text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRALD L. JAMES, Defendant-Appellant.
    Fourth District
    Nos. 4 — 91—0092, 4 — 91—0093 cons.
    Opinion filed August 22, 1991.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

This appeal presents the following question: If a convicted defendant elects treatment under section 10 — 101 of the Illinois Alcoholism and Other Drug Dependency Act (Act) (Ill. Rev. Stat. 1989, ch. HV-k, par. 6360 — 1) in lieu of incarceration, can he constitutionally be barred from doing so because he is charged with a felony offense in an unrelated case, whereas he would not be barred from doing so if, in that unrelated case, he had already been convicted of that same felony offense? We hold that the answer is yes.

The facts in these consolidated cases are undisputed. In Champaign County case No. 89 — CF—1110 (No. 4 — 91—0092), defendant, Jerrald L. James, pled guilty in October 1989 to burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1) and was placed on probation for a period of 24 months. In August 1990, a petition to revoke defendant’s probation was filed, alleging that defendant violated his probation by committing certain traffic offenses. In October 1990, defendant admitted and stipulated to that petition.

In October 1990, the defendant was charged in Champaign County case No. 90 — CF—1673 (No. 4 — 91—0093) with the felony offense of theft with a prior burglary conviction (Ill. Rev. Stat. 1989, ch. 38, pars. 16 — 1(a), (b)(2)). In December 1990, defendant pled guilty to that charge and the matter was allotted for a joint sentencing hearing with case No. 89 — CF—1110.

Prior to the December 1990 joint sentencing hearing, defendant filed a motion for continuance which stated, in part, the following:

“Defendant is a drug addict and is seeking a sentence to the T.A.S.C. Program [Treatment Alternatives to Street Crime, a substance abuse treatment program, providing treatment in accordance with the Act].
T.A.S.C. has indicated that Mr. James is suitable for T.A.S.C. services, including long-term residential substance abuse treatment.
The Champaign County Court Services Office has indicated it would give consent for Defendant to undergo long-term drug treatment.
Defendant is newly charged in 90 — CF—2201 with the offense of robbery, with preliminary hearing set for January 8, 1991.
Pendency of a felony charge prevents a sentence to T.A.S.C.
Conviction on the Robbery charge would ordinarily bring a mandatory sentence to the Department of Corrections for Mr. James because of his prior Class II [sic] conviction, however, he would remain eligible for T.A.S.C. under Chapter 1111/2, Sec. 6360-1.
Defendant plans to assert a defense and to seek a jury trial in 90 — CF—2201.
WHEREFORE, Defendant prays that this Court continue the sentencing and resentencing in the causes herein to permit trial of the pending robbery charge in cause 90 — CF—2201.”

On December 26, 1990, the court conducted a hearing on defendant’s motion to continue the sentencing hearing and denied the motion, explaining, in part, as follows:

“Well, the underlying assumption seems to be, for the motions to continue, that a sentence of probation featuring a commitment to TASC is the most appropriate sentence because, as I understand it, the only basis for continuing the sentencing hearing would be to make that available.
We are talking about a substantial continuance here. Since nothing’s been done to accelerate the resolution of the robbery charges, I would expect it could not be set for trial any sooner than the March jury term, is what I would expect.
In the event that he is acquitted, we would then be looking at a sentencing hearing late that month and perhaps sometime in April since I’m sure by then the Court’s calendar will be filled, and with the current state of things, I couldn’t even set a specific date for sentencing in this case because I don’t know when the robbery charges would be resolved. I’m assuming there wouldn’t be any continuances or any other delays.
In the event that Mr. James were convicted in the robbery case, we would then look at a sentencing hearing in that case, which would either have to precede or succeed this one. If this Court were to proceed with a sentencing with a sentencing for the robbery pending, the same argument can be made, ‘But, Judge, he’s eligible for TASC. Why tie your hands? Wait to see what happens in the robbery case,’ and then, vice versa, should the robbery case proceed to sentencing first, the argument would be made, ‘We don’t know what Judge DeLaMar’s [the judge before whom the motion to continue the joint sentencing hearing was made] going to do.’
*** There comes a point [at] which cases must be resolved.
Realistically, we’re looking at a continuance of three, four, maybe five months and all of that necessitated only if one as-
sumes that a sentence to probation with mandatory treatment pursuant to the TASC program is the appropriate disposition.
I simply don’t believe it’s a sound exercise of the Court’s discretion to continue both these cases for that substantial a period of time.
So, the motion for a continuance is denied. Each of the cases is called for sentencing hearing.”

The court thereafter sentenced defendant to three years in prison on his burglary conviction in case No. 89 — CF—1110 and to two years in prison on his felony theft conviction in case No. 90 — CF—1673 with the sentences to be served concurrently.

The statute in question, section 10 — 101 of the Act, reads as follows:

“Election of treatment. An addict or alcoholic who is charged with or convicted of a crime may elect treatment under the supervision of a licensed program designated by the Department (hereinafter in this Article referred to as ‘designated program’) unless (a) the crime is a crime of violence; (b) the crime is a violation of Section 401, 402(a), 405 or 407 of the Illinois Controlled Substances Act, or Sections 4(d), 4(e), 5(d), 5(e), 7 or 9 of the Cannabis Control Act; (c) the person has a record of 2 or more convictions of a crime of violence; (d) other criminal proceedings alleging commission of a felony are pending against the person; (e) the person is on probation or parole and the appropriate parole or probation authority does not consent to that election ***.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 1111/2, par. 6360 — 1.

Citing People v. Neither (1988), 166 Ill. App. 3d 896, 908, 520 N.E.2d 1247, 1254, defendant correctly points out that because robbery is not a “crime of violence” under section 10 — 101 of the Act, a robbery conviction does not disqualify an otherwise eligible addict from electing drug treatment. Defendant then argues that section 10 — 101 violates his constitutional rights to due process and equal protection of the law because (1) it is both an arbitrary and irrational exercise of the State’s police power, and (2) its treatment of defendants results in irrational and invidious discrimination. Defendant explains his due process argument in his brief as follows:

“While [defendant] was otherwise eligible for drug treatment under the Act ***, shortly before sentencing he was charged with the offense of robbery. As a felony, under section [10— 101](d) of the Act[,] the robbery charge automatically disqualified the defendant for drug treatment. (Ill. Rev. Stat. 1989, [c]h. 1111/2, [par.] 6360 — 1(d).)
While a charge of robbery disqualified the defendant for drug treatment, a conviction of robbery would not. ***
The Act is therefore arbitrary and irrational because it disqualifies an addict charged with a collateral non-violent crime while qualifying an addict convicted of that same collateral crime. There could be no rational legislative purpose for precluding remedial drug treatment merely on the basis of a charge and not a conviction, particularly where the offense in question is the same. The result is that section [10 — 101] of the Act violates constitutional due process.” (Emphasis in original.)

In People v. Hamilton (1987), 155 Ill. App. 3d 555, 557, 508 N.E.2d 385, 387, the court was presented with a similar due process challenge to an earlier version of section 10 — 101 of the Act, namely, section 21(e) of the Alcoholism and Substance Abuse Act (Ill. Rev. Stat. 1985, ch. 1111/2, par. 6321(e)). The court rejected this challenge and wrote the following:

“Due process requires that a statutory provision be rationally related to its legislative purpose. [Citation.] It will be upheld if it is reasonably designed to remedy legislatively identified threats to the public health, safety, and welfare. [Citation.] A strong presumption of constitutionality is recognized. [Citation.]
The predecessor act [to the 1985 version of the Alcoholism and Substance Abuse Act], the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1973, ch. 911/2, par. 120.1 et seq.) *** created an alternative to criminal prosecution upon belief that drug treatment might be beneficial. [Citation.] Treatment was afforded to certain drug addicts when the circuit court determined such action was in the best interests of defendant and society. [Citations.] By enumerating disqualifying factors for treatment (Ill. Rev. Stat. 1981, ch. 9IV2, pars. 120.8(a) through 120.8(f), now Ill. Rev. Stat. [1989, ch. IIIV2, pars. 6360 — 1(a) through 6360— l(i))], the legislature showed it did not intend all drug addicts to be eligible for this alternative treatment. [Citation.] The participation of parole officers in the proceedings is to elicit the input of those whose duties and responsibilities include supervision of defendants while not in custody. [Citation.]
From the foregoing, it cannot be said that the legislature acted irrationally in requiring consent from a parole authority when the court considers the potential for successful treatment of an addict already on parole at the time the subject crime was committed.” Hamilton, 155 Ill. App. 3d at 558-59, 508 N.E.2d at 387-88.

Consistent with the standards set forth in Hamilton, we hold that section 10 — 101(d) of the Act (Ill. Rev. Stat. 1989, ch. 1111/2, par. 6360 — 1(d)), rendering defendants against whom other felony charges are pending ineligible to elect treatment under the Act, is not unconstitutional. In so holding, we agree with the following argument from the State’s brief:

“The legislature could rationally determine that a person charged with or convicted of one non-violent crime is more suitable for treatment than a person charged with or convicted of a non-violent crime *** who has other felony charges pending against him. *** The legislative purpose behind the *** Act is, in part, to restore addicts to good health and allow them to become productive citizens in the community. Ill. Rev. Stat., ch. 1111/2, sec. 6351 — 2 (1989). A person who has not only committed *** a non-violent crime but still has other *** felony charges against him is potentially less likely to become a productive citizen than a person who has only committed *** a non-violent crime and has no further charges against him.
Additionally, the pending felony charges could have a negative impact upon the elected treatment. If the defendant is incarcerated on the pending charges, it may be difficult or impossible for him to attend treatment sessions. Similarly, the defendant’s having to appear in court for pretrial hearings and at the actual trial would no doubt interfere with treatment. If the defendant were convicted of the pending felony charges, he could be sentenced to a term of imprisonment. This would obviously thwart an elected treatment plan. Hence, the legislature could have rationally determined that the pending felony charges would interfere with and defeat the purpose of an elected treatment plan.”

In addition to these reasons, we note with approval the concerns the trial court expressed regarding the uncertain delay with which it would be confronted if it postponed the sentencing on the burglary and felony theft convictions until the newly filed robbery case had been resolved. As the trial court observed, many months (or longer) might pass before the resolution of the robbery case, thus requiring the sentencing hearing in the other two cases to be held in limbo. The interests of finality in the criminal justice system make that delay inappropriate, constituting another reason why the legislature could rationally provide the legislative scheme that it did.

The State’s resources under the Act to deal with drug abusers are finite, and it would make no sense to place a defendant in a residential treatment facility, where the program might last a year or longer, only to have him removed from that program when, as might be the situation in the present case, defendant is convicted of robbery and sentenced to the penitentiary on that offense.

Just because a defendant is eligible under section 10 — 101 of the Act to elect treatment does not necessarily mean that the court will order such treatment; instead, after “giving consideration to the nature and circumstances of the offense, and to the history character and condition of the [defendant]” (see section 10 — 102 of the Act (Ill. Rev. Stat. 1989, ch. 1111/2, par. 6360 — 2)), the court might conclude that (1) no significant relationship exists between defendant’s addiction or alcoholism and the crime he committed, or (2) defendant’s imprisonment is necessary for the protection of the public. If the court concluded that either of these circumstances were present and accordingly ordered defendant imprisoned on his robbery conviction, that decision would obviously terminate defendant’s participation in the drug-abuse program, resulting in a squandering of the State’s limited resources.

Defendant’s argument that the statute is irrational also overlooks one important factor: where defendant has already been convicted of robbery, defendant has either already been sentenced or will likely be sentenced in the near future; however, when the robbery charge is still pending, no one can tell when (or if) defendant will be sentenced on that charge.

Our conclusion that section 10 — 101 of the Act is rationally based also answers defendant’s argument that the statute violates equal protection of the law. In People v. Coleman (1986), 111 Ill. 2d 87, 95, 488 N.E.2d 1009, 1013, the Illinois Supreme Court wrote the following:

“The equal protection clauses of the Federal and State constitutions do not deny the State the power to treat different classes of people in different ways. [Citations.] To comply with equal protection requirements, there must be a reasonable basis for distinguishing the class to which the law applies from the class to which the statute is inapplicable.”

In Chicago National League Ball Club, Inc. v. Thompson (1985), 108 Ill. 2d 357, 368, 483 N.E.2d 1245, 1250, the supreme court wrote that, “Unless legislation operates to the disadvantage of a suspect classification or infringes upon a fundamental right, the legislation, to be upheld as constitutional, must simply bear a rational relationship to a legitimate governmental interest.” In Illinois Housing Development Authority v. Van Meter (1980), 82 Ill. 2d 116, 119, 412 N.E.2d 151, 152, the supreme court identified “ ‘suspect classification^]’ ” as those classifications which involve race, alienage, or national origin. Obviously, a legislative classification of convicted felons into two classes — one class which has felony charges pending and the other class which does not — does not involve “suspect classifications.”

For the reasons stated, the judgment of the circuit court in each of these consolidated cases is affirmed.

Affirmed.

LUND, P. J., and McCULLOUGH, J., concur.


source: Caselaw Access Project

author: JUSTICE BOWMAN JUSTICE GEIGER,

license: Public Domain

text:
    DONALD C. HOFFMANN, SR., Plaintiff-Appellee, v. LYON METAL PRODUCTS, INC., Defendant-Appellant (Department of Employment Security, Board of Review, et al., Defendants).
    Second District
    No. 2 — 90—1177
    Opinion filed August 13, 1991.

      GEIGER, J., dissenting.
    Katherine M. Moran, of Drendel, Schanlaber, Horwitz & Tatnall, of Geneva, and Bradford L. Livingston, of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellant.
    J. Timothy Loats, of Law Offices of J. Timothy Loats, and Lisa M. Nyuli, of Alsehuler, Putnam, McWethy, Funkey & Lewis, P.C., both of Aurora, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, Lyon Metal Products, Inc., appeals from the judgment of the circuit court of Kane County which reversed the decision of the Board of Review, Department of Labor (the Board), which found plaintiff, Donald C. Hoffmann, Sr., ineligible for unemployment insurance benefits. The sole issue raised by defendant on appeal is whether the trial court erred in reversing the Board’s decision.

Plaintiff was discharged from his position as a material handler for defendant on February 8, 1988, and applied for unemployment insurance benefits. The claims adjudicator determined that plaintiff was ineligible for benefits, finding that plaintiff attempted to remove company property without written authorization. The claims adjudicator noted that this constituted a violation of a known and reasonable company rule and concluded that plaintiff was discharged for misconduct connected with the work and was therefore ineligible pursuant to section 602(A) of “An Act in relation to a system of unemployment insurance” (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 432(A)). Plaintiff’s request for reconsideration of this decision was denied. He then requested a hearing before a referee.

At the hearing, the referee reviewed plaintiff’s statement to the claims adjudicator. The adjudicator wrote that plaintiff had been employed by defendant since January 1966. Plaintiff noted that this was a period of 22 years. The statement also stated that, on February 6, 1988, a Saturday, plaintiff put an extension cord in a paper sack. He was going to borrow the cord over the weekend. This was not an unusual practice. He was stopped by someone from personnel who asked what was in the sack. Plaintiff showed him and was told to put it back as plaintiff did not have written permission. Plaintiff put it back. When plaintiff reported for work on Monday, February 8, 1988, he was told that his intent was to steal the cord, and he was released.

Plaintiff testified at the hearing that, when he was stopped on February 6, he was asked if he had a “scrap pass” for the cord, and he explained that it was not scrap, that he was just borrowing it for the weekend. He testified that he was not intending to steal anything. He also stated that he had previously obtained passes to take home scrap materials that he was keeping to use around the garage. He had not obtained a pass to borrow items. He had previously borrowed a wheel puller and rethreaders which he brought back the following work day. He had never borrowed anything without returning it. Plaintiff testified that he was not aware that there had ever been a pass system for borrowing anything. Plaintiff stated that he needed the cord to work in his garage and that he did not think that there was any harm in borrowing the extension cord because he was bringing it back on Monday.

Plaintiff also testified that he had never been warned prior to this incident not to take things home and bring them back. He stated that supervisors at the company may have been aware that he had previously borrowed items because “[tjhere is [s-ic] a lot of people borrowing an awful lot down there.”

During cross-examination, a paragraph from page 27 of defendant’s employee handbook, entitled “Your Job at Lyon,” was read into the record. It stated:

“Package Passes
In order to protect company property and avoid embarrassment for the employee, no employee may carry any package out of the plant, except his lunch box or work clothes, without a properly signed package pass. Your supervisor will explain the procedure for obtaining this pass.”

Plaintiff’s attorney stipulated that plaintiff received the handbook and was aware of the rules. Plaintiff stated that he guessed that he would assume that the language of the rule applied to something that was company property which he intended to borrow. He admitted that he did not notify a supervisor that he intended to borrow the extension cord. He also stated, however, that when he was confronted on the date of his discharge, he did not believe that he had to have a pass to take the extension cord home.

Plaintiffs wife testified that she regularly picked plaintiff up from work and picked him up on February 6, 1988. She went to a parking lot on the south side of the building. She waited for plaintiff approximately 10 or 12 minutes. She usually picked him up at a different location, but he had called and asked her to pick him up there. She had picked him up there before.

Plaintiff then stated that he asked his wife to pick him up at that location because that was where the other employees working on Saturday were parked and he generally walked out “with the guys.” Plaintiff stated that there was no guard stationed at that door and that there was a guard stationed at the door he normally used. Plaintiff also stated that, on previous occasions when he had borrowed company property, he walked past the guard and was not stopped when he left with the property. He had previously taken an extension cord in a sack past the guard.

Donald Mullner, manager of plant engineering and maintenance, testified that it was his understanding through a tip from Dennis Hess, plant manager, that plaintiff was going to remove some unauthorized materials. Hess stated that the tip came from one of plaintiffs co-workers. The co-worker was not identified. Mullner and Bill Kozlowski, project engineer, approached plaintiff as he walked to his car. Plaintiff’s wife was in the car, and the car was running. Mullner asked plaintiff what he had in the bag, and plaintiff told him that it was an extension cord. Mullner asked plaintiff if he had a scrap pass for it, and plaintiff said “no.”

Mullner further testified:

“He said it wasn’t scrap [sic] he was borrowing it for the week-end, and would bring it back on Monday. I told him he needed a scrap pass for anything he borrowed.
He said he wasn’t aware of that. I asked him to see the extension cord. He showed it to me. Said he was going to use it in his garage. I told him that he should use a scrap pass to borrow company material.”

Mullner then stated that plaintiff returned the cord and he informed plaintiff that he would report this to the plant manager.

Donald Anderson, the vice-president in charge of human relations for defendant, testified that plaintiff was discharged for “[i]mproper disobedience of company rules, and not obtaining a package pass. Which has to be interpreted as intending to steal.” Anderson testified that the package pass policy was intended to protect company property. He stated that, as far as he knew, the only exceptions to the policy were lunch boxes or work clothes. He testified that a package pass was the same thing as a scrap pass.

Hess testified that there was no company rule or policy which would prevent an employee from borrowing an item of property “as long as he obtains a package pass to remove it from the company.” He testified that the package pass policy applied to borrowed items. He stated that they needed to know where all of their equipment was at all times. Hess and Kichard Van Wagoner, second shift superintendent, testified that they had approved package passes for borrowed material quite a few times. To the best of Van Wagoner’s recollection, plaintiff had never requested a package pass from him for borrowed materials. Hess stated that plaintiff had come to him to obtain package passes for scrap material.

Hess testified that he had a meeting with plaintiff after the incident, and plaintiff acknowledged that he was aware of the package pass procedure. Plaintiff indicated that he had used the procedure in the past, but had not used it for materials he was borrowing. Plaintiff had used the procedure that Saturday for another employee. Terry Vance, assistant area supervisor, testified that plaintiff had requested a pass for another employee on that day, which Vance denied. The other employee wanted to keep the property requested.

Plaintiff’s supervisor did not testify, and there was no testimony that plaintiff had been informed by any of defendant’s witnesses that a package pass was necessary for borrowed materials. During closing argument, Anderson argued:

“Here we have an individual who as far as we were concerned, was trying to circumvent the rules with respect to package passes, which could also lead to theft of property.
And we have had a lot of that around the plant, and we are trying to stop it.”

The referee issued his decision on May 16, 1988. He determined that there “was no showing of a deliberate and willful repeated violation in spite of a warning or explicit instruction.” He also noted that the “rule is not unambiguous and appears to have been ignored in practice” and concluded that plaintiff was not discharged for misconduct connected with the work.

Defendant appealed this decision to the Board. The Board issued its decision on August 19, 1988. After plaintiff was given notice of the appeal and filed written argument with the Board, an essentially identical reconsidered decision was issued on March 15, 1990, in which the Board reversed the decision of the referee. The Board noted that the extension cord was concealed in a bag, that plaintiff left through a different door and walked right to his car where his wife was waiting with the motor running and that “[o]ne half [sic] hour before quitting time the claimant requested a package pass for a co-worker but did not request one for himself.” The Board found:

“At the very least, the claimant was borrowing the extension cord without the employer’s permission. His actions were intentionally injurious to the employer’s interests, since the employer had an interests [sic] in knowing where its property is. The employer was not obligated to wait until the claimant left its property before reclaiming its extension cord.”

Plaintiff filed a complaint for administrative review. The circuit court reversed the Board’s decision, and this appeal followed.

Defendant argues on appeal that the circuit court committed reversible error in reversing the decision of the Board because: (1) it improperly applied section 602(B) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 432(B)) in reaching its decision; (2) it exceeded its scope of review under section 3 — 110 of the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110); and (3) it improperly found that the Board’s decision was against the manifest weight of the evidence.

Section 602(A) of the Act provides:

“An individual shall be ineligible for benefits for the week in which he has been discharged for misconduct connected with his work ***. *** For purposes of this subsection, the term ‘misconduct’ means the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual’s behavior in performance of his work, provided such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instruction from the employing unit.” Ill. Rev. Stat. 1989, ch. 48, par. 432(A).

The amendment to this section which added the definition of misconduct was effective January 1, 1988, and is therefore applicable to this case. Thus, plaintiff is ineligible for benefits if: (1) he deliberately and willfully violated a reasonable rule or policy of the employer related to his behavior in the performance of his work; and (2) the violation either harmed defendant or other employees or was repeated by plaintiff despite a warning or other explicit instruction from defendant. (Ill. Rev. Stat. 1989, ch. 48, par. 432(A).) Under the statute, deliberate and willful misconduct is required in order to render a person ineligible for benefits. Siler v. Department of Employment Security (1989), 192 Ill. App. 3d 971, 975.

In this case, Hess, defendant’s plant manager, acknowledged that defendant does not have a policy against borrowing by employees. Defendant’s witnesses did not testify that plaintiff was given a warning or explicit instruction regarding the necessity of obtaining a package pass prior to borrowing items. Therefore, in order to find that plaintiff was discharged for misconduct based on the applicable definition, the evidence must support the conclusion that plaintiff deliberately and willfully violated defendant’s package pass policy and thereby harmed defendant or other employees. We do not believe that the evidence presented to the referee supports this conclusion and therefore affirm the trial court.

It is well settled that the findings and conclusions of an administrative agency on questions of fact are prima facie true and correct. (Jackson v. Board of Review of the Department of Labor (1985), 105 Ill. 2d 501, 510; Meeks v. Department of Employment Security (1990), 208 Ill. App. 3d 579, 584; Ill. Rev. Stat. 1989, ch. 110, par. 3-110.) A reviewing court’s function is limited, therefore, to ascertaining whether the decision of the administrative agency is against the manifest weight of the evidence (Jackson, 105 Ill. 2d at 513; Meeks, 208 Ill. App. 3d at 584), that is, whether the opposite conclusion is clearly evident (Crowley v. Department of Employment Security Board of Review (1989), 190 Ill. App. 3d 900, 904). It is the decision of the Board, not the referee, which is reviewed by the court. Adams v. Ward (1990), 206 Ill. App. 3d 719, 723; Carroll v. Board of Review, Illinois Department of Labor (1985), 132 Ill. App. 3d 686, 690-91.

A reviewing court is not bound to give the same deference to an agency’s conclusions of law, such as its construction of a statute, as it gives to its findings of fact. (Adams, 206 Ill. App. 3d at 723; see also City of Freeport v. Illinois State Labor Relations Board (1990), 135 Ill. 2d 499, 516.) Also, where it appears that the agency’s findings are not supported by substantial evidence, they will be reversed. (Meeks, 208 Ill. App. 3d at 584; Placko v. Jackson (1990), 197 Ill. App. 3d 138, 146-47; Rias v. Department of Employment Security (1989), 187 Ill. App. 3d 328, 330.) When an administrative order is contrary to the manifest weight of the evidence, it is the appellate court’s duty to affirm the circuit court’s action in setting the order aside. Gee v. Board of Review of the Department of Labor (1985), 136 Ill. App. 3d 889, 895; Sheff v. Board of Review, Illinois Department of Labor (1984), 128 Ill. App. 3d 347, 350.

“Every discharge even if justifiable does not disqualify the former employee from receiving unemployment benefits. An employee’s conduct may be such that the employer may properly discharge him. Such conduct may not, however, constitute misconduct connected with work.” (Adams, 206 Ill. App. 3d at 726, citing Jackson, 105 Ill. 2d at 512.) While unemployment insurance benefits are a conditional right and the burden of establishing eligibility rests with the claimant, the Act must be liberally interpreted to favor the awarding of benefits. Adams, 206 Ill. App. 3d at 723; Popoff v. Department of Labor (1986), 144 Ill. App. 3d 575, 577-78.

The evidence presented to the referee does not support a conclusion that plaintiff’s violation of defendant’s package pass policy was deliberate and willful. The witnesses presented by defendant testified that, after the incident leading to his discharge, plaintiff consistently stated that he was not aware that a scrap pass was needed for borrowed items and that he had used the pass procedure for items he was keeping, but not for borrowed items. Plaintiff stated the same thing to the claims adjudicator and at the hearing before the referee. This is also consistent with the testimony of Hess and Van Wagoner that plaintiff had requested passes for scrap items he intended to keep but had not requested passes for borrowed items. Vance testified that the pass plaintiff requested for a co-worker was for an item the co-worker intended to keep. Plaintiff testified that he had borrowed items before and had returned them the next work day and that he did not think that there was any harm in borrowing the extension cord because he was bringing it back on Monday.

It is true that the rule contained in defendant’s employee handbook appears to apply to any package, including borrowed items. Plaintiff’s attorney stipulated that plaintiff was aware of the rules contained in the handbook, and plaintiff testified that he “guessed” that the language in the package pass policy applied to borrowed items. Plaintiff consistently stated, however, that this was not his understanding. There was no testimony that plaintiff had been otherwise informed. Plaintiff’s understanding of the package pass policy was also bolstered by the fact that a package pass was referred to as a “scrap pass” by Mullner. Anderson acknowledged that a package pass was the same thing as a scrap pass. Further, plaintiff told the claims adjudicator that borrowing items was not an unusual practice and testified that a lot of people borrowed “an awful lot” at the plant. Anderson, defendant’s vice-president in charge of human relations, acknowledged in his argument before the referee that they had had a lot of “circumvent[ing] the rules with respect to package passes” and were trying to stop it.

The Board attached great importance, in reaching its conclusion that plaintiff’s actions were “intentionally injurious,” to the facts that plaintiff had the cord in a paper bag and used an exit where no guard was posted and to the fact that plaintiff’s wife was waiting with the car running. It also noted that plaintiff had requested a pass for a coworker the same day. We cannot agree that these facts indicate that plaintiff was purposefully sneaking an extension cord out of the plant, deliberately violating the package pass policy. Plaintiff testified that he had taken borrowed items past the guard at the other exit on prior occasions and was not stopped. He also gave a reasonable explanation for his use of an alternative exit on that day. Plaintiff’s wife testified that she regularly picked plaintiff up from work, sometimes at the same location used that day. The fact that the car was running, in February, cannot have great significance. Also, the fact that plaintiff had requested a pass for a co-worker that day for an item the coworker intended to keep is consistent with plaintiff’s explanation of his understanding of the pass policy.

We also find totally irrelevant the Board’s conclusion that defendant “was not obligated to wait until the claimant left its property before reclaiming its extension cord.” Plaintiff never denied that he intended to leave with the cord and borrow it for the weekend. Based on the statutory language, the issue is whether plaintiff deliberately and willfully violated the rule requiring that he obtain a package pass, or scrap pass, before taking the cord. We conclude that the facts are insufficient to establish a deliberate and willful violation on the part of plaintiff. See Siler, 192 Ill. App. 3d at 975.

We additionally note that the facts here do not support a finding that the second prong of the statutory test was met. As the extension cord was returned, there was no evidence that defendant was harmed by the violation of the rule. (See, e.g., Adams v. Ward (1990), 206 Ill. App. 3d 719, 728-29 (no harm to employer because uniforms employee discarded in trash were retrieved).) While we recognize that other courts have held that the threat of future financial loss caused by the conduct of an employee is harmful to an employer (see Bandemer v. Department of Employment Security (1990), 204 Ill. App. 3d 192, 195; Winklmeier v. Board of Review of the Department of Labor (1983), 115 Ill. App. 3d 154, 156), there was no testimony that defendant had suffered or would suffer any loss of property or other harm due to plaintiff’s violation of the package pass policy. The testimony by defendant’s witnesses that the company needed to know where its equipment was at all times and that the purpose of the pass policy was to protect company property was sufficient to establish that the policy was reasonable. Under these circumstances, however, this testimony was not sufficient to establish that defendant was harmed by plaintiff’s violation of the policy.

We therefore cannot agree with defendant that there is “overwhelming” evidence in the record to support the Board’s decision. Defendant also contends that the trial court exceeded its scope of review by failing to accept the Board’s factual findings and by assessing the credibility of the witnesses. We note that, as a practical matter, in order to perform its reviewing function, the court must consider and weigh the evidence to determine if the agency’s decision is against the manifest weight of the evidence. (See Sheff v. Board of Review, Illinois Department of Labor (1984), 128 Ill. App. 3d 347, 350.) Defendant further argues that the trial court committed reversible error in applying section 602(B) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 432(B)) in reaching its decision. We agree that section 602(B) was not at issue in these proceedings. Even assuming, however, that the trial court exceeded the scope of its review by assessing the credibility of the witnesses and erred in referring to section 602(B) as another justification for its holding, we may agree with the result reached by the trial court for different reasons as long as they are supported by the record. See London v. Department of Employment Security (1988), 177 Ill. App. 3d 276, 278-79, citing Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281, 286.

Accordingly, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

WOODWARD, J., concurs.

JUSTICE GEIGER,

dissenting:

In the pertinent part of section 602(A) of the Unemployment Compensation Act, “misconduct” is defined as “the deliberate and willful violation of a reasonable [work-related] rale or policy of the [employer] *** provided such violation has harmed the [employer].” (Ill. Rev. Stat. 1989, ch. 48, par. 432(A).) An employee who is discharged for “misconduct” is at least partially disqualified from receiving unemployment compensation benefits. Ill. Rev. Stat. 1989, ch. 48, par. 432(A).

This case rests partially upon an evaluation of whether the record includes evidence to support the Board’s factual determination that the plaintiff “willfully” violated the employer’s package pass policy. It also rests partially upon a statutory construction of what constitutes “harm” to an employer. The basic question before us is whether there was justification for the circuit court to disturb the Board’s conclusion that the plaintiff was discharged for misconduct so that he was not entitled to unemployment compensation benefits.

As to whether the plaintiff’s violation of the package pass policy was willful, I acknowledge that the evidence before the Board can be construed to support the conclusion reached by the majority. The evidence could be construed to show that the plaintiff did not willfully violate the pass rule. However, while the evidence may not “overwhelmingly” support the plaintiff, we, like the trial court, have only the limited function of assessing whether the Board’s decision is against the manifest weight of the evidence. (Adams v. Ward (1990), 206 Ill. App. 3d 719, 723.) In my opinion it was not.

There is evidence here that the plaintiff stipulated to being aware of his employer’s rule requiring a package pass. There also is evidence that he placed a “borrowed” electrical cord into a paper bag and used an unguarded exit rather than his usual exit when he carried the bag from the employer’s facility. Also, there is evidence that only half an hour earlier in the day in question, he demonstrated his knowledge of the package pass requirement when he requested a pass for a coworker. I find sufficient evidentiary support for the Board’s factual determination of willful violation, and, thus, I find no justification to disturb the Board’s factual finding.

In the second, statutory construction issue, whether the plaintiff’s violation caused the employer “harm,” I also find no reason to justify disturbing the Board’s decision. The first district, sixth division, has suggested that when there was no actual loss, section 602(A) “harm” is not shown by evidence of threatened future financial loss to the employer caused by a plaintiff’s willful misconduct. There, the court found that the record supported the trial court’s finding that no harm occurred where the employer recovered its property improperly discarded by the employee. (Adams v. Ward (1st Dist., 6th Div. 1990), 206 Ill. App. 3d 719, 728-29.) The majority here relies, in part, on that Adams suggestion. I would not do so.

Initially, I consider the majority Adams analysis to be unpersuasive and of questionable authority. Rather than making its own analysis of the underlying law (see Flex v. Department of Labor, Board of Review (1984), 125 Ill. App. 3d 1021, 1024), or focusing on the Board’s factual analysis, the Adams majority inappropriately relied apparently on the sufficiency of the record to support the trial court’s finding of no harm. The Board, not the trial court, of course, is the determinative fact finder in this kind of administrative review. See Zenith Vending Corp. v. Village of Schaumburg (1989), 180 Ill. App. 3d 354, 362; Adams, 206 Ill. App. 3d at 723.

In addition to questioning the Adams majority’s reasoning, I also question their conclusion. Other courts have held that the threat of future financial loss caused by the conduct of the employee constitutes “harm” to the employer in the unemployment compensation context. (See Bandemer v. Department of Employment Security (1st Dist., 1st Div. 1990), 204 Ill. App. 3d 192, 195.) I subscribe to that view, in agreement with the Adams special concurrence.

The apparent view of the Adams majority is incompatible with the underlying policy of the Unemployment Insurance Act: to provide benefits to workers whose unemployment is not occasioned by their fault. (Adams, 206 Ill. App. 3d at 730 (Rakowski, J., specially concurring).) The Adams suggestion upon which the majority here relies would protect a discharged worker from loss of unemployment compensation merely because his employer had responded to the worker’s financially threatening conduct and somehow had successfully managed to avoid quantifiable loss.

The record and the law here support the Board’s conclusion that the plaintiff was disqualified from unemployment compensation because of his act harming his employer. That conclusion should have been affirmed by the circuit court. I respectfully dissent.


author: JUSTICE UNVERZAGT

text:
      In re MARRIAGE OF FRANCES KRAFT, n/k/a Frances Tullís, Petitioner-Appellee, and MARTIN KRAFT, Respondent-Appellant.
    Second District
    No. 2 — 91—0091
    Opinion filed August 13, 1991.

      Charles W. Clark and Curt P. Rehberg, both of Charles W. Clark, Ltd., of Crystal Lake, for appellant.
    Frank G. Roux, of Frank G. Roux, Ltd., of Lake Zurich, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Respondent, Martin Kraft, appeals from an order of the circuit court of McHenry County denying his petition seeking child support arrearages from petitioner, Frances Tullís. Respondent raises on appeal the issue whether the trial court erred in holding that the judgment of dissolution of marriage relieved the noncustodial parent of child support obligations. We affirm.

The parties' marriage was dissolved on December 29, 1981, in Cook County circuit court. The court incorporated into the judgment a settlement agreement entered into by the parties, which provided that respondent be the physical custodian of their minor child and that he pay $100 per week for support of the child for those periods of time when the child would be in petitioner’s physical custody. The agreement further provided that respondent’s obligation for the support and maintenance of the child shall continue until the child is emancipated.

In July 1990 the circuit court of Cook County granted respondent’s motion to transfer the cause to McHenry County. On August 6, respondent filed a petition for child support, alleging that petitioner was obligated to pay support in the amount of $250 per month.

On October 24, 1990, respondent filed a second petition for support arrearages. In this second petition, respondent alleged that the dissolution judgment did not contain any provision regarding petitioner’s child support obligations and it did not relieve her of such obligations. In addition, the petition stated that petitioner was employed from December 28, 1981, until March 1990.

On December 20, 1990, following a hearing, the trial court found that the dissolution judgment relieved petitioner of child support obligations. Consequently, the court denied the petition for arrearages. Respondent then timely filed this appeal.

At the outset, we note that petitioner, in her appellee’s brief, fails to cite any authority in support of her arguments. This failure constitutes a breach of Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)), which results in a waiver of those arguments on appeal. We will not reverse the trial court’s order on this basis, however, but will instead review the issue under the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 131-33.

Respondent contends that the trial court should have granted the petition for child support arrearages because the dissolution judgment did not relieve petitioner of her child support obligations. Respondent cites several early cases in support of his argument that the noncustodial parent is not relieved of child support obligations when the dissolution judgment makes no provision for the care or custody of a minor child.

All of those cases preceded the enactment of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1985, ch. 40, par. 101 et seq.) and are therefore inapposite. (Conner v. Watkins (1987), 158 Ill. App. 3d 759, 762.) In Conner, the court held that when the dissolution judgment does not provide for child support, such an award cannot be made retroactively but can be modified only pursuant to section 510(a) of the Act (Ill. Rev. Stat. 1985, ch. 40, par. 510(a)). Conner, 158 Ill. App. 3d at 762.

Moreover, section 505(a) of the Act provides that the trial court “may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for his support.” (Ill. Rev. Stat. 1989, ch. 40, par. 505(a).) According to the rules of statutory construction, the term “may” generally denotes a discretionary act. (In re Marriage of Freeman (1985), 106 Ill. 2d 290, 298.) Under section 505(a) of the Act, the duty of support is contingent upon the earning capacity of the parties. If one parent earns significantly more than the other, it is only equitable that parent pay a greater share of support. (In re Marriage of Rogliano (1990), 198 Ill. App. 3d 404, 413.) When the custodial parent has sufficient income to support the child, but the noncustodial parent is not able to contribute financially, it is not an abuse of discretion for the trial court to order that the noncustodial parent is not obligated to pay child support. (In re Marriage of Roberts (1986), 151 Ill. App. 3d 65, 68.) Thus, as was done in the present cause, the trial court may properly order that the noncustodial parent is not required to pay child support.

Respondent did not object to the terms of the dissolution judgment which incorporated the settlement agreement. The transcript from the hearing on December 30, 1981, shows that the parties understood that respondent was to provide the sole support for their child. Respondent never appealed the dissolution judgment. He cannot now collaterally attack the judgment by claiming that petitioner should have been ordered to pay child support. (See In re Marriage of Yakubec (1987), 154 Ill. App. 3d 540, 543-44; In re Marriage of Wardell (1986), 149 Ill. App. 3d 537, 542-43.) We therefore affirm the order of the circuit court denying the petition for child support arrearages.

The judgment of the circuit court of McHenry County is affirmed.

Affirmed.

McLaren and DUNN, JJ., concur.


author: JUSTICE BOWMAN

text:
    BOB NEOFOTISTOS et al., Plaintiffs-Appellants, v. METRICK ELECTRIC COMPANY, INC., Defendant-Appellee (Center Ridge Company et al., Defendants).
    Second District
    No. 2 — 90—0951
    Opinion filed August 13, 1991.

      Philip J. Ryan, of Ryan & Viglione, of Waukegan, for appellants.
    David Smith and Lee J. Schoen, both of Schoen & Smith, Ltd., of Chicago, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiffs, Bob and Helen Neofotistos, appeal from the trial court’s order granting summary judgment in favor of defendant, Metrick Electric Company, Inc. (Metrick). We affirm.

In December 1987, Bob Neofotistos was seriously injured when an electrical panel and circuit breaker exploded while he was working on or around those items. The panel and circuit breaker were part of the electrical system installed by Metrick during construction of the Lakehurst Shopping Center in 1971 or 1972. In August 1989, plaintiffs filed their original complaint, naming Metrick as one of the defendants. Plaintiffs later filed an amended complaint sounding in negligence and loss of consortium. Metrick filed a motion for summary judgment, and plaintiffs filed a motion to strike the affidavits attached to Metrick’s motion. The trial court granted Metrick’s motion and denied the motion to strike the affidavits. This appeal followed.

Summary judgment should be granted only if the pleadings, depositions, admissions and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Estate of Dompke v. Dompke (1989), 186 Ill. App. 3d 930, 933.) Evidence must be viewed in a light most favorable to the nonmovant in determining whether a genuine issue of fact exists. (Dompke, 186 Ill. App. 3d at 933.) In granting Metrick’s motion for summary judgment, the trial court cited section 13 — 214(b) of the Code of Civil Procedure, which states in part:

“No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission.” (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 214(b).)

Plaintiffs now contend that a genuine issue of material fact exists as to whether the electrical panel and/or the circuit breaker constitute an improvement within the meaning of section 13 — 214(b). We conclude that no issue of fact exists and that the trial court’s order of summary judgment was proper.

Plaintiffs argue that section 13 — 214(b) is inapplicable to the case before us because their complaint does not allege negligence in the installation of an improvement to real property; the complaint merely alleges, according to plaintiffs, negligence in the installation of an electrical panel and circuit breaker, two small pieces of equipment which cannot be considered improvements to real property. We find this argument disingenuous. Such logic, if adopted, would reduce any improvement to its component parts and deny the existence of the improvement as a whole. While only the panel and circuit breaker exploded, these components were integral parts of the entire electrical system installed by Metrick. They cannot be viewed in isolation from the system of which they are a part. (See Cross v. Ainsworth Seed Co. (1990), 199 Ill. App. 3d 910, 922.) Viewing these pieces in their proper context, as part of the electrical system of the shopping center, we need only determine if a question remains as to whether the electrical system is an improvement to real property. We conclude that no question exists. An improvement to real property is “an addition to real property amounting to more than a mere repair or replacement, and which substantially enhances the value of the property.” (Calumet Country Club v. Roberts Environmental Control Corp. (1985), 136 Ill. App. 3d 610, 613.) Obviously, the installation of the electrical system was no mere repair or replacement, and it substantially enhanced the value of the otherwise unlighted and unpowered shopping center. There can be no doubt as to the nature of the electrical system as an improvement and, consequently, the applicability of section 13 — 214(b) to this case. No genuine issue of fact remains in this regard.

Plaintiffs also cite to section 13 — 214(d), which states:

“Subsection (b) shall not prohibit any action against a defendant who has expressly warranted or promised the improvement to real property for a longer period from being brought within that period.” (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 214(d).)

Plaintiffs argue that a question remains as to whether Metrick warranted its work and thus brought subsection (d) into play. We disagree.

Metrick’s motion contained the affidavits of Elliot Metrick, president of Metrick, and Robert Boettles, an employee of Metrick who worked on the installation of the Lakehurst Shopping Center electrical system. Metrick’s affidavit made no mention of guarantees or warranties; Boettles’ affidavit stated that “Metrick Electric Com-party, Inc. did not have any agreement relating to management, maintenance, replacement or repair of the Lakehurst Shopping Center.” Further, in their depositions, Metrick testified that, “We guarantee all our work for one year,” while Boettles, when asked if any warranties or guarantees existed, answered, “I personally don’t know.” No evidence exists in the record that would tend to prove or even call into question the existence of a warranty which would make applicable section 13 — 214(d). Plaintiffs rely only on some hypothetical, speculative questioning of Metrick as to whether the company would ever repair work beyond one year. However, this does not rise to the level of a question of fact. The evidence points to a lack of any warranty or guarantee which would invoke section 13 — 214(d); no question of fact exists, and summary judgment was properly granted.

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

Affirmed.

GEIGER and McLAREN, JJ., concur.


author: JUSTICE NICKELS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EZZARD CHARLES, Defendant-Appellant.
    Second District
    No. 2 — 89—0406
    Opinion filed August 15, 1991.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Linda Eigner and Michael J. Pelletier, both of State Appellate Defender’s Office, of Chicago, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Robert M. Podlasek, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NICKELS

delivered the opinion of the court:

Following a bench trial in the circuit court of Du Page County, defendant Ezzard Charles was convicted of aggravated kidnapping and aggravated criminal sexual assault. (Ill. Rev. Stat. 1987, ch. 38, pars. 10 — 2(a)(3), 12 — 14(a)(1).) He was sentenced to concurrent terms of seven years’ imprisonment on each conviction. On appeal defendant contends that the State failed to prove that he displayed a dangerous weapon, which was used to enhance the offense of criminal sexual assault to aggravated criminal sexual assault. In the second issue, defendant claims that his conviction of aggravated kidnapping must be reduced to kidnapping because he was convicted of the same conduct, (aggravated) criminal sexual assault, which was then used to enhance the kidnapping offense to aggravated kidnapping.

The complainant, S.M., testified that she dated defendant for about one year during which time she had a sexual relationship with him. In September 1988 their relationship began to change, and she told defendant that she did not want to see him anymore. Defendant telephoned S.M. several times a day and told her he wanted to get back together.

On September 30, 1988, defendant spoke with S.M. for about 45 minutes at the restaurant where she worked as a waitress. She then drove him to his apartment, but he refused to get out of the car. She agreed to drive him to his workplace, and once there defendant told her he missed her and wanted to make love. When S.M. said that is not what she wanted, defendant put his hands under her skirt and began to tear her nylons. S.M. fled from the car, got a ride to a gas station from a motorist and called the police. She signed a complaint against defendant, and a criminal charge was still pending for that incident at the time of the instant trial.

After this incident, defendant continued to telephone S.M. several times a day. S.M. told him she would be his friend but not his girlfriend. S.M. saw defendant four times in October 1988 during which she brought him groceries, gave him money or watched football on television with him.

S.M. met with defendant’s attorney, Steven Levin, in Chicago after work on November 1, 1988. She told Levin she would drop the earlier charge against defendant if Levin would persuade defendant to stop harassing her. S.M. then took the train to Roselle, Illinois, where she had parked her car. Arriving about 10:30 p.m., she saw defendant get out of a van and approach her. He grabbed her and screamed at her that she was going with him to talk. Defendant told S.M. that he was going to cut her up into little pieces if she did not do what he wanted. He threw S.M. into the van, and she fell between the seats. Defendant held her facedown as he drove.

Arriving in the parking lot of his apartment building, defendant told S.M. if she screamed or ran she would make it worse. He took her into the building by her arm, brought her into his apartment, and locked the door. Defendant showed S.M. a knife, which he took from his pocket. He said he brought the knife to scare her. She saw the knife for less than a minute. S.M. testified that she was not as much afraid of the knife as she was afraid of defendant. Defendant instructed her to disrobe and then go into the bedroom.

While S.M. was in the bedroom, defendant went into the bathroom for about a minute. He took off his clothes. He talked to S.M. about missing her and getting back together. During this time defendant placed his penis in S.M.’s vagina four times. She did not know where the knife was during this time. Afterward defendant drove S.M. to her car. She went to the police and then was taken to a hospital.

Dr. Kenneth McKee examined S.M. and observed tenderness and redness in the external genitalia consistent with nonconsensual intercourse. Officer Kevin Toomey recovered the knife from the headboard of defendant’s bed. The knife was described as having a wooden handle, and the blade was partially broken off so that the length of the blade was about V-k inches.

Defendant testified on his own behalf. S.M. never told him she wanted to stop seeing him. They continued to have a sexual relationship throughout October 1988. The incident on September 30, 1988, was described by defendant as an argument that occurred after he and S.M. were going to have sex in the car.

Defendant said that S.M. agreed to meet him at the train station on November 1, 1988. They drove to his apartment and engaged in consensual intercourse. He denied threatening S.M. or forcing her into the van.

First, defendant contends his conviction of aggravated criminal sexual assault should be reduced to criminal sexual assault, and the cause remanded for resentencing, because the State failed to prove beyond a reasonable doubt that he was armed with a dangerous weapon or an object S.M. reasonably believed to be a dangerous weapon based upon the character of the knife.

Any weapon specifically listed in section 33A — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 1) is considered to be a per se dangerous weapon. (People v. Ptak (1990), 193 Ill. App. 3d 782.) A weapon not listed can become a dangerous weapon when it is used in a manner dangerous to the well-being of the individual threatened. (People v. Weger (1987), 154 Ill. App. 3d 706, 712.) A knife with a blade less than three inches in length could be dangerous if it is used in such a manner. (People v. Chrisos (1986), 142 Ill. App. 3d 747; People v. Samier (1985), 129 Ill. App. 3d 966; People v. Hall (1983), 117 Ill. App. 3d 788.) Whether a particular object qualifies as a dangerous weapon depends upon the character of that object and is usually a question of fact for the fact finder. (People v. Westefer (1988), 169 Ill. App. 3d 59.) However, where the character of the weapon is such as to admit of only one conclusion, it becomes a question of law. (Westefer, 169 Ill. App. 3d at 61-62.) In Westefer this court found that a utility knife used in an armed robbery which had a six-inch metal grip and a one-inch, heavy-duty, single-edged sharp blade was per se a deadly weapon.

The offense of aggravated criminal sexual assault is committed when, during the commission of a sexual assault, “the accused displayed, threatened to use, or used a dangerous weapon or any object fashioned or utilized in such a manner as to lead the victim under the circumstances reasonably to believe it to be a dangerous weapon.” (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(a)(1).) Although defendant claims that the State did not allege the knife was a dangerous weapon per se based upon the indictment, the record shows that, in addition to count VI referred to by defendant, count II alleged that defendant “while threatening to use a dangerous weapon, a knife” committed criminal sexual assault. The trial court found defendant guilty of both aggravated criminal sexual assault charges but sentenced on only count VI. In any event there is no basis to reduce defendant’s conviction given the facts of this case, which show that S.M. reasonably believed the knife to be a dangerous weapon. People v. Phillips (1989), 181 Ill. App. 3d 144.

In determining whether an instrument was a dangerous weapon, the supreme court has stated that “ ‘when the character of the weapon is doubtful or the question depends upon the manner of its use it is a question for the jury [fact finder] to determine from a description of the weapon, from the manner of its use and the circumstances of the case.’ ” Phillips, 181 Ill. App. 3d at 150, quoting People v. Robinson (1978), 73 Ill. 2d 192, 202.

Defendant had threatened to cut S.M. into little pieces, and he told her things would be worse for her if she ran or screamed. While defendant points out that these statements were made without the knife being shown to S.M., we note in People v. Ramsey (1986), 147 Ill. App. 3d 1084, the defendant told another man to get a shotgun from the trunk and threatened to kill complainant. Complainant did not see a shotgun.

After making these threats, defendant brought S.M. into his apartment and locked the door with the dead-bolt lock. He then displayed the knife, telling her he brought it along to scare her. S.M. was afraid of the knife although not as afraid as she was of defendant. He ordered her to disrobe and to go into the bedroom. While defendant points out that he did not “brandish” or specifically threaten her with the knife, the totality of the circumstances proves beyond a reasonable doubt that he “displayed, threatened to use, or used *** [an] object fashioned or utilized in such a manner as to lead the victim *** reasonably to believe it to be a dangerous weapon.” Ill. Rev. Stat. 1987, ch. 38, par. 12-14(a)(l).

Defendant notes that S.M. was so “unconcerned” about the knife that she paid no attention to its whereabouts after he displayed it to her. However, the testimony showed that S.M. was afraid and she was crying when defendant assaulted her. Defendant also argues that some of the cases cited by the State involved actual injuries to the complainants caused by the object. First, the statute does not require injury from the object reasonably believed to be a dangerous weapon. Second, actual injury or harm upon a victim is not a prerequisite to an instrumentality being classified as a deadly weapon. (People v. Ratliff (1974), 22 Ill. App. 3d 106; see People v. Hill (1977), 47 Ill. App. 3d 976.) Based on the evidence before the trial court, the conviction of aggravated criminal sexual assault will not be reduced on appeal. See Phillips, 181 Ill. App. 3d at 151.

In defendant’s second issue, he contends that his conviction of aggravated kidnapping should be reduced to kidnapping and the cause remanded for resentencing because the same conduct that formed the basis for the sexual assault conviction was also used to enhance the kidnapping offense to aggravated kidnapping. (People v. Donaldson (1982), 91 Ill. 2d 164.) He argues that the sexual assault is an included, although not lesser, offense of aggravated kidnapping. He acknowledges that there was a separate offense of kidnapping from the offense of sexual assault.

This argument was rejected in People v. Scott (1977), 45 Ill. App. 3d 487, aff’d (1977), 69 Ill. 2d 85, wherein the defendant claimed that his conviction of aggravated kidnapping and rape arose out of the same conduct. As a basis for its decision, the Scott court found that aggravated kidnapping, carrying a greater penalty than kidnapping, was conceived by the legislature as a deterrent to, among other things, the commission of a subsequent felony against the victim of the kidnapping. The clear legislative purpose allowed convictions on aggravated kidnapping and rape. Defendant herein argues that this reasoning is faulty where the subsequent felony is the same or a greater class felony than aggravated kidnapping because a person who is going to commit the same or greater class felony will not be deterred by enhancing kidnapping to aggravated kidnapping. We find that this argument has no merit.

We also note that the supreme court in affirming Scott (45 Ill. App. 3d 487), on another issue, specifically found that the imposition of punishment on the aggravated kidnapping conviction was in accord with its recent decision of People v. King (1977), 66 Ill. 2d 551. (People v. Scott (1977), 69 Ill. 2d 85, 88.) Although the instant defendant claims the supreme court merely agreed that Scott’s conduct supported a separate conviction of kidnapping, the opinion refers to aggravated kidnapping, the only kidnapping conviction against Scott.

The United States Court of Appeals for the Seventh Circuit in Nelson v. Thieret (7th Cir. 1986), 793 F.2d 146, has held that the Illinois legislature specifically authorized a conviction of both the felony that is the predicate for aggravated kidnapping and aggravated kidnapping itself. The Appellate Court for the Fourth District also followed People v. Scott (1977), 45 Ill. App. 3d 487, in People v. Smith (1987), 154 Ill. App. 3d 837. The Appellate Court for the Second District has also noted that a defendant may be properly convicted of both the aggravated crime and the second felony used to enhance that crime to an aggravated offense. (People v. McDarrah (1988), 175 Ill. App. 3d 284, 300, citing Scott, 45 Ill. App. 3d 487.) The Mc-Darrah court rejected, however, the use of the aggravated crime to enhance the second felony thus creating two aggravations and double enhancement of the penalty. Unlike McDarrah, the criminal sexual assault herein was not enhanced to aggravated criminal sexual assault by the kidnapping. Defendant’s conviction of aggravated kidnapping was proper.

The judgment of the circuit court is affirmed.

Affirmed.

McLAREN and GEIGER, JJ., concur.


text:
    STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff-Appellant, v. SAHAK YAPEJIAN et al., Defendants-Appellees.
    Second District
    No. 2 — 90—1351
    Opinion filed August 13, 1991.
    Richard M. Furgason, of Dreyer, Foote, Streit, Furgason & Slocum, P.A., of Aurora, and James J. Hoffnagle, of Taylor, Miller, Sprowl, Hoffnagle & Merletti, of Chicago, for appellant.
    R. Lee Huszagh, of Wheaton, for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, State Farm Fire & Casualty Company, appeals from an order of the circuit court dismissing its complaint for declaratory judgment against defendants, Sahak Yapejian and Anahid Yapejian. The issue on appeal is whether a dispute over uninsured motorist coverage must be submitted to arbitration when the parties disagree about whether there was a collision with a hit-and-run vehicle.

Plaintiff alleged the following facts in its amended complaint. Plaintiff issued an automobile insurance policy to Sahak Yapejian for his 1978 Chevrolet Malibu station wagon. On March 17, 1989, Sahak was driving the Malibu, and Anahid was his passenger. Defendants claimed that a motor vehicle crossed the center line and struck the left side of the Malibu and that the driver did not stop. Defendants sought recovery for bodily injury.

The policy defined “uninsured motor vehicle” as a vehicle which is not insured or:

“[A] ‘hit-and-run’ land motor vehicle whose owner or driver remains unknown and which strikes:
a. the insured; or
b. the vehicle the insured is occupying and causes bodily injury to the insured.” (Emphasis omitted.)

Plaintiff investigated the claims by inspecting the Malibu and determined that the damage to the Malibu could not have been caused by a collision as described and reported by defendants.

Plaintiff alleged that, in a “hit-and-run” accident, the policy coverage applies only if the vehicle of the unknown driver actually strikes the insured’s vehicle. In their motion to dismiss, defendants cited the policy provision for dispute resolution between the insurer and the insured. The provision states:

“Deciding Fault and Amount
Two questions must be decided by agreement between the insured and us:
1. Is the insured legally entitled to collect damages from the owner or driver of the uninsured motor vehicle or underinsured motor vehicle; and
2. If so, in what amount? If there is no agreement, these questions shall be decided by arbitration.” (Emphasis omitted.)

Defendants requested arbitration; therefore, according to defendants, the declaratory judgment action should be dismissed and the dispute submitted for arbitration. Defendants also cited section 143a(l) of the Illinois Insurance Code (Insurance Code) (Ill. Rev. Stat. 1989, ch. 73, par. 755a(l)), which provides that “any dispute with respect to such coverage shall be submitted for arbitration.”

At the hearing on the motion to dismiss, plaintiff relied on Country Mutual Insurance Co. v. Kosmos (1983), 116 Ill. App. 3d 914, and Clark v. Country Mutual Insurance Co. (1985), 131 Ill. App. 3d 633. Defendants argued that the plain language of the statute required that any dispute shall be submitted for arbitration. The court decided that the cases on which plaintiff relied were at odds with the plain language of the statute. The court distinguished Kosmos on its facts and expressly declined to follow Clark. The court then granted the motion to dismiss.

Plaintiff contends on appeal that the issue of coverage is not subject to arbitration. Plaintiff first cites Flood v. Country Mutual Insurance Co. (1968), 41 Ill. 2d 91, which considered the issue whether, under the terms of the insurance policy, the question of coverage was subject to arbitration. The court looked to the language of the agreement to determine whether the parties intended that coverage issues should be submitted to arbitration. The court determined that the insurance policy limited arbitration to issues concerning the amount of damages and disputes between the insured and the owner of the uninsured vehicle. Flood, 41 Ill. 2d at 94.

Defendants respond that Flood was decided prior to the amendment to the Insurance Code which added a provision requiring arbitration. (See Ill. Rev. Stat. 1979, ch. 73, par. 755a(l).) In support of the argument that the Flood holding was abrogated by legislative amendment, defendants refer to Kosmos, where the court considered the effect of the 1978 amendment. The Kosmos court explained:

“If, in fact, the policy provision is in conflict with the statute then of course the statute is controlling. [Citation.] If not, then the parties are bound by the policy provisions.” (Kosmos, 116 Ill. App. 3d at 916.)

According to defendants, the amendment is diametrically opposed to the policy provision limitation.

Plaintiff counters that the Kosmos court further found that the language “disputes with respect to such coverage” in section 143(a)(1) was ambiguous. The court then looked to the legislative debates to resolve the ambiguity. The Kosmos court believed that the statute was enacted solely to curb delays in arbitration, not to extend the scope of the arbitration. (Kosmos, 116 Ill. App. 3d at 916-17.) Defendants argue that the court did not, as a matter of law, resolve the ambiguity in the statutory language because in Kosmos there was no dispute that there was no contact between an uninsured vehicle and the insured’s vehicle. (116 Ill. App. 3d at 917.) According to defendants, the discussion of the legislative debates is merely dicta.

We agree with plaintiff that Kosmos is not determinative of the question whether the 1978 amendment abrogated the holding of Flood. Kosmos stated specifically that it did not resolve that question. Similarly, Liberty Mutual Insurance Co. v. Morgan (1985), 138 Ill. App. 3d 938, also cited by plaintiff, is not determinative, since it relied on Kosmos without considering that the language in question was dicta and that Kosmos did not resolve the question. As further support for its contention, however, plaintiff argues that the court in Clark definitively answered that question in the negative.

Clark relied on Flood when it determined that the arbitration agreement embodied in the insurance policy is limited to the issues of the liability of the uninsured motorist to the insured and the amount of damages. According to Clark, “questions of law or fact concerning coverage cannot under this agreement be submitted to arbitration.” Clark, 131 Ill. App. 3d at 637.

Defendants argue that the trial court was correct in refusing to follow Clark since the court, in that case, did not consider the effect of the 1978 amendment to the Insurance Code. Defendants agree -with the trial court that the language of section 143(a)(1) is clear and unambiguous: all disputes regarding coverage are subject to arbitration. Defendants maintain that the court should not look beyond the statutory language, which conflicts with the policy provision. Thus, defendants conclude, the statute is controlling (see American Family Mutual Insurance Co. v. Baaske (1991), 213 Ill. App. 3d 683, 688), and the issue of coverage is subject to arbitration.

We agree with defendants that Clark, as well as Elliott v. Inter-Insurance Exchange of the Chicago Motor Club (1988), 169 Ill. App. 3d 702, a case cited by plaintiff in its reply brief, failed to consider section 143a(l) (Ill. Rev. Stat. 1989, ch. 73, par. 755a(l)) and erroneously relied on cases decided before the 1978 amendment. We therefore decline to follow Clark and Elliott and instead rely on section 143a of the Insurance Code (Ill. Rev. Stat. 1989, ch. 73, par. 755a).

When construing a statute, the court should determine the legislative intent. (Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 455.) A material change or amendment to a statute creates a rebuttable presumption that the legislature intended to change the existing law. (State of Illinois v. Mikusch (1990), 138 Ill. 2d 242, 252.) Prior to its amendment in 1978, section 143a(l) provided in relevant part:

“On or after July 1, 1963, no policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this State *** unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in Section 7 — 203 of The Illinois Vehicle Code for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom ***.” (Ill. Rev. Stat. 1977, ch. 73, par. 755a(l).)

The amendment added the sentence, “No such policy shall be renewed or delivered *** unless it is provided therein that any dispute with respect to such coverage shall be submitted for arbitration ***.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 73, par. 755a(l).

When determining the proper interpretation of a statute, the court should start with the language of the statute. (Kirwan v. Welch (1989), 133 Ill. 2d 163, 165.) Where the language is certain and unambiguous, the court must enforce the law as written without resorting to supplemental principles of statutory construction. Henry v. St. John’s Hospital (1990), 138 Ill. 2d 533, 541.

A statute is ambiguous if it is reasonably susceptible of two or more constructions. (Knox County Board of Review v. Illinois Property Tax Appeal Board (1989), 185 Ill. App. 3d 530, 534.) Statutory terms are given their popular, ordinary meaning when not defined specifically. Union Electric Co. v. Department of Revenue (1990), 136 Ill. 2d 385, 397.

We agree with the trial court that the language of section 143a(l) is unambiguous. The term “coverage” means coverage. The definition of “coverage” is the “amount and extent of risk covered by insurer.” (Black’s Law Dictionary 330 (5th ed. 1979).) The statute provides that any dispute regarding uninsured motorist coverage “shall be submitted for arbitration.” (Ill. Rev. Stat. 1989, ch. 73, par. 755a.) The language of the statute is broadly worded, thereby indicating that an expansive interpretation of “disputes with respect to such coverage” is correct. We fail to see how this statement can be interpreted as excluding questions regarding whether uninsured motorist coverage applies in the first instance. We therefore disagree with Kosmos that the language reasonably can be interpreted as applying exclusively to disputes arising under the policy provision when coverage has been established.

We also disagree with the court in Morgan, which stated that the term “such coverage” referred to the requirement that uninsured motorist coverage be offered in an amount at least equal to coverage for bodily injury. (Morgan, 138 Ill. App. 3d at 945-46.) The term “such coverage” cannot refer to bodily injury because that term is used in section 143a(2)(iv), which concerns property damage coverage. (Ill. Rev. Stat. 1989, ch. 73, par. 755a(2)(iv); see Mirabella v. Retirement Board of the County Employees’ Annuity & Benefit Fund (1990), 198 Ill. App. 3d 971, 974 (use of the same term in different sections of a statute should be given consistent meaning).) Based on our evaluation of the entire section, we believe that “such coverage” is shorthand for “[u]ninsured or hit and run motor vehicle coverage,” the title of the section. See Wilcoxen v. Paige (1988), 174 Ill. App. 3d 541, 542.

Since we have determined that the language of the statute is clear and unambiguous, reference to the legislative debates is unnecessary. (Heise v. Mitten (1991), 207 Ill. App. 3d 941, 944.) We decline to follow the reasoning of Kosmos and, instead, conclude that the plain language of the statute requires that disputes regarding the existence of uninsured motorist coverage, as well as disputes concerning the amount of damages and the liability of the uninsured motorist, be submitted to arbitration. Thus, the trial court was correct in dismissing the declaratory judgment action and remanding the cause for arbitration.

For the foregoing reasons, the order of the circuit court of Du Page County is affirmed.

Affirmed.

GEIGER and INGLIS, JJ., concur.


author: JUSTICE HAASE

text:
    GARY D. LOSEKE, Plaintiff-Appellee, v. RONALD C. MABLES, Defendant-Appellant.
    Third District
    No. 3 — 90—0866
    Opinion filed August 20, 1991.

      Chester C. Fuller, of Peoria, for appellant.
    James S. Dixon, of Peoria, for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiff, Gary D. Loseke, brought this negligence action against the defendant, Ronald C. Mables, to recover damages sustained in an automobile accident involving both parties. Following a bench trial, the trial court entered judgment in favor of the plaintiff on the issue of liability. The defendant appeals, contending that he was denied a fair trial because the trial court improperly admitted accident reconstruction testimony from an investigating peace officer.

The record reveals that about 5:55 a.m. on December 15, 1986, a two-car accident occurred on Route 121 near Morton, Illinois, between a Renault LeCar driven by the plaintiff and a Chevy Vega driven by the defendant. At the time of the accident, the plaintiff was traveling northbound and the defendant was traveling southbound. There were no eyewitnesses to the accident other than the two drivers. Both drivers were seriously injured and were subsequently taken to the hospital.

The plaintiff testified that at the time of the accident he was traveling about 35 miles per hour. The roads were ice covered, the weather was clear, and it was still dark. The plaintiff first noticed the headlights of the defendant’s vehicle when it was about 600 feet away. When the defendant’s vehicle approached a curve in the road and was about six car lengths from the plaintiff’s vehicle, the defendant’s vehicle slid out of control, crossed the center line, and struck the plaintiff’s vehicle.

Illinois State Police Trooper Tony Ortega testified that he had 17 years of law enforcement experience. He stated that he had specialized training in accident reconstruction, which included 40 hours of instruction at the Illinois Police Academy and a 40-hour course at Illinois Central College.

Trooper Ortega stated that he arrived at the scene of the accident at 6:26 a.m. At that point, it was sunny and clear. He noticed that the road was ice covered and there were two damaged vehicles in the vicinity. The defendant’s car was on the northbound shoulder, and the plaintiff’s car was on the southbound shoulder. Ortega noticed various debris on the roadway. He found glass and mud scattered in both lanes. In the northbound lane, he found radiator coolant and a fresh gouge mark about one foot from the center line. Ortega noted that the gouge mark was created by the undercarriage of a vehicle digging out the pavement below at what he believed to be the point of impact. Ortega also noted that radiator coolant has a tendency to fall downward at the point of impact. Based on his observations of the coolant and gouge mark, Ortega opined that the point of impact occurred in the northbound lane.

The defendant objected to the trooper’s testimony about the point of impact, arguing that the testimony was improper because the trooper was not a qualified accident reconstruction expert. The trial court eventually allowed the point of impact testimony to be admitted into evidence.

Trooper Ortega further testified that he interviewed the defendant at the hospital. At the time, the defendant was conscious and appeared lucid and unsedated. According to Ortega, the defendant told him that he was driving south on Route 121 when he came into a curve, reduced his speed, slid, lost control of his vehicle, and crossed the center line.

On cross-examination, Trooper Ortega stated that although he was not an accident reconstructionist, his many years of training and experience would qualify him to identify the point of impact of an accident. Ortega initially stated that the gouge mark was from the initial impact. He later stated that the gouge mark could have been caused by a second impact. On redirect examination, Ortega explained that there was only one gouge mark on the road and that a gouge mark had to be created by the initial impact.

The defendant testified that he did not notice the plaintiff’s vehicle until it was three car lengths away because of heavy fog. According to the defendant, the plaintiff’s vehicle crossed the center line into the southbound lane of traffic. At that point, the defendant applied his brakes and the two vehicles collided. The defendant further testified that as a result of the collision he suffered from a fractured jaw, two fractured ankles, and a fractured femur. The defendant denied having any conversation with Trooper Ortega and stated that he was unable to carry on a conversation at the hospital following the accident.

The trial court entered judgment for the plaintiff on the issue of liability. Thereafter, the trial court denied the defendant’s post-trial motion. In so doing, the court found that even though Trooper Ortega was not a qualified accident reconstruction expert, he was nevertheless qualified to render an opinion as to the point of impact pursuant to Tipsword v. Melrose (1973), 13 Ill. App. 3d 1009, 301 N.E.2d 614. The court further found that since the physical evidence left a trail easily read by the average juror, it was error to allow the opinion testimony about the point of impact. The court concluded, however, that any error was harmless because the physical evidence permitted only the conclusion that the accident occurred in the northbound lane.

On appeal, the defendant contends that the trial court erred when it allowed Trooper Ortega to testify about the point of impact between the two vehicles.

We note that testimony about the point of impact is considered reconstruction testimony. “ ‘Reconstruction testimony, as it is generally understood, seeks to recreate the accident; who hit whom, where was the impact and how fast the parties were going ***.’ ” (Emphasis in original.) (Stricklin v. Chapman (1990), 197 Ill. App. 3d 385, 389, 554 N.E.2d 658, quoting Finfrock v. Eaton Asphalt Co. (1976), 41 Ill. App. 3d 1020, 1023, 355 N.E.2d 214, 217.) However, the fact that point of impact testimony is considered reconstruction testimony does not necessarily mean that a trooper is prohibited from offering his opinion regarding the point of impact. (Tipsword v. Melrose (1973), 13 Ill. App. 3d 1009, 301 N.E.2d 614.) Furthermore, we note that there is a strong presumption in a bench trial that the trier of fact relied only on proper evidence in reaching its decision on the merits. People v. Ziegler (1979), 78 Ill. App. 3d 490, 396 N.E.2d 1160.

In Augenstein v. Pulley (1989), 191 Ill. App. 3d 664, 547 N.E.2d 1345, the court undertook an extensive analysis of the law regarding the admissibility of reconstruction testimony. The Augenstein court held that there are two major prerequisites necessary for the admission of such testimony: (1) an appropriately qualified expert in the field; and (2) that the expert’s testimony aid the fact finder in the resolution of the dispute. The court also noted that the presence or absence of eyewitnesses is not conclusive in determining the admissibility of such testimony.

In Tipsword v. Melrose (1973), 13 Ill. App. 3d 1009, 301 N.E.2d 614, the investigating trooper testified that he had investigated approximately 1,000 accidents and was trained to arrive at conclusions based on the physical evidence found at the scene and statements received from the witnesses. There, the court held that the trooper was not barred from giving his opinion about the point of impact.

In Dobkowski v. Lowe’s, Inc. (1974), 20 Ill. App. 3d 275, 314 N.E.2d 623, there were no eyewitnesses to the accident. The investigating State trooper testified that he had investigated about 280 accidents in eight years as a trooper. His investigation of the accident in that case included examination of the debris from the collision, the position of the vehicles after the accident, the contour of the highway, and a fresh gouge mark in the northbound lane which he stated was the cause of the accident. Based on these observations, the trooper opined, in response to a hypothetical question, that the accident occurred in the northbound lane. The court concluded that since the physical evidence left a trail easily read by the average juror, it was error to allow the trooper’s opinion concerning the point of impact. The court further concluded, however, that any error was harmless, since the physical evidence presented at trial left no doubt that the vehicles collided in the northbound lane and the jury could not logically have reached any other conclusion.

Based on the principles enunciated in the above-mentioned cases, we find that the trial court did not err in admitting Trooper Ortega’s opinion about the point of impact. In reaching that conclusion, we find Tipsword v. Melrose (1973), 13 Ill. App. 3d 1009, 301 N.E.2d 614, particularly pertinent. In the case at bar, Ortega had over 80 hours of specialized training in accident reconstruction and 17 years of law enforcement experience. Although he may not have been qualified as a full-blown accident reconstructionist, he was nevertheless qualified to offer his opinion as to the point of impact.

Moreover, we note that even if the court erred in allowing the trooper’s opinion, such error was harmless in view of the presumption that the trial judge considered only proper evidence in reaching his decision and in view of the the fact that the evidence in the instant case overwhelmingly favored the plaintiff. Regarding the evidence, we note that Ortega explained that a gouge mark would appear at the point of impact. He also explained that radiator coolant would spill downward at the point of impact. Both of these indicators of the point of impact were found in the northbound lane. Moreover, we note that following the accident, the defendant admitted to Ortega that he crossed the center line, causing the accident. Under these circumstances, it appears that the only logical conclusion the trier of fact could have reached was that the accident occurred in the northbound lane. Accordingly, we do not find that the trial court committed reversible error in admitting the trooper’s testimony about the point of impact.

The judgment of the circuit court of Peoria County is affirmed.

Affirmed.

BARRY and GORMAN, JJ., concur.