source: Caselaw Access Project

author: JUSTICE LINDBERG

license: Public Domain

text:
    RICHARD G. RUTTER, Plaintiff-Appellant, v. THE HORACE MANN INSURANCE COMPANY, Defendant-Appellee.
    Second District
    No. 2—89—0043
    Opinion filed October 27, 1989.

      Joseph D. Olsen, of DeBruyne, Yalden & Olsen, of Rockford (Raphael E. Yalden II, of counsel), for appellant.
    David H. Levitt and D. Kendall Griffith, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Bruce L. Carmen, of counsel), for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, Richard G. Rutter, appeals from orders of the circuit court of Winnebago County (1) denying plaintiff’s and granting defendant the Horace Mann Insurance Company’s motions for summary judgment and (2) denying plaintiff’s amended motion to reconsider the granting of defendant’s motion for summary judgment on plaintiff’s complaint seeking a declaratory judgment reforming his automobile insurance policy with defendant by implying underinsuredmotorist coverage. We affirm in part, reverse in part, and remand.

On April 15, 1983, defendant reissued a policy of automobile liability insurance providing plaintiff with, inter alia, bodily-injury liability coverage of $100,000 per person and $300,000 per occurrence and uninsured-motor-vehicle-bodily-injury coverage of $15,000 per person and $30,000 per occurrence. It appears that on September 16, 1983, plaintiff was involved in an automobile accident in which another driver, Carlyle L. Gemmer (Gemmer), was at fault. Plaintiff contends that Gemmer was underinsured, that defendant did not make a proper offer to him of underinsured-motorist coverage (see Ill. Rev. Stat. 1981, ch. 73, par. 755a — 2(3); Fuoss v. Auto Owners (Mutual) Insurance Co. (1987), 118 Ill. 2d 430, 516 N.E.2d 268; Tucker v. Country Mutual Insurance Co. (1984), 125 Ill. App. 3d 329, 465 N.E.2d 956), and that he is therefore entitled to implied underinsured-motorist coverage “in the amount of his bodily-injury liability portion of his policy ($100,000 per person/$300,000 per occurrence)” under his policy with defendant.

The basis of the trial court’s order granting defendant’s and denying plaintiff’s motions for summary judgment was its conclusion that Gemmer was not an underinsured motorist. Section 143a — 2 of the Illinois Insurance Code (the Code) provides, inter alia:

“For the purpose of this Act the term ‘underinsured motor vehicle’ means a motor vehicle whose ownership, maintenance or use has resulted in bodily injury or death of the insured, as defined in the policy, and for which the sum of the limits of liability under all bodily injury liability insurance policies or under bonds or other security required to be maintained under Illinois law applicable to the driver or to the person or organization legally responsible for such vehicle and applicable to the vehicle, is less than the limits for underinsured coverage provided the insured as defined in the policy at the time of the accident.” (Ill. Rev. Stat. 1981, ch. 73, par. 755a — 2(3).)

Gemmer’s policy provided single limit liability coverage. It also contained the following provision, as an amendment, designed to satisfy the requirements of Illinois law (see Ill. Rev. Stat. 1981, ch. 95V2, par. 7-203):

“The limit of Bodily Injury and Property Damage Liability Coverage shall first be
1. $15,000 for all damages arising out of bodily injury sustained by one person as the result of any one occurrence,
2. $30,000 for all damages arising out of bodily injury sustained by two or more persons as the result of any one occurrence, and
3. $10,000 for all damages arising out of injury to or destruction of all property of one or more persons or organizations as the result of any one occurrence, [sic]
and such limits shall then be supplemented by any amount remaining within the limit for Bodily Injury and Property Damage Liability Coverage stated in the Declarations, which limit is the total amount of the Company’s liability for all damages as the result of any one occurrence.”

Plaintiff, asserting as he has throughout this litigation that Gemmer’s policy had a single limit for liability of $100,000, argues:

“At the time of the accident, therefore, the Gemmer policy only afforded $90,000.00 as the limit of bodily injury liability coverage available to Gemmer. If plaintiff’s policy is reformed to equal his own $100,000/$300,000 limit, Gemmer is an under-insured motorist under any interpretation of Sec. 143a — 2.”

From the arguments in the trial court and the trial court’s statement of the reasons for its ruling, it is apparent that both parties and the court believed that, if plaintiff’s insurance policy with defendant was reformed to include underinsured-motorist coverage, that coverage’s limits would be equal to the $100,000-per-person/$300,000-per-occur-rence limits of the policy’s bodily-injury liability coverage. It is also apparent that all concerned recognized that it was the $100,000-per-person limit that would apply to the September 16, 1983, accident. Moreover, plaintiff claims that after Gemmer’s policy paid for $16,757.97 in property-damage claims as a result of the September 16, 1983, accident, there remained only $83,242.03 in coverage for bodily injury.

Thus, plaintiff’s contentions that Gemmer was underinsured are premised on the assumption that Gemmer’s policy provided $100,000-single-limit liability coverage which, after setting aside the required $10,000 pursuant to the policy amendment or paying the actual $16,757.97 for property damage, provided less than the $100,000 per person bodily-injury limit in plaintiff’s insurance policy with defendant. (See Ill. Rev. Stat. 1981, ch. 73, par. 755a — 2.) Defendant and the trial court also assumed, apparently based on plaintiff’s amended complaint, that Gemmer’s insurance policy had a single limit for liability of $100,000.

During oral argument of this case, this court brought to the attention of counsel for both parties an exhibit indicating Gemmer’s policy had a single limit of $300,000 which was attached to plaintiffs counsel’s affidavit in support of the amended motion to reconsider. In response to a suggestion from the bench as to how to present the matter to the court, counsel for plaintiff has filed a motion to amend the record on appeal supported by an affidavit of plaintiff’s counsel and a stipulation by both parties “that the Record on Appeal herein may be amended in accordance with Plaintiff’s Motion for Leave to Amend the Record on Appeal.” In the motion, plaintiff seeks “leave to amend the record on appeal *** by deleting page 381 of the Record on Appeal, which purports to show the declaration page of the automobile liability policy of Carlyle L. Gemmer *** at the time of the September 16, 1983 automobile accident with [plaintiff] at issue herein, but which actually is a Gemmer declaration page dated 10/28/82 in the amount of $300,000.00, and substituting the correct declaration page dated 4/ 28/83 in the amount of $100,000.00.” Plaintiff’s counsel’s affidavit in support of the motion to amend the record states, inter alia:

“8. At the time of the filing of Affiant’s Affidavit at pages 366-395 of the Record on Appeal herein, the October 28, 1982/ $300,000.00 declaration page was inadvertently attached to Gemmer’s insurance policy rather that [sic] the April 28, 1983/ $100,000.00 declaration page.
9. The April 28, 1983/$100,000.00 declaration page attached to Appellant’s Motion to Amend the Record on Appeal is a true and correct copy of the declaration page of Gemmer, which was in effect at the time of the September 13, 1983 automobile accident as produced in Appellant’s civil suit against Gemmer.”

From the foregoing it is apparent that the record on appeal is completely accurate with respect to what occurred in the trial court. The case was tried on the assumption that Gemmer’s policy had a $100,000 single limit; plaintiff’s counsel’s affidavit in support of the motion to reconsider stated that Gemmer’s policy had a $100,000 single limit; and the exhibit attached to plaintiff’s counsel’s affidavit in support of the motion to reconsider included a declaration page indicating Gemmer had a policy with a single limit of $300,000. All of this occurred in the trial court and is accurately reflected in the record. Plaintiff’s motion to amend the record seeks to substitute for the exhibit actually filed in the trial court an exhibit not only never filed in, but apparently also never presented to, the trial court on the ground that the substituted exhibit would more accurately indicate Gemmer’s policy limits than the exhibit, actually filed.

Supreme Court Rule 321 provides:

“The record on appeal shall consist of the judgment appealed from, the notice of appeal, and the entire original common law trial court record, unless the parties stipulate for, or the trial court, after notice and hearing, or the reviewing court, orders less. The trial court record includes any report of proceedings prepared in accordance with Rule 323 and every other document filed and judgment and order entered in the cause. There is no distinction between the common law record and the report of proceedings for the purpose of determining what is properly before the reviewing court. No assignment of errors or cross-errors is necessary.” (107 Ill. 2d R. 321.)

From this it is apparent that the documents to be included in the record on appeal are only those which were filed in the case.

Supreme Court Rule 329 provides:

“The record on appeal shall be taken as true and correct unless shown to be otherwise and corrected in a manner permitted by this rule. Material omissions or inaccuracies or improper authentication may be corrected by stipulation of the parties or by the trial court, either before or after the record is transmitted to the reviewing court, or by the reviewing court or a judge thereof. Any controversy as to whether the record accurately discloses what occurred in the trial court shall be submitted to and settled by that court and the record made to conform to the truth. If the record is insufficient to present fully and fairly the questions involved, the requisite portions may be supplied at the cost of the appellant. If necessary, a supplemental record may be certified and transmitted.” (107 Ill. 2d R. 329.)

In view of the opening sentence stating that the record “shall be taken as true and correct unless shown to be otherwise and corrected” in accordance with the rule (107 Ill. 2d R. 329); the later statement that “[a]ny controversy as to whether the record accurately discloses what occurred in the trial court shall be submitted to and settled by that court and the record made to conform to the truth” (107 Ill. 2d R. 329); the statement in the committee comments to the rule that “[t]his rule is a comprehensive provision covering amendment of the record on appeal, correction of improper authentication, and the settling of any questions concerning whether the record conforms to the truth” (Ill. Ann. Stat., ch. 110A, par. 329, Committee Comments, at 446 (Smith-Hurd 1985)); and the aforementioned provisions of Rule 321 concerning the contents of the record on appeal (107 Ill. 2d R. 321), it is apparent amendment of the record on appeal is permitted to make the record more accurately reflect what occurred in the trial court.

In the case at bar, the record accurately reflects what transpired in the trial court. The exhibit attached to the affidavit of plaintiff’s counsel in support of the motion to reconsider apparently does not accurately reflect the state of Gemmer’s coverage on the date of the accident. It is unquestioned, however, that it is the exhibit that was filed with the affidavit in the trial court. Accordingly, the motion to amend the record on appeal is denied.

We are thus faced with a record that is inconsistent with respect to whether Gemmer’s policy provided $100,000 or $300,000 in coverage. Since not only plaintiff, but defendant and the court as well, assumed throughout the trial court proceedings that the policy had a $100,000 limit; since both parties assert in this court that the policy had a $100,000 limit; and since the only indication of a $300,000 limit is an affidavit of plaintiff’s counsel, which is internally inconsistent in that it also asserts a $100,000 limit and which was filed only at the very end of the trial court proceedings in support of the motion to reconsider, we will consider the propriety of the judgment on the assumption that Gemmer’s policy had a single limit of $100,000.

Plaintiff contends that the trial court erred in granting defendant’s and denying plaintiff’s motions for summary judgment. Several subsidiary issues arise in the course of considering this primary issue: (1) whether defendant made a proper offer of underinsured-motorist coverage to plaintiff; (2) whether any deficiencies in the offer were remedied by information available to plaintiff from other sources; (3) if the offer was deficient, what the remedy for that deficiency should be; (4) whether Gemmer was underinsured; and (5) if Gemmer was underinsured, the amount of underinsured-motorist benefits to which plaintiff would be entitled.

The trial court ruled in favor of defendant on the ground that Gemmer was not an underinsured motorist. The court stated:

“The statute in question defined underinsured motor vehicle as a vehicle for which the sum of the limits of liability under all bodily injury, liability insurance policy [sic] is less than the limits for underinsured coverage provides [sic] the insured as define [sic] in the policy at the time of the accident.
In this case, at the time of the accident, Gemmer had automobile insurance, combined policy in effect in the amount of a hundred thousand dollars. Therefore, there was available for Gemmer’s bodily injury liability claim in that amount, a hundred thousand dollars. The entire limit of that amount might have been applied to Rutter’s bodily injury claim. And therefore, I find that he was not an underinsured motorist.”

The trial court ruled on “the other issues for appellate purposes,” stating:

“Well, I’m going to rule against the defendant on the other issues. Finding *** that the notice does lack one of the requisite elements, that being the statement that optional coverage is available for relatively modest premium increase or words that would convey that principle to the purchaser.
And I find that that is an important element of the test for the reasons I stated, that a contrary understanding could prevail in the absence of that type of language to a person who is not familiar with the insurance pricing practices.
And then as to the issue of whether the defendant may supplement the notice by information that was available through other sources to this particular insured, I would find that there is a factual issue. And that the plaintiff has raised a sufficient factual issue as to whether he, in fact, had actual knowledge of those matters.”

We will discuss the issues in the order in which we have listed them.

The first issue to be discussed is whether defendant made a proper offer of underinsured-motorist coverage to plaintiff under section 143a — 2 of the Code. (Ill. Rev. Stat. 1981, ch. 73, par. 755a — 2.) We have stated the law applicable to this issue as follows:

“In Cloninger v. National General Insurance Co. (1985), 109 Ill. 2d 419, 488 N.E.2d 548, our supreme court set forth a four-part test to determine the sufficiency of an offer for optional coverage as required by section 143a — 2 of the Code (Ill. Rev. Stat. 1983, ch. 73, par. 755a — 2). To satisfy the requirements of section 143a — 2, an offer must (1) notify the insured in a commercially reasonable manner if the offer is not made in face-to-face negotiations; (2) specify the limits of the optional coverage without using general terms; (3) intelligibly advise the insured of the nature of the offer; and (4) advise the insured that the optional coverage is available for a relatively modest premium increase. Cloninger v. National General Insurance Co. (1985), 109 Ill. 2d 419, 425-26, 488 N.E.2d 548[, 550].” (Krska v. Allstate Insurance Co. (1987), 162 Ill. App. 3d 549, 553, 515 N.E.2d 1304, 1306-07.)

We believe that Krska correctly interpreted Cloninger and that the test as set forth in Krska applies to the issue at bar. We therefore decline defendant’s invitation to overrule or distinguish Krska.

Plaintiff only challenges defendant’s offer of underinsuredmotorist coverage on the ground that it did not advise him that the coverage was available for a relatively modest premium increase. The offer was made in a “stuffer” sent with the notice to renew plaintiff’s policy on October 1, 1980. The stuffer did not note the specific amount of premium increase for each different amount of underinsured-motorist coverage or that the coverage was available for a relatively modest premium increase. All the stuffer said about this subject was, “Note that there is a separate premium charge for [underinsured motorist] Coverage.” This statement, which was in the nature of a warning that the additional coverage would cost more money, was not the equivalent of the required element of an offer of underinsured-motorist coverage which is obviously intended to reassure an insured that the coverage is not very expensive. Defendant contends that documents it mailed to all its agents should be considered a part of its offer to plaintiff, who was a part-time agent of defendant. These documents were clearly no part of the offer of underinsured-motorist coverage but, rather, were intended to give all of defendant’s agents information useful in selling its policies or serving its policyholders. We therefore conclude that the offer of underinsured-motorist coverage to plaintiff was insufficient.

However, if plaintiff received from another source the information missing from the offer itself, no legitimate purpose would be served by relieving plaintiff of the consequences of his decision not to purchase the additional coverage. (See Cloninger v. National General Insurance Co. (1985), 109 Ill. 2d 419, 425, 488 N.E.2d 548, 550 (“[W]e believe that the legislature intended that the ‘offer’ mandated in section 143a — 2(3) provide the insured with enough information regarding underinsured-motorist coverage to allow' the insured to make an intelligent decision of whether such coverage should be elected or rejected”).) Defendant filed affidavits and documents from which it can be concluded that defendant mailed to all of its agents a rate card specifying the additional premium charged for each amount of under-insured-motorist coverage available. Plaintiff filed an affidavit in which he denied receiving the information regarding premiums for underinsured-motorist coverage. Since the question at this point is whether an inadequate offer may be made adequate by information from a source other than the offer itself, we disagree with defendant’s contention that it is only necessary that the information have been sent to plaintiff in a commercially reasonable manner. Rather, to supplement an otherwise inadequate offer, it is necessary that the additional information actually be received by the insured. There was, accordingly, a genuine issue of material fact with respect to whether plaintiff received the premium information that would have supplied the information missing from the offer.

At this point, it is necessary to determine the appropriate remedy if the offer was deficient. The cases are agreed that the remedy is to imply underinsured-motorist coverage, but are not agreed as to the amount. Three approaches to determining the amount have been employed. It has been held that the proper remedy for an insurance provider’s failure to properly offer underinsured-motorist coverage is to imply such coverage by the operation of law with limits equal to the insured’s uninsured-motorist coverage (Tucker v. Country Mutual Insurance Co. (1984), 125 Ill. App. 3d 329, 337, 465 N.E.2d 956, 962); equal to the limits the insured selected for bodily-injury coverage (Fuoss v. Auto Owners (Mutual) Insurance Co. (1986), 148 Ill. App. 3d 526, 535, 499 N.E.2d 539, 545); or equal to the maximum amount of bodily-injury liability coverage being offered by the insurance provider for the last renewal period prior to the insured’s injury (Logsdon v. Shelter Mutual Insurance Co. (1986), 143 Ill. App. 3d 957, 963-64, 493 N.E.2d 748, 753). The third approach, which was argued by plaintiff in the trial court but not on appeal, is no longer viable in light of our supreme court’s decision in Fuoss v. Auto Owners (Mutual) Insurance Co. (1987), 118 Ill. 2d 430, 434-35, 516 N.E.2d 268, 270-71.

Contrary to the implication in plaintiff’s brief, our supreme court in Fuoss did not decide whether the remedy for an inadequate offer of underinsured-motorist coverage should be implication of coverage in the amount of uninsured-motorist coverage or implication of coverage in the amount of the insured’s bodily-injury liability limits. (See Fuoss v. Auto Owners (Mutual) Insurance Co. (1987), 118 Ill. 2d 430, 434, 516 N.E.2d 268, 270 (the court did not decide between these two possible remedies because, even under the more favorable of the two, Fuoss would not be entitled to any relief).) Large amounts of underinsured-motorist coverage should not be implied on the basis of ambiguous or highly speculative claims by the insured. See Fuoss v. Auto Owners (Mutual) Insurance Co. (1987), 118 Ill. 2d 430, 434-35, 516 N.E.2d 268, 270-71.

If a proper offer of uninsured-motorist coverage was made (see Krska v. Allstate Insurance Co. (1987), 162 Ill. App. 3d 549, 553, 515 N.E.2d 1304, 1306-07), we believe that any underinsured-motorist coverage implied should have limits equal to those of the uninsured-motorist coverage. This is because it is unlikely an insured would increase his uninsured-motorist coverage and pay for the higher level of underinsured-motorist coverage (see Ill. Rev. Stat. 1981, ch. 73, par. 755a — 2(4) (“The named insured may elect to purchase limits of under-insured motorist coverage in an amount up to the uninsured motorist coverage”)) so that he would have more coverage for accidents with motorists with some insurance than he was willing to purchase for accidents with wholly uninsured motorists. The offer of uninsured-motorist coverage at bar, however, suffers from the same defect as the offer of underinsured-motorist coverage, in that the stuffer did not provide adequate information with respect to the premiums charged for additional coverage. The offer of uninsured-motorist coverage might be supplemented in the same way the offer of underinsured-motorist coverage might be, so if the plaintiff received the documents defendant claims to have sent to him indicating the premiums charged for different amounts of uninsured-motorist coverage, then the most underinsured coverage that should be implied would have limits equal to plaintiff’s uninsured-motorist coverage limits.

If, on the other hand, there was no proper offer of uninsured-motorist coverage and there was no supplementation to make any inadequate offer adequate, then we believe that the remedy for an insufficient offer of underinsured-motorist coverage should be the implication of such coverage with limits equal to the bodily-injury liability limits of the insured’s policy. (See Ill. Rev. Stat. 1981, ch. 73, pars. 755a — 2(2), (4) (insured may elect uninsured coverage up to his bodily-injury limits and underinsured coverage up to his uninsured coverage); Fuoss v. Auto Owners (Mutual) Insurance Co. (1987), 118 Ill. 2d 430, 433-35, 516 N.E.2d 268, 270-71 (court would not imply underinsured coverage in an amount greater than the bodily-injury limits originally selected by the insured).) In such a case, it is not improbable that the insured would have selected limits providing the insured with protection equivalent to that he provides the public. While it is true that the insured might have selected lower underinsured-motorist-coverage limits, it is not unreasonable to require the insurance provider to bear the risk that this may be true when it was the insurance provider’s failure to make a proper offer of either uninsured or underinsured-motorist coverage that has made it impossible to reasonably imply lower coverage limits.

Plaintiff’s policy had uninsured-motorist coverage limits of $15,000 per person and $30,000 per occurrence. Since he has already received $83,242.03 from Gemmer’s insurance provider for his injuries, it is obvious that plaintiff would be entitled to no recovery of underinsured-motorist benefits from defendant if the limits of that coverage were implied in amounts equal to plaintiff’s uninsured-motorist coverage limits. See Ill. Rev. Stat. 1981, ch. 73, par. 755a — 2(3).

Whether Gemmer would be underinsured if underinsuredmotorist limits equal to plaintiff’s bodily-injury liability limits were implied in the policy is the question the trial court found dispositive. The trial court stated:

“[A]t the time of the accident, Gemmer had automobile insurance, combined policy in effect in the amount of a hundred thousand dollars. Therefore, there was available for Gemmer’s bodily injury liability claim in that amount, a hundred thousand dollars. The entire limit might have been applied to Rutter’s bodily injury claim. And therefore, I find that he was not an underinsured motorist.”

Defendant makes essentially the same argument:

“[A]t the time of the occurrence, which is the relevant time frame under the Insurance Code, Gemmer had available $100,000 in bodily injury liability limits. The fact that some or all of the these [sic] limits could be exhausted by property damage claims does not alter the fact that a person injured by Gemmer’s negligence could theoretically receive $100,000 from his carrier for those injuries.
*** After all, plaintiff had the right to forego a property damage claim against Gemmer’s insurer and claim $100,000 for bodily injury alone. Plaintiff might very well have done this, since his own policy contained collision coverage for the actual cash value of his vehicle ***. Plaintiff thus could have made a claim against his own policy for his property damage and sought $100,000 from Gemmer’s insurer. Naturally, plaintiff did not do this because to do so would have defeated any claim that Gemmer was an underinsured motorist for bodily injury.
* * *
Plaintiff’s argument that Gemmer is an underinsured motorist is based solely on the fact that some of Gemmer’s coverage had to be set aside for a property damage claim. However, this argument assumes that plaintiff was under some compulsion to file such a claim or that a property damage claim was otherwise inevitable. This is not the case. Plaintiff had every right to file a $100,000 [claim] for bodily injury against Gemmer’s policy and forego any claim for property damage.”

We disagree with both defendant and the trial court.

The Code provides:

“For the purpose of this Act the term ‘underinsured motor vehicle’ means a motor vehicle whose ownership, maintenance or use has resulted in bodily injury or death of the insured, as defined in the policy, and for which the sum of the limits of liability under all bodily injury liability insurance policies or under bonds or other security required to be maintained under Illinois law applicable to the driver or to the person or organization legally responsible for such vehicle and applicable to the vehicle, is less than the limits for underinsured coverage provided the insured as defined in the policy at the time of the accident.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 73, par. 755a — 2(3).)

Gemmer’s policy was, in basic form, one with a single $100,000 limit. The basic form was amended to include the following:

“The limit of Bodily Injury and Property Damage Liability Coverage shall first be
1. $15,000 for all damages arising out of bodily injury sustained by one person as the result of any one occurrence,
2. $30,000 for all damages arising out of bodily injury sustained by two or more persons as the result of any one occurrence, and
3. $10,000 for all damages arising out of injury to or destruction of all property of one or more persons or organizations as the result of any one occurrence, [sic]
and such limits shall then be supplemented by any amount remaining within the limit for Bodily Injury and Property Damage Liability Coverage stated in the Declarations, which limit is the total amount of the Company’s liability for all damages as the result of any one occurrence.”

Contrary to defendant’s contention, these terms did not give plaintiff the option of receiving all $100,000 in benefits from Gemmer’s policy for bodily injury. Rather, they provide that the $100,000 total shall first be applied to meet the specific limits set forth, including the $10,000 limit for property damage, “and such [specific] limits shall then be supplemented by any amount remaining within the [$100,000 overall] limit.” Thus, in any claim where there is property damage, the bodily-injury limit of Gemmer’s policy will necessarily be less than the $100,000 overall limit, since up to $10,000 must be paid for property damage before the bodily-injury limits of $15,000 per person and $30,000 per occurrence could be supplemented under the terms of the policy.

This interpretation of Gemmer’s policy also avoids the creation of the Hobson’s choice defendant’s interpretation would create. Under defendant’s interpretation, plaintiff would be required to decide whether he wanted $100,000 in bodily-injury benefits, in which case he would have to forego the $10,000 minimum in property protection guaranteed by the Illinois safety responsibility law (Ill. Rev. Stat. 1981, ch. 951/2, par. 7 — 203); or whether he wanted benefits for the damage to his property, in which case he would have to forego the guarantees of his insurance policy and section 143a — 2 of the Code that he be covered for bodily injury to at least the underinsured-motorist limits of his policy (Ill. Rev. Stat. 1981, ch. 73, par. 755a — 2(3)). Such a choice should not be forced on persons in plaintiff’s position.

Defendant’s suggestion that it somehow makes a difference that plaintiff could have made a property-damage claim under his own insurance policy’s collision coverage, and then taken the full $100,000 under Gemmer’s policy for bodily injury, is incorrect. First, as was previously noted, Gemmer’s policy did not give plaintiff the choice to eliminate property-damage benefits. Second, we see no good reason to force a choice of this sort on plaintiff, who may legitimately wish to avoid paying a deductible or having a property-damage claim in his claim history for an accident in which someone else with insurance was at fault. Third, the principle defendant urges, that an insured may be forced to take all of an at-fault driver’s single limit policy’s benefits for bodily injury so that the insured’s own insurer may avoid the payment of underinsured-motorist benefits, would also apply to insureds having no collision coverage and so no source of compensation for their property-damage losses other than the at-fault driver’s insurance. Fourth, in the case at bar, defendant is arguing that it should not be required to pay an amount in underinsured-motorist benefits equal to the amount of collision benefits (less a $250 deductible) it apparently concedes it would have owed had plaintiff made his claims in the manner defendant insists he should have. Defendant offers no reason it should receive such a windfall simply because plaintiff did not make his claims in a particular manner.

Finally, we turn to the limits of defendant’s liability in the event underinsured-motorist coverage is implied in the amount of plaintiff’s bodily-injury limits. While the Code defines “underinsured motor vehicle” by reference to a comparison of the total bodily-injury liability limits of the at-fault driver with the underinsured-motorist limits of the insured, it sets the limits of underinsured-motorist coverage in a somewhat different manner. In this regard the Code provides:

“The limits of liability for an insurer providing underinsured motorist coverage shall be the limits of such coverage, less those amounts actually recovered under the applicable bodily injury insurance policies, bonds or other security maintained on the underinsured motor vehicle.” (Ill. Rev. Stat. 1981, ch. 73, par. 755a — 2(3).) So, if $100,000 in underinsured-motorist coverage is implied, and Gemmer’s insurer actually paid $83,243.03 in bodily-injury benefits to plaintiff, the limit of liability for underinsured-motorist coverage under plaintiff’s policy with defendant would be $16,756.97.

The trial court erred in granting summary judgment for defendant but did not err in denying summary judgment for plaintiff because there were genuine issues of material fact. This cause must therefore be remanded.

On remand, it should first be determined whether plaintiff actually received the information about specific premiums for different amounts of underinsured-motorist coverage that defendant claimed to have sent him as an agent. If plaintiff actually received this information, no underinsured-motorist coverage should be implied and so judgment should be entered for defendant.

If plaintiff did not actually receive the information about specific premiums for underinsured-motorist coverage, and if the first determination on remand has not already resolved the question, it should next be determined whether plaintiff actually received from defendant sufficient information about uninsured-motorist-coverage premiums to make adequate the otherwise inadequate offer of that coverage. If he did actually receive sufficient information about uninsured-motorist-coverage premiums, then underinsured-motorist coverage should be implied with limits equal to plaintiff’s uninsured-motorist-coverage limits. Because the amount paid by Gemmer’s insurance policy for bodily injury far exceeds the uninsured-motorist limits of plaintiff's policy, this would mean that judgment should be entered in favor of defendant.

If plaintiff also did not receive sufficient premium information about uninsured-motorist coverage, underinsured-motorist-coverage limits equal to plaintiff’s bodily-injury liability limits should be implied. In that case the limit of defendant’s liability would be $16,756.97, and, of course, judgment should be for plaintiff.

The judgment of the circuit court is affirmed in part and reversed in part, and the cause is remanded for further proceedings.

Affirmed in part; reversed in part; and remanded.

McLAREN and REINHARD, JJ., concur.


author: JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY McCALL et al., Defendants-Appellants.
    Second District
    Nos. 2—87—1210, 2—87—1211 cons.
    Opinion filed October 24, 1989.

      G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, for appellants.
    James E. Ryan, State’s Attorney, of Wheaton, and Michael Shevick, of Chicago (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Following a jury trial, defendants, Jerry and Nick McCall, were convicted of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2(a)). Jerry was adjudged a habitual criminal pursuant to the Habitual Criminal Act (Ill. Rev. Stat. 1985, ch. 38, par. 33B — 1 et seq.) and sentenced to natural-life imprisonment. Nick was sentenced to nine years’ imprisonment. Defendants brought separate appeals from their convictions, and we consolidated the appeals for oral argument and disposition. Nick contends that the trial court erred in admitting evidence of another crime and further alleges that he was denied a fair trial by the State’s improper use of that evidence in its closing argument. Jerry similarly argues that he was denied a fair trial by the State’s closing argument and further contends that he was not proved guilty beyond a reasonable doubt and that the Habitual Criminal Act pursuant to which he received a natural-life sentence is unconstitutional. We affirm as to both defendants.

On March 5, 1987, defendants were indicted for the armed robbery of a Fayva shoe store. Prior to trial, defendants brought motions in limine seeking, inter alia, to bar the State from introducing evidence of another shoe-store robbery occurring six days prior to the charged offense. The State sought to introduce evidence of the other crime for the purpose of establishing identity and modus operandi. The trial court denied defendants’ motions to bar introduction of that evidence, and the case proceeded to trial on September 29,1987.

The State’s first witness was Elizabeth Engeldinger, an assistant manager of a Fayva shoe store located in Wheaton, Illinois. Engeldinger testified that on December 29, 1986, at approximately 5 p.m., a man entered the store, proceeded to the men’s aisle, and tried on a pair of boots. Engeldinger described the man as approximately 38 years old, 5 feet 8 inches, 170 pounds, with dark brown hair, and dark eyes. Engeldinger testified that a younger man entered the store approximately two minutes later. Shortly thereafter, the older man approached Engeldinger, displayed a gun, and instructed her to go to the back room of the store. Engeldinger and the older man then approached Engeldinger’s co-worker, Margaret Leavitt, at which time the older man again displayed his gun, “cocked” it with his left hand, and instructed both employees to proceed to the back room. The parties were subsequently met by the younger man, who also displayed a gun. Engeldinger identified the older of the two perpetrators as defendant Jerry McCall, and the younger man as defendant Nick McCall. Engeldinger further testified that Jerry McCall, who at the time of the trial wore glasses, a beard, and had gray hair, looked different at the time of the offense.

Engeldinger next testified that she accompanied the younger man to the front of the store while the older man and Leavitt went into the stock room. Engeldinger stated that as she walked toward the front of the store she observed the older man put on a white, transparent, latex rubber glove. Upon reaching the front of the store, Engeldinger opened the safe and cash drawer and placed the contents into an empty shoe box. The younger man then instructed Engeldinger to return to the stock room. Upon reaching the stock room, Engeldinger observed Leavitt handcuffed to the bathroom door. Engeldinger stated that the older man then instructed her to handcuff herself to a metal rack and assisted her in doing so. At that time, the older man was wearing rubber gloves. The older man left the stock room after advising Engeldinger and Leavitt that a curious customer would soon discover them. Leavitt subsequently released herself, locked the store, and called police.

Engeldinger next testified that she related the events of the incident and described the perpetrators to the police. Engeldinger stated that she assisted Detective Jeffrey Ludman in composing a sketch of the younger perpetrator while Leavitt assisted Detective Ludman in composing a sketch of the older perpetrator.

Engeldinger next testified that on February 12, 1987, she viewed a series of photographs and identified one of the pictures as depicting the older perpetrator “except for the beard.” Engeldinger testified that the man she identified was Jerry McCall. On February 19, 1987, Engeldinger viewed a photo lineup and identified one of the men depicted as the younger perpetrator. Engeldinger testified that the man she identified was Nick McCall. On February 20, 1987, Engeldinger viewed two lineups. Engeldinger testified that one lineup consisted of five middle-aged men wearing orange jumpsuits. Although Engeldinger thought that one of the men in the lineup, later identified as Jerry McCall, looked like the older perpetrator, she was unable to make a positive identification. Engeldinger testified that the second lineup consisted of men in their late twenties wearing orange jumpsuits. Engeldinger identified one of the men in the lineup as the younger perpetrator and stated that she was absolutely positive of that identification. Engeldinger testified that the man she identified in the second lineup was Nick McCall.

On cross-examination, Engeldinger testified that the older perpetrator did not have glasses or a beard. Engeldinger also testified that the older perpetrator had dark brown hair and brown eyes, while the man she thought looked familiar in the first lineup had gray hair, a mustache, and pale green eyes. Engeldinger repeated that she was not absolutely sure of her identification of the older man at the time of the lineup. Engeldinger further testified that the older perpetrator used his left hand to remove a pair of boots from the shelf, cock his gun, and remove the rubber gloves from his pocket. Engeldinger testified that the older man did not have a cast on his left hand, but further stated that she could not see the older man’s left wrist as it was covered by his jacket. On redirect, Engeldinger stated that while she was not sure about her identification of the older man at the time of the lineup, she was absolutely sure at trial. Engeldinger testified that she was positive that Jerry McCall was the older perpetrator because she remembered his “beady” eyes.

Margaret Leavitt substantially corroborated Engeldinger’s testimony concerning the robbery. Leavitt further testified that she assisted Detective Ludman in composing a sketch of the older perpetrator, but noted that she was not satisfied with the sketch because it did not look like the older perpetrator. However, at trial Leavitt identified the older perpetrator as Jerry McCall and the younger perpetrator as Nick McCall.

Leavitt next testified that on February 12, 1987, she viewed a series of photographs and identified one of the pictures as depicting the older perpetrator. Leavitt stated that the picture looked like the older perpetrator except his hair was shorter and he had a beard in the picture. Leavitt testified that the man she identified was Jerry McCall. On February 19, 1987, Leavitt viewed a photo lineup and identified one of the men depicted as looking like the younger perpetrator. Leavitt was unable to make a positive identification from the photograph. On February 20, 1987, Leavitt viewed two lineups. Leavitt picked a man from the first lineup as the older perpetrator and identified him in court as Jerry McCall. Leavitt picked a man from the second lineup as the younger perpetrator and identified him in court as Nick McCall. Leavitt stated that she was absolutely positive that the man she picked in the second lineup was the younger perpetrator and noted that she was able to identify him before looking at the remaining people. Leavitt also testified that Jerry McCall looked different in court than he did on the night of the robbery, noting that the older perpetrator did not have a beard or glasses and his hair was brown rather than gray.

On cross-examination, Leavitt stated that she did not see the older perpetrator’s left wrist and did not see a cast on his left hand. Leavitt further stated that she thought the older perpetrator’s eyes were dark or brown, but admitted at trial that Jerry McCall’s eyes were green. On redirect, Leavitt testified that the older man’s eyes were distinctive and sunken with dark patches under them.

After eliciting testimony from law enforcement officers involved in the investigation of the offense, the State introduced, over defendants’ objections, evidence of an armed robbery at a second shoe store. Kevin Spealman testified that on December 23, 1986, he was working at a Payless Shoe Source store located in Schaumburg, Illinois. Spealman testified that two men walked into the store at approximately 9:10 p.m. Spealman stated that one of the men was in his late thirties or early forties, 5 feet 9 inches to 5 feet 11 inches, with dark hair, and brown eyes. Spealman stated that the second man was in his early twenties, 5 feet 7 inches to 5 feet 9 inches, with “dishwater” blonde hair. Spealman testified that both men displayed guns in shoulder holsters. Spealman stated that the older man announced a robbery and took Spealman and another store employee into a back room. Spealman then accompanied the younger perpetrator to the cash register. Spealman identified the younger perpetrator as Nick McCall. Spealman stated that he put money from the cash register and safe into a shoe box and returned to the back room, where the older perpetrator handcuffed him to a metal rack. Spealman stated that the other employee was handcuffed to the bathroom door. Spealman also testified that the older perpetrator wore a clear plastic glove on one hand.

Spealman next testified that on February 17, 1987, he viewed a photo lineup and identified one of the men depicted as one of the perpetrators. Spealman testified that the man he identified was Nick McCall. On February 20, 1987, Spealman viewed two lineups. Spealman picked a man from one of the lineups and identified him as one of the perpetrators. Spealman testified that the person he identified was Nick McCall. Spealman viewed a second lineup and, although stating that one of the men, later identified as Jerry McCall, could have been the second perpetrator, he could not make a positive identification. On cross-examination, Spealman testified that the older perpetrator did not wear a cast and did not have a beard. Spealman also testified that he was color blind and, while he could not recognize the color green, nonetheless observed that Jerry McCall’s eyes were too light to be considered brown.

Spealman’s co-worker, Christine Desmet, substantially corroborated Spealman’s account of the robbery. Desmet identified the older perpetrator as Jerry McCall and the younger perpetrator as Nick McCall. Desmet further testified that the older perpetrator removed a rubber glove from his left pocket and placed it on his right hand before handcuffing her to the bathroom door.

Desmet next testified that on February 17, 1987, she viewed a series of photographs and identified one of the men depicted as the younger perpetrator. Desmet testified that the man she identified was Nick McCall. On February 20, 1987, Desmet viewed two lineups. Desmet identified a man from one of the lineups as the younger perpetrator and testified that the man she identified was Nick McCall. Desmet identified a man from the second lineup as the older perpetrator and testified that the man she identified was Jerry McCall. On cross-examination, Desmet testified that she did not see a cast on the older perpetrator’s left hand and further testified that the older perpetrator did not have a beard.

Dr. Eugene Bartucci testified on behalf of Jerry McCall. Dr. Bartucci stated that he treated Jerry for a fractured left wrist on December 12, 1986. Dr. Bartucci testified that Jerry’s hair color was approximately the same as it was at trial and that Jerry wore a beard. Dr. Bartucci stated that he placed Jerry in a short-arm cast and described the cast as extending from Jerry’s elbow across the back portion of his left hand to the first row of knuckles. Dr. Bartucci testified that he next saw Jerry on December 20, 1986, and thought that Jerry had a beard at that time. Dr. Bartucci testified that he saw Jerry again on December 27, 1986, and stated that Jerry was still wearing his cast at that time. Dr. Bartucci removed Jerry’s cast on January 17, 1987, and testified that the wrist was tender and painful. Dr. Bartucci recasted Jerry’s wrist and did not remove the second cast until January 31, 1987. Dr. Bartucci saw Jerry again on February 16, 1987, and noted that the wrist was stiff and weak. Dr. Bartucci testified that he generally checked casts for fit and changed them if they were loose. Dr. Bartucci further stated that some patients can remove their casts.

On cross-examination, Dr. Bartucci testified that casts can become loose when swelling goes down. Dr. Bartucci also testified that the extent of tenderness and pain on Jerry’s wrist was not normal and acknowledged that it was possible that Jerry removed his cast. On redirect examination, Dr. Bartucci stated that he did not see any evidence that Jerry removed his cast.

Joan McCall, Nick McCall’s mother, testified on his behalf. Mrs. McCall testified that on December 29, 1986, at approximately 5 p.m., Nick was at home with her and other family members. Mrs. McCall stated that Nick helped prepare and clean up after dinner, played cards with other family members, and watched a video tape. Mrs. McCall also described Nick’s appearance at the time and stated that he was approximately 6 feet 1 inch, 215 pounds, had brown eyes, and blonde hair.

During the rebuttal portion of the State’s closing argument, the State summarized the evidence from both the robbery in the instant action and the uncharged robbery introduced as evidence to show identity and modus operandi. During rebuttal, the State argued that it had “four eyewitnesses” and further characterized defendants as “professionals.” Defendants did not object to these references. At the conclusion of the trial, the jury returned guilty verdicts against both defendants. The court entered judgment on the verdicts and continued the cause for post-trial motions and sentencing.

On November 6, 1987, the trial court held a hearing on defendants’ motions for a new trial. Jerry McCall argued, inter alia, that the identification testimony was not sufficient to establish his guilt beyond a reasonable doubt, the trial court erred in introducing evidence of the uncharged robbery, and he was denied a fair trial by the State’s rebuttal argument characterizing him as a “professional.” Jerry’s counsel also noted that Jerry had filed a separate post-trial motion pro se in which he raised three allegations of incompetence of counsel. Nick McCall also argued that the trial court erred in introducing evidence of the uncharged robbery and further alleged that he was denied a fair trial on the basis of the State’s rebuttal argument characterizing him as a “professional.” The trial court denied defendants’ motions for a new trial, and the case proceeded to sentencing.

At the sentencing phase of the hearing, the State moved to have Jerry McCall adjudged a habitual criminal under the Habitual Criminal Act (Ill. Rev. Stat. 1985, ch. 38, par. 33B — 1 et seq.), and tendered certified copies of prior convictions in support of its petition. After admonishment and brief argument, the trial court adjudged Jerry McCall a habitual criminal and sentenced him to natural-life imprisonment. The trial court then received evidence regarding sentencing for Nick McCall. The trial court continued the cause for argument and, on December 4, 1987, sentenced Nick McCall to nine years’ imprisonment.

On December 21, 1987, defendants filed separate appeals from their convictions. This court subsequently entered an order allowing Jerry McCall to file a late notice of appeal, and both appeals were consolidated for oral argument and disposition.

We first address Nick McCall’s contention that the trial court erred by allowing the State to introduce evidence of other crimes to establish identity and modus operandi. Nick argues that because there were two witnesses to the charged offense who positively identified him as the younger perpetrator, the additional evidence was “overkill” and the prejudice of introducing that evidence far outweighed its probative value. We disagree.

Evidence of crimes other than the one for which the defendant is being tried is not admissible to show the defendant’s propensity to commit crime. (See People v. McDonald (1975), 62 Ill. 2d 448, 455; People v. Triplett (1981), 99 Ill. App. 3d 1077, 1082.) However, such evidence is generally admissible if relevant for another purpose, such as to show motive, intent, identity, absence of mistake, or modus operandi. (McDonald, 62 Ill. 2d at 455; Triplett, 99 Ill. App. 3d at 1082.) In determining whether to allow introduction of evidence of other crimes, the court must balance the probative value of the evidence against the prejudice to the defendant. (See Triplett, 99 Ill. App. 3d at 1082.) Even where the evidence has substantial relevance for a permitted purpose, it should not be admitted if its probative value is outweighed by its prejudicial effect. (99 Ill. App. 3d at 1082.) In other words, the actual need for the evidence must be considered in light of the relevant issues and the other evidence available to the State and must be balanced against the prejudicial effect its admission will have upon the jury. (People v. Butler (1975), 31 Ill. App. 3d 78, 80.) A trial court’s determination as to the admissibility of evidence of other crimes will not be reversed unless it constitutes a clear abuse of discretion. People v. Funches (1978), 59 Ill. App. 3d 71, 73.

In support of his argument that the trial court abused its discretion in the instant action, Nick relies primarily on People v. Blakely (1972), 8 Ill. App. 3d 78, and People v. Butler (1975), 31 Ill. App. 3d 78. In Blakely, the State introduced evidence of an uncharged armed robbery for the purpose of establishing the defendant’s identity at his trial on another armed robbery. (Blakely, 8 Ill. App. 3d at 82.) The appellate court reversed the defendant’s subsequent conviction on the basis that the trial court erred in admitting evidence of the other crime. (8 Ill. App. 3d at 83.) In stating that evidence of other crimes is inadmissible where the identity of the defendant can be clearly shown without the use of such evidence, the court noted that the testimony of the two witnesses to the charged offense was “clear, positive and apparently reliable.” (8 Ill. App. 3d at 82-83.) The court further noted that the defendant’s cross-examination of one of the witnesses did not shake her identification of the defendant. 8 Ill. App. 3d at 83.

We decline to follow Blakely in light of our supreme court decision in People v. Tiller (1982), 94 Ill. 2d 303, cert. denied (1983), 461 U.S. 944, 77 L. Ed. 2d 1302, 103 S. Ct. 2121. In Tiller, the court stated that “[t]he prosecution is not precluded from presenting evidence of other crimes for a proper purpose merely because it had some other evidence on that point.” (Tiller, 94 Ill. 2d at 318.) As such, we do not believe that the trial court abused its discretion in admitting evidence of the uncharged robbery under the circumstances presented here. Nick disclosed that he would be presenting an alibi defense at trial and listed four persons who were allegedly with him on the night of the offense. Nick maintained his alibi defense at trial, and his counsel vigorously cross-examined the witnesses to the charged offense concerning both their ability to observe the perpetrators and the quality of their observations. In particular, Nick’s counsel spent a considerable amount of time questioning Engeldinger about the quality of her observations of Nick while she was opening the safe and cash drawer for him. In addition, on both direct and cross-examination, Leavitt stated that she could not make a positive identification of Nick McCall from the photo lineup. Under these circumstances, introduction of the evidence was not only proper but prudent.

Nick also cites People v. Butler (1975), 31 Ill. App. 3d 78, 80, for the proposition that evidence of other crimes introduced to establish identity should be limited to such details as showing the opportunity for identification and not the details of the crime. Nick thus challenges the testimony of the witnesses to the uncharged robbery on the basis that their testimony focused on the similarities between the crimes rather than their opportunity to observe the perpetrators in the uncharged crime.

We note that the State offered the evidence of the other crime to establish both identity and modus operandi. In any event, unlike the situation presented in Butler, where the court noted that the “details were clearly unrelated to the crime in question and were unnecessary to establish identity” (Butler, 31 Ill. App. 3d at 81), much of the testimony concerning the details of the uncharged crime in the instant action also served to establish the witnesses’ opportunity to observe. Nick’s counsel vigorously cross-examined the witnesses to the uncharged robbery on these points as well. Based on the record before us, we conclude that the trial court did not abuse its discretion in admitting evidence of the other crime in this action.

Nick next contends that he was denied a fair trial by the State’s closing argument on the basis that the State “freely blended” evidence of the uncharged crime with the charged offense and further characterized defendants as “professionals.” Jerry also argues that he was denied a fair trial on this basis. We disagree.

We initially note that, while both defendants raised this issue in their post-trial motions, neither objected to the challenged references during the State’s closing argument. Generally, such a failure constitutes a waiver of the claimed error on appeal. (See People v. Threadgill (1988), 166 Ill. App. 3d 643, 650.) However, this court may consider an unpreserved issue where the claimed error affects substantial rights of the defendant or where the verdict of the jury may have resulted from the error. (See 107 Ill. 2d R. 615(a); Threadgill, 166 Ill. App. 3d at 650.) We elect to review the propriety of the State’s closing argument on this basis. See People v. Lasley (1987), 158 Ill. App. 3d 614, 626-27.

Generally, a prosecutor is allowed wide latitude in closing argument. (Lasley, 158 Ill. App. 3d at 625.) However, statements made in closing argument which serve no purpose except to inflame the jury constitute error. (Threadgill, 166 Ill. App. 3d at 651.) The test for determining if the prosecutor’s comments constitute reversible error is whether the remarks, considered in light of all the evidence, were a material factor in the conviction, or whether the jury might have reached a different result had the comments not been made. Lasley, 158 Ill. App. 3d at 625-26.

In the instant action, defendants assert that the State improperly blended the evidence of the charged crime and the uncharged crime so as to “paint” defendants as bad men. Defendants identify several remarks as improper and prejudicial. First, defendants assert that the State improperly argued that it had “four eyewitnesses” in the case before the jury, when it in fact had only two eyewitnesses, the other witnesses having offered evidence as to the uncharged crime. We agree with defendants that the State’s reference was clearly incorrect and therefore improper. However, in the context of the entire argument, we cannot say that this error was so prejudicial as to have deprived defendants of a fair trial. A complete reading of the State’s closing argument reveals numerous references to the separateness of the two crimes and the limited purpose for which evidence of the uncharged crime was introduced. In light of the entire argument, we cannot conclude that the prosecutor’s misstatement constituted a material factor in the verdict of the jury.

A more serious question is presented by the second complained-of reference, namely, that defendants were “professionals.” It is reversible error for a prosecutor to refer to a defendant as a habitual or professional criminal, or to suggest that the defendant’s business or occupation is crime. (People v. Natoli (1979), 70 Ill. App. 3d 131, 136; see People v. Mathes (1981), 101 Ill. App. 3d 205, 207.) Characterizing a defendant as a professional criminal or otherwise stating that the defendant’s occupation is crime is prejudicial in that it implies that the defendant has a propensity to commit crime. See Natoli, 70 Ill. App. 3d at 136-37.

Defendants rely extensively on Natoli in support of their argument that they were denied a fair trial by the State’s argument characterizing them as “professionals.” In Natoli, the prosecutor made repeated references characterizing the defendant’s “business” as selling drugs. (70 Ill. App. 3d at 136.) The court found these references particularly egregious since they diluted the defendant’s credibility and therefore improperly diverted the jury from considering the defendant’s entrapment defense on the evidence. (70 Ill. App. 3d at 136.) However, in People v. Mathes (1981), 101 Ill. App. 3d 205, 207, the court affirmed the defendant’s conviction of armed robbery despite his argument that he was denied a fair trial by the prosecutor asking the jury to end the defendant’s “career” as an armed robber. The court noted that this reference, although improper, did not constitute reversible error under the totality of the facts and circumstances of the case and the overwhelming evidence of the defendant’s guilt. (Mathes, 101 Ill. App. 3d at 207.) Similarly, in People v. Richardson (1985), 139 Ill. App. 3d 598, this court affirmed the defendant’s conviction of murder despite his argument that he was denied a fair trial by the prosecutor characterizing him as “sophisticated.” In so ruling, we noted that “the context in which the prosecutor used the word ‘sophisticated,’ *** may or may not have been understood to refer to ‘criminal sophistication.’ ” Richardson, 139 Ill. App. 3d at 601.

We believe that the reference in the instant action is similar to that found in Mathes and Richardson. During the State’s rebuttal argument, the assistant State’s Attorney stated:

“These guys are professionals, ladies and gentlemen, they know what to do, they know what not to do, they know how not to leave fingerprints, how not to leave evidence around to get caught with it later.
* * *
And your verdict must tell these men that they can’t escape the responsibility for their actions and that this is the end, this is the end of the line, this is where it stops, there is [sic] no more victims, no more shoe stores, no more nighttime robberies.”

Read in the context of the entire argument, we do not believe that these references implied that defendants had a criminal history or a propensity to commit crime. The State’s characterization of defendants as “professionals” did not label them as “professional criminals” and may be fairly interpreted as proper commentary on the manner in which defendants committed the instant offense, particularly given their use of rubber gloves and handcuffs. (See Richardson, 139 Ill. App. 3d at 601.) Similarly, the reference to “shoe stores” and “nighttime robberies” may be fairly interpreted as referring only to the instant crime, particularly given the context in which those remarks were made where the State was asking the jury to return a verdict to stop defendants from committing any more crimes similar to the one charged. (See Mathes, 101 Ill. App. 3d at 207.) Based on the foregoing, we do not believe that the evidence was so closely balanced that defendants were prejudiced by the State’s closing argument.

Turning to the remaining points raised in Jerry’s appeal, Jerry next contends that the State failed to prove him guilty beyond a reasonable doubt on the basis that the identification testimony was insufficient. We disagree.

The State has the burden of proving the identity of the person who committed the crime beyond a reasonable doubt. (People v. Slim (1989), 127 Ill. 2d 302, 307.) An identification will not be deemed sufficient to support a conviction if it is vague or doubtful. (Slim, 127 Ill. 2d at 307.) The factors to be considered in evaluating the likelihood of misidentification include (1) the opportunity of the witness to view the offender at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the offender; (4) the level of certainty demonstrated by the witness at the identification confrontation; and (5) the length of time between the crime and identification confrontation. (See Slim, 127 Ill. 2d at 307-08; People v. McTush (1980), 81 Ill. 2d 513, 521.) Any discrepancies and omissions as to facial and other physical characteristics are not fatal, but simply affect the weight to be given the identification testimony. (Slim, 127 Ill. 2d at 308.) The presence of discrepancies or omissions in a witness’ description of the accused do not in and of themselves create a reasonable doubt as long as a positive identification has been made. Slim, 127 Ill. 2d at 309.

In the instant action, both Engeldinger and Leavitt positively identified Jerry McCall as the older perpetrator on several occasions. In addition, one of the two witnesses called to testify regarding the uncharged offense positively identified Jerry McCall as the older perpetrator in that crime on more than one occasion. Jerry makes much of the fact that these witnesses initially described him as having dark or brown hair and brown eyes at the time of the offenses, when he in fact had green eyes and gray or graying hair. These discrepancies go only to the weight of the witnesses’ testimony and do not render the identification insufficient as a matter of law. Nor do we consider the witnesses’ testimony that Jerry did not have a cast on his left arm or a beard at the time of the offense sufficient to negate their identifications. Dr. Bartucci’s testimony that he “thought” Jerry had a beard when he saw him on December 20, 1986, was inconclusive, and the jury certainly could have inferred that Jerry shaved before the robbery. Dr. Bartucci also testified that Jerry could have removed his cast and further noted that Jerry’s wrist was more tender and painful than would otherwise be normal. Thus, the inconsistencies relied upon by Jerry in challenging the identification testimony were explained or otherwise accounted for during the course of the trial. Finally, we note that the witnesses had ample opportunity to observe and identify the older perpetrator. Engeldinger was initially approached by the older perpetrator at the time the robbery was announced, and the older perpetrator handcuffed her to the metal rack in the stock room before he left. Leavitt was left alone in the stock room with the older perpetrator for approximately four minutes. Based on this record, we cannot conclude that the few inconsistencies presented render the identification testimony insufficient as a matter of law.

Jerry next presents four arguments challenging the constitutionality of the Habitual Criminal Act (Act) (Ill. Rev. Stat. 1985, ch. 38, par. 33B — 1 et seq.) pursuant to which he received a natural-life sentence. Jerry contends that the Act is unconstitutional in that it (1) was enacted in violation of article IV, section 8(d), of the Illinois Constitution because it was not read three times in the House of Representatives; (2) does not permit consideration of the offender’s personal characteristics and seriousness of the offense in violation of the due process clause and eighth amendment of the United States Constitution; (3) places the sentencing discretion in the State’s Attorney rather than the judiciary in violation of the separation of powers doctrine of the Illinois Constitution and eighth amendment to the United States Constitution; and (4) violates the provisions of the Illinois and United States Constitutions prohibiting ex post facto laws and double jeopardy. Each of these arguments has been addressed and rejected in numerous appellate court decisions. (See People v. Sims (1987), 166 Ill. App. 3d 289, 302-03 (compilation of cases upholding the constitutionality of the Act).) As Jerry concedes in his brief on appeal, this court has recently adopted these holdings and rejected the identical four challenges presented here. (See People v. McDarrah (1988), 175 Ill. App. 3d 284, 297-98; People v. Westefer (1988), 169 Ill. App. 3d 59, 64-65.) Jerry does not raise any new theories nor present compelling arguments for this court to retreat from McDarrah, Westefer, or the numerous other decisions finding the Act constitutional. Accordingly, we find Jerry’s constitutional challenges to the Act to be without merit.

For all of the reasons set forth above, we affirm the judgments of the circuit court of Du Page County.

Affirmed.

REINHARD and McLAREN, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    ELAINE M. PAULAN, Plaintiff-Appellant, v. JEFFREY JETT, Defendant-Appellee.
    Second District
    No. 2—89—0171
    Opinion filed October 26, 1989.
    Donald L. Bertelle and Peter R. Behnke, both of Chicago, for appellant.
    lee. Edward M. O’Donnell, of O’Donnell & Murtaugh, of Lombard, for appel-
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiff, Elaine M. Paulan, was injured when she collided, while on foot, with a truck driven by the defendant, Jeffrey Jett. The plaintiff sued defendant in the circuit court of Du Page County to recover for the medical expenses, pain and suffering, and the disability she claims were the result of the accident. The jury returned a verdict of $300 in the plaintiff’s favor for reasonable medical expenses, but awarded the plaintiff nothing for either her pain and suffering or her disability.- The jury also found that the plaintiff’s contributory negligence was a 50% cause of the accident. The plaintiff filed a motion for a new trial on the ground that the jury’s verdict was inadequate as a matter of law because it ignored a proved element of damages. The trial court denied the motion, and the plaintiff now appeals. We affirm.

On October 15, 1983, both the plaintiff and the defendant were students at Hinsdale South High School, and both attended the school’s homecoming football game that day. The parties agree that a collision between the plaintiff and the defendant’s truck took place that afternoon and that the plaintiff suffered injury as a result. The accident occurred in the parking lot adjacent to the stadium either shortly before or after the end of the football game. The defendant was driving his truck through the parking lot, and the plaintiff was stopped to talk to her friends. At some point, the plaintiff turned to walk away from her friends and collided with the defendant’s truck. She struck and shattered the truck’s side-view mirror and was thrown to the ground.

At trial, the parties presented conflicting testimony regarding the cause of the accident. The plaintiff contended that she was standing in a pedestrian walkway when she turned and the side-view mirror of the defendant’s truck struck her. She testified that the accident occurred before the end of the game and the traffic in the parking lot was light. Two witnesses substantially corroborated the plaintiff’s version of events and added that the truck was traveling between 20 and 30 miles per hour just before the accident occurred.

The defendant testified that the accident occurred in bumper-to-bumper traffic after the game had ended. He stated that his truck was stopped when the plaintiff, who was running with her head turned behind her, ran into the truck. Two witnesses also substantially corroborated the defendant’s version of events.

The parties also disagree as to the extent of the injuries suffered by the plaintiff. The plaintiff testified that, although she attended the homecoming festivities later that evening, she was in pain and her arm and knee were greatly swollen. She went to the emergency room at Palos Community Hospital the next morning and was prescribed pain-killing medication and fitted with a brace to immobilize her knee. In the 10 days following the accident, the plaintiff’s family doctor, Dr. Thomas Driscoll, twice examined her. He continued the treatment prescribed at the hospital emergency room. The plaintiff stayed out of school for one week after the accident and wore the knee brace for two months thereafter.

The plaintiff’s last visit with Dr. Driscoll concerning her knee took place on October 25, 1983. For almost 19 months after this date the plaintiff did not seek any medical care for her knee. During this time, the plaintiff testified, she was forced to give up a number of activities that she had previously enjoyed because of the condition of her injured knee. The condition of the knee, the plaintiff said, made it difficult for her to jump, and the knee could not withstand strenuous activities. She could not continue as a starting player on her high school’s varsity volleyball team, and she also had to forgo playing any intramural high school sports. The knee continued to bother the plaintiff after she went away to college. She complained of stiffness and a grinding feeling in the knee when she engaged in certain activities. Playing volleyball, walking for a long distance or up stairs, and riding a bicycle would all tend to cause her knee to swell or ache.

On May 23, 1985, Dr. Driscoll referred the plaintiff to Dr. Thomas Regan for an examination of the knee. Dr. Regan X-rayed the knee and instructed the plaintiff on certain rehabilitative exercises. The following summer, in August 1986, Dr. Regan again examined the plaintiff. At about this time, the plaintiff decided to consult another physician about the possibility of surgery on her knee. She was referred to Dr. Albert Bunta, an orthopedic surgeon, who X-rayed the plaintiff’s knee and examined the X rays taken previously by Dr. Regan. Dr. Bunta determined that the plaintiff’s knee was not in need of surgery. He found no signs of either crepitation, which is a grating within the knee, or of chondromalacia, a softening or roughening of the joint cartilage.

Again the next year, in August 1987, the plaintiff decided to see another doctor because she was dissatisfied with the recovery of her knee. Dr. Michael Orth, a board-certified orthopedic surgeon, examined the plaintiff and determined that the knee demonstrated both crepitation and chondromalacia. In his evidence deposition read at trial, Dr. Orth testified that the knee’s condition was consistent with the plaintiff’s complaints of pain. He told the plaintiff that if she could not live with the discomfort of the knee, then arthroscopic surgery was an option for her to consider. The defendant, however, introduced into evidence at trial the evidence deposition of Dr. Bunta in which he stated that the plaintiff’s knee did not demonstrate crepitation or chondromalacia and that no surgery was warranted.

The plaintiff introduced evidence at trial to show that her medical expenses consisted of: $201.20 paid for her initial treatment at the emergency room; $77 paid to Dr. Driscoll for the examinations conducted a few days after the accident; and a total of $390 for the examinations by Dr. Regan, Dr. Bunta and Dr. Orth dating back to 1985. The parties stipulated that the arthroscopic surgery discussed by Dr. Orth would cost $2,500.

The jury returned a verdict awarding the plaintiff $300 for the reasonable medical expenses the plaintiff incurred as a result of the accident. The jury awarded the plaintiff nothing for either the pain and suffering or the disability which the plaintiff claims were the result of the injury. The jury also found that the plaintiff’s contributory negligence was a 50% cause of the accident. After the trial court entered judgment on the verdict, the plaintiff filed a post-trial motion seeking to vacate the judgment entered and seeking a new trial on the issue of damages only. The basis of the motion was the plaintiff’s assertion that the verdict was inadequate as a matter of law in that it failed to reflect the evidence offered to show the pain and suffering of the plaintiff. The trial court denied the motion, and the plaintiff now appeals that ruling.

The plaintiff’s position on appeal is essentially the same as below, namely, that the jury’s verdict is inadequate because the jury ignored a proved element of damages. The amount of a verdict is generally within the discretion of the jury. A reviewing court may order a new trial only if the damages awarded are manifestly inadequate, if it is clear that proved elements of damages have been ignored, or if the amount awarded bears no reasonable relationship to the plaintiff’s loss. Hollis v. R. Latoria Construction, Inc. (1985), 108 Ill. 2d 401, 407.

The plaintiff argues that the jury’s verdict disregards the evidence presented at trial showing the pain and suffering that she suffered as a result of the accident. We believe, however, that the jury’s verdict may well have been the result of its own assessment of the strength of the plaintiff’s proof and the credibility of the testimony presented at trial. The defendant admitted that the plaintiff was injured in the accident in the high school parking lot, but he did not concede that the injury was as severe as the plaintiff claimed. The defendant read into evidence the deposition of Dr. Bunta, who stated that the plaintiff’s knee did not demonstrate the kind of injury that Dr. Orth had found. This conflict between the statements of the two doctors regarding the extent of the injury is precisely the kind of factual question that should be resolved by the jury.

Moreover, it was for the jury to assess the credibility of the plaintiff’s complaint of pain in her knee and to determine what damages, if any, ought to be awarded. The plaintiff attended her homecoming festivities after the accident, and she did not seek medical treatment until the morning after. As for the continuing complaints of pain, the plaintiff admitted that, after the initial examination by her family doctor, she did not seek medical treatment for her knee again until some 19 months later. This delay provides a sufficient basis for a jury to conclude reasonably that the plaintiff failed to prove any significant pain and suffering resulting from the accident. That the jury reached such a conclusion here is supported by the fact that it awarded the plaintiff a sum ($300) approximately equal to the cost of only her initial medical treatment ($278.20), but did not award an amount sufficient to cover medical expenses incurred long thereafter.

Two cases cited by the defendant support our conclusion. In Williams v. McCallister (1978), 60 Ill. App 3d 635, the defendant was involved in an automobile accident with the plaintiff. The plaintiff brought suit claiming that the accident caused her to suffer whiplash. The defendant contested the plaintiff’s injury and presented the testimony of an expert witness at trial to controvert the extent of the plaintiff’s claimed injury. The court held that because the extent of the injury was the subject of conflicting evidence, the jury’s verdict would not be disturbed. (60 Ill. App. 3d at 638-39.) In Ford v. Baker (1978), 61 Ill. App. 3d 45, the plaintiff claimed special damages of $537.99 for a spinal injury and also sought to recover for her pain and suffering. The jury’s award of only $600 was not set aside on appeal because it was shown that the plaintiff’s medical treatment consisted of only nine visits to her doctor over a 15-month period. (61 Ill. App. 3d at 48.) Here, the plaintiff only sought medical treatment twice in a period of 19 months.

The plaintiff cites a number of cases in which a jury’s verdict was held inadequate as a matter of law for failure to consider the pain and suffering caused by the underlying injury. These cases are distinguishable from the one at bar because the injuries which beset the victims in those cases were much more severe and the existence of pain and suffering could be more easily inferred by the court. In Giardino v. Fierke (1987), 160 Ill. App. 3d 648, this court held that a jury’s verdiet of slightly less than the amount of the uncontroverted special damages was inadequate as a matter of law. In that case the court inferred pain and suffering from an injury resulting in a nine-day hospital stay, numerous treatments for back pain, partial hearing loss and vertigo. More important, the court in Giardino v. Fierke specifically noted that the defendant offered no expert witness to contradict the testimony of the plaintiff’s physician. (160 Ill. App. 3d at 651-52.) The defendant in the instant case, on the other hand, did just that.

The plaintiff also refers us to Schranz v. Halley (1984), 128 Ill. App. 3d 125, and Stamat v. Merry (1979), 78 Ill. App. 3d 445, but these cases are also distinguishable from the one at bar. In Schranz v. Halley, the jury awarded the plaintiff the exact amount of her medical expenses, but the appellate court reversed for failure of the verdict to account for the plaintiff’s obvious pain and suffering. The plaintiff in that case suffered a skull fracture, a concussion and cerebral contusions, and she was hospitalized for a week. (Schranz, 128 Ill. App. 3d at 127.) Similarly, in Stamat v. Merry the plaintiff had extensive facial fractures, which had to be repaired by permanently wiring his face, and suffered permanently from double vision and a partial loss of feeling in his face. (Stamat, 78 Ill. App. 3d at 448.) Clearly, the extent of the injuries in both these cases provided a sufficient basis for the reviewing court to infer the existence of compensable pain and suffering. Here we cannot say that the plaintiff’s injury rises to such a level, and so we are reluctant to disregard the jury’s assessment of the evidence presented.

The evidence of the extent of the damages suffered by the plaintiff was conflicting, and the resolution of this conflict was properly within the province of the jury. We therefore affirm the judgment of the circuit court of Du Page County.

Affirmed.

DUNN and REINHARD, JJ., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID STARKS, Defendant-Appellant.
    Second District
    No. 2—87—1089
    Opinion filed October 26, 1989.

      Daniel D. Yuhas, James E. Chadd, and Theodore A. Gottfried, all of State Appellate Defender’s Office, of Springfield, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, David Starks, was charged by indictment with two counts of attempted murder (Ill. Rev. Stat. 1985, ch. 38, par. 8 — 4) and one count each of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2(a)) and aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4). Following a jury trial, he was acquitted of one count of attempted murder and convicted of all remaining counts. He was sentenced to concurrent terms of 12 years for the attempted murder and armed robbery convictions and five years for the aggravated-battery conviction. We affirm.

Carol Flynn was working in the kitchen of her home on May 2, 1987. Four or five times throughout that morning, she looked out her window to see a man walking back and forth in the church parking lot behind her home. Later, Flynn left her house through the back door, carrying a garbage bag and her purse, which contained approximately $285 in cash. As Flynn approached her garbage can, the man that she had seen in the church parking lot walked up next to her, showed her a gun, and demanded her purse. Flynn refused. A struggle for the purse ensued. After the man succeeded in winning possession of the purse, he fired two shots, neither of which struck Flynn.

The gunman fled on foot, pursued by Flynn, who was screaming for help. The man dropped his gun, and when he paused to pick it up, he was caught by Flynn. The man punched Flynn in the mouth and fired one shot in the air before he ran off in an easterly direction.

Flynn then notified the police of the occurrence. Sergeant Perkins of the Aurora police department arrived at the scene and was given a description of the assailant via radio dispatch: black male, 5 feet 11 inches, 160 pounds, wearing gray jacket and slacks and black and white shoes. The assailant also wore one black glove with the fingers cut off.

Sergeant Perkins proceeded east and parked his police vehicle near an apartment building approximately two blocks east of the scene. This building had been the location of much criminal activity in the past. As Perkins waited in his vehicle, he saw a car containing four black men about to leave the building’s parking lot. Perkins noticed that the front seat passenger was of the approximate height and weight of the suspect. Perkins made eye contact with the passenger, who then slid down in his seat until only the top of his head was visible. After the car pulled away, Sergeant Perkins followed it and requested back-up units.

A few blocks away, Sergeant Perkins pulled over the suspect vehicle. He then requested the driver to approach the squad car and patted the man down for weapons. By this time, Officers Krueger and Kenner had arrived. These officers had received a radio broadcast from Sergeant Perkins to the effect that he had stopped a vehicle containing a person who matched the description of the armed robber. Officer Kenner approached the stopped vehicle on the passenger side and noticed that the front seat passenger, David Starks, was wearing gray slacks. Officer Kenner drew her gun and ordered Starks out of the car. Starks was patted down and handcuffed. Eventually, all four men in the car were cuffed. A search of the car unearthed one fingerless black glove and a .22 caliber semiautomatic pistol. A later search of defendant at the police station revealed $288.59 in cash.

Mrs. Flynn was brought to the scene of the traffic stop in a squad car. She there identified Starks as her assailant. Starks was then transported via paddy wagon to the scene of the struggle over the pistol. There, James Barber, who had witnessed the action from his apartment, also identified Starks as the assailant.

Defendant first contends that he was arrested without probable cause and that, consequently, the evidence seized as a result of that arrest should have been suppressed. Defendant argues that Sergeant Perkins was not justified in conducting the initial traffic stop. Continuing, defendant maintains that Officer Kenner did not have probable cause to arrest him after the traffic stop.

The governing principles of an investigatory stop are well established. In appropriate circumstances, and in an appropriate manner, a police officer may approach an individual for purposes of investigating possible criminal behavior even without probable cause for arrest, provided that the officer’s decision to stop is based on specific and articulable facts which, when taken with rational inferences from those facts, reasonably warrant the investigative intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 20-21, 20 L. Ed. 2d 889, 905-06, 88 S. Ct. 1868, 1879-80; People v. Vena (1984), 122 Ill. App. 3d 154, 160.) The reasonableness of a stop is dependent upon whether the facts available to the officer warrant a person of reasonable caution to believe that the action taken was appropriate. (Terry, 392 U.S. at 21-22, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880; Vena, 122 Ill. App. 3d at 160.) A mere hunch or inarticulable suspicion is not sufficient. Vena, 122 Ill. App. 3d at 160.

The Terry rules regarding the permissible use of an investigatory stop and the attendant frisk for weapons have been codified in sections 107 — 14 and 108 — 1.01 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, pars. 107 — 14, 108 — 1.01). A police officer, after having identified himself as such, may lawfully stop a person in a public place for a reasonable period when he reasonably infers from all the circumstances that the person is about to commit or has committed an offense. (Ill. Rev. Stat. 1987, ch. 38, par. 107— 14; Vena, 122 Ill. App. 3d at 161.) If the officer reasonably suspects that he is in danger of attack, he may search a person for weapons during an investigatory stop. Ill. Rev. Stat. 1987, ch. 38, par. 108— 1.01.

Sergeant Perkins received a radio transmission about the armed robbery minutes after the offense occurred. He proceeded to a location IV2 blocks east of the crime scene, the direction in which the assailant was seen running. The building in front of which he parked was the location of much criminal activity in the past and was also the home of a possible suspect in several other area robberies. He saw defendant, who fit the general description of the assailant, act suspiciously by sliding almost out of view when he was seen by Perkins. We believe that these facts could raise an articulable suspicion in Sergeant Perkins, a 12-year veteran of the Aurora police department, that defendant had been involved in the armed robbery.

Defendant argues that Perkins could not reasonably suspect that defendant was the assailant. Perkins testified that he saw defendant seated in a car and determined that defendant matched the height and weight description of the suspect. Defendant cites People v. Byrd (1977), 47 Ill. App. 3d 804, for the proposition that general height and weight descriptions that could apply to numerous individuals are inadequate to raise the articulable suspicion needed for a Terry stop. However, Byrd is distinguishable from the case before us. In Byrd, an assailant was described as a man, 5 feet 6 inches, with a light complexion, weighing approximately 130 pounds. (Byrd, 47 Ill. App. 3d at 808.) As in the case before us, the description could fit a myriad of individuals. However, in Byrd, the defendant was stopped 24 hours after the robbery and 14 blocks from the scene of the robbery. The court held that the general description, coupled with the remote time and place of the stop, compelled the finding of unreasonableness. (Byrd, 47 Ill. App. 3d at 808.) Here, we do not have such aggravating circumstances. While Sergeant Perkins may have relied on the general description, he first spotted defendant approximately 20 minutes after the robbery and IV2 blocks from the scene of the assault. We do not have the remoteness of time and place present here. We believe that an individual matching a general height, weight and racial description may be adequate to raise an articulable suspicion in a police officer if such sighting is not unreasonably removed in time and space from the crime. See People v. Bryant (1988), 176 Ill. App. 3d 809, 816.

Defendant also argues that the fact that he slouched in his seat until only the top of his head was visible would not lead a reasonable person to believe that he was involved in criminal activity. Taken by itself, such an action may not be suspicious. However, combined with the description possessed by Perkins, and the time and location of the action in relation to the crime, Sergeant Perkins, an experienced officer, could reasonably view that action as suspicious, and the combination could raise an articulable suspicion justifying a Terry stop. See People v. Jackson (1986), 145 Ill. App. 3d 789, 793.

Defendant further contends that the police lacked probable cause to arrest him after the traffic stop. Defendant argues that he was “arrested” when he was forced to leave the car at gunpoint and was handcuffed. At that point, the police had nothing more than Sergeant Perkins’ suspicion that a passenger in the car matched the general description of the assailant. We do not agree with defendant’s characterization of the situation; nor do we agree with defendant’s contention here.

Officer Kenner had heard the radio dispatch of the assailant’s description. She had also heard Sergeant Perkins’ radio transmission regarding the car containing a person matching that description. When she arrived at the scene, she walked up to the stopped vehicle and looked in the front passenger window. She saw defendant wearing gray slacks, which matched the description of the assailant. At that time, Officer Kenner ordered defendant out of the car at gunpoint, patted him down for weapons, and handcuffed him. The other passengers were similarly patted down, handcuffed and detained.

We -view the actions of Officer Kenner not as an arrest, but as a Terry stop. Defendant relies on the fact that he was removed from the car at gunpoint, handcuffed, and detained to characterize this as an arrest. In general, the drawing of a police officer’s weapon, his tone of voice, and the use of handcuffs on the defendant are factors which may indicate the effectuation of an arrest. (People v. Paskins (1987), 154 Ill. App. 3d 417, 421-22.) However, not all circumstances of handcuffing and detention constitute an arrest. (People v. Rodriquez (1987), 153 Ill. App. 3d 652, 659; cf. People v. Gabbard (1979), 78 Ill. 2d 88 (the State admitted that handcuffing an individual not suspected of any particular crime was an arrest).) These factors are not conclusive, and even a combination of the factors may not convert a Terry stop into a formal arrest. (Paskins, 154 Ill. App. 3d at 422.) It would be paradoxical to give police the authority to detain pursuant to an investigatory stop yet deny them the use of force that may be necessary to effectuate the detention. (People v. Roberts (1981), 96 Ill. App. 3d 930, 934.) The real difference between an investigatory stop and an arrest lies in the length of time the suspect is detained and the scope of the investigation which follows the initial stop. (People v. Mata (1988), 178 Ill. App. 3d 155, 160.) The general rule is that the officer’s suspicions must be allayed in a reasonable time; if they are not, the officer must allow the person to leave or make a full arrest. Mata, 178 Ill. App. 3d at 160.

In this case, Officer Kenner approached a car that may have contained the perpetrator of an armed robbery. When she viewed a man matching the description of the suspect, it was reasonable for her to believe that the man might still be armed. (See Paskins, 154 Ill. App. 3d at 422.) The brandishing of the weapon and the use of handcuffs on the occupants of the car were necessary for the protection of the officers and the security of the scene. Police officers are not required to risk their safety by assuming that suspects will submit quietly to questioning. (Roberts, 96 Ill. App. 3d at 935.) The search of the passenger compartment of the automobile was similarly justified as a protective search for weapons since the officers knew that the robber had used a gun. (See Michigan v. Long (1983), 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469; People v. Kelly (1985), 134 Ill. App. 3d 732, 739.) In Long, police searched the interior of an automobile, including the glovebox, for weapons after viewing a large hunting knife on the floorboard of the car. The supreme court upheld the search, stating that an area search limited to seeking weapons is permissible when the officer has “an articulable suspicion that the suspect is potentially dangerous.” (Long, 463 U.S. at 1052 n.16, 77 L. Ed. 2d at 1222 n.16, 103 S. Ct. at 3482 n.16.) In the case before us, the police officers were well aware of the potential danger involved in detaining a suspected armed robber. The search for weapons in the interior of the car was proper.

Further, the length of the detention was not unreasonable. During a detention, police must diligently pursue an investigation likely to confirm or dispel their suspicions quickly; a detention too long in duration may not be justified as an investigative stop. (United States v. Sharpe (1985), 470 U.S. 675, 686, 84 L. Ed. 2d 605, 615, 105 S. Ct. 1568, 1575.) The record shows that Sergeant Perkins made the traffic stop at approximately 12:55 p.m. Within 10 minutes, the victim arrived at the scene and identified defendant. This brief period of detention was only minimally intrusive. See Sharpe, 470 U.S. 675, 84 L. Ed. 2d 605, 105 S. Ct. 1568 (a 20-minute detention by police upheld).

The trial court found that the police had probable cause to arrest defendant. The evidence seized as a result of the stop and the arrest was therefore not excluded. Unless a trial court’s finding on a motion to suppress is determined to be manifestly erroneous, a reviewing court will not disturb it. (Rodriquez, 153 Ill. App. 3d at 660.) The finding here was not manifestly erroneous. Defendant fit the general description of the assailant, was identified as the assailant by the victim, and was in a car containing a gun similar to that used in the armed robbery. We will not disturb the trial court’s finding.

Defendant next contends that the State failed to prove the intent necessary to convict him of attempted murder. Defendant argues that the evidence shows that he only fired the shots to frighten the victim and did not intend to kill her. We disagree.

It is well established that a person who fires a gun at or towards another, with either malice or total disregard for human life, may be convicted of attempted murder. (People v. Woods (1978), 62 Ill. App. 3d 381, 385.) Because specific intent can rarely be proved by direct evidence, it may be inferred from the circumstances surrounding the incident, such as the use of a deadly weapon and the character of the assault. (People v. Koshiol (1970), 45 Ill. 2d 573, 578.) The undisputed evidence shows that defendant fired two shots at Mrs. Flynn from point-blank range, after struggling to take her purse. The fact that neither shot found Mrs. Flynn is not conclusive. Defendant makes no claim to be an expert marksman. The question of whether defendant possessed the requisite intent is a question of fact for the jury to decide. As the verdict was not palpably contrary to the manifest weight of the evidence, we will not reverse it. See People v. Nicholls (1969), 42 Ill. 2d 91, 95.

Defendant finally contends that his conviction of armed robbery must be reversed based on the fact that the jury was not instructed about the mental state required as an element of the offense.

Defendant failed to object to the instructions tendered by the State, to offer alternative instructions, or to raise this issue in his post-trial motion. A defendant must both object at trial and raise an issue in a post-trial motion in order to preserve the issue for appellate review. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) In addition, a party may not raise on appeal the failure to give an instruction unless he tendered it at trial. (People v. Tannenbaum (1980), 82 Ill. 2d 177, 180.) Because defendant failed to properly preserve this issue, it is waived.

Defendant’s brief draws our attention to a decision of this court, People v. Leonard (1988), 171 Ill. App. 3d 380, which rejected the line of reasoning put forth by defendant in arguing this issue. Defendant has not attempted to distinguish Leonard, nor has he provided a new wrinkle in the rejected line of reasoning. We decline, even in the absence of waiver of this issue, to accept defendant’s invitation to reconsider the Leonard decision. Defendant provides no reason to do so.

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

Affirmed.

INGLIS and REINHARD, JJ., concur.