author: PRESIDING JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN TORRES, Defendant-Appellant.
    First District (3rd Division)
    No. 1-88-0799
    Opinion filed January 23, 1991.
    Rehearing denied March 5, 1991.

      Karen Daniel, of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Joseph Brent, and Neera Lall, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Defendant, Melvin Torres, was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(b)(1)) after a bench trial. He argues on appeal that he was denied effective assistance of counsel and that the trial court erred in admitting his written pretrial confession.

Prior to trial, the defendant filed a motion to suppress pretrial statements alleging that they were involuntary because they resulted from psychological and mental coercion. At the hearing on the motion, Assistant State’s Attorney John Muldoon testified that, after speaking with youth officer Charles Stella, the victim, and the victim’s mother, he interrogated the defendant. He said that the defendant first gave a statement that did not correspond exactly to what the victim had said. Muldoon informed the defendant of the inconsistencies, and then told the defendant that there were two types of people who commit sexual acts against children. He stated that one group was evil while the other was sick. He continued, “the people who are sick *** the first part in getting help is to admit that they do have a problem *** while evil people, they deny they do these things *** and those are the *** kind of people that you can’t help.” Muldoon told the defendant that the court could make him go to counseling and, that if he told the truth, Muldoon would tell the judge what the defendant said. Ultimately, the defendant made an oral statement admitting the allegations. Muldoon then prepared a written statement, which the defendant signed.

Youth Officer Frank Stella testified that he had a conversation with the defendant prior to Muldoon’s arrival. According to Stella, the defendant initially denied some of the allegations against him, but admitted that he had touched the victim’s vagina through her underpants. Stella then told the defendant he would have to talk to an assistant State’s Attorney. On redirect, Stella testified that the defendant’s earlier oral statement to him was substantially the same as the final written statement. He testified that the defendant initially stated that he touched the victim’s vagina through her underpants, but later said that he kissed her vagina with her underpants down.

The defendant testified that Officer Stella contacted him at work, telling him to report to the police station because there was a serious charge against him. When the defendant went to the police station, he met Officer Stella, who told him what the allegations were. After the defendant denied the charges, Stella did not question him further, but told him he was under arrest and had to wait for an assistant State’s Attorney.

When Assistant State’s Attorney Muldoon arrived, he told the defendant that the victim seemed very convincing and that he believed her story. The defendant further testified that he remained quiet until after Muldoon explained that two types of people commit sexual acts against children: evil people, who are punished with jail and who never get out, and sick people, who are offered help. Muldoon further stated that the victim’s mother had said that the defendant was not evil, but did have a problem. The defendant then admitted the allegations and was advised of his rights. The defendant testified that he signed the written statement because he was scared and was talked into signing it. Following arguments by counsel, the trial court denied the defendant’s motion to suppress the confession.

At trial, J.W. testified that she was 10 years old and that she knew the difference between the truth and a lie. In August 1986, J.W. lived with her mother and her sister in Chicago. The defendant, who was then her mother’s boyfriend, lived in the same building. One morning, when the defendant was babysitting for her and her younger sister, J.W. was sitting on her top bunkbed putting away her Monopoly game when the defendant entered the room. She asked the defendant to pick up some play money from the floor, which he did. J.W. testified that she was sitting “indian style,” and the defendant tried to “break” the way she was sitting. When he was unable to do so, the defendant pulled her underpants up a little bit and licked her vagina. The defendant asked J.W. if it felt good. When she did not respond, he left the room. J.W. dressed her younger sister and went downstairs to her friend’s apartment where she told her friend what had happened. J.W. testified that the defendant had never done anything like that before or since.

Officer Stella testified that he was present when Assistant State’s Attorney Muldoon interrogated the defendant on March 6, 1987. After the interrogation, the defendant’s statement was put into writing. Subsequently, the defendant signed the written confession. During cross-examination, the defense counsel’s only questions restated the direct examination concerning the. interrogation. He did not probe into the circumstances surrounding that interrogation. He further inquired about one of Stella’s reports, which stated that the victim’s hymen was still intact.

During closing arguments, the defense counsel stated, “I believe what happened is Melvin Torres kissed the vaginal area and realized what was happening and withdrew and went back.” The defense counsel also argued that the incident was an isolated one, that defendant was a family member because he lived in the same building and was the boyfriend of the victim’s mother, and that sexual contact, but no actual penetration, occurred. The trial court then directed counsel to the applicable State statutes defining sexual penetration. The prosecutor responded that defense counsel was misinformed about the statutory definition of penetration and that the defendant did not meet the statutory definition of a family member.

The trial court found Melvin Torres guilty of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(b)(1)), but not guilty of the two counts of criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 13). The trial court sentenced him to six years’ imprisonment.

The defendant asserts that he was denied effective assistance of counsel because defense counsel did not understand the statutory elements of aggravated criminal sexual assault, thus pursuing a defense theory which left the trial court no choice but to find the defendant guilty. The sixth amendment of the United States Constitution guarantees the right to effective counsel to protect the fundamental right to a fair trial. (Strickland v. Washington (1984), 466 U.S. 668, 684, 80 L. Ed. 2d 674, 691, 104 S. Ct. 2052, 2063.) In order to establish ineffective, assistance of counsel under Strickland, a defendant must prove that his counsel was deficient and that he was prejudiced by that deficiency. (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; People v. Albanese (1984), 104 Ill. 2d 504, 525.) The attorney’s performance must be reasonably effective assistance considering all the circumstances (Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065), and the court’s scrutiny of that performance must be highly deferential. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.

Prejudice requires showing that the counsel’s errors were so serious that the defendant was deprived of a fair trial. (Strickland, 466 U.S. at 696, 80 L. Ed. 2d at 699, 104 S. Ct at 2069.) The defendant must show that there was a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) In making this determination, the court must examine the totality of the circumstances. Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069.

The ultimate focus of the inquiry must be on the fundamental fairness of the proceeding. (Strickland, 466 U.S. at 696, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.) At a minimum, the sixth amendment of the United States Constitution requires that defense counsel act as a true advocate for the accused, subjecting the prosecutor’s case to meaningful adversarial testing. (United States v. Cronic (1984), 466 U.S. 648, 656, 80 L. Ed. 2d 657, 666, 104 S. Ct. 2039, 2045; People v. Hattery (1985), 109 Ill. 2d 449, 461.) If counsel does not do so, the adversary process itself is presumptively unreliable. Cronic, 466 U.S. at 659, 80 L. Ed. 2d at 668, 104 S. Ct. at 2047; Hattery, 109 Ill. 2d at 461.

Illinois courts have held that admission of a defendant’s guilt by his defense attorney may be a violation of the defendant’s sixth amendment right to the effective assistance of counsel. (People v. Johnson (1989), 128 Ill. 2d 253.) In Hattery, the Strickland test was not used because the defense counsel’s unequivocal concession of the defendant’s guilt amounted to a presumption of ineffectiveness of counsel. (Hattery, 109 Ill. 2d at 464-65.) In that murder trial, the defense counsel conceded the defendant’s guilt in the opening statement, advanced no theory of defense, presented no evidence of its own, and made no closing argument to the jury. Counsel attempted to develop cross-examination on the theory of compulsion, which was not an available defense to the offense of murder. (Hattery, 109 Ill. 2d at 459.) The court emphasized that the constitutional right of a criminal defendant to plead not guilty includes the obligation of his attorney to structure the trial of the case around his client’s plea. (Hattery, 109 Ill. 2d at 463, citing Wiley v. Sowders (6th Cir. 1981), 647 F.2d 642, 650.) Even when no theory of defense is available, if the decision to stand trial has been made, counsel must hold the prosecution to its heavy burden of proof beyond reasonable doubt. (Cronic, 466 U.S. at 656 n.19, 80 L. Ed. 2d at 666 n.19, 104 S. Ct. at 2045 n.19; Hattery, 109 Ill. 2d at 465.) Where there is a plea of not guilty, defense counsel may not concede his client’s guilt in the hope of obtaining a more lenient sentence unless the record adequately shows that the defendant knowingly and intelligently consented to his counsel’s strategy. Hattery, 109 Ill. 2d at 465.

The defendant in this case relies on People v. Chandler (1989), 129 Ill. 2d 233, 249, where the court ruled that the defense counsel’s failure to comprehend the law, as evidenced by his strategy and actions, amounted to no real defense. The prosecution’s case, therefore, was not subject to meaningful adversarial testing, thus depriving the defendant of a fair trial. (129 Ill. 2d at 249.) The court used the Strickland test, distinguishing Chandler from Hattery. The court explained that the defense counsel’s remarks in Hattery amounted to an unequivocal concession of the defendant’s guilt, while the counsel’s remarks in Chandler did not completely and unequivocally concede the defendant’s guilt. Chandler, 129 Ill. 2d at 245.

The defendant in Chandler was charged with murder, residential burglary, and arson. His statement to the police was that he and his codefendant broke into the victim’s home, ransacked it, and took some items. He stated, however, he did not kill the victim, although his codefendant did. They both returned and burned the house down to cover up any possible evidence. The defense counsel stated in his closing argument that the jury would have to decide whether the evidence constituted residential burglary. Counsel admitted only what the defendant had already confessed to, and the jury heard a police officer testify to defendant’s statements. Counsel argued to the jury that they should believe everything that the defendant told the police, including the defendant’s denial of killing the victim. Further, counsel did not concede any fact to which the defendant did not admit in his statements to the police.

The court ruled that counsel’s remarks were not presumptively prejudicial under Hattery, but were the basis of counsel’s deficiency. (Chandler, 129 Ill. 2d at 246.) Counsel’s strategy, the court reasoned, was deficient because he did not attempt to develop a theory of innocence during his cross-examination of several witnesses, did not cross-examine several key witnesses, and did not present any witnesses on behalf of the defense, even though he told the jury in his opening argument that he would call the defendant. (Chandler, 129 Ill. 2d at 246.) Defense counsel seemingly followed this strategy in the mistaken belief that the jury could find the defendant not guilty of murder if they believed that he did not actually stab the victim. The court noted, however, that the jury had been instructed on both felony murder and accountability. Thus, the court concluded that they had no choice but to find the defendant guilty of murder, residential burglary, and arson.

The court stated that the ultimate error was that, even if the defense attorney had been successful in convincing the jury that the defendant did not stab the victim, they were still instructed to find the defendant guilty of murder under the law of accountability or felony murder. (Chandler, 129 Ill. 2d at 247.) The court, quoting United States ex rel. Barnard v. Lane (7th Cir. 1987), 819 F.2d 798, noted that legitimate trial strategy did not include abandoning the defendant’s only defense in hope that a jury’s sympathy will cause them to misapply or ignore the law. (Chandler, 129 Ill. 2d at 248.) The court reasoned that, when presented with a difficult case, counsel must provide reasonably effective assistance to a defendant. (Chandler, 129 Ill. 2d at 250.) When the defense counsel’s performance left the jury with no choice but to convict the defendant of the crimes charged, that performance clearly prejudiced the defendant. (Chandler, 129 Ill. 2d at 250.) The court also ruled that there was a reasonable probability that, but for the counsel’s deficient performance, the result of the trial would have been different. Chandler, 129 Ill. 2d at 250.

In this case, the defense counsel pursued a defense theory that assured that the trial judge would find the defendant guilty of aggravated criminal sexual assault unless he disregarded the law. The defendant was convicted of aggravated criminal sexual assault in that “he was seventeen years of age or over and committed an act of sexual penetration, upon J.W., to wit: contact between Melvin Torres’ mouth and the vagina of J.W. and J.W. was under thirteen years when the act of sexual penetration was committed, in violation of chapter 38, section 12 — 14—B(l), of the Illinois Revised Statutes 1985, as amended.” Sexual penetration is defined as “any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person.” Ill. Rev. Stat. 1965, ch. 38, par. 12 — 12(f).

Defense counsel either was ignorant of,' or chose to ignore, the legal definition of penetration. During the trial, the defense gave no opening statement and presented no testimony of its own. During the cross-examination of the victim and the youth officer, the defense counsel attempted to develop a theory of no actual penetration by a family member. He did not present a theory of innocence. The defense theory was that the defendant was not guilty of aggravated criminal sexual assault because, despite oral-vaginal contact which counsel conceded took place, there was no sexual penetration. Specifically, during his closing argument, the defense counsel said, “I believe what happened is Melvin Torres kissed the vaginal area and realized what was happening and withdrew and went back.” The defense counsel further argued that there was no penetration because the ordinary meaning of penetration is for “something to go into something not just contact within a family group.” He ignored the statutory definition of penetration, substituting his own.

The defense counsel also based his defense on the claim that the defendant could be considered a family member because he lived in the same building as the victim, was the boyfriend of the victim’s mother, and was frequently in the victim’s apartment. However, the status of family member is not a defense to the charge of aggravated criminal sexual assault. See generally Ill. Rev. Stat. 1985, ch. 38, pars. 12 — 12(c), 12-13(3), 12-14.

The trial court had no other choice but to convict the defendant of aggravated criminal sexual assault. The defense counsel’s deficient performance clearly prejudiced the defendant. There was a reasonable probability that, but for the counsel’s deficient performance, the result of the trial would have been different. Therefore, this case is reversed and remanded for a new trial. Since this issue is dispositive of the case, we will not consider the defendant’s other argument.

Reversed and remanded.

WHITE and RIZZI, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY ZATOR, Defendant-Appellant.
    First District (3rd Division)
    No. 1-88-2970
    Opinion filed January 23, 1991.

      Robert L. Rascia, of DeJohn & Associates, and Robert A. Novelle and Phillip M. Angelini, both of Serpico, Novelle, Dvorak, Navigato, Ltd., both of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Walter P. Hehner, and Edward J. Maloney, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

After a jury trial, the defendant, Jeffrey Zator, was convicted of driving under the influence of alcohol (Ill. Rev. Stat. 1985, ch. 95½, par. 11 — 501) and reckless homicide (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 3(a)) for the death of Thomas Dunn, a pedestrian. He was acquitted of driving under the influence of alcohol resulting in great bodily harm (Ill. Rev. Stat. 1985, ch. 95½, par. 11 — 501(f)) to Scott Cordell, one of the passengers in his car. On appeal, the defendant asserts that (1) the trial court erred in denying his motion in limine to exclude the results of the breathalyzer test, which was not administered in accordance with the Illinois Department of Public Health Standards and Procedures; (2) the evidence presented at trial was insufficient to establish his guilt beyond a reasonable doubt for the offense of reckless homicide; and (3) the trial court erred in failing to exclude the breathalyzer test result evidence, which was not probative of his blood-alcohol concentration at the time of the incident.

On May 7, 1986, at 1:40 a.m., the defendant was driving west on 111th Street in Oak Lawn when his car collided with a pedestrian. Earlier in the evening, the defendant had been socializing with two friends, Scott Cordell and Darryl English. English testified that around 6:45 p.m., the three ate a cheeseburger dinner. Then, the defendant left to go to work and returned around 9:45 p.m. Cordell and English had been drinking, but the defendant had not yet had anything of an alcoholic nature to drink. English further testified that the three men went to a bar, arriving at 10:30 p.m. The three were drinking pitchers of beer, but the defendant drank less than the other two. The three men left that bar at 12:30 a.m. Outside the bar, Cor-dell started to jump up and down, scream, make remarks to people in cars and passers by, and generally act wild. The defendant drove to another bar with his two friends. Cordell was still acting up, so they stayed for only one beer and left around 1:30 a.m. The defendant was driving, with Cordell in the front seat and English in the back seat.

Darryl English further testified that, in the car, Cordell was still yelling, dancing around, singing, and sticking his head out the sunroof. When the defendant stopped at a red light at 111th Street and Cicero Avenue, Cordell stuck his head out the sunroof and began yelling. After the defendant’s car left the stoplight, Cordell sat back down in the passenger seat, but then started climbing out the passenger window. His head and chest were out the window, and he was sitting on the door facing the driver’s side. English yelled at him to get back in the car, and the defendant reached to pull him back. All of a sudden, English heard a noise and Cordell vanished from the car. English had not seen a pedestrian on the roadway. He was of the opinion that the defendant had no problem operating the car and was not under the influence of alcohol at the time. In addition, two defense witnesses testified that they spoke with the defendant during the two hours he was at the bar. It was the opinion of both witnesses that the defendant was not under the influence of alcohol.

The defendant’s testimony was substantially the same as English’s. In addition, he testified that at the first bar, he drank three or four glasses of beer and ate two slices of pizza. At the second bar, he drank one beer. After leaving the intersection of 111th Street and Cicero Avenue, the defendant heard English scream "get back in.” The defendant turned to his right and saw Cordell hanging out the passenger window. The defendant reached for him, heard a bang, and Cordell was gone. The defendant crossed the railroad tracks, turned around, and returned to the scene of the accident. He had not previously seen a pedestrian on the roadway. When the police arrived at the scene, the defendant told them that he did not know what happened and that he had been drinking. The officer then asked him to blow into his face, which the defendant did. The defendant was placed under arrest, handcuffed, and transported to the police station.

There were three other witnesses to the accident. Two of the witnesses were in a car next to the defendant’s at the stoplight. The other witness was driving the car behind the first witness’ car. Although their testimonies differed somewhat as to the exact events leading up to the accident, they all testified that a passenger in the defendant’s car was hanging out the car’s sunroof while at the stoplight. After the defendant left the intersection and proceeded west, his car veered off the road at least once while the passenger was still hanging out of the car. They saw two bodies fly up into the air and land in the street. The defendant’s car continued west, crossed the railroad tracks, then returned to the scene. None of these witnesses observed the defendant’s condition at the time. They estimated the speed of the defendant’s car from 45 to 60 miles per hour where the speed limit was 40 miles per hour. All the witnesses were lx/2 to two blocks behind the defendant’s car at the time of the impact.

Officer Michael Osness, who was in charge of the accident scene, testified that he approached the defendant at the scene. He observed that the defendant had bloodshot and glassy eyes, had an odor of alcohol on his breath, and was disoriented and confused. His opinion was that the defendant was under the influence of alcohol at that time. The officer also testified that an examination of the car revealed that all the damage was to the right side of the car, with no damage to the front. In addition, the windshield was broken and dented in. The officer then went to the hospital to check on the condition of the two victims and arrived at the police station at approximately 3 a.m. He observed the defendant from 3:05 to 3:40 a.m., during which time the defendant did not eat, belch, vomit, or take anything orally. The defendant was brought into an interview room at 3 a.m. and given his implied consent warnings at approximately 3:30 a.m. At 3:40 a.m., the defendant took a breathalyzer test, which registered a blood-alcohol concentration of .14. The defendant then adequately performed the balance, walk-and-turn, and finger-to-the-nose sobriety tests.

Officer Kerrigan, the evidence technician on duty that night, testified that he observed the defendant in the paddy wagon at the scene. He noticed an odor of alcohol on the breath of the defendant, who appeared to be confused. Kerrigan prepared the breathalyzer machine at approximately 3:05 a.m. and observed the defendant from 3:15 until 3:40 a.m., when the test was administered. During those 25 minutes, the defendant took nothing orally. The police officer also testified that when asked what he ate, the defendant said he ate some Dorito chips at 6:30 p.m.

The defendant testified that he had no difficulty completing the sobriety tests satisfactorily and submitted to a breath test. He further testified that the four or five beers he drank during the evening did not affect him at all. He did not think he was under the influence of alcohol that night.

An expert witness, Dr. Thomas O’Donnell, a pharmacist, testified that there were a number of factors that could affect the accuracy of the breathalyzer test. The breathalyzer machine measures the amount of alcohol in a person’s lungs and multiplies it by a factor to determine the amount of alcohol in the blood. The 1 to 2100 ratio used assumes that every individual’s breath has a blood ratio of 1 to 2100 even though that figure can vary from 1 to 1100 up to 1 to 3300. Dr. O’Donnell also testified about how alcohol is ingested into the system, absorbed by the system, and then burned off by the system. Factors that can accelerate or retard the absorption of alcohol into the system are the weight of the person, what and when he drank, and what and when he last ate. The witness’ opinion was that a breathalyzer test would not accurately reflect the defendant’s condition two hours earlier. Assuming that the defendant had four or five beers in 21!% hours and that he ate pizza and a cheeseburger during the evening, Dr. O’Donnell estimated that the defendant’s blood-alcohol content at 1:40 a.m. would have been between .05 and .06.

The defendant’s motion in limine to exclude the breathalyzer test was denied. After the trial, a jury convicted him of driving under the influence of alcohol (Ill. Rev. Stat. 1985, ch. 95½, par. 11 — 501) and reckless homicide (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 3(a)) in the death of the pedestrian, but acquitted him of driving under the influence causing great bodily harm (Ill. Rev. Stat. 1985, ch. 95½, par. 11 — 501(f)) in the death of the passenger, Scott Cordell. He was sentenced to 18 months’ intensive probation and fined $500.

The defendant asserts that the trial court erred in denying his motion in limine to exclude the results of the breathalyzer test since it was not administered in accordance with the Illinois Department of Public Health (IDPH) Standards and Procedures. In order to present evidence of the breathalyzer test results at trial, Illinois statute requires compliance with the IDPH regulations. (Ill. Rev. Stat. 1985, ch. 95½, par. 11 — 501.2(a)(1).) Those standards, in pertinent part, are as follows:

“(a) Continuous observation of the subject for at least twenty (20) minutes prior to collection of the breath specimen, during which period the subject must not have ingested alcohol, food, drink, regurgitated, vomited or smoked.” (77 Ill. Adm. Code §510.60 (1985).)

Compliance with these standards is mandatory, and the admissibility of breathalyzer tests will be denied for failure to comply. People v. Hamilton (1987), 118 Ill. 2d 153, 160.

The defendant relies on People v. Haney (1987), 155 Ill. App. 3d 44, 46, 507 N.E.2d 230, to show that noncompliance with the 20-min-ute period results in the inadmissibility of the breathalyzer results. That case, however, is distinguishable. The defendant in Haney was chewing tobacco and drank some water 17 minutes before the test was administered. Here, both police officers testified that they observed the defendant for more than the required 20 minutes prior to the test. During that time, the defendant did not smoke, drink, eat, belch, or vomit.

The State cited cases that satisfied IDPH regulations even though one officer did not stare at the defendant for 20 minutes. In In re Summary Suspension of Driver’s License of Ramos (1987), 155 Ill. App. 3d 374, 508 N.E.2d 484, the 20-minute rule was not violated even though the police officer’s attention was diverted away from the defendant for six minutes while the officer reset the breathalyzer. In People v. Neville (1987), 151 Ill. App. 3d 679, 503 N.E.2d 387, the 20-minute rule was complied with by the aggregate observations of the arresting officer and the testing officer.

The defendant attacks the sufficiency of the State’s evidence. He argues that the testimony of both police officers lacked logical consistency while his testimony was clear, concise, and unimpeached as to the time sequence. Both Osness and Kerrigan testified that they returned to the police station shortly after 3 a.m. There was undisputed testimony that the implied consent and Miranda warnings were given to the defendant at 3:30 a.m. and the breathalyzer test at 3:40 a.m. The conflict concerns the sequence of events between 3:05 and 3:30 a.m. Officer Osness testified that he was preparing reports in the interview room with the defendant from about 3:05 until 3:40 a.m. He also testified that the defendant was brought out of the interview room at 3 a.m. and was given the admonishments at 3:30 a.m. Officer Kerrigan testified that after he prepared the machine around 3:10 a.m., he observed the defendant from 3:15 until 3:40 a.m.

The defendant contends that it was illogical for Officer Kerrigan to prepare the machine before knowing whether the defendant would consent to take the test. He also argues that it was illogical for Officer Osness to interview him before giving admonishments. The defendant contends that those conflicts in the testimony raise the question of the officers’ credibility. The defendant testified that he was brought into the interview room at 3:30 a.m. and immediately admonished.

Where testimonial evidence is conflicting, it is within the province of the trier of fact to determine credibility. (People v. Jacquith (1984), 129 Ill. App. 3d 107, 113, 472 N.E.2d 107.) The finding should not be disturbed on review unless such findings are palpably against the manifest weight of the evidence. (Jacquith, 129 Ill. App. 3d at 113, 472 N.E.2d 107.) The trial court judge’s finding that the 20-minute period was observed was not against the manifest weight of the evidence. Therefore, it was properly admitted and the motion in limine was properly denied.

Since the IDPH regulations do not have to be followed in reckless homicide cases (People v. Murphy (1985), 108 Ill. 2d 228, 236), the defendant’s argument only applies to the charge of driving under the influence. The defendant attempts to distinguish Murphy, stating that the inadmissibility was due to the blood analyst not being certified, not to the procedure used to draw the sample or its analysis. Our supreme court held in Murphy, however, that the IDPH section 11— 501.2 standards are not mandatory in reckless homicide prosecutions. The court stated:

“We hold that the Standards are applicable only to the offense of driving under the influence, and that the test results should have been received in evidence under the usual standards governing the admission of evidence.” Murphy, 108 Ill. 2d at 236.

The defendant next asserts that the evidence presented at trial was insufficient to establish his guilt beyond a reasonable doubt for the offense of reckless homicide. A person commits reckless homicide if, while driving a motor vehicle, he unintentionally kills an individual and the acts which caused the death are performed recklessly so as to create a likelihood of death or great bodily harm to some person. (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 3(a).) Reckless conduct occurs when an individual consciously disregards a substantial and unjustifiable risk that his acts are likely to cause death or great bodily harm to some individual and where such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in such a situation. (People v. McDermott (1985), 141 Ill. App. 3d 996, 1006, 490 N.E.2d 1293.) The mental state of recklessness is to be inferred from all of the facts and circumstances in the record. People v. Gittings (1985), 136 Ill. App. 3d 655, 659, 483 N.E.2d 553.

While excessive speed alone may be insufficient to sustain a conviction for reckless homicide, speed combined with other circumstances which indicate a conscious disregard such that a reasonable person would act differently under the same situation is enough to establish reckless homicide. (People v. Mikyska (1989), 179 Ill. App. 3d 795, 801, 534 N.E.2d 1348.) Among other things, conscious disregard of a substantial or unjustifiable risk may be shown through the physical condition of the driver, including evidence of a driver’s intoxication. (People v. Sleboda (1988), 166 Ill. App. 3d 42, 55, 519 N.E.2d 512.) Improperly driving an automobile while intoxicated may constitute reckless conduct. Sleboda, 166 Ill. App. 3d at 55.

The defendant contends that the State must prove willful and wanton behavior. Although some courts have used the phrase “willful and wanton” conduct as a standard for reckless homicide, People v. Wolfe (1983), 114 Ill. App. 3d 841, 849-50, 449 N.E.2d 980, clarified that the definition of recklessness does not require the State to prove willful and wanton conduct in order to prove recklessness. The court noted that the Criminal Code of 1961 did not use the term “willful and wanton” in defining recklessness, and the courts that used the term were using the phrase interchangeably with the term “reckless.” Wolfe, 114 Ill. App. 3d at 848-50.

The defendant relies on cases where there was no reckless homicide. All the cases, however, are distinguishable. In People v. Walljasper (1981), 97 Ill. App. 3d 81, 422 N.E.2d 251, the road was icy and the defendant’s car went into a skid. The defendant successfully avoided one collision, but slid into a parked car. The only evidence of the defendant’s intoxication was from a physician who treated the defendant in the hospital for injuries. The bases for the doctor’s opinion were an odor of alcohol and slow verbal responses, which he said could have been caused by the injury. (Walljasper, 97 Ill. App. 3d at 84.) In People v. LaCombe (1982), 104 Ill. App. 3d 66, 432 N.E.2d 672, the defendant was not driving at a high rate of speed, nor was there sufficient evidence that he was intoxicated. While there was a strong odor of alcohol, he passed the balancing tests, and there were no blood-alcohol test results in evidence.

The only evidence of intoxication in People v. Chambers (1972), 8 Ill. App. 3d 430, 435, 289 N.E.2d 476, aff’d sub nom. People v. Todd (1975), 59 Ill. 2d 534, was an alcoholic odor on the defendant’s breath. The blood-alcohol test results were inadmissible, and the incoherency alluded to by the officers was consistent with the defendant’s injuries, which caused him to be unconscious. The defendant, who was not speeding, skidded on a snowy road. The court in People v. Frary (1976), 36 Ill. App. 3d 111, 114, 343 N.E.2d 233, stated that failure to maintain a safe interval behind a vehicle and speeding were not enough to sustain a reckless homicide conviction. The only evidence of intoxication was that the defendant stated that he had had some drinks.

The only evidence of recklessness in People v. Potter (1955), 5 Ill. 2d 365, was conflicting testimony whether or not the bus driver was speeding. Similarly, there was insufficient evidence in People v. Hawn (1981), 99 Ill. App. 3d 334, 425 N.E.2d 1024, to prove reckless homicide. The defendant, who was not speeding, lost control of his car after a collision. He collided with another car head on and lost consciousness. The court concluded that the defendant was driving in a safe manner until the first collision. Additionally, there was little evidence that the driver was intoxicated. Although the defendant had stated that he drank three beers, the results of the blood test were never introduced into evidence, thus creating an unfavorable evidentiary presumption against the State. Hawn, 99 Ill. App. 3d at 339.

There was no reckless homicide in People v. Chiappa (1977), 53 Ill. App. 3d 639, 368 N.E.2d 925, where a police officer was responding to an emergency call. He was operating his emergency flashers and flashing his headlight highbeams on and off when he came to a stop sign, where he either stopped or slowed down. The victim bicyclist rode into the intersection with no reflectors or lights on the bicycle, and ran into the police officer’s car.

The State cites cases that affirm reckless homicide convictions. In People v. Dunnegan (1987), 151 Ill. App. 3d 973, 503 N.E.2d 823, the defendant, while intoxicated, was pulling away from the roadside as the victim was running after the defendant’s truck. While attempting to enter the truck, the victim fell and slid under the truck. In People v. Gittings (1985), 136 Ill. App. 3d 655, 483 N.E.2d 553, the defendant was speeding on a hilly, curvy road in a residential area at night while intoxicated. There was testimony from a former bartender who observed the defendant before he entered his car. He stated that the defendant’s speech was slurred and that he stuttered and weaved as he walked. Also, the defendant admitted that he had been drinking.

The court in People v. McDermott (1985), 141 Ill. App. 3d 996, 1008, 490 N.E.2d 1293, ruled that the defendant’s speeding and crossing over in the oncoming lane, colliding head on with the victim, was sufficient to sustain his reckless homicide conviction. The court affirmed the defendant’s reckless homicide conviction in People v. Moreno (1983), 116 Ill. App. 3d 1, 452 N.E. 2d 22, because the defendant failed to apply his brakes. At the moment of impact, he was going well over the 30-miles-per-hour speed limit in the left-hand lane of a residential street where 10 to 12 children were playing.

In People v. Gruner (1985), 130 Ill. App. 3d 1042, 474 N.E.2d 1355, there was conflicting evidence about the defendant’s intoxication and the location of the collision. The court, however, concluded that the jury was justified in finding the defendant guilty beyond a reasonable doubt because there was ample evidence that the defendant was intoxicated at the time, the collision occurred in the victim’s lane of traffic, and the visibility was good even though it was raining.

Whether the given conduct is reckless is a question of fact for the jury to decide. (People v. Reding (1989), 191 Ill. App. 3d 424, 449, 547 N.E.2d 1310.) It is its function to determine whether the State has met its burden of proving the defendant guilty of the crime charged. (People v. Smith (1985), 139 Ill. App. 3d 21, 25, 486 N.E.2d 1347.) Credibility of the witnesses and the weight given their testimony are exclusively within the province of the jury, and any conflicts in the testimony are to be resolved by the jury. (People v. Collins (1985), 106 Ill. 2d 237, 261-62.) A court of review will not disturb a jury’s verdict unless the evidence presented is improbable, impossible, or unsatisfactory as to raise a reasonable doubt of guilt. Smith, 139 Ill. App. 3d at 25.

In this case, there was sufficient evidence to prove the defendant guilty of reckless homicide beyond a reasonable doubt. His blood-alcohol level was .14, which created an inference of a reckless act. (People v. Hester (1989), 131 Ill. 2d 91, 100-01.) An alcohol concentration of .10 or more renders an individual under the influence of alcohol, which is prima facie evidence of a reckless act. (Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 3(b), (c)(1).) In addition, the officer at the scene testified that there was a strong odor of alcohol, and the defendant had glassy and bloodshot eyes. He was confused and disoriented, but there was no evidence of any head injury to the defendant. In addition, there were three eyewitnesses who testified that the defendant was driving over the posted speed limit, ran off the road one to three times, and was driving with a passenger hanging out of the car.

Finally, the defendant asserts that the trial court erred in failing to exclude the breathalyzer test result evidence because the test results were not probative of the defendant’s alcohol level at the time of the incident. He maintains that the test results were unreliable because of the two-hour delay in administering the test and his expert’s testimony, which estimated the defendant’s blood-alcohol level at .05 or .06 at the time of the incident.

Illinois law is well settled that any delay between the time of the incident and the breathalyzer test goes to the weight given the results, viewed in light of the totality of the circumstances. (People v. Kappas (1983), 120 Ill. App. 3d 123, 129, 458 N.E.2d 140.) Results of tests administered two hours after the incident (People v. Frantz (1986) , 150 Ill. App. 3d 296, 302, 501 N.E.2d 966; People v. Borst (1987) , 162 Ill. App. 3d 830, 836, 516 N.E.2d 854), hours after the incident (People v. Johnigk (1982), 111 Ill. App. 3d 941, 944, 444 N.E.2d 739), one hour after driving (People v. Schuld (1988), 175 Ill. App. 3d 272, 279, 529 N.E.2d 800), and 38 minutes after driving (Kappas, 120 Ill. App. 3d at 128) are all admissible. As to the expert’s testimony, the jury can either accept or reject his testimony. People v. Romano (1985), 139 Ill. App. 3d 999, 1006, 487 N.E.2d 785.

The defendant further argues that the test results viewed in light of the totality of the circumstances did not establish that the defendant was intoxicated at the time of the incident. He argues that the officer’s observations of the defendant at the scene were only bloodshot eyes and an alcoholic odor on the his breath. He then analogizes to cases where neither evidence of mere consumption of alcohol by the defendant (People v. Togher (1970), 127 Ill. App. 2d 141, 262 N.E.2d 88) nor the smell of alcohol on the defendant (People v. Thomas (1975), 34 Ill. App. 3d 578, 580, 340 N.E.2d 174) was enough to prove intoxication. Thomas is distinguishable, however, because that defendant received massive head injuries prior to the time he appeared to be disoriented, uncoordinated, and drowsy. The only other evidence of intoxication, the odor of alcohol on the defendant’s breath, was not enough to establish intoxication. Thomas, 34 Ill. App. 3d at 580.

If we examine the totality of the circumstances in this case, the jury’s guilty verdict for driving under the influence is supported by the evidence. The officer’s observations at the scene included a strong odor of alcohol, bloodshot and glassy eyes, disorientation, and confusion. There was no evidence of any head injury to the defendant. Additionally, there was testimony from three witnesses that the defendant had veered off the road and was driving above the posted speed limit while a passenger was hanging out of the car. In viewing the breathalyzer test results of .14 in light of the totality of the circumstances, there was enough evidence to support the jury’s verdict.

Judgement affirmed.

RIZZI and WHITE, JJ., concur.


text:
      In re ESTATE OF GEORGE S. HALAS, JR., Deceased (A. Gerson Miller, Ex’r of the Estate of George S. Halas, Jr., Deceased, Petitioner-Appellant and Cross-Appellee, v. Virginia McCaskey et al., as Co-Ex’rs of the Estate of George S. Halas, Sr., Deceased, Respondents-Appellees and Cross-Appellants (The Chicago Bears Football Club, Inc., et al., Respondents).
    First District (3rd Division)
    No. 1-89-0645
    Opinion filed January 23, 1991.

      Marshall E. Eisenberg and Stephen Fedo, both of Neal, Gerber & Eisenberg, of Chicago, for appellant.
    Joseph R Lundy and Thomas W. Abendroth, both of Schiff, Hardin & Waite, of Chicago, for appellee Virginia McCaskey.
    Daniel M. Schuyler, of Schuyler, Roche & Zwirner, of Chicago, for appellee Michael Notaro.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

This appeal arises from an action brought by the petitioner, A. Gerson Miller, in his capacity as the successor executor of the estate of George Halas, Jr., against the estate of the former executor, George Halas, Sr., alleging that George Halas, Sr., breached his fiduciary duties while acting as executor of his son’s estate and trustee of two testamentary trusts, the beneficiaries of which are the children of George Halas, Jr. The petitioner’s complaint alleged that George Halas, Sr., breached his fiduciary duties by failing to give notice to, and by failing to protect the interests of, the beneficiaries during a corporate reorganization of the Chicago Bears Football Club, Inc. (hereafter Chicago Bears or Bears). The petitioner sought alternative forms of declaratory and injunctive relief which were later rendered moot by the sale of the children’s beneficial interest in the Chicago Bears during the trial below. The petitioner’s remaining prayer for relief that the estate of George Halas, Sr., be surcharged for damages and attorney fees and costs is now before us as the petitioner appeals from the trial court’s award of $1 in nominal damages. The respondents, Virginia McCaskey and Michael Notaro, in their capacity as co-executors of the estate of George Halas, Sr., cross-appeal from the trial court’s judgment finding that George Halas, Sr., breached his fiduciary duties.

George Halas, Sr., was the founder of the Chicago Bears and the club’s president until his death on October 31, 1983. The Chicago Bears was originally incorporated as an Illinois corporation on April 1, 1922. George Halas, Sr.’s children, George Halas, Jr., and Virginia McCaskey, acquired stock in the team through prior gifts and sales. George Halas, Jr., also assisted his father in managing the team until his death on December 16, 1979. At the time of his son’s death, George Halas, Sr., was 82 years old and owned 76.5 shares representing a 49.35% interest in the Bears. The estate of George Halas, Jr., owned 30.5 shares representing a 19.68% interest in the Bears. The remaining outstanding shares were owned by Virginia McCaskey, James E. Finks, Charles A. Brizzolara, Robert and Carol Brizzolara in joint tenancy, and Nancy B. Lorenz.

In his will, George Halas, Jr., directed that his 30.5 shares be held in separate trusts for the benefit of his children, Stephen and Christine. In addition to naming his father executor of his estate, George Halas, Jr., also appointed his father trustee of his children’s trusts. Under article five, George Halas, Jr., expressly authorized his trustee to invest in and retain indefinitely the Bears stock and absolved the trustee of any liability for any diminution in value of the Bears stock resulting from the making or retaining of investments in the Chicago Bears. George Halas, Jr., further authorized his trustee “[t]o have with respect to trust property all the rights of an individual owner, including the power to give proxies, to participate in voting trusts, mergers, consolidations, foreclosures, reorganizations or liquidations, and to sell stock subscription or conversion rights.” (Emphasis added.) Under article eight, the executor and trustee are authorized “to elect himself or herself as a member of the Board of Directors of [the Chicago Bears] *** and to deal in an individual capacity or as a director or officer of said corporation with himself or herself as an executor hereof or a trustee hereunder.” Article eight also states that the executor and trustee may take any such action without court approval and “subject to his or her duty to act fairly, his or her actions in these respects shall be as binding and conclusive upon all of the beneficiaries hereunder as though no such relationship or possible conflict of interest existed.” (Emphasis added.)

On July 20, 1980, Thomas Chuhak was appointed guardian ad litem to represent Stephen and Christine Halas. On October 13, 1981, Mr. Chuhak obtained a court order which the parties refer to as the “Chuhak order.” That order mandated that the executor of the estate give Chuhak “30 days advance notice in writing in the event the Executor decides to sell, convey, mortgage, encumber, hypothecate or effect a redemption of any of the shares of stock issued by the Chicago Bears Club, Inc., that have been, or are hereafter, inventoried by the Executor of this Estate.”

On July 15, 1981, a special meeting of the shareholders was held during which a proposal to reorganize the Bears was discussed. Present were the shareholders and Edward McCaskey in his capacity as vice-president, Jerome Vainisi, who was the treasurer and assistant secretary, Mr. John M. Brenmer from the accounting firm of Ernst & Whinney, and counsel from the law firm of Kirkland and Ellis. The proposal called for the execution of stock exchange agreements and a merger with a newly formed Delaware corporation that would be structured to achieve various objectives for the shareholders. The purpose of the reorganization was to: (1) “freeze” the value of stock owned by Halas, Sr., and shift future appreciation to the grandchildren in order to save estate taxes; (2) maintain control of the Bears in the family; and (3) reduce income taxes on rental income derived from skyboxes that were to be built at the stadium. After the proposed reorganization was explained, the shareholders were provided with copies of the proposed stock exchange agreement and the articles of incorporation for the new corporation. A vote on the matter was tabled so that the shareholders could consult with private counsel.

On October 20, 1981, the shareholders signed a pre-organization subscription agreement providing for the exchange of their shares in the Illinois corporation for shares in a soon-to-be-formed Delaware corporation. The Chicago Bears Football Club was incorporated in Delaware the following day, and the directors of the Illinois corporation approved the subscription agreement and the stock exchange agreement. On December 7, 1981, George Halas, Sr., executed a stock exchange agreement on behalf of the testamentary trusts, which received 183 shares of class C common stock in the Delaware corporation in exchange for their 30.5 shares of common stock in the Illinois corporation. On December 16, 1981, the Illinois Bears was merged into the Delaware Bears. Notice of the reorganization was never given to the guardian ad litem or to the beneficiaries.

In his complaint, the petitioner alleged that the estate of George Halas, Jr., was injured in the reorganization by restrictions imposed upon the transfer of stock under the Delaware corporation’s certificate of incorporation that were not present in the articles of the Illinois corporation. These restrictions are contained in article six of the Delaware certificate, which provides in pertinent part as follows:

“All shares of Common Stock (including shares which have been transferred in accordance with section (d) of this Article SIXTH) shall be subject to the restrictions on transfer set forth in this Article SIXTH.
(a) Prohibited Transfers. Any transfer by or from a holder of any shares of any class of Common Stock of the Corporation (‘Shares’) or any interest in any Shares, whether voluntarily or involuntarily made, other than in accordance with section (d) of this Article SIXTH shall be a Prohibited Transfer. *** Without limiting the generality of the above, any transfer of Shares or an interest in Shares made in a manner described below (other than in accordance with section (d) of this Article SIXTH) shall be a Prohibited Transfer:
(i) by way of sale, gift, bequest, devise or other disposition;
(ii) by way of pledge or hypothecation or creation of a security interest (except as consented to in writing by the Corporation);
* * *
(b) First Refusal Notice. If a holder of Shares (herein referred to as the ‘Transferor’) proposes to transfer in any transaction which would constitute a Prohibited Transfer of any Shares or interest therein to any person, firm or entity, such Transferor shall immediately give the First Refusal Notice (as hereinafter defined) to the Corporation.
¡i* 4*
(c) Option of Corporation to Purchase. If the Corporation wishes to purchase some or all of the Shares that are proposed to be transferred as described in the First Refusal Notice, the Corporation shall give the Acceptance Notice (as hereinafter defined) to the transferor within 60 days after receiving such First Refusal Notice. The ‘Acceptance Notice’ shall: (A) state that the Corporation shall purchase, pursuant to this provision, some or all of the Shares proposed to be transferred at the First Refusal Price (as hereinafter defined) and on the terms as determined by the Board of Directors specified in the Acceptance Notice, which terms may provide for payment (in whole or in part) in the form of notes of the Corporation (in the principal amount of the First Refusal Price to be paid), and such notes may provide for principal repayment in equal annual installments over a period of up to 10 years at an interest rate of not less than 9%; (B) state the number of such Shares which the Corporation shall purchase; and (C) specify a date on which the Shares shall be purchased ***.
The ‘First Refusal Price’ per Share shall be equal to the greater of (A) the offered price per Share in the case of a bona fide written offer or agreement to purchase Shares by a third party *** or (B) the Net Fair Market Value Per Share (as hereinafter defined) ***.
(d) Permitted Transfers. Notwithstanding the foregoing, the following transfers shall be permitted (‘Permitted Transfers’):
(i) If the Transferor has given the First Refusal Notice to the Corporation, a transfer of any Shares that either (A) were not covered by a timely Acceptance Notice in response to such First Refusal Notice, or (B) with respect to which the Corporation expressly waived by the written consent of a majority of the Board of Directors its option to purchase such Shares hereunder;
(ii) transfers to any transferee or assignee within one or more of the following categories:
(A) the spouse or any lineal descendant of the Transferor,
(B) a person who is a stockholder of the Corporation at the time of the proposed transfer or any lineal descendant of the such stockholder of the Corporation or the spouse of such stockholders, or
(C) the trustee of any trust for the sole benefit of the Transferor and/or any person described in (A) and (B) above, provided such trustee is either a bank or trust company or a person described in either (A) or (B) above (or a parent of the Transferor or the Transferor’s spouse);
(iii) transfers to the Corporation pursuant to section (c) of this Article SIXTH; or,
(iv) transfers to such other transferees as the Board of Directors may approve, subject to such conditions as the Board of Directors may reasonably require.”

In contrast, the articles of the Illinois corporation imposed no restrictions upon the transfer of stock.

Following a bench trial, the trial court held that George Halas, Sr., breached his fiduciary duties by failing to give notice of the reorganization to the guardian ad litem in violation of the “Chuhak order” and by failing to protect the interests of Stephen and Christine in the reorganization. The court further held that the executor was obligated to give notice irrespective of the “Chuhak order.” In arriving at its conclusions, the trial court found, inter alia, that the reorganization: (1) permitted Halas, Sr., and Virginia McCaskey to “freeze” the values of their estates for estate tax purposes for the benefit of the 13 grandchildren, 11 of which are the children of Virginia McCaskey; (2) preserved ownership in the Bears in the Halas, Sr., and McCaskey families, whose members were salaried employees, while Stephen and Christine were nonsalaried minority shareholders; (3) terminated the subchapter S tax status of the Bears which was beneficial to the estate; (4) imposed restrictions on the transfer of stock which were nonexistent in the old corporation, thereby creating a chilling effect on the estate’s ability to sell its interest in the Bears; and (5) subordinated the estate’s class C stock to the class A and class B stock in dividend and liquidation rights. Because there were sufficient votes to bring about the reorganization without the votes of the shares held in trust for the benefit of Stephen and Christine, the trial court declined to rescind the reorganization or declare it void. The trial court held, however, that there was insufficient evidence to ascertain damages and it sua sponte reopened the case for presentation of additional evidence of damages and mitigation of damages.

Prior to the second hearing, the estate received an offer from Neil Bluhm and Judd Malkin of JMB Realty Company to purchase its Bears stock and skybox partnership interest for $17.5 million. This amount was payable over a two-year period with interest at 9^4% interest. Their offer had a present value of $15 million of which $500,000 was allocated to the skybox partnership interest. The Bears exercised its right of first refusal for the stock, but not for the partnership interest in the skyboxes. Following the second hearing, the trial court found petitioner’s evidence of damages to be “uncertain” and held that damages were “not proved to a reasonable degree of certainty.” The trial court, therefore, awarded petitioner $1 in nominal damages. The trial court further denied the petitioner’s request for attorney fees and costs.

The record reveals the following evidence pertinent to the issue of damages. The Chicago-based financial consulting and valuation firm, Duff & Phelps, Inc. (Duff & Phelps), prepared an appraisal report placing the fair market value of the prereorganization Bears at $16.5 million or $106,450 per share. Based on these figures, Duff & Phelps placed the fair market value of the estate’s shares at $3.247 million. Duff & Phelps also prepared an appraisal of the post-reorganization Bears and concluded that the stock’s value remained unchanged after the reorganization.

Mr. Nathaniel Weiner, an attorney and investment consultant, testified that the right of first refusal creates an obstacle between the owner and the potential buyer that can become a roadblock. He explained that a prospective purchaser cannot be sure he has made a deal when he agrees to terms with the owner. Because a prospective purchaser interested in buying an ownership interest in a closely held corporation such as the Bears must engage in a fair amount of preparatory work involving some expense, the right of first refusal makes it more difficult to market the shares. Weiner further testified that the 60-day waiting period can have a negative effect on the ability to market the shares depending on the volatility of the financial markets and the purchaser's need for financing. He also stated that the provision permitting the Bears to purchase some or all of the shares offered for sale enables the corporation to interfere in transactions it deems undesirable at a low cost to the corporation by using its option to purchase a small number of the shares offered for sale where the purchaser is interested in purchasing the entire block. Weiner concluded that the estate’s stock decreased in value by 20% to 40%.

Mr. Arthur Rosenbloom, an investment counselor and financial analyst, concluded that the estate’s shares depreciated in value by 23% to 27% as a result of the reorganization. His opinion was based on the following. He testified that the right of first refusal with its 60-day waiting period diminished the stock’s value by 2% to 3%. Rosenbloom further testified that the prohibited transfers diminished the value of the stock by 5% to 7%. Finally, Mr. Rosenbloom calculated that the provision entitling the Bears to issue a 10-year installment note at 9% upon exercising its right of first refusal diminished the value of the stock by 16% to 17%. On cross-examination, however, Rosenbloom conceded that the 60-day waiting period might not have any impact upon the value of the estate’s stock in view of the time it takes for the National Football League (NFL) to approve a transaction. He further failed to consider that the Bears could pay for a shareholder’s stock in a manner different than a 9% note payable over a 10-year period. Rosenbloom agreed that if a potential purchaser’s offer was itself based on a deferred payment plan, use of a 9% note payable over 10 years might subject the Bears to the risk that a court could find that the corporation’s offer failed to match the prospective purchaser’s offer. Rosenbloom also admitted that the 9% interest rate that the Bears could use to finance a purchase of shares pursuant to the right of first refusal would be beneficial to the children if another stockholder were selling. Rosenbloom further agreed that the right of first refusal is beneficial to a shareholder or prospective purchaser who is interested in increasing his proportionate interest in the Bears since the total number of outstanding shares decreases when the corporation exercises its right of first refusal. He further admitted that he did not consider that the estate’s class C stock was given dividend preferences or that all accrued “Base Annual Dividends” must be paid before the Bears can exercise its option to purchase stock. Mr. Rosenbloom also failed to consider comparable transactions or provisions in other NFL franchises.

Mr. Edgar Jannotta, a managing partner in an investment banking firm, testified that the restrictions had no impact on the value or marketability of the estate’s shares. He testified that a 20% interest in a closely held corporation such as the Bears is difficult to sell because there is no established market and that investors could earn a better return on their investments elsewhere. Jannotta also noted that the Bears own few tangible assets and that transfer of Bears stock is subject to NFL approval. He further testified that there are not many persons in a financial position to bid for the stock. Consequently, Jannotta concluded that if a prospective purchaser is willing to overcome these obstacles, the right of first refusal and its attendant provisions would not make any difference in the value of the stock. Jannotta also stated that the provision restricting the pledging of the shares had no adverse effect because the Bears stock is not acceptable collateral due to the difficulty in selling the stock in case of default.

Mr. Jerry Reinsdorf, chairman of the board of the Chicago White Sox and the Chicago Bulls, testified that he made an offer in 1985 to purchase the stock owned by James Finks and that the right of first refusal did not affect the price of the stock. Charles Brizzolara also testified that the restrictions did not affect the value of his minority interest in the Bears.

Mr. David Bramson, a certified public accountant with the accounting firm of Laventhol & Horwath, testified that the reorganization saved the estate taxes by decreasing the amount of estate tax it would have had to pay upon Halas, Sr.’s death without the reorganization. Bramson further stated that the dividend preferences favoring the class C stock owned by the estate resulted in additional dividends in 1982 and 1984 of $181,211 above what it would have received absent the reorganization and that it received $230,000 in base annual dividends when the Bears exercised its option to buy the estate’s stock. After considering the foregoing evidence, the trial court held that petitioner failed to prove damages and awarded $1 in nominal damages. The trial court also denied the petitioner’s request for prejudgment interest and legal costs.

I. RESPONDENTS’ CROSS-APPEAL

We consider first the respondents’ cross-appeal as there would be no need to reach the question of damages unless there has been a breach of fiduciary duty. On their cross-appeal, respondents argue that the trial court erroneously held that the failure to give notice constituted a breach of fiduciary duty. The respondents also argue that the trial court’s supplemental opinion modified its first opinion, the effect of which was to retract its previous statement that Halas, Sr., failed to protect the interests of Stephen and Christine in violation of his duty of undivided loyalty. The petitioner asserts that the trial judge did not modify his first opinion and that he merely chose not to reiterate all of his findings in exhaustive detail. Because it is unclear whether the trial court intended to modify its earlier findings in its supplemental opinion, we shall first consider whether George Halas, Sr., violated the duty of undivided loyalty.

As trustee, George Halas, Sr., owed a fiduciary duty to Stephen and Christine. (Collins v. Nugent (1982), 110 Ill. App. 3d 1026, 1036, 443 N.E.2d 277.) He was obligated to carry out the trust according to its terms (McCormick v. McCormick (1983), 118 Ill. App. 3d 455, 462, 455 N.E.2d 103) and to act with the highest degree of fidelity and utmost good faith (Childs v. National Bank of Austin (7th Cir. 1981), 658 F.2d 487, 490). A trustee is under a duty to serve the interests of the beneficiaries with complete loyalty, excluding all self-interest, and is prohibited from dealing with the trust property for his individual benefit. (Home Federal Savings & Loan Association v. Zarkin (1982), 89 Ill. 2d 232, 239, 432 N.E.2d 841; Childs, 658 F.2d at 490.) This rule is not, however, without exception. It is well established that a trustee may occupy conflicting positions in handling the trust where the trust instrument contemplates, creates, or sanctions the conflict of interest. (McCormick, 118 Ill. App. 3d at 464-65; Childs, 658 F.2d at 490; Morris v. The Broadview, Inc. (1946), 328 Ill. App. 267, 273, 65 N.E.2d 605. See also Goldman v. Rubin (1982), 292 Md. 693, 441 A.2d 713; In re Flagg’s Estate (1950), 365 Pa. 82, 73 A.2d 411.) The creator of the trust can waive the rule of undivided loyalty by expressly conferring upon the trustee the power to act in a dual capacity, or he can waive the rule by implication where he knowingly places the trastee in a position which might conflict with the interests of the beneficiaries. See Estate of McCredy (1983), 323 Pa. Super. 268, 297, 470 A.2d 585, 600.

In the instant case, George Halas, Jr.’s will expressly waives the duty of undivided loyalty. The trustee is given the power to elect himself a member of the board of directors of the Chicago Bears, and the trustee is authorized to “deal in an individual capacity or as a director or officer of [the Bears] with himself or herself as an executor hereof or a trustee hereunder.” The will further states that the acts of the trustee are binding and conclusive upon the beneficiaries “as though no such relationship or possible conflict of interest existed.” Even absent this language, it is clear that George Halas, Jr., authorized his father to occupy conflicting positions as he appointed his father trustee, a position he had to realize might come into conflict with his father’s duties and desires as director and shareholder of the Bears. (Cf. In re Pincus’ Estate (1954), 378 Pa. 102, 111, 105 A.2d 82, 86.) “It is a common situation, for a testator who owns what he deems a good business, to include it in a trust and to appoint as one of the trustees, an officer or employee who is familiar with the business.” (See Conant v. Lansden (1950), 341 Ill. App. 488, 502, 94 N.E.2d 594, 601.) Here, the trustee was not only the founder and president of the business, he was the testator’s father and grandfather of the testator’s beneficiaries.

Where a conflict of interest is approved or created by the testator, the fiduciary will not be held liable for his conduct unless the fiduciary has acted dishonestly or in bad faith, or has abused his discretion. (Tankersley v. Albright (N.D. Ill. 1974), 374 F. Supp. 538, 543, aff'd in part & rev’d in part on other grounds (7th Cir. 1975), 514 F.2d 956; Goldman, 292 Md. at 710, 441 A.2d at 723; In re Pincus’ Estate, 378 Pa. at 111, 105 A.2d at 86.) Further, where the will approves the conflict of interest, the burden of proof remains on the party challenging the fiduciary’s conduct as there is no presumption against the fiduciary despite the divided loyalty. (Goldman, 292 Md. at 713, 441 A.2d at 724.) Whether George Halas, Sr., abused his discretion or acted in bad faith is a question of fact, and the trial court’s findings cannot be reversed unless they are against the manifest weight of the evidence. After the trial below, the trial judge made findings of fact pertaining to the conflicting interests of George Halas, Sr., without considering that his duty of undivided loyalty had been waived in his son’s will. Nevertheless, the trial judge indicated that he found that George Halas, Sr.’s participation in the reorganization was motivated by “benevolent intentions.”

We find that the evidence supports the determination that George Halas, Sr., did not act in bad faith or abuse his discretion during the reorganization. Jerome Vainisi testified that Halas, Sr., intended to treat all of his grandchildren equally, and that he had hoped that Stephen and Christine would become active members in the corporation. The evidence also shows that Halas, Sr., sought to save estate taxes that were to accrue upon his death by “freezing” the value of his shares so that his heirs, including Stephen and Christine, could receive more upon his death. Tax planning considerations were also important to Halas, Sr., for another reason. The minutes of the special meeting at which the reorganization was proposed reveals that Halas, Sr., was concerned with the possibility that the team would have to be sold to pay his estate taxes, citing by example the sale of the Chicago Cubs baseball team by William Wrigley, Jr., to pay the estate taxes on his father’s estate.

The evidence further reveals that the reasons for discontinuing the election to be taxed under subchapter S were two fold. First, although the subchapter S tax status of the Bears was beneficial to the estate, a corporation cannot avail itself of the subchapter S benefits where a testamentary trust is a shareholder. Second, a corporation cannot be taxed under subchapter S where the corporation is owned by more than 15 shareholders. Although there were fewer than 15 shareholders before the reorganization, the Bears decided to create a partnership consisting of various holding companies and corporations so that the shareholders, including Stephen and Christine, could take advantage of the marginal tax rates by dividing the skybox income among the various entities in the partnership. Therefore, we find that there was no bad faith or abuse of discretion on the part of George Halas, Sr.

We now turn to the respondents’ contention that the failure to give notice of the reorganization was not a breach of fiduciary duty. The trial court, relying upon this court's decision in In re Estate of Halas (1987), 159 Ill. App. 3d 818, 512 N.E.2d 1276, held that Halas, Sr.’s failure to give notice was a violation of the Chuhak order. In In re Estate of Halas (hereafter Halas I), the estate’s successor executor, A. Gerson Miller, Stephen and Christine Halas, and the children’s mother, Therese Halas, objected to the fee petition of the law firm of Kirkland and Ellis, the original law firm representing the estate. The law firm had requested $957,099.05 in attorney fees and appealed the trial court’s award of $535,000. On appeal, this court found, among other findings, that bad faith on the part of Kirkland and Ellis was evidenced by its violation of the Chuhak order. The opinion noted, as does petitioner, that the stock exchange agreement itself refers to the “conveyance” and transfer of the shares. In re Estate of Halas, 159 Ill. App. 3d at 826.

The respondents argue that Halas I is not binding and should not be controlling here. The petitioner concedes that Halas I has no res judicata effect in this case as respondents were not parties in that case or in privity with the parties in that case. The respondents note that this court made no findings in Halas I regarding Halas, Sr.’s conduct and assert that Halas I was based on a different record that is incomplete with respect to the reorganization and the meaning and intent of the Chuhak order. The respondents also contend that the trial court in the instant case gave an overly broad interpretation of the Chuhak order which had been entered by another judge. They maintain that the trial judge erroneously refused to consider evidence establishing the purpose of the Chuhak order, which they assert was entered only to alleviate Mr. Chuhak’s concerns that the grandchildren’s shares would be sold pursuant to a section 303 redemption. The record reveals that the trial judge refused to consider extrinsic evidence because he found the Chuhak order clear and unambiguous.

We agree that the Chuhak order covered the reorganization and that the failure to give notice was a violation of that order. Where a court order is clear and unambiguous, the intention of the court is determined only by the order itself and is not subject to construction. (Governale v. Northwest Community Hospital (1986), 147 Ill. App. 3d 590, 593, 497 N.E.2d 1318.) The Chuhak order states that notice is required if the “Executor decides to sell, convey *** any of the shares of stock issued by [the] Chicago Bears.” In order to implement the reorganization, the executor had to convey the children’s shares in the Illinois Bears to the Delaware corporation in exchange for newly issued shares of the Delaware corporation. As mentioned earlier, even the stock exchange agreement refers to the transfer of stock as a conveyance. Under the terms of section 2.1 of the stock exchange agreement:

“Each shareholder *** agree[d] to transfer to the Delaware Company at the Closing the number of shares of common stock of the Illinois Company shown opposite such Shareholder’s name on Exhibit A, in exchange for the number of shares of voting Common Stock (either Class A, Class B, Class C or Class D as specified) of the Delaware Company as is shown opposite such Shareholder’s name on Exhibit A.”

The stock exchange agreement further stated in section 2.3:

“At the Closing and from time to time thereafter, the Shareholders shall execute such additional instruments of conveyance and transfer and take such other action as the Board of Directors of the Delaware Company (the ‘Board’) may request in order more effectively to complete the exchange contemplated herein.”

Further, although Halas I has no res judicata effect here, it is persuasive authority. The respondents correctly assert that in Halas I, this court held only that the trial court did not abuse its discretion in reducing attorney fees. However, in arriving at that conclusion, the court found that the failure to give notice was a violation of the Chuhak order. And although Halas I was concerned only with the conduct of Kirkland and Ellis, the court still had to first determine that the transactions made in the reorganization were covered by the Chuhak order before it could find that Kirkland and Ellis acted in bad faith for violating the order. Therefore, it follows that George Halas, Sr., violated the Chuhak order when he failed to give notice to the guardian ad litem.

The trial court further stated, however, that George Halas, Sr., was obligated to give full disclosure of the reorganization notwithstanding the Chuhak order. The trial court is correct. It is well established that a trustee owes a duty of full disclosure to the beneficiaries. (Greene v. First National Bank (1987), 162 Ill. App. 3d 914, 920, 516 N.E.2d 311; In re Sedgwick’s Will (1944), 74 Ohio App. 444, 461, 59 N.E.2d 616, 624; G. Bogert, Trusts & Trustees §961, at 2-3 (2d ed. rev. 1983).) As stated in the Restatement (Second) of Trusts:

“Ordinarily the trustee is not under a duty to the beneficiary to furnish information to him in the absence of a request for such information. As to his duty to render accounts, see §172. In dealing with the beneficiary on the trustee’s own account, however, he is under a duty to communicate to the beneficiary all material facts in connection with the transaction which the trustee knows or should know. See §170(2). Even if the trustee is not dealing with the beneficiary on the trustee’s own account, he is under a duty to communicate to the beneficiary material facts affecting the interest of the beneficiary which he knows the beneficiary does not know and which the beneficiary needs to know for his protection in dealing with a third person with respect to his interest.” Restatement (Second) of Trusts §173, comment d, at 378-79 (1959).

The respondents argue, however, that Halas, Sr., should not be charged with a breach of fiduciary duty because there was no evidence of bad faith, and he was following advice of counsel. Respondents maintain that Halas, Sr., was doing what he believed was in the best interests of the beneficiaries as his only motive for concealing the reorganization was to avoid any delays so that the children would be able to benefit from the estate tax savings that the reorganization would afford them upon his death. According to respondents, Halas, Sr., had anticipated that the children’s mother would challenge the reorganization because she had previously instituted litigation against her former husband’s estate on behalf of the children. These contentions are without merit. Professor Scott states the following on this point:

“Where the trustee makes a mistake of law as to the extent of his duties or powers as trustee, it is no defense that he relied upon the advice of an attorney, even though the attorney was competent or the trustee reasonably believed that he was competent. *** The subjection of the trustee to liability where he is not at fault in making the mistake may seem harsh. He can, however, escape liability by submitting the matter to the court for its instructions. If he is in doubt as to his duties or powers, he can thus avoid the risk of acting on his own opinion or on that of his attorney.” (3 A. Scott, The Law of Trusts §201, at 221 (Fratcher 4th ed. 1988).)

(See also Restatement (Second) of Trusts §201, comments b, c (1959).) Accordingly, we conclude that George Halas, Sr., breached his fiduciary duty when he failed to give notice of the reorganization.

II. PETITIONER’S APPEAL

Petitioner appeals from the trial court’s award of $1 in nominal damages and its denial of attorney fees and costs. When a breach of trust is established, the trustee is liable for: (1) any loss or depreciation in value of the trust; (2) any profit made by him through the breach of trust; or (3) any profit which would have accrued to the trust absent the breach of trust. (Restatement (Second) of Trusts §205 (1959).) The claimant carries the burden of proving damages to a reasonable degree of certainty, and evidence of damages cannot be remote, speculative, or uncertain. (Rosos Litho Supply Corp. v. Hansen (1984), 123 Ill. App. 3d 290, 300, 462 N.E.2d 566.) Where a party establishes a right to damages, but fails to prove damages, only nominal damages are recoverable. (Rosos Litho Supply Corp., 123 Ill. App. 3d at 300.) On appeal following a bench trial, a reviewing court cannot reverse the trial judge’s determination of damages unless that determination is against the manifest weight of the evidence. Jones v. Her itage Pullman Bank & Trust Co. (1987), 164 Ill. App. 3d 596, 603, 518 N.E.2d 178; Schoenberger v. Chicago Transit Authority (1980), 84 Ill. App. 3d 1132, 1136, 405 N.E.2d 1076.

The petitioner argues that the trial court erred in limiting the measure of damages to the depreciation of the estate’s stock, and that he was entitled to present evidence on the gain realized by George Halas, Sr., as a result of his breach of fiduciary duty. The record shows, however, that petitioner never attempted to present evidence relating to this theory of damages, nor did petitioner seek a ruling by the trial court on this point. If an issue is not argued before the trial court, it cannot be argued for the first time on appeal. Printback, Inc. v. Container Technologies, Inc. (1984), 124 Ill. App. 3d 568, 575, 464 N.E.2d 298.

The petitioner further contends that the trial court erroneously set the time at which damages must be measured and that as a consequence of that error, the trial court erred in holding that petitioner “failed to establish a proper basis from which damages can be computed.” This contention is without merit, however, as the petitioner misconstrues the trial court’s supplemental opinion. Read in its entirety, the trial court’s supplemental opinion shows that the trial court found that the petitioner failed to meet his burden of proof. The trial judge did not reject any particular period of time for measuring damages. He stated that damages may be measured by the values of the Bears stock with and without the restrictions as of the time of the breach or within a reasonable time thereafter. The trial court accepted the value of the unrestricted stock in 1981 as determined by Duff & Phelps. The trial court found, however, that the analysis of the petitioner’s expert, Mr. Rosenbloom, regarding the value of the restricted stock after the reorganization in 1981 was uncertain and, therefore, damages were not proved to a reasonable degree of certainty. The trial judge also indicated that he accepted the purchase price for the sale of James Finks’ stock in 1985 and the purchase price for the sale of the children’s stock in 1988 as the value of the restricted stock in 1985 and 1988. However, the trial court found that petitioner failed to establish what the value of the stock would have been in 1985 or 1988 had the reorganization never taken place. The trial court therefore awarded $1 in nominal damages. The trial court never ir„ licated any preference for one valuation date over that of any other and did not restrict petitioner to any particular time for measuring damages.

The question then is whether the trial court’s award of $1 in nominal damages is against the manifest weight of the evidence. Where there is conflicting evidence, it is within the province of the trial judge, as trier of fact, to weigh the evidence. (Schoenberger, 84 Ill. App. 3d at 1136.) For a judgment to be found to be against the manifest weight of the evidence, the appellant must present strong and convincing evidence sufficient to overcome the evidence existing in favor of the appellee. (Schoenberger, 84 Ill. App. 3d at 1136.) In the present case, the trial judge found many flaws in Mr. Rosenbloom’s analysis of the diminution in value of the estate’s stock. Rosenbloom determined that the right of first refusal diminished the estate’s stock by 2% to 3%. In making that determination, however, Rosenbloom failed to consider that a right of first refusal is advantageous to someone who wanted to increase his proportionate interest in the Bears. Rosenbloom also did not examine the offer to purchase the estate’s shares by Neil Bluhm and Judd Malkin. Their offer to purchase the shares was conditioned upon obtaining a secondary right of first refusal for Bears stock, indicating that rights of first refusal can be considered a benefit rather than a detriment. There was also additional evidence that the typical waiting period for NFL approval for such transactions was rarely less than 30 days and, therefore, the 60-day waiting period within which the Bears could exercise its right of first refusal was relatively insignificant. Rosenbloom also failed to take into account the dividend preferences favoring the estate and that base annual dividends must be paid before the Bears can exercise the right of first refusal. Rosenbloom also determined that the prohibited transfers, i.e., pledging stock, diminished the value of the stock by 5% to 7%. The trial court rejected this conclusion, noting that James Finks had testified that the restrictions did not have any adverse effect on his ability to sell his shares at a fair price. Jerry Reinsdorf, who had made the offer to purchase James Finks’ stock in 1985, testified that the article six restrictions had no effect on his bid to purchase the stock. Rosenbloom further testified that the installment provision diminished the stock’s value by 16% to 17%. However, Rosenbloom conceded that the Bears could match the refusal price on terms different than those expressed in article six. He admitted that if an offer itself was based on installment payments, the Bears might not be deemed to have matched the offer if it utilized the terms in the installment provision in exercising the right of first refusal. We therefore conclude that the trial court’s determination is not against the manifest weight of the evidence.

The petitioner also contends that the trial court erred in denying attorney fees and costs. Citing In re Estate of Corrington (1888), 124 Ill. 363, 369, 16 N.E. 252, and Marshall v. Coleman (1900), 187 Ill. 556, 586, 58 N.E. 628, petitioner maintains that George Halas, Sr., should be surcharged for the legal expenses incurred by the beneficiaries as a result of his wrongdoing. In In re Estate of Corrington, it was stated: “If the willful misconduct of the executor, or his gross negligence in conducting his trust, rendered litigation necessary for the preservation of the rights of the distributees, it is manifestly just that he should bear the expense, rather than it should fall upon them.” (In re Estate of Corrington, 124 Ill. at 369.) As the court in In re Estate of Corrington noted, however, the decision to award attorney fees and costs is within the sound discretion of the trial court. (In re Estate of Corrington, 124 Ill. at 369.) Based on his finding that George Halas, Sr., acted with “benevolent intentions,” the trial judge refused to award attorney fees and costs. Under the facts of this case, we do not find that the trial court’s denial of attorney fees and costs was an abuse of discretion.

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

Judgment affirmed.

RIZZI and WHITE, JJ., concur.