel after work. On Thursday morning, May 8, both Felicia and Arthur left the hotel and entered a taxi, the destination of which was 233 North Michigan Avenue, where "Arthur worked at Blue Cross/Blue Shield as a clerical employee. Felicia exited the cab after Arthur got out and followed him into his place of employment. He went up the escalator, and she followed behind. As Arthur proceeded up the escalator, he heard his name called out. When he turned around, he saw Felicia standing three to four feet away with a gun pointed in his direction. Felicia shot at Arthur. He was struck in the lower abdomen by that shot, and the second shot, which occurred during a struggle, grazed Arthur’s forehead. Arthur managed to wrestle the gun away from Felicia and gave it to a security officer who had arrived at the scene. He then collapsed and was taken by ambulance to Northwestern Hospital, where he was hospitalized for two weeks and readmitted for three or four days.

Arthur denied on cross-examination that he caused injury to Felicia but acknowledged that on May 6, while arguing with her, he did slap her. He stated that Felicia said the reason she shot him was because he had “messed over” her. He admitted on redirect that he and Felicia had been abusing cocaine for five days, that Felicia had supplied the cocaine paraphernalia and that he had supplied the money to purchase the cocaine.

The State presented an independent witness, Deborah Lallie, who observed the entire occurrence. She testified substantially in accordance with the facts relating to the shooting incident as heretofore set forth. She further testified that the shooting was preceded by no conversation, and there was no struggle or argument between Felicia and Arthur before the shooting took place.

Security officer Loring Sims stated that upon arriving on the scene immediately after the shots were fired he detained Felicia. He observed nothing unusual about Felicia’s physical appearance and saw no scratches, marks, bruises, swelling or blood on her face. She very calmly smoked a cigarette while awaiting the arrival of the police.

Officers Musial and Rimkus of the Chicago police department responded to a radio call of shots at 233 North Michigan Avenue. They both testified in accordance -with the security officer’s testimony regarding Felicia’s physical appearance.

The defense presented the testimony of Howard Hradek, a paramedic at Cook County jail, who, after looking at his report, testified that he observed a bruise on Felicia’s left eye, a cut on her right shin, and a cut on her right forearm. He was unable to state the age of the bruise, and he observed no cuts on Felicia’s face, lips, nose, eyes or forehead.

Felicia testified substantially in the same manner as Arthur regarding the chance encounter and the five-day binge. She further stated that she became angry with Arthur regarding the money which she had spent and which Arthur had promised to repay. She stated that during the argument about the money he struck her “at least five times.” She also suspected Arthur of taking her jewelry, although she acknowledged that she did not see him take it. She complained that Arthur treated her like dirt, and she “had never been treated like that before.” She did not, however, report this alleged brutality to anyone, nor did she go home and remain or seek medical treatment. Felicia acknowledged that she went home on May 7 and retrieved her gun and then went back to meet Arthur at the hotel. She did this prior to being struck and prior to realizing that her jewelry was missing. She also conceded that she knew the gun was loaded. Finally, she contends that on the morning of May 8, she discovered money missing from her purse, but the gun was still there.

Felicia’s testimony, however, differs from Arthur’s and Ms. Lallie’s regarding the events on the escalator. She claims that, as- she was riding up the escalator behind Arthur, he turned around and struck her with his fist. She pulled the loaded gun from her purse out of fear; Arthur grabbed it and it “went off.” She contends there were two struggles and that as a result of each struggle the gun “went off.” Felicia also denied using cocaine.

Several rebuttal and surrebuttal witnesses testified, giving differing accounts regarding Felicia’s physical appearance after the shooting incident. Specifically, the State’s rebuttal witnesses attested to the accuracy of the photograph taken of Felicia at the jail which portrayed Felicia as not having a bruise over her left eye or marks on her arm. Felicia’s surrebuttal witnesses testified to her appearance in the photos as being inaccurately depicted, and also that seeing her in person on the next day in court they observed that she did in fact have a bruised left eye and marks on her arm.

The jury returned guilty verdicts of attempted murder, armed violence and aggravated battery. The armed violence and aggravated battery were merged into the attempted murder, and Felicia was sentenced to eight years in the Illinois Department of Corrections.

Felicia presents the following issues on appeal: (1) whether the jury’s verdicts of guilty were manifestly against the weight of the evidence where the testimony of the complainant was rendered unbelievable and the only other witness who testified to the occurrence was Felicia; (2) whether the State sustained its burden regarding the specific intent to kill required to prove attempted murder; (3) whether or not once the evidence has shown that the shooting occurred during mutual combat a verdict of attempted murder can stand; (4) whether the evidence at trial reflected a case of self-defense; and (5) whether the court erred when it rejected the defense’s effort to elicit testimony from Arthur regarding his violent background.

Felicia initially maintains that she was not proven guilty beyond a reasonable doubt, where the testimony of Arthur was rendered unbelievable and the only other person who testified as to what happened was Felicia. The State counters that Felicia’s testimony was likewise unbelievable, but that a neutral witness testified to the events leading up to the shooting. The State further argues that the jury, as the trier of fact, has the responsibility of determining the credibility of the witnesses and did in fact resolve the credibility issue against Felicia.

In support of her argument, Felicia alludes to the “inconsistencies and out right falsehoods” testified to by Arthur. Specifically, Felicia points to the fact that Arthur told conflicting stories about his place of residence, the amount of cash he had on his person during the five days they spent together and whether or not he had written Felicia a bad check. It is the function of the trier of fact to determine witnesses’ credibility. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) Moreover, the inconsistencies pointed out by Felicia do not have any bearing on the justification or lack thereof by Felicia to attempt to kill Arthur. According to the evidence presented at trial, at the time of the shooting incident, Arthur had tried to leave the presence of Felicia and was making his way up an escalator to his job. There was no argument, Arthur had not struck or threatened Felicia at that time, and he was not having any verbal or physical encounter with her then. Assuming, arguendo, that he had beaten her, stolen from her and rejected her the night before, such occurrences would not provide legal justification for the shooting which occurred on the escalator a day later. While the record does bear out Felicia’s contention that there were discrepancies in Arthur’s testimony, it also reflects many discrepancies and inconsistencies in Felicia’s testimony. Specifically, she complained at trial that she was the victim of a savage beating by Arthur the night before. She claimed that she was struck in the back of her head, the right side of the head, the left side of the head, the top of the head, kicked in the right side of her face, kicked and struck in the jaw and in the right cheek, and kicked and hit on the right side of her head. Yet the photograph of Felicia taken after her arrest the next morning failed to show any bruises or swelling, just a smiling Felicia.

She further testified that she went home and obtained the gun because. of her fear of Arthur, a day before he allegedly struck her. Yet she returned to him at the hotel instead of remaining in the safe environment of her home. She further claimed that money and jewelry were missing, the money from her purse, and the jewelry which she had laid out while showering. Yet a gun was in her purse, and the alleged thief never took the gun.

The jury heard all of Felicia’s claims and saw the photograph of her, which was received in evidence. They heard her testimony that she shot Arthur in response to being struck by him while they rode up on the escalator. They also heard her testify to the anger she felt on the morning of May 8 after she realized that she had been conned by Arthur. But the jury also had the opportunity to hear from a neutral witness, who just happened to be on the escalator at the time of the shooting who disputed Felicia’s version of what happened and corroborated Arthur’s version. The jury has the responsibility for determining the credibility of witnesses, and it is clear that it chose to believe the State’s witnesses and to disbelieve Felicia. Our supreme court has consistently ruled that “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime charged beyond a reasonable doubt.” (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461, citing Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781.) It is simply not the function of a court of review to retry a defendant. We are convinced that the evidence was sufficient to find Felicia guilty of attempted murder.

Felicia next maintains that her conviction must be reversed in light of the State’s failure to prove beyond a reasonable doubt that she was not acting in self-defense at the time she shot Arthur. Where a person reasonably believes that deadly force is necessary to prevent imminent death or great bodily harm to himself, that person is justified in using deadly force. (Ill. Rev. Stat. 1985, ch. 38, par. 7—1.) Moreover, after the affirmative defense of self-defense has been raised, the State is required to prove beyond a reasonable doubt that Felicia was not acting in self-defense. (Ill. Rev. Stat. 1985, ch. 38, par. 3—2(b).) The affirmative defense of self-defense can be raised by either side presenting some evidence of each element of the defense. People v. Kyles (1980), 91 Ill. App. 3d 1019, 415 N.E.2d 499; see Ill. Rev. Stat. 1985, ch. 38, par. 3—2(a).

The elements of self defense are (1) that force is threatened against a person; (2) the person threatened is not the aggressor; (3) the danger of harm is imminent; (4) the person threatened must actually believe (a) that a danger exists, (b) the use of force is necessary to avert the danger, and (c) the kind and amount of force which he uses is necessary; and (5) all of the above beliefs are reasonable. Moreover, the use of deadly force is limited to those situations wherein the threatened force will cause death or great bodily harm or the force threatened is a forcible felony. People v. Williams (1965), 56 Ill. App. 2d 159, 165-66, 205 N.E.2d 749, 752; People v. Ross (1981), 100 Ill. App. 3d 1033, 427 N.E.2d 955.

It is the function of the trier of fact to resolve the issue of self-defense, and the trier of fact is not required to accept as true the evidence in favor of self-defense. (People v. Johnson (1988), 172 Ill. App. 3d 371, 377, 526 N.E.2d 611.) Rather, the trier of fact is compelled to consider the probability or improbability of the evidence, the circumstances surrounding the event, and the witnesses’ testimony. (Johnson, 172 Ill. App. 3d at 377.) A court of review will not disturb the trier of fact’s decision regarding self-defense unless the evidence is so improbable or unsatisfactory as to raise a reasonable doubt of guilt. (Johnson, 172 Ill. App. 3d at 377.) The standard of review, as recently articulated by our supreme court, is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) (People v. West (1990), 137 Ill. 2d 558, 584, 560 N.E.2d 594.) When a jury reaches a determination that any of the evidence adduced at trial negates the existence of any one of the elements heretofore set forth beyond a reasonable doubt, the State has met its burden. People v. Seiber (1979), 76 Ill. App. 3d 9, 394 N.E.2d 1044.

In the instant case, the resolution of Felicia’s guilt depended upon the jury’s assessment of the credibility of the witnesses and the weight to be accorded their testimony. The jury had the opportunity to observe the witnesses and to listen to their testimony. The determination regarding the credibility of the witnesses is exclusively within the jury’s province. (Collins, 106 Ill. 2d at 261.) The State’s witness testified that as Arthur was riding up on the escalator, Felicia, who stood a step below Arthur, called out his name, and as Arthur turned around, Felicia aimed the gun at him and pulled the trigger. Felicia claimed that as she was riding up the escalator behind Arthur, he turned around and struck her with his fist. She further contended that she pulled the loaded gun from her purse out of fear and that a struggle ensued when Arthur grabbed the gun, causing it to go off. It is reasonable to conclude that the jury decided that Felicia’s testimony was unbelievable, especially considering that an independent witness for the State, Ms. Lallie, testified that her unobstructed view allowed her to observe that no struggle, argument or conversation preceded the first shot.

While we are cognizant that the test to be utilized in making a determination of whether a defendant is justified in using deadly force in defense of him or herself is what a reasonable person under these circumstances would have subjectively believed (People v. White (1980), 87 Ill. App. 3d 321, 409 N.E.2d 73), we are also mindful that the evidence in this case does not provide support for the conclusion that Felicia subjectively believed that her life was in jeopardy. She claims that she was physically assaulted prior to the morning in question, yet each night she never sought to leave the hotel where she spent several nights with Arthur nor did she refuse to continue meeting him each evening; she never complained to anyone of the alleged mistreatment; her physical appearance was inconsistent with one who had been brutalized in the manner she described; she sought to prevent Arthur from leaving her in the hotel room on the last night they spent together; she followed him to his place of employment on the day of the shooting; and when she shot him, he was unarmed. The jury was not compelled to accept Felicia’s version of the event. (See Seiber, 76 Ill. App. 3d 9.) Moreover, the reasonableness of an individual’s belief of the necessity to use deadly force to prevent death or great bodily harm is a question of fact, the determination of which will not be disturbed upon review unless the evidence is so unsatisfactory as to justify a reasonable doubt as to guilt. (People v. Hill (1977), 53 Ill. App. 3d 280, 368 N.E.2d 714.) Accordingly, Felicia’s contention that the State failed to sustain its burden of proof with regard to her affirmative defense of self-defense is without merit.

We then consider Felicia’s assertion that because the evidence revealed that the shooting occurred during mutual combat, a verdict of attempted murder cannot stand. Once more we must defer to the judgment of the fact finder. The independent State witness, Deborah Lallie, testified that she was one step behind Arthur and Felicia on the escalator. She heard no argument between Felicia and Arthur, she saw no physical encounter between them, Arthur’s back was to Felicia until Felicia called out his name, and Arthur neither said nor did anything prior to the shooting. Defendant’s testimony contradicts the State’s testimony. However, as previously pointed out, the determination of the witnesses’ credibility is within the exclusive province of the trier of fact. (Collins, 106 Ill. 2d 237.) It is not unreasonable for the jury to accept the State’s testimony. Had the incident occurred as Felicia stated, it is logical to assume that the independent witness, standing one step behind Felicia and Arthur and facing in their direction, would have seen such an occurrence. Accordingly, we find that the record in the instant case does not support Felicia’s assertion that mutual combat occurred during and as a precipitate to the shooting incident.

Felicia next contends that her conviction for attempted murder must be reversed as the facts do not support a specific intent to kill. It is well settled that the specific intent to kill may be inferred from the surrounding circumstances, including the character of the assault upon the victim and other relevant matters. (People v. Treadway (1985), 138 Ill. App. 3d 899, 902, 486 N.E.2d 929; People v. Ruiz (1982), 94 Ill. 2d 245, 263, 447 N.E.2d 148.) In support of her argument on this issue, Felicia points to the circumstances of the shooting, i.e., that it took place in a public location in broad daylight in the presence of scores of potential witnesses. She posits that had she been predisposed to commit murder, she had the perfect opportunity to do so without witnesses the night before as he slept. She also points out that a more vulnerable part of the body would have been shot, other than the lower abdomen, had she intended to kill Arthur. Felicia’s argument is without merit. We find nothing in the fact of the time and location of the occurrence that is per se inconsistent with a specific intent to kill. Once again we look to the function of the trier of fact. The jury was properly instructed that in order to return a verdict of guilty of attempted murder, it must find that Felicia intended to kill Arthur. On the date of the shooting, all of Felicia’s actions led to the inescapable conclusion that she intended to kill Arthur. The evening prior, she went home to the safety and security of her home, but she did not remain there in that safe environment. Rather, she secured a loaded revolver from her drawer, secreted it in her purse and returned to the hotel where Arthur awaited her. After spending the night once again with Arthur, she and he left on the morning of May 8 in a taxi, the destination of which was 233 North Michigan Avenue, the site of Arthur’s employment. Defendant’s employment was at the other end of the Loop. Instead of dropping him there and continuing on to work, she exited the taxi at Arthur’s place of employment, followed him into the building, began riding up on the escalator directly behind him, called out to him and when he turned to her, she pulled the gun out, pointed it at him, and pulled the trigger, striking him. in the groin area. Felicia admitted that she was angry with Arthur because he “treated her like dirt”; and because she had spent a substantial sum of money on hotels, food and entertainment with the expectation of being reimbursed by him, only to find out that the $500 check which he had given her as reimbursement was written on a closed account.

Defendant speculates that the area of the wound is another indication that had she intended to kill him, she would have gone for a more vulnerable part of the body. However, this contention flies in the face of the testimony of the medical doctor, Dr. Rege, whose testimony revealed that a gunshot wound in the abdominal area is one of the most fatal and is almost 100% fatal without immediate medical attention.

Finally, in support of her argument regarding specific intent, she maintains that her actions were justified because Arthur struck her. The preceding discussion on self-defense and mutual combat is applicable here. Felicia was the only one to testify that she was struck, and the jury chose to believe the State’s version and disregard her version. That is the proper function of the trier of fact. Accordingly, we are unable to say that the jury's determination was so unreasonable, improbable or so unsatisfactory as to justify entertaining a reasonable doubt of Felicia’s intent to kill.

The final issue raised on appeal relates to the trial court’s refusal to allow the defense to interrogate Arthur about his allegedly violent background. Initially, the State argues that Felicia has waived this issue by failing to assert it in her written post-trial motion and also by failing to make an offer of proof during the trial when the testimony was excluded pursuant to the State’s motion in limine. The statute requires that a written motion for a new trial shall be filed by Felicia and that the motion for a new trial shall specify the grounds therefor. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124; Ill. Rev. Stat. 1985, ch. 38, par. 116—1.) Even though an objection has been interposed during the trial, the requirement clearly mandated by the statute that the issue be set forth in a written post-trial motion cannot be ignored. (Enoch, 122 Ill. 2d at 187.) Additionally, “[a]n offer of proof is necessary where there is no other satisfactory indication as to the substance of evidence [citation], and the failure to do so is a waiver of any error in the exclusion of testimony [citation].” (People v. Green (1983), 118 Ill. App. 3d 227, 234, 454 N.E.2d 792.) Hence, we agree with the State that waiver has occurred.

Notwithstanding our finding of waiver, Supreme Court Rule 615(a) provides, inter alia, that “plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” (134 Ill. 2d R. 615(a).) Under the plain error doctrine, it is appropriate to review errors not preserved if the case is a close one or if it appears that substantial rights of a defendant would be affected if not reviewed. While we do not deem this case to be a close case, especially in light of the testimony of the independent, unimpeached witness, Ms. Lallie, we will nevertheless briefly discuss Felicia’s final contention.

The State moved in limine to bar Felicia from eliciting certain information from Arthur, the victim herein, regarding his prior criminal background. After a hearing on the motion, the court determined that Arthur had no convictions except one for soliciting for prostitution, and it ruled that no mention could be made of Arthur’s arrest for murder or the circumstances of the alleged murder nor of the conviction for soliciting for prostitution. The court further stated a willingness to reconsider its ruling should the State “open the door” during the trial. The trial proceeded, and the record is devoid of any attempts by counsel for Felicia to elicit testimony from Arthur regarding his prior criminal background. This, of course, was in complianee with the court’s ruling on the motion in limine. However, the record is also devoid of defense counsel’s tender of an offer of proof which could have guided the trial court, as well as this court of review, as to the nature and substance of the testimony which he anticipated would be forthcoming. In Felicia’s brief, she argues that the court erred in excluding the testimony regarding Arthur’s violent temperament and the jury should have been apprised thereof. However, Felicia has apparently disregarded the fact that the jury was made aware of the alleged violent propensities of Arthur through Felicia’s own testimony. Felicia testified to the following:

“MR. HOWARD [Defense attorney]: Did you know whether or not this man [victim] had a reputation for violence?
A. Yes. A violent person.
Q. What type of violence did you know he had committed?
A. Murder. Beat up people, taken advantage of people most of the time.
Q. You knew he killed somebody?
A. Yes.
Q. How did you know that?
A. He talked about it. Other people knew about it.”

Moreover, in closing arguments, defense counsel argued:

“MR. HOWARD [Defense counsel]: Let’s just think about it. She knew him. Know what she said she knew about him? That he was a killer, and she said that she knew he had a reputation for being violent.
So, listen. I am going to tell you something. I have always been a peaceful man, but if I know that I’m going to deal with a fool, I think that I don’t have to play my hand, but if I am going to be somewhere and talk to somebody and I think it might get out of hand and a situation where nobody else is around and I might have to deal with him, I am not going to be a fool and just come with just me.
* * *
I was talking to you about common sense. See, when you— any relationship between your fellowman, a guy gives me a check like that and I know he has a reputation for beating up people and putting them on the ground and some things of that kind ***.”

Clearly, the record reveals that notwithstanding the prior allowance of the State’s motion in limine prohibiting reference to the alleged murder charge against the victim (which, according to the testimony elicited at the motion, did not result in a conviction), Felicia was allowed to testify to her subjective belief regarding Arthur’s reputation for violence and also testified that Arthur had committed murder (which apparently was not true). The jury was completely apprised that Felicia was cognizant of Arthur’s alleged reputation for violence.

Defendant cites People v. Adams (1962), 25 Ill. 2d 568, 185 N.E.2d 676, and People v. Davis (1963), 29 Ill. 2d 176, 193 N.E.2d 841, in support of her contention that evidence of a violent disposition is admissible as tending to show the circumstances confronting the defendant, the extent of his apparent danger and the motive by which he was influenced. Both of the cases cited are distinguishable from the case at bar. In each of those instances our supreme court held that it was prejudicial error to exclude evidence as to the violent disposition of the decedent and prior threats or misconduct by the decedent directed towards defendant where defendant relies upon self defense. (Adams, 25 Ill. 2d at 572; Davis, 29 Ill. 2d at 130.) Nothing, however, in the record of the instant case even remotely suggests that Arthur had ever in the past exhibited violence towards Felicia. Hence, the cited cases are inapposite.

In People v. Evans (1981), 92 Ill. App. 3d 874, 416 N.E.2d 377, this court held that it was error to exclude testimony regarding defendant’s knowledge of victim’s prior conviction for murder. Having determined that, it went on to hold in that particular case that it was harmless error because the defendant was otherwise allowed to develop his defense. In the instant case, Arthur, unlike the victim in Evans, was never convicted of the murder. But even assuming that it was error to exclude the victim’s testimony regarding the circumstances of the incident for which he was charged but not convicted, it was harmless error since, clearly, the defense was allowed to put before the jury by way of defendant’s testimony that she feared him because she was under the impression that he was violent and had murdered an individual.

Accordingly, we find that the State has sustained its burden in every aspect as previously discussed and any error committed by the trial court in excluding testimony from Arthur regarding his background was harmless. Felicia’s conviction and sentence are affirmed.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.