text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. SARAH A. JEBELIAN, Defendant-Appellee.
    Third District
    Nos. 3 — 89—0753, 3 — 90—0063 cons.
    Opinion filed September 25, 1990.

      Marc Bernabei, State’s Attorney, of Princeton, and John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of Ottawa, for the People.
    Sarah A. Jebelian, of Princeton, appellee pro se.

   JUSTICE GORMAN

delivered the opinion of the court:

The defendant, Sarah A. Jebelian, moved to rescind the statutory summary suspension of her driver’s license and to suppress evidence against her. The trial court granted both motions. The State appeals.

The record shows that at the hearing on the petition to rescind the statutory summary suspension, Lyle May testified that he was 87 years old and lived in the Princeton high-rise. On the evening of October 3, 1989, the defendant came to his apartment. May talked with her for 10 or 15 minutes. In his opinion, she was not intoxicated. After they went outside, a police officer began talking with the defendant. The officer asked her to walk a straight line. May believed the defendant adequately performed the test. The officer nonetheless handcuffed her.

The 50-year-old defendant testified that on the evening in question she double-parked near the high-rise, turned off the car, and left the keys in the ignition. She then went inside the building for five minutes. When she returned, she saw a police car parked behind her vehicle. She asked the officer if he was going to arrest her. He then grabbed her, threw her against the car, and handcuffed her. A short while later, he briefly removed the handcuffs and then put them on again. As he placed her in the squad car, she hit her head and passed out.

The defendant further testified that after they arrived at the police station, the officer twice pushed her back into the car. She was not booked until 7 a.m. the next day. After she was released at noon of that day, she went to the hospital and had a blood test taken. According to a medical record entered into evidence, the test did not reveal any alcohol in her bloodstream.

Officer Raymond Kuhnert testified that he had performed 20 to 40 arrests for driving under the influence of alcohol. On the night of the incident, he was on patrol when two young men flagged him down. They told him that a gray car with license number FS 2353 was driving erratically and had run two cars off the road. They described the driver as a silver-haired woman in her late forties. The officer proceeded to look for the car. A few minutes later, the two men told him that the car was double-parked next to the high-rise.

The officer testified that he found a car matching the description double-parked near the high-rise. The car was unoccupied and running, so he turned it off and took the keys out of the ignition. The defendant then approached him and asked what he was doing with her car. He recognized her from some previous investigations. He noted that she swayed slightly as she walked and that when he asked for her driver’s license, she fumbled through her purse and dropped several items. As she gave him her license, he also detected the odor of alcohol on her breath.

The officer testified that he asked the defendant to perform the horizontal gaze nystagmus test. She attempted the test three times, but each time turned her head to look at the pen instead of following it with her eyes. In his opinion, she did not understand the directions for the test. He then arrested her for driving under the influence of alcohol.

The officer stated that he drove the defendant to the jail. After he gave her the standard motorist’s warning, she refused to take a breathalyzer test.

The trial court found that the arrest was based on a citizen’s tip, the odor of alcohol on the defendant, and the defendant’s swaying as she walked. It further found that when the officer arrested the defendant he was primarily acting on the basis of his previous encounters with her. The court concluded that the officer lacked probable cause to make the arrest. It therefore rescinded the statutory summary suspension. The defendant later filed a motion to suppress the officer’s observations following the improper arrest. The trial court granted that motion as well.

On appeal, the State contends that the officer had probable cause to make the arrest. Consequently, it contends that the trial court erred in rescinding the statutory summary suspension and suppressing the evidence.

Probable cause for an arrest exists where the facts within the arresting officer’s knowledge would warrant a man of reasonable caution to believe that the arrestee has committed or is committing an offense. (People v. Lippert (1982), 89 Ill. 2d 171, 432 N.E.2d. 605.) In determining whether probable cause exists, an officer may rely on a private citizen’s tip without independently verifying the citizen’s reliability. (People v. Sain (1984), 122 Ill. App. 3d 646, 461 N.E.2d 1043.) The officer’s prior experience is also relevant. (See People v. Smith (1983), 95 Ill. 2d 412, 447 N.E.2d 809.) The determination of probable cause rests on the totality of the circumstances (People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147), and a trial court’s finding in this regard will not be disturbed on review unless it was manifestly erroneous (see People v. Ross (1985), 133 Ill. App. 3d 66, 478 N.E.2d 575).

In making its decision, the trial court accepted the officer’s version of the events in question. Officer Kuhnert stated that two citizens informed him that the defendant had been driving erratically. He then located her car, which was double-parked with the engine running. He noted that the defendant swayed slightly as she walked, dropped some objects while producing her license, and smelled of alcohol. She was also unable to follow the directions to perform the horizontal gaze nystagmus test. We recognize that the horizontal gaze nystagmus test has been criticized and is not evidence, but the officer’s observation of the defendant’s inability to follow directions is probative and properly admissible. We find the foregoing evidence established probable cause to make the arrest. (See People v. Wolff (1989), 182 Ill. App. 3d 583, 538 N.E.2d 610.) Accordingly, we reverse the trial court’s orders rescinding the statutory summary suspension and suppressing the evidence.

The judgment of the circuit court of Bureau County is reversed, and the cause is remanded for further proceedings consistent with our findings.

Reversed and remanded.

SCOTT and BARRY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES N. DEBECK, Defendant-Appellant.
    Third District
    No. 3-89-0112
    Opinion filed September 25, 1990.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.

      Marc Bernabei, State’s Attorney, of Princeton, and John X. Breslin and Elizabeth Klug, both of State’s Attorneys Appellate Prosecutor’s Office, of Ottawa, for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

A jury convicted the defendant, James N. DeBeck, of unlawful distribution of a look-alike substance (Ill. Rev. Stat. 1989, ch. 56V2, par. 1404(b)). The trial court subsequently sentenced him to two years’ probation, a three-month jail term, and $1,370 in fines and fees. The defendant appeals.

The record shows that Raymond Moss testified at the defendant’s trial that on March 4, 1988, he was arrested for unlawful delivery of cannabis. On the day of his arrest, he agreed to serve as a police informant. After he told the police that the defendant had previously offered to sell cocaine to him, he and the police agreed that he would attempt to set up a cocaine purchase with the defendant.

Moss testified that on the morning of March 5, 1988, he went to the defendant’s home and asked to buy a few grams of cocaine from him. The defendant said he did not have any cocaine, but that he could get some by 1 p.m. He also said that Moss would get a better deal if he purchased an eighth of an ounce. Moss replied that he and “Joe,” who was actually undercover officer Greg Johnson, would purchase an eighth of an ounce together. The two then agreed to meet at Moss’ house at 1 p.m.

Moss testified that later in the day, the defendant arrived at his home. When Officer Johnson asked him if he had the cocaine, the defendant asked Moss to come outside. After Moss did so, the defendant said he wanted to deal only with him. Moss went back inside to get some money from Johnson, returned, and paid the defendant $175 for the substance. The defendant then offered to sell Moss a quarter ounce of cocaine in the future.

Moss stated that pursuant to a plea agreement, he later pled guilty to unlawful delivery of cannabis. He received two years’ probation, a six-month jail term, and fines and court costs totalling $990.

Officer Johnson generally corroborated Moss’ testimony about the sale, except he said that during the sale he referred to the substance as “stuff” and not cocaine. He further testified that on March 22, 1988, he spoke with the defendant about the offense. After the defendant was given Miranda warnings, he signed a statement in which he admitted selling Moss a white powdery substance for $175. He also admitted in the statement that although he knew the substance was not cocaine, he told Moss that it was. Additionally, he averred that he offered to sell Moss a quarter ounce of cocaine for $325.

A forensic scientist testified that the substance did not contain cocaine. However, he detected “ephridine,” a stimulant, and tetracaine, an anesthetic, in it.

The defendant testified that on March 4, 1988, Moss had approached him about buying cocaine. The defendant refused to sell him any. Moss then asked him if he had anything else to sell, and the defendant produced a white powdery substance which was sold commercially as incense. Moss placed some on his tongue and said that he and his friend Joe would buy some. Moss said that he wanted to buy the substance, knowing it was not cocaine, because he wanted to “stiff” Joe.

The defendant further testified that the next day he sold Moss the substance. He admitted that he felt no pressure to sell the substance and that he did so to help Moss and to make a profit. He further stated that he signed the confession because Officer Johnson said that he would go to jail if he did not.

The defendant stated that on March 24, 1988, Officer Johnson approached him about working as an informant. The officer told him that his charges would be dropped if he cooperated. The defendant agreed to be an informant. In the ensuing months, he set up five drug transactions for the police. He said that although he did not expect to be arrested or charged for the March 5 offense, the police did so in October of 1988. He stayed in jail for about 2xk days until he posted bond. Moss was also booked the same day, but he did not go to jail.

The prosecutor was then allowed to question the defendant, over defense counsel’s objection, about a letter the defendant had received from the prosecutor regarding a possible plea agreement. The defendant verified that, in the letter, the prosecutor proposed that in return for a guilty plea, the defendant would receive two years’ probation, a $1,000 fine, and a six-month jail term. The letter further stated that if the defendant provided testimony in two other cases, he would not have to serve the jail sentence.

At the instructions conference, defense counsel requested that the jury be instructed on entrapment. The trial court denied the request.

The jury subsequently found the defendant guilty of the charged offense. The trial court sentenced him to two years’ probation, three months in the county jail with a provision for work release, a $1,000 fine, $170 in court costs, $175 in restitution to the State’s Attorney’s office, and a $25 monthly probation service fee.

The defendant first argues on appeal that the trial court erred in refusing to instruct the jury on entrapment. He contends that he presented sufficient evidence of entrapment for the question to go to the jury.

Entrapment occurs when State officers implant in the mind of an innocent person the disposition to commit an offense and induce the commission of the offense in order to prosecute. (Ill. Rev. Stat. 1989, ch. 38, par. 7 — 12; People v. Boalbey (1986), 143 Ill. App. 3d 362, 493 N.E.2d 369.) Entrapment is a factual question for the jury, unless it can be determined as a matter of law. (People v. Carpentier (1974), 20 Ill. App. 3d 1024, 314 N.E.2d 647.) The defense does not apply if the defendant was predisposed to commit the crime. (People v. Cross (1979), 77 Ill. 2d 396, 396 N.E.2d 812.) Moreover, appeals to sympathy or friendship are not sufficient to establish the defense. (People v. Washington (1967), 81 Ill. App. 2d 162, 225 N.E.2d 673.) Where the defendant was predisposed to sell the illegal substance and was motivated solely by profit, the trial court may properly refuse to instruct the jury on entrapment. People v. Upton (1987), 151 Ill. App. 3d 1075, 503 N.E.2d 1102.

Here, the defendant admitted that he possessed the lookalike substance, which had stimulative and anesthetic properties, before Moss asked to purchase cocaine. He further admitted that he felt no pressure to sell the substance and that he did so to help a friend and to make money. The defendant’s own testimony therefore established as a matter of law that he was not entrapped. (See Upton, 151 Ill. App. 3d at 1081, 503 N.E.2d at 1106.) Accordingly, we find that the court did not err in refusing to instruct the jury on entrapment.

The defendant next argues on appeal that the trial court erred in allowing the prosecutor to question him about a plea offer. He contends that the testimony constituted impermissible evidence of plea negotiations.

Generally, statements made in the course of plea negotiations should not be used as evidence of guilt. (People v. Hill (1980), 78 Ill. 2d 465, 401 N.E.2d 517.) However, where the defense first enters into the subject matter complained of, the State has a right to question a witness in order to present the whole story to the jury. (People v. Wadley (1988), 169 Ill. App. 3d 1036, 523 N.E.2d 1249.) The trial court’s determination regarding the relevancy of evidence will not be reversed absent an abuse of discretion. People v. Ward (1984), 101 Ill. 2d 443, 463 N.E.2d 696.

The defendant testified that because of his cooperation with the State, he did not expect to be charged or arrested. He also stated that he spent time in jail, but that Moss did not. His testimony therefore raised a question as to whether the State had treated him fairly and lived up to its agreements. Consequently, evidence that the defendant received a similar plea offer as Moss received was relevant to the proceedings. We hold that the trial court did not abuse its discretion in allowing evidence of the prosecutor’s plea offer.

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

Affirmed.

BARRY and GORMAN, JJ., concur.


text:
    JANE BISCO et al., Plaintiffs-Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants-Appellees. — JANE BISCO et al., Plaintiffs-Appellants, v. UNITED PARCEL SERVICE, INC., et al., Defendants-Appellees.
    Third District
    Nos. 3 — 90—0146, 3 — 90—0147 cons.
    Opinion filed October 5, 1990.

      Frederick W. Allen, Ltd., of Peoria (Gary L. Clark, of counsel), for appellants.
    Gary D. Nelson, of Heyl, Royster, Voelker & Allen, of Peoria (Karen Kendall, of counsel), for appellees United Parcel Service, Inc., and Laverne Ruestman.
    Gary D. Nelson, of Heyl, Royster, Voelker & Allen, of Peoria, for appellees Liberty Mutual Insurance Company, Country Mutual Insurance Company, and Scott Ruestman.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiffs, Jane and Henry Bisco, appeal from the entry of judgment in favor of the defendants, Liberty Mutual Insurance Company (Liberty Mutual) and United Parcel Service, Inc. (UPS). The Bis-cos also appeal from the entry, in separate proceedings, of summary judgment in favor of UPS. The cases were consolidated for purposes of this appeal. Defendants Scott Ruestman and Laverne Ruestman are not directly involved in these appeals.

These actions arise out of a common event. On January 24, 1986, Jane Bisco was involved in a collision between her vehicle and a van owned by UPS. The driver of the van, Scott Ruestman, was an employee of an auto body shop owned by Laverne Ruestman. Ruestman was driving the van to the auto body shop for maintenance and repairs.

On April 10, 1986, the Biscos filed an action for declaratory judgment against Liberty Mutual, UPS and the Ruestmans seeking a declaration that a policy issued by Liberty afforded coverage to UPS. Liberty Mutual denied coverage under the policy, noting the following policy coverage exclusion:

“D. Who is insured?
(1) You are insured for a covered auto. Anyone else is an insured while using with your permission a covered auto you own, hire, or borrow except:
* * *
b. Someone using a covered auto while he or she is working in a business of selling, servicing, or repairing or parking autos.”

On April 16, 1986, the Biscos filed a negligence action against the Ruestmans and UPS. They alleged that UPS was vicariously liable for the actions of Scott Ruestman.

Following a hearing in the declaratory judgment action, the trial court granted the Biscos summary judgment. This court reversed, finding that the Biscos had “failed to present a statute or policy consideration which prevents Liberty from invoking the policy exclusion to deny coverage to the Biscos.” (Bisco v. Liberty Mutual Insurance Co. (1988), 176 Ill. App. 3d 280, 285, 530 N.E.2d 1163.) Citing this court’s decision, Liberty Mutual and UPS moved for judgment, which was granted by the trial court. The present appeal is from that judgment and is brought pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)).

In the negligence action, the Biscos moved for summary judgment on the issue of the vicarious liability of UPS. UPS in turn also filed a motion for summary judgment. The trial court granted UPS’s motion and the Biscos appeal.

On appeal in the declaratory judgment action, the Biscos contend this court’s ruling in Bisco v. Liberty Mutual Insurance Co. (1988), 176 Ill. App. 3d 280, 530 N.E.2d 1163, was overruled by a subsequent pronouncement of the Illinois Supreme Court and is no longer the law of the case. The Biscos argue that the trial court erred in granting judgment to the defendants because the law of the case was effectively overruled between the time of this court’s decision and the trial court’s entry of judgment pursuant to that decision.

The doctrine of the law of the case holds that where a court of review announces a particular view of the law governing the case and reverses and remands the case, if the case is again brought before such court of review, the former decision is binding on the court making it, and the questions decided and determined by it on the first appeal are not open for reconsideration on the second appeal. (Zerulla v. Supreme Lodge Order of Mutual Protection (1906), 223 Ill. 518, 79 N.E. 160.) However, an appellate court on the second appeal in a cause is not obliged to adhere to a proposition of law laid down in the first appeal where the Illinois Supreme Court has, since the first appeal, decided the precise question contrary to‘the rule as first announced by the appellate court. (Relph v. Board of Education of DePue Unit School District No. 103 (1981), 84 Ill. 2d 436, 420 N.E.2d 147.) The issue, therefore, in this case is whether following this court’s decision in the Biscos’ first appeal, the supreme court reached a contrary conclusion on the precise issue raised in that appeal.

The Biscos contend that American Country Insurance Co. v. Wilcoxon (1989), 127 Ill. 2d 230, 537 N.E.2d 284, overruled this court’s decision in their first appeal. We find this contention to be without merit. In Wilcoxon, the issue was whether an insurer was permitted to exclude from a surety bond, issued pursuant to the Illinois financial responsibility statute governing taxicab owners, coverage for members of the public who are injured through the negligence of a cabdriver who did not enter into a lease with the cab company whose cab he was driving. The issue centered on whether the cab company and its surety could in a private agreement repeal or diminish the effect of the initial permission doctrine as codified in the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 951/2, par. 1 — 101 et seq.).

In their first appeal, the Biscos claimed that the exclusion contained in the Liberty Mutual policy was contrary to three statutes. This court concluded, however, that “the use of the UPS van at the time of the accident was not such that it fell within the ambit of either the Transportation Law [Citation] or the Commerce Act [citation], and that *** the Biscos [had] not shown UPS to be within the purview of the Responsibility Law [citation].” (Bisco v. Liberty Mutual Insurance Co. (1988), 176 Ill. App. 3d 280, 282, 530 N.E.2d 1163, 1164.) In Wilcoxon, there was no question that the responsibility law was applicable, and the court therefore addressed the substantive question of whether the provisions of surety bond violated the statute. In the Biscos’ first appeal, this court held that the Biscos had failed to show that UPS came within the purview of the responsibility law. This is a separate and distinct issue from what is or is not allowed under the statute. Therefore, Wilcoxon did not address the precise issue decided by this court in the Biscos’ first appeal, and the trial court correctly entered judgment in the declaratory judgment action.

On appeal in their negligence action, the Biscos contend that the trial court erred in finding that UPS was not vicariously liable for the actions of Scott Ruestman. The Biscos concede that Ruestman was not an employee of UPS, but rather was an employee of an independent contractor hired by UPS. They also concede that generally an employer is not liable for the acts of an independent contractor. (See Spivey v. Brown (1986), 150 Ill. App. 3d 139, 502 N.E.2d 23.) However, they argue that this case falls within the exceptions to the general rule. We have reviewed the sections of the Restatement (Second) of Torts and the cases cited by the Biscos and find them in-apposite. The actions of Ruestman did not entail activity of an ultra-hazardous nature nor did they involve a nondelegable duty. He was driving the van to a repair shop for repainting. The trial court correctly ruled that as a matter of law UPS could not be held vicariously liable under this set of facts.

For the foregoing reasons, the judgments of the circuit court of Peoria County in case Nos. 3 — 90—0146 and 3 — 90—0147 are affirmed.

Affirmed.

HEIPLE, P.J., and GORMAN, J., concur.


author: JUSTICE BARRY

text:
    URBAN BRACKEN, Plaintiff-Appellant, v. GEORGE E. BLOCK et al., as Independent Co-Ex’rs of the Estate of Alice Leahy, Deceased, Defendants-Appellees.
    Third District
    No. 3-89-0678
    Opinion filed October 2, 1990.

      Codo, Bonds, Zumstein & Konzelman, of Joliet (Bruce L. Zumstein, of counsel), for appellant.
    Bell, Boyd & Lloyd, and Susan E. Woods, both of Chicago (Ari J. Rosenthal, of counsel), for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiff Urban Bracken appeals from a summary judgment entered in favor of the defendants, George E. Block and Harris Trust & Savings Bank, co-executors of the estate of Alice Leahy. Plaintiff filed this suit to recover one-half the proceeds from the sale of the home where Alice Leahy resided during her lifetime.

The parties submitted this case to the trial court on cross-motions for summary judgment, agreeing that the material facts are not in dispute. John Leahy and Alice Leahy were brother and sister, both unmarried, who lived together and who held all their property in common. When John died in 1968, he left all his property in trust to his sister Alice as trustee for the benefit of the same Alice Leahy.

His will provided that the trustee was to pay the entire income of the trust to his sister Alice as long as she lived, and also provided:

“The Trustee shall also pay to my said sister as much of the principal of my Trust Estate as she in her sole judgment deems necessary or advisable to assure her care, comfort, support, maintenance and medical attention.”

The will gave the trustee broad powers to deal with the trust property, including the power “to sell at public and private sale, exchange, lease, mortgage or pledge any property, real or personal at any time constituting a portion of my Trust estate, upon such terms and conditions as the Trustee shall deem wise.”

The will also provided that at the death of Alice the principal of the trust was to be distributed to various charitable organizations except that John’s one-half interest in the Leahy home was to go to plaintiff. Alice owned the other one-half interest in the home which passed to the beneficiaries of her will, Dr. George Block and Mary Block.

The income from the trust assets was insufficient for Alice’s support and care, and beginning in 1972, the trust principal was encroached each year to pay her living expenses until the principal was exhausted in early 1978. In 1975, Alice as trustee sold the undivided one-half interest in the home to herself individually for $17,500 which was one-half the appraised value of the home. The proceeds of the sale were placed in the trust and withdrawn for her living expenses in due course.

After Alice’s death in 1987, the home was sold for $70,000. In response to plaintiff’s claim that, as holder of the remainder interest under John’s will, he is entitled to one-half the proceeds of sale, the amount of $37,500 has been held in escrow pending the outcome of this litigation.

The issue presented by this appeal is whether the sale of one-half interest in the Leahy home by Alice as trustee to herself individually was voidable because of the conflict between her self interest and her fiduciary obligations as trustee.

As a general rule, a trustee may not profit or gain any advantage from dealings with the trust property and may not take a position where his or her personal interests conflict with those of the trust’s beneficiaries. (Childs v. National Bank (7th Cir. 1981), 658 F.2d 487.) The court in Childs further stated:

“There is, however, a well-recognized exception to the general rule in Illinois that a trustee may not place himself in a position where his interests may conflict with the interests of the trust property. When the conflict of interest is contemplated, created, and expressly sanctioned by the trust instrument, the conflict may be permitted to exist.” 658 F.2d at 490.

The exception to the rule against self-dealing by a trustee, as noted in Childs, is actually an extension of the general principle that courts are to determine the settlor’s intent and give effect to that intention if it is not in conflict with an established rule of law or of public policy.

John Leahy made his sister Alice both trustee and the primary beneficiary of the trust, and as trustee she was given broad powers to invade the principal, to sell the trust property, and to do all other acts as she judged necessary or desirable to carry out the purposes of the trust. When the only asset remaining in the trust was a one-half interest in the home where Alice resided, the sale of that interest was judged necessary in order to apply the proceeds to the trust purpose, i.e., to pay the living expenses of Alice.

Plaintiff argues that.Alice could have left the real-property in the trust and continued to live in the home instead of selling it to herself. Admittedly she could have done that. However, in the exercise of her judgment as trustee, the depletion of the trust may have seemed more appropriate. The trust no longer had income or other assets' from which to pay the expenses related to administration of-the trust or even to pay the taxes on the real estate. By closing out the trust, Alice eliminated the fees and expenses required to administer the trust.

Plaintiff further argues that John Leahy did not expressly authorize Alice to engage in self-dealing, to the detriment of plaintiff, who was also a beneficiary under the trust.- The structure of John Leahy’s testamentary plan, as set out in his will, plainly discloses his intention to provide for the- support of his sister Alice Leahy, as the primary purpose of the. trust.. A similar situation arose-in Duvall v. La Salle National Bank (1988), 177 Ill. App. 3d 770, ■ where decedent’s will created a trust for the benefit of her husband and granted the trustee.bank an unqualified power to lease the trust property. Another provision of the will stated that her farms were to be rented to her nephew if he survived her. The latter provision was held to be precatory, not mandatory, because her will “clearly reveals that her primary dispositive intention was the preservation of her residuary estate for the benefit of her husband, not the continuance of her nephew’s tenancy.” (177 Ill. App. 3d at 772.) The case before us also presents a situation where the “primary dispositive intention” of the decedent takes precedence over the interest of a secondary beneficiary.

The present case is distinguishable from those cases cited by plaintiff where a trustee’s profits from a self-interested transaction with estate property were not approved by the courts. In both In re Estate of Allison (1986), 140 Ill. App. 3d 183, 488 N.E.2d 1035, and Kinney v. Lindgren (1940), 373 Ill. 415, 26 N.E.2d 471, the primary beneficiaries of the trusts were persons other than the trustees. Here the opposite is true.

Plaintiff has provided evidence that Alice Leahy used the trust income and principal for her support rather than her own property. This does not change the stated purpose of John Leahy to provide for the support and comfort of Alice from his property. The applicable rule was stated in Nielsen v. Duyvejonck (1968), 94 Ill. App. 2d 224, 231, 236 N.E.2d 743, 746:

“Where the power to invade the corpus for maintenance and support creates an absolute charge on the corpus, *** it is held that the donee of the power is entitled to look solely to the corpus for maintenance and support, notwithstanding that such donee may have income and assets of his own.”

In other words, Alice was not required to deplete her own assets before exercising her power to invade the trust principal.

Plaintiff does not contend that Alice acted in bad faith or fraudulently or that she abused her discretion as trustee. We conclude that Alice Leahy’s sale of the trust’s one-half interest in the Leahy home t®jaerself was a proper exercise of her discretion as trustee under John Leahy’s will. Consequently, we affirm the judgment entered in favor of defendant in the circuit court of Will County.

Affirmed.

GORMAN and STOUDER, JJ., concur.


text:
      In re CUSTODY OF ERIKA LYN GONZALEZ, a Minor (Erika Lyn Gonzalez, a Minor, by Adam Gregg Gonzalez, her Father, v. Richard P. Donnelly et al., Defendants-Appellees).
    Third District
    No. 3 — 88—0529
    Opinion filed October 2, 1990.

      Stillo & Pechter, of Oak Lawn (Kim A. Grannan, of counsel), for appellant.
    Snyder, Jaquays & Washburn, of Joliet (Andrew Boyer and Edward R. Jaquays, of counsel), for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

Adam Gonzalez, the father of 11-year-old Erika Lyn Gonzalez, appeals from an order of the circuit court of Will County awarding permanent custody of Erika to her maternal grandparents, Richard and Judy Donnelly, with whom she resides.

The facts giving rise to this litigation are not disputed. On May 10, 1979, Adam Gonzalez, then age 22, and Nicollette Donnelly, then age 17, were married, two days before the birth of their daughter, Erika. Adam and Nicollette separated in May of 1983, and in August of that year Adam left Joliet and moved to California. At that time Nicollette and Erika moved into the Donnelly family home and lived there for three years. Adam and Nicollette were divorced in July of 1983 with Nicollette receiving custody of Erika subject to Adam’s right of visitation.

In 1984 Adam enlisted in the United States Air Force, and after boot camp training, was stationed in Germany. In November of 1986, about five months after moving out of the Donnelly home and into an apartment with Erika, Nicollette died suddenly.

The grandparents filed a petition for temporary and permanent custody of Erika shortly after Nicollette’s death. Thereafter, Adam, who had returned to Joliet on leave, filed a petition for a writ of habeas corpus seeking custody and also filed a special appearance challenging the Donnellys’ standing to seek custody under section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 601(b)(2)). The trial court consolidated the two causes, and after hearing arguments of counsel, dismissed the special appearance, appointed a guardian ad litem for Erika, and ordered that Erika remain in the temporary custody of the Donnellys until the hearing on the petitions.

A hearing on all pending petitions was scheduled for December 15, 1986. On that date, an agreed order was entered which provided that temporary custody be awarded to the Donnellys without prejudice to the right of any party and subject to liberal visitation by Adam. The order also' provided that all parties would work toward restoring Erika to the custody of her father, using Dr. Dojna Barr for counselling, and “that the physical transfer of possession and the custody of ERIKA LYN GONZALEZ take place as soon as possible consistant [sic\ with the best interests of the minor child herein.”

Adam then returned to Germany until he obtained a transfer to the United States. In March of 1987, he was stationed at Chanute Air Base in Rantoul, Illinois, and thereafter exercised his right to visitation with Erika on a weekly basis. He obtained an early honorable discharge in December of 1987 and returned to Joliet, where he resided with his mother.

In February of 1988 the Donnellys filed a petition for permanent custody, and Adam responded with his own petition for permanent custody. After a protracted hearing, the trial court awarded permanent custody of Erika to Richard and Judy Donnelly with Adam to have visitation and to pay child support.

Adam has appealed from that order on three grounds: (1) that the grandparents lack standing; (2) that the award of custody to the grandparents was contrary to the manifest weight of the evidence; and (3) that evidence of drug use by Adam was erroneously admitted. We affirm the order of the trial court.

The threshold question in this appeal is whether the Donnellys have the requisite standing to file a petition for custody of Erika under section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 601(b)(2)), which provides that a person other than a parent may petition for custody of a child only if the child is not in the physical custody of one of her parents.

Illinois courts have found “standing” in custody cases when a parent does not have custody of the child, thereby allowing a non-parent to petition for custody. Once standing is established, the court will apply the “best interest of the child” standard to determine custody. In re Custody of Peterson (1986), 112 Ill. 2d 48, 491 N.E.2d 1150; In re Custody of McCuan (1988), 176 Ill. App. 3d 421, 531 N.E.2d 102.

Adam contends that custody of Erika was vested in him upon the death of Nicollette and was not vested in the Donnellys even though they have had physical possession of the child since that time. The Illinois Supreme Court has held that the term “physical custody” as used in the statute means something more than mere physical possession of the child at the time custody litigation is initiated. (In re Custody of Peterson, 112 Ill. 2d 48, 491 N.E.2d 1150.) Physical custody has been held to depend upon various factors, including who was in physical possession of the child, how that person obtained possession, the duration of possession, and the nature of the physical possession. (In re Marriage of Carey (1989), 188 Ill. App. 3d 1040.) In some cases it has been determined that a surviving natural parent acquired physical custody of the child upon the death of the other parent even though the surviving parent did not immediately obtain actual physical possession of the child. (In re Custody of Peterson, 112 Ill. 2d 48, 491 N.E.2d 1150; In re Custody of O’Rourke (1987), 160 Ill. App. 3d 584, 514 N.E.2d 6.) However, where the surviving parent voluntarily places the child with the grandparents or other nonparents, particularly where the parent is unable to provide the care the child requires, it has been held that the standing was derived from the parent’s voluntary relinquishment of physical possession of the child for an extended period of time. (In re Marriage of Carey, 188 Ill. App. 3d 1040; In re Custody of McCarthy (1987), 157 Ill. App. 3d 377, 510 N.E.2d 555; In re Custody of Menconi (1983), 117 Ill. App. 3d 394, 453 N.E.2d 835.

In the case at bar, Adam agreed to continue temporary custody of Erika with the Donnellys during the pendency of their petition for permanent custody. At that time he was stationed in Germany, and as he later stated, he had no way to care for Erika there. In agreeing to relinquish possession of Erika to her grandparents, Adam waived any objection to the Donnellys’ standing to petition for custody. (Cf. In re Custody of McCarthy, 157 Ill. App. 3d 377, 510 N.E.2d 555.) Furthermore, the agreed order also provided that custody would be changed to Adam when it was determined to be in the best interest of Erika to do so. This provision invokes the “best interest of the child” standard and is a further indication that the grandparents’ standing was being acknowledged by Adam. Otherwise, the grandparents would have to establish the father’s unfitness before proceeding to the issue of the best interest of the child. In re Custody of Peterson, 112 Ill. 2d 48, 491 N.E.2d 1150.

We conclude that the trial court correctly determined that Adam had waived any right to object to the standing of the Donnellys to petition for custody and further that he expressly agreed to have custody determined on the basis of the best interest of the child standard.

Adam next contends that the trial court’s award of permanent custody to the grandparents was contrary to the manifest weight of the evidence. There is, of course, a legal presumption in favor of the natural parent; the burden is on the Donnellys to overcome that presumption and to establish that the best interest of the child favors custody with them. (In re Custody of Walters (1988), 174 Ill. App. 3d 949, 529 N.E.2d 308.) The issue is a factual one, and the evidence presented to the trial court here was extensive. In addition to testimony by the parties and an in camera interview of Erika, the court heard testimony from relatives of the Donnellys and of Adam and from two doctors who had counselled and made assessments of the parties.

The trial court, in announcing its decision, stated that this part of the case was not close. Both Dr. Barr, a child psychiatrist, and Dr. Stoner, a clinical psychologist, testified that the Donnellys have provided stable, positive, and supportive relationships for Erika and that it is in Erika’s best interest to remain with them. Due to the loss of her mother when she was seven, Erika has a great fear of losing her grandmother and needs the security of her grandparents’ home. Both doctors found Adam to be lacking in parenting skills and in stability. Adam has indicated that he wants custody regardless of the consequences to Erika and that he wants to have the authority to make decisions about her. Adam was described as self-centered and having trouble responding to the needs of his child.

Richard Donnelly has been employed at Caterpillar for 28 years and earns $41,000 annually. Judy Donnelly is a homemaker who is not employed outside the home and is available to care for Erika when needed. Adam Gonzalez is self-employed as a carpenter’s helper and earns $100 to $200 take-home pay each week. Adam’s mother, sister, and sister-in-law testified that they would be able to help Adam care for Erika. Adam stated that he would continue to live with his mother in her home, where there was also room for Erika.

Erika does well in school, is a bright, articulate child, and is well adjusted. During the in camera interview, she told the judge that she preferred to live with her grandparents although she wanted to visit her father.

The trial court expressly found Adam not a credible witness, stating that, in 26 years, he had never been confronted with a person “that was such a blatant teller of untruths.” The court enumerated instances when Adam testified to something which was contradicted by other evidence or which was simply not believable. The court also observed that Adam had no contact with Erika after he left Joliet in 1983 until he returned from Germany on leave in June of 1986. During those crucial years in Erika’s life, from age four to seven, the Donnellys provided a home for Erika and her mother and assisted in raising the child. Furthermore, support payments for Erika were sent while Adam was in the Air Force, but his contributions before enlisting were minimal. Since his discharge, he has paid no support although subject to a court order to make payments. He testified that he has $1,000 or $2,000 in savings but that money is for him and Erika, not for the Donnellys. The trial court also noted that Adam had told Erika that he would take her to California if he had custody, thereby depriving her of any continued contact with the Donnellys.

Without recounting the evidence in detail, it is plain from a review of the record that the evidence strongly supported the decision of the trial court. Also, we cannot fault the trial court’s determination of Adam’s lack of credibility. As the court noted, the record is replete with instances where testimony by Adam was impeached by other witnesses, by prior inconsistent statements, by his own letters, and by the inherent improbability of his testimony. The trial court’s award of custody to the Donnellys was not contrary to the manifest weight of the evidence.

The final error relied upon by Adam is that the trial court erroneously admitted evidence of his prior use of drugs. He argues that such evidence was irrelevant, speculative, and unreliable. The evidence concerned alleged drug use during the time Adam lived in Joliet before moving to California in 1984. A woman who had been a close friend of Nicollette and was present on many occasions in 1983 and 1984 when Adam used drugs testified to the details of the drug use which she had observed. This was testimony of direct observation by an eyewitness, not speculation.

It is well established that a parent’s use of drugs is relevant to the issue of custody only if the parent’s conduct can be shown to affect his mental or physical health and his relationship with the child. In re Estate of Becton (1985), 130 Ill. App. 3d 763, 474 N.E.2d 1318.

Here the trial court stated that the evidence of Adam’s drug use was not considered in determining the best interest of the child, but was considered only for purposes of impeachment. When Adam testified that he had moved to California in 1984 to look for work, the Donnellys sought to impeach his testimony by introducing a letter he had written to Nicollette at that time stating that he had' left because he had been threatened with violence in connection with his drug dealing and; he said, “I didn’t want you and Erika to be involved or around if it were to be carried out.” In that letter,, and an earlier one as well, he stated several times that he was no longer the drug dealer he had been.

The trial court did not abuse its discretion in admitting evidence of Adam’s drug use for the purpose of impeachment of his testimony.

For the reasons stated, we affirm the order of the circuit court of Will County awarding permanent custody of Erika Gonzalez to her maternal grandparents, Richard and Judith Donnelly.

Affirmed.

HEIPLE, P.J., and STOUDER, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHIRLEY HANES, Defendant-Appellant.
    Third District
    No. 3 — 89—0243
    Opinion filed August 22, 1990.

      Kenneth D. Brown, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (Judith Z. Kelly and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

A jury convicted the defendant, Shirley Hanes, of residential burglary, aggravated arson, and arson (Ill. Rev. Stat. 1987, ch. 38, pars. 19 — 3, 20 — 1.1, 20 — 1(a)). The trial court vacated the aggravated arson conviction and thereafter sentenced the defendant to concurrent terms of 10 years’ imprisonment for residential burglary and seven years’ imprisonment for arson. The defendant appeals.

The record reveals that on January 7, 1988, fire destroyed an apartment occupied by Linda Williams and her daughter. Williams testified that she had lived -with the defendant for six years, until she asked him to leave in December of 1986. She stated that one week prior to the fire, she saw the defendant standing in the alley behind her apartment building. When she told him she did not want to talk to him, he replied that he was “going to get even with [her].”

Williams further testified that on the night of the fire, she had left her apartment about 8:30 p.m. to look for her dog. She recalled that when she left her apartment, her clock radio and a lamp were on the nightstand next to her bed. Her television, which had a cable wire connected to the back of it, but which was not yet connected to the cable outlet in the wall, was also in the bedroom. She further recalled that in the kitchen she had left a cake in a pan on top of the stove.

Williams stated that when she returned to her apartment at approximately 10 p.m., she saw firemen coming out of the building. When she was allowed to return to the apartment, she initially noticed that someone had taken his or her fingers and dug a piece of cake out of the pan she left on the stove. She also noticed that the casing around her television was melted and her bedroom furniture was destroyed.

She stated that when she went back outside to talk to the police, she saw the defendant walking across the street. One of the police officers then ran across the street to speak with him. When the officer returned, he showed her a clock radio the defendant had been carrying. Williams testified that from a cigarette bum on top of the radio she recognized it as the one she had on her nightstand. She explained that the defendant had made the burn mark when he accidentally laid a cigarette on top of the radio. She subsequently identified a cable cord the defendant was carrying as a piece of the cable cord from her television.

Williams further noted that the defendant had suffered a stroke two years earlier and that he had a drinking problem. Moreover, she stated that when she told the defendant to move out, he attempted to reestablish the relationship because he wanted someone to take care of him.

Rock Island police officer Steven Harder testified that he was talking to Williams outside the apartment building when she saw the defendant across the street. Based upon his conversation with Williams, he stopped the defendant for questioning. After searching the defendant, he discovered a clock radio in the defendant’s coat pocket, which Williams identified as the radio she had on her nightstand. The defendant was then taken to the police station for further questioning and was subsequently placed under arrest.

Harder testified that when he inventoried the defendant’s property at the police station, he discovered in his coat pocket a two-foot coaxial cable wire which appeared to have been cut. Harder further stated that when the defendant was being booked he stated, “I fucked up again and I’m going to go to jail for a long time this time.”

Expert testimony was presented which showed that the wire found in the defendant’s pocket was a physical match to the cut wire from Williams’ television and that the two pieces were at one time a single wire.

Police officer Charles Hauman testified that the day after the fire he found at the foot of the bed an object which had burned into the carpet and melted. He believed the object was a lamp.

Investigator Daniel Deardorf of the Rock Island fire department testified that the fire had burned in an inverted pyramid. He traced its origin to the foot of Williams’ bed, where he found an object melted into the carpeting. In his opinion, the fire started when the object was placed against combustible material at the foot of the bed. He noted that Williams had told him the bed had a bed covering and sheets on it. Deardorf explained that a light bulb could ignite such material within 15 to 20 minutes.

He further testified that he believed the fire was not accidental, but that someone had placed the object at the foot of the bed. Based upon Williams’ statement that her bedroom lamp was missing, he believed that the melted object was the lamp. No other sources of ignition were found.

Daniel Patterson, a friend of the defendant, testified- that he saw the drunken defendant at approximately 7:30 p.m. on the night of the fire. The defendant attempted to sell him a clock radio. Patterson testified that the defendant also told him “it’s burning up,” though Patterson did not know what the defendant meant.

The State then rested its case. The defendant presented no evidence.

Although no contemporaneous record was made, it appears that during its deliberations the jury sent a note to the trial court stating: “We the 12 jurors cannot make a decision. None of us believe the origin of the fire was a lamp, but some type of motor. We do believe it was the source of the fire.” The court notified counsel for both sides about the note, and all of the parties concurred that the jury should be instructed that its decision was to be based on the evidence presented. The jury subsequently found the defendant guilty of arson, aggravated arson, and residential burglary.

The defendant thereafter filed a post-trial motion alleging among other things that his conviction for arson should be vacated because the jury’s finding that the fire was caused by a motor and not a lamp was in essence a rejection of the State’s theory of the case, i.e., that the fire was caused by a lamp. He contended that instead of instructing the jury to continue its deliberations and make a decision based upon the evidence presented, the trial court should have entered • a judgment of acquittal.

The court denied the defendant’s motion, finding that there was sufficient evidence to support the jury’s verdict. It did, however, vacate his conviction for aggravated arson, finding that the evidence presented was insufficient to show that the defendant was aware the building was occupied when he started the fire.

On appeal, the defendant argues that his conviction for arson should be reversed because in finding that the cause of the fire was a motor and not a lamp, the jury was rejecting the State’s theory of the case and therefore the evidence presented was insufficient to sustain a conviction.

To prove arson, the State must show that the defendant, by means of fire, knowingly damaged the property of another. (Ill. Rev. Stat. 1987, ch. 38, par. 20 — 1(a).) These elements may be shown by circumstantial evidence. People v. Dukes (1986), 146 Ill. App. 3d 790, 497 N.E.2d 351.

A reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses. (People v. Kline (1982), 92 Ill. 2d 490, 442 N.E.2d 154.) Further, once the defendant has been convicted, the evidence is viewed by the appellate court in the light most favorable to the prosecution, and the issue is whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

Viewing the evidence in the light most favorable to the prosecution, the record shows that the origin of the fire was an object placed at the foot of Williams’ bed near some type of combustible material, presumably the bed covering. Based upon Williams’ testimony that her bedroom lamp was missing, the fire department investigator believed the melted object found at the foot of the bed was the lamp. The jury concluded, however, that the object was not a lamp, but rather a motor and that it was the source of the fire.

The State was not required to prove the nature of the object used to set the fire. Further, just because the jury found that the fire was caused by a motor rather than a lamp does not mean it rejected the evidence presented by the State. To the contrary, the jury accepted the evidence and concluded that the defendant had intentionally set the fire. Based upon our review of the evidence, we find that regardless of whether the object was a lamp or a motor, a rational trier of fact could have found the defendant guilty of arson beyond a reasonable doubt. Accordingly, we find no merit in the defendant’s contention that the trial court acted improperly in instructing the jury to continue its deliberations. Besides the fact that defense counsel agreed to the instruction, we find the instruction proper and neutral.

The defendant also argues that the trial court erred in failing to sua sponte instruct the jury on the lesser included offense of criminal trespass to a residence.

The record shows that at the jury instruction conference defense counsel tendered an instruction on criminal trespass to land, contending that it was a lesser included offense of residential burglary. The trial court refused to tender the instruction, finding that it was not a lesser included offense of residential burglary. The defendant offered no further instructions. On appeal, the defendant acknowledges that criminal trespass to land is not a lesser included offense of residential burglary, but argues that since criminal trespass to a residence is a lesser included offense, the trial judge should have instructed the jury on that offense.

Initially, we note that the burden of preparing jury instructions is on the parties, not the trial court; and, generally, the court is under no obligation either to give instructions not requested by counsel or to rewrite instructions tendered by counsel. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) Moreover, a party may not raise on appeal the failure to give an instruction unless he has tendered the instruction. (People v. Underwood (1978), 72 Ill. 2d 124, 378 N.E.2d 513.) A defendant must also include alleged errors in the jury instructions in his post-trial motion or those alleged errors are deemed waived. People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248.

In the instant case, the defendant did not tender an instruction on criminal trespass to a residence and further failed to allege any error regarding the instructions in his post-trial motion. Therefore, we find that he waived any alleged error regarding the jury instructions.

The defendant nonetheless argues that we should consider as plain error the trial court’s failure to instruct the jury on this lesser included offense. We do not agree. The plain error exception to the waiver rule is restricted to the correction of grave errors or to situations where the case is close factually and fundamental fairness requires that the jury be properly instructed. (People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248.) We are unable to find that the instant case involves a grave error, that it was factually close, or that the jury instructions as given were fundamentally unfair to the defendant.

Lastly, we note that the defendant argues in a footnote to his brief that if this court finds that the trial court was not required to instruct the jury on the lesser offense, then we should also find that defense counsel’s failure to tender such an instruction constituted ineffective assistance of counsel. Instead, we find that the defendant has failed to properly present this issue, and we therefore will not consider it. See Jenkins v. Wu (1984), 102 Ill. 2d 468, 468 N.E.2d 1162.

The judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

HEIPLE, P.J., and SCOTT, J., concur.


author: JUSTICE McLAREN

text:
    TRAHRAEG HOLDING CORPORATION, d/b/a Plum Hollow Fitness and Recreation Center, Plaintiff-Appellee and Cross-Appellant, v. THE PROPERTY TAX APPEAL BOARD et al., Defendants-Appellants and Cross-Appellees.
    Second District
    No. 2 — 89—1282
    Opinion filed October 10, 1990.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Robert G. Toews, Assistant Attorney General, of Chicago, of counsel), for appellant Property Tax Appeal Board.
    Daniel A. Fish, State’s Attorney, of Dixon, for appellants Lee County Board of Review and Tom Foster.

      Charles T. Beckman, of Ehrmann, Gehlbach & Beckman, of Dixon, and John V. Hanson, of Hanson & Hanson, of Morris, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

The defendants, Property Tax Appeal Board of the State of Illinois (PTAB), Lee County Board of Review (Review Board) and Lee County supervisor of assessments (Supervisor), appeal from that part of a circuit court order reversing the PTAB’s holding that the plaintiff’s bowling lanes, built in 1985 to replace lanes destroyed in a fire in 1984, are real rather than personal property. The circuit court held that the .PTAB’s finding that the original bowling lanes had not been assessed as personal property prior to January 1, 1979, was against the manifest weight of the evidence adduced at the administrative hearing and that section 18.1 of the Revenue Act of 1939 (Ill. Rev. Stat. 1987, ch. 120, par. 499.1), therefore, required that the present bowling lanes be assessed as personal property. We agree and affirm the circuit court.

The plaintiff purchased its land in 1959 and built the original bowling alley there in 1962. In 1984 a fire destroyed the alley. In 1985 the plaintiff rebuilt the alley, installed 24 new lanes, and built additional recreational facilities. In 1986 the Supervisor reassessed the entire property; on appeal by the plaintiff, the Review Board modified the assessment. The plaintiff then appealed the Review Board’s decision to the PTAB.

The PTAB affirmed the Review Board’s assessed valuation of the property and also held that the plaintiff had not met its burden under section 18.1 of the Revenue Act of proving that the bowling lanes had been assessed and taxed as personal property prior to January 1, 1979. The PTAB concluded that the bowling lanes were properly part of the real estate and taxable as such.

The plaintiff appealed to the circuit court, which affirmed the PTAB’s- holding on valuation but reversed the classification of the bowling lanes as real property. The defendants appealed, and the plaintiff unnecessarily cross-appealed. The only issue raised on appeal was whether the PTAB’s finding that the bowling lanes had not been assessed as personal property before 1979 was against the manifest weight of the evidence.

Section 18.1 of the Revenue Act (Ill. Rev. Stat. 1987, ch. 120, par. 499.1) provides:

“No property lawfully assessed and taxed as personal property under this Act prior to January 1, 1979, *** shall be classified as real property subject to assessment and taxation under this Act after January 1, 1979. No property lawfully assessed and taxed as real property under this Act prior to January 1, 1979, *** shall be classified as personal property subject to assessment and taxation *** after January 1, 1979.”

The taxpayer has the burden of proving that property is exempt under this provision and, thus, of proving that such property was lawfully assessed and taxed as personal property prior to January 1, 1979. Once this burden is met, however, the property must be classified as personal property. (Central Illinois Light Co. v. Johnson (1981), 84 Ill. 2d 275, 282.) We must therefore turn to the evidence adduced at the administrative hearing.

Orville Gearhart, the plaintiff’s president, testified that the bowling lanes had been assessed as personal property and that the plaintiff had paid personal property taxes on them since 1962. He explained that he was unable to provide documentation of the lanes’ pre-1979 tax status because he did not keep records back that far and because all of his records had been destroyed in the 1984 fire. His son, Marty Gearhart, testified that the Gearharts had earlier requested tax records from the county clerk’s office but that the county was unable to find the records.

The Supervisor, Tom Foster, testified that his office had “no record” of the bowling lanes ever being listed as personal property, that there were no other bowling alleys in Lee County, that county records would not show how bowling lanes had been classified in the past, and that he did not know whether the plaintiff’s bowling lanes had previously been assessed as real or personal property before 1979, as he was not involved in making assessments back then. When asked how the lanes were treated in 1983, he replied that he could find the property record card for 1983 but that it was not part of the evidence. The 1983 record card was not introduced into evidence.

We agree with the circuit court that the PTAB’s finding that the bowling lanes had not been assessed and taxed as personal property prior to 1979 is against the manifest weight of the evidence. The only evidence on this issue was the testimony of the plaintiff’s president that he had paid personal property taxes on the lanes before 1979. The supervisor neither impeached nor contested this testimony even though he stated that there were records under his office’s control that could clarify the status of the property. The plaintiff’s lack of paper documentation for its claim is adequately explained by the 1984 fire. The PTAB simply had no evidence before it to contradict the plaintiff’s testimony.

Although findings of fact by an administrative agency are considered prima facie correct, they must still be based on the evidence, and the agency as fact finder cannot simply disregard the testimony of an unimpeached witness where the testimony is uncontradicted and not inherently improbable. (Crabtree v. Illinois Department of Agriculture (1989), 128 Ill. 2d 510, 518.) In Crabtree, the supreme court reversed an appellate court decision upholding an administrative finding that a transaction by the plaintiff was a loan rather than a purchase and thus would not support the plaintiff’s claim for State grain insurance. The supreme court held that, where the plaintiff testified that the transaction was a purchase and no evidence in the record contradicted this testimony, the agency’s characterization of the transaction as a loan was contrary to the manifest weight of the evidence. We find Crabtree controlling here. Mead v. Board of Review (1986), 143 Ill. App. 3d 1088, and Pientka v. Board of Fire Commissioners (1984), 125 Ill. App. 3d 124, relied on by appellants, are not on point as they hold only that a reviewing court must defer to an agency’s resolutions of conflicting evidence. Here the evidence of the pre-1979 classification of the plaintiff’s bowling lanes was not conflicting and did not support the PTAB’s decision.

The portion of the circuit court’s order appealed from is affirmed.

Affirmed.

DUNN and GEIGER, JJ., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BARBARA WISOTZKE, Defendant-Appellant.
    Second District
    No. 2 — 89—0734
    Opinion filed October 11, 1990.

      G. Joseph Weller and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield, and James E. Ryan, State’s Attorney, of Wheaton (Robert J. Ruiz, Solicitor General, and Kathryn M. Frost and Terence M. Madsen, Assistant Attorneys General, of Chicago, and William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Barbara Wisotzke, was found guilty following a jury trial in the circuit court of Du Page County of the offenses of unlawful possession of more than 30 grams of a controlled substance (cocaine) (Ill. Rev. Stat. 1983, ch. 56V2, par. 1402(a)(2)) and unlawful possession of more than 30 grams of a substance containing cannabis (Ill. Rev. Stat. 1983, ch. SGVz, par. 704(d)). The trial court imposed concurrent sentences of three years’ probation and 240 hours of public-service employment. The court also imposed a fine of $8,500 for the cocaine possession conviction and a fine of $66.75 for the cannabis possession conviction, on defendant. The deputy circuit clerk filed a form calculating that defendant also was to pay, inter alia, a criminal surcharge of $860 and a victims-assistance fine of $860 on each offense.

At issue on appeal is: (1) whether the circuit clerk had the authority to impose the criminal surcharge and victims-assistance charge on defendant; (2) whether the victims-assistance charge should be calculated according to the statute in effect at the time the offenses were committed or by the statute in effect when defendant was sentenced; (3) whether the criminal-surcharge statute allows the court to consider the defendant’s ability to pay in fashioning the fine; and (4) whether the sentencing order for possession of cannabis should be amended to reflect a subsequent correction in the fine.

The criminal charges against defendant arose from the execution of a search warrant at the home of defendant’s mother, Vivian Wisotzke, on the morning of December 5, 1984. Defendant also resided at her mother’s home at this time. The search of the home produced 85.1 grams of a substance containing cocaine and 44.4 grams of a substance containing cannabis. Defendant and her mother were both charged with possession of more than 30 grams of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1983, ch. 56V2, par. 1401(a)(2)) and possession of more than 30 grams of cannabis with the intent to deliver (Ill. Rev. Stat. 1983, ch. 56V2, par. 705(d)). The record also indicates that defendant and her mother were charged with obstruction of justice, but the details of these charges are not contained in the record.

Defendant and her mother were tried jointly in front of a jury in April 1987. The jury returned verdicts of not guilty of the offenses with which defendant was charged, but it found defendant guilty of the lesser offenses of possession of a controlled substance and possession of cannabis. Defendant’s mother was found guilty of all three offenses charged.

At defendant’s June 29, 1987, sentencing hearing, Detective Dale Cuny of the Lombard police department testified regarding the street value of the cocaine and cannabis which defendant was convicted of possessing. Detective Cuny testified the street value of the cocaine was $8,500 and the street value of the cannabis was $66.75. The trial court announced its judgment that it would sentence defendant to three years’ probation conditioned on drug counseling plus a $1,000 fine. The assistant Attorney General present at the sentencing hearing noted that the trial court was obliged to impose a street-value fine pursuant to section 5 — 9—1.1 of the Unified Code of Corrections (Code of Corrections) (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 9—1.1). The trial court then modified the fine to $8,566.75, but it did not indicate which portion of the fine was allocable to each offense.

The sentencing orders issued the day of the sentencing hearing show that defendant was fined $8,566.75 for each of the offenses of which she was convicted. The sentencing orders also state that defendant was to pay statutory court costs. The record contains a form entitled “RECAP OF FINES, COSTS, FEES & PENALTIES” signed by a deputy circuit court which calculates the fines, costs, fees and penalties assessed against defendant, and the following charges were listed under each of defendant’s two convictions:

Fine $ 8,566.75 $ 8,566.75
Court Costs 40.00 40.00
State’s Attorney Fee 30.00 30.00
Criminal Surcharge 860.00 860.00
Victim Assistance 860.00 860.00
Bailiff Fund $ 10.00 $ 10.00
Total due: $10,366.75 $10,366.75
Total amount due on all counts: $20,733.50.

It appears that the deputy circuit clerk relied on section 10 of the Violent Crimes Victims Assistance Act (Victims Assistance Act) (Ill. Rev. Stat. 1985, ch. 70, par. 510) and section 5 — 9—1(c) of the Code of Corrections (Ill. Rev. Stat., 1986 Supp., ch. 38, par. 1005 — 9—1(c)) in assessing the additional charges for “Victim’s Assistance” and “Criminal Surcharge” (the additional charges).

Defendant filed a notice of appeal on June 29, 1987, but the notice of appeal was withdrawn on July 28, 1989. Defendant then filed a motion to reduce the fines and court costs. Defendant’s motion claimed that the court’s original fine was to apply only to the cocaine-possession conviction, but the sentencing orders indicated that a $8,566.75 fine was imposed for each offense. Defendant also contended that the circuit clerk was without authority to impose the additional charges for the criminal surcharge and victims-assistance fund. The trial court ordered that the fine imposed for defendant’s cannabis-possession conviction be reduced to $66.75, determining that the greater fine listed earlier on the sentencing order was the result of a scrivener’s error. The court did not address the propriety of the charges for “Criminal Surcharge” and “Victim’s Assistance” which were assessed by the deputy circuit clerk, indicating that this issue should be decided on appeal.

On appeal, defendant first argues: (1) that the additional charges are fines which cannot be assessed by the circuit clerk acting without direction of the circuit court; and (2) that the victims-assistance charge must be calculated according to the statute in effect at the time the offenses were committed. The State responds that the additional charges are compensatory in nature and are actually “costs” and not fines. The State thus contends that: (1) because it is a cost and not a fine, the victims-assistance charge may be imposed if the statute authorizing it was in effect on the date of defendant’s conviction; and (2) the sentencing orders’ inclusion of “costs” is sufficiently broad to include the additional charges at issue here.

The premise underlying the State’s arguments is that the charges assessed under section 10 of the Victims Assistance Act and section 5 — 9—1(c) of the Code of Corrections are costs imposed incident to prosecution as opposed to fines. The State argues that the purpose behind both provisions is compensatory in that they are designed to benefit the victims of crimes.

Section 10 of the Victims Assistance Act provided, in pertinent part, at the time of the offenses in question, as follows:

“(b) When any person is convicted in Illinois after January 1, 1984 of an offense listed below, the court which enters the conviction shall impose, in addition to any other penalty authorized by law, a fine in accordance -with the following schedule:
* * *
(2) $20.00, for conviction of any other felony or misdemeanor, excluding any conservation offense.” (Emphasis added.) Ill. Rev. Stat., 1984 Supp., ch. 70, par. 510(b).

Section 5 — 9—1(c) of the Code of Corrections provided, in pertinent part, at the time of the offenses in question, as follows:

“(c) Every fine imposed in sentencing for a criminal or traffic offense, except as offense relating to parking or registration, or offense by a pedestrian, shall include an amount payable to The Traffic and Criminal Conviction Surcharge Fund of the State Treasury in accordance with the following table:
Amount of Fine Amount of Penalty Assessment
$4.00 Up to $59.99
$6.00 $60.00 to $79.99
$8.00 $80.00 to $99.99
10% of the total fine imposed $100 or more
Such amounts payable to such fund shall be assessed by the court imposing the fine and shall be collected by the Circuit Clerk in addition to the fine and costs in the case. The Circuit Clerk shall distribute such amount collected on behalf of The Traffic and Criminal Conviction Surcharge Fund in accordance with the provisions of Section 9.1 of the ‘Illinois Police Training Act’.” (Emphasis added.) Ill. Rev. Stat., 1984 Supp., ch. 38, par. 1005 — 9—1(c).

We believe that the charges assessed under both provisions are fines and not costs. The allowance and recovery of costs, being unknown at the common law, rest entirely upon the statutory provisions authorizing such costs, and such provisions must be strictly construed. (People v. Nicholls (1978), 71 Ill. 2d 166, 173, 374 N.E.2d 194, 197.) The relevant authorizing statute in Illinois directs courts to assess against persons convicted of an offense “the costs of the prosecution.” (Ill. Rev. Stat. 1983, ch. 38, par. 180 — 3.) The additional charges assessed in the instant case cannot be deemed “costs of the prosecution.”

The Illinois Supreme Court has referred to a charge assessed under section 10 of the Victims Assistant Act as a “fine” which is “to be imposed by the judge at the same time other fines and penalties are imposed and are to be collected in the same manner as other fines.” (People v. Hare (1988), 119 Ill. 2d 441, 451-52, 519 N.E.2d 879, 883.) Section 10(b) of the Victims Assistance Act expressly refers to the penalty to be imposed as a “fine.” Similarly, section 5 — 9—1 of the Code of Corrections is entitled “Authorized Fines,” and the fines assessed pursuant to this section are to be assessed by the court. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 9—1.) It is clear that the additional charges at issue here are fines and not costs. Thus, the trial court’s sentencing orders, which directed that defendant pay a specified fine plus “costs,” did not explicitly or implicitly direct the circuit clerk to assess either a victims-assistance fine or a criminal surcharge. The assessment of such fines is a judicial function beyond the authority of the circuit clerk, so the cause must be remanded for proper imposition of the fines by the circuit court. See People v. Scott (1987), 152 Ill. App. 3d 868, 873, 505 N.E.2d 42, 46.

There remains, however, the question of whether, on remand, the victims-assistance fine must be calculated according to the statutory provision in effect on the date of the offenses, December 5, 1984, or by that in effect at the time of sentencing, June 29, 1987. The State argues that the fine may be assessed according to the provision in effect as of the date of conviction, but this argument is again based on the State’s characterization of the victims-assistance charge as a “cost” rather than a “fine,” a position we have already rejected. A fine constitutes a pecuniary punishment imposed on a person guilty of committing an offense. (People ex rel. Mayfield v. City of Springfield (1959), 16 Ill. 2d 609, 613-14, 158 N.E.2d 582; Wilkes v. Deerfield-Bannockburn Fire Protection District (1979), 80 Ill. App. 3d 327, 329, 399 N.E.2d 617, 619.) Imposition of a punishment greater than the one in effect when the crime was committed would constitute a violation of the prohibition against ex post facto laws found in both the Federal (U.S. Const., art. I, §10) and State (Ill. Const. 1970, art. I, §16) Constitutions. (Tiller v. Klincar (1990), 138 Ill. 2d 1, 7.) The parties do not dispute that the more recent version of the provision at issue here would impose a greater fine than the version of the provision existing at the time of the offenses. Therefore, the victims-assistance fine must be assessed under the provisions in effect at the time the offenses were committed.

On December 5, 1984, the date of the offenses of which defendant was convicted, section 10 of the Victims Assistance Act provided that such convictions would incur victims-assistance fines of $20. (Ill. Rev. Stat., 1984 Supp., ch. 70, par. 510(b)(2).) Accordingly, the circuit clerk’s calculation showing a victims-assistance charge of $860 for each offense was incorrect. Upon remand, the circuit court shall impose a victims-assistance charge of $20 on each conviction pursuant to section 10 of the Victims Assistance Act in effect on December 5, 1984.

Defendant also argues that, when the circuit court determines the amount of the criminal surcharge under section 5 — 9—1(c) of the Code of Corrections on remand, it will be within the court’s discretion to consider defendant’s ability to pay the criminal surcharge. Defendant’s argument is based on subsection (d) of section 5 — 9—1, which states:

“(d) In determining the amount and method of payment of a fine, the court shall consider:
(1) the financial resources and future ability of the offender to pay the fine.” Ill. Rev. Stat., 1984 Supp., ch. 38, par. 1005— 9 — 1(d).

Although section 5 — 9—1(d) clearly gives the circuit court discretion in imposing fines, we do not believe that this discretion extends to the imposition of the criminal surcharge on fines imposed under section 5 — 9—1(c). Subsections (a) and (b) of section 5 — 9—1 provide that the circuit court “may” impose fines for various offenses. (Ill. Rev. Stat., 1984 Supp., ch. 38, pars. 1005 — 9—1(a), (b).) Section 5 — 9— 1(d) requires the circuit court to consider the offender’s ability to pay when determining the amount of these discretionary fines. Ill. Rev. Stat., 1984 Supp., ch. 38, par. 1005 — 9—1(d).

Section 5 — 9—1(c), on the other hand, specifically states that “[e]very fine imposed in sentencing for 'a criminal or traffic offense *** shall include” a criminal surcharge thereon. (Emphasis added.) (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 1005 — 9—1(c).) Imposition of the criminal surcharge is, therefore, mandatory. (People v. Rader (1989), 183 Ill. App. 3d 92, 97-98, 538 N.E.2d 1197, 1201 (section 5-9 — 1(c) mandates that the surcharge shall be assessed on all fines imposed).) Thus, we conclude that consideration of the offender’s ability to pay is only applicable to the underlying discretionary fines authorized by subsections (a) and (b) of section 5 — 9—1. The imposition of the criminal surcharge is mandatory, and no consideration of the offender’s ability to pay is required.

Finally, defendant contends that the sentencing orders should be corrected to reflect the scrivener’s error whereby a $8,566.75 street-value fine was imposed for each offense. We agree, and we direct the circuit court to issue new sentencing orders to reflect, in addition to the other penalties and costs imposed, the following fines which should have been imposed on defendant’s convictions:

Cocaine Cannabis
Possession Possession
Street-Value Fine $8,500.00 $ 66.75
Criminal Surcharge 850.00 6.00
Victims Assistance 20.00 20.00

The judgment of the circuit court is vacated in part, and the cause is remanded with directions.

Vacated in part and remanded with directions.

McLAREN and GEIGER, JJ., concur.