author: JUSTICE COLWELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES TACKETT, Defendant-Appellant.
    Second District
    No. 2 — 91—0866
    Opinion filed July 9, 1993.
    G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Beth Katz, of Evanston, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan, Brian L. Buzard, of Mt. Morris, and Jay Wiegman, of Springfield (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COLWELL

delivered the opinion of the court;

Defendant, Charles Tackett, was found guilty of aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12— 14(b)(1)) and sentenced to the Department of Corrections (DOC) for a term of six years. Defendant appeals, alleging the trial court erred in denying his pretrial motion to suppress his statements confessing to the crime. We affirm.

A Lake County information charged that defendant, who was 17 years of age or older, knowingly committed an act of sexual penetration with C.M., who was under 13 years of age when the act was committed, in that defendant placed his finger in the vagina of C.M. Mark Pleasant, an investigator with the Illinois Department of Children and Family Services (DCFS), and Len Brezinski, a detective with the Lake County sheriffs department, first questioned defendant on October 24, 1990, at the Round Lake police station. Defendant, who was 19 years of age at the time of arrest, signed a waiver of his Miranda rights and then signed a statement he provided to the authorities after they had talked for about an hour. Such statement fully admitted his digital penetration of C.M.’s vagina on October 22, 1990. C.M. was a two-year-old child that defendant baby-sat regularly. The statement also said defendant voluntarily agreed to talk with Brezinski and Pleasant and that “Det. Brezinski told me what all of my legal rights are and I understand all of them. I have not been threatened or promised anything.” Defendant’s statement revealed that he was himself molested on more than one occasion as a child. Defendant’s statement indicated that he had read it, understood it, and had been given the chance to make changes and corrections. He was then returned to his sister’s house.

Defendant was formally arrested the following day and transported to the sheriff’s department in Waukegan, where he made a second statement to the same authorities. Defendant’s second statement added that he had also digitally penetrated C.M.’s vagina on October 19, 1990.

Defendant filed a motion to suppress such statements on December 19, 1990. Defendant’s motion alleged: (1) that his statement on October 24, 1990, was not made with a knowing and intelligent waiver of his right to remain silent or his right to counsel; (2) that this statement was made as a result of improper inducements by the officials; and (3) that the initial questioning was conducted in violation of the defendant’s right to be advised of his Miranda rights. Defendant further alleged that his second statement from October 25, 1990, should also be suppressed since it violated defendant’s rights and was tainted by defendant’s coerced statements on October 24, 1990.

Linda Bresolin, a clinical psychologist, testified at the May 30, 1991, hearing on defendant’s motion that she administered a battery of psychological tests to defendant at his counsel’s request. She concluded defendant was in the borderline range of intellectual functioning and scored a full scale IQ of 74. Bresolin explained that an IQ of 80 is in the below average range and an IQ of 69 indicates mental retardation. Bresolin noted that defendant frequently asked her to repeat the instructions given to him during testing.

Pleasant testified he was assigned to investigate the alleged sexual assault on C.M. Pleasant and Brezinski located defendant at his sister’s home on October 24, 1990, where he was baby-sitting his four-year-old nephew. They informed defendant they were investigating the allegations concerning C.M. and wished to speak with him at the Round Lake police department. Defendant was concerned about leaving the home since his sister would be home soon and would wonder where he and his nephew were. Pleasant offered to contact defendant’s sister when they reached the station. Pleasant testified he did not conduct the interview in the home because he did not want the four-year-old to be present and no typewriter would be available at the house to take a statement from defendant if necessary.

The officers gave defendant his Miranda warnings at the station before defendant made any statements. Brezinski read defendant his rights one at a time and asked defendant to initial each one on the Miranda form or inform Brezinski if he did not understand. Defendant initialed each statement and signed the form waiving his Miranda rights. After a 40- to 60-minute discussion with the officers, defendant admitted to having committed the offense. Defendant also told the officers he had been abused as a child and indicated he needed help. Pleasant said he then gave defendant the name of a clinic which might aid defendant in counseling. Defendant signed his statement and the officers returned him to his sister’s home. The following day, the officers returned to arrest defendant. The officers readvised defendant of his Miranda rights. Defendant then made an oral statement that was reduced to writing and signed by him. Pleasant testified that no threats or promises were made to induce defendant into making the statement. Brezinski’s testimony substantially corroborated that of Pleasant. Defendant motioned at that time for a directed verdict which was denied.

Defendant testified he thought the officers were from the “Children and Families Association” and that they wanted to talk to him at the beach. He said the officers indicated they were there to help defendant. Defendant said he thought the officers were there to help children and he considered himself a child. Pleasant gave him the name of a doctor or clinic on the day of the first interview. Defendant did not read the form waiving his Miranda rights before he signed it. Defendant admitted he knew what was written in his

statement of confession before he signed it. Defendant said he also gave the second statement on October 25 because he trusted the officers and thought they would help him. Defendant stated that he had been in special education throughout his schooling. He had finished high school and received mostly A’s and B’s.

The court denied defendant’s motion and commented:

“There is no doubt in this case that he [defendant] was given his Miranda warnings, and there was no testimony from the defendant that he did not understand those warnings.
This case [sic], the police did not attempt to mislead the defendant by indicating that they had evidence, that they did not have, or misstating evidence about the case to the defendant. * * *
* * *
I think the defendant may well in fact have misapprehended some of the circumstances surrounding what was going on, however, that’s not really the standard.
In all the cases cited by the defense, and all the cases that I was able to find, there was some activity or intent on the
police to in some way deceive the defendant.
* * *
Although I find that the defendant may have perceived the situation, there is no — there has been no testimony that he did not know and understand what his rights were ***.
The defendant may in fact have not completely understood everything that was going on around him, okay, but I find that there was no attempt or there was no action from the police that led him to those conclusions.”

Defendant was later found guilty after a stipulated bench trial and sentenced to six years of imprisonment.

Defendant contends on appeal that his age and intellectual level, combined with the officers’ promise to aid him with counseling, induced him to confess to the offense herein, thus rendering his statement to the police involuntary and inadmissible in evidence. A statement of confession must be voluntary in order to be admissible. (People v. Bernasco (1990), 138 Ill. 2d 349, 357.) The test for voluntariness is whether such statement was made freely and without inducement of any sort or whether defendant’s will was overcome at the time he confessed. (People v. Kokoraleis (1986), 149 Ill. App. 3d 1000, 1007.) A court must consider the “totality of the circumstances” to determine whether a statement has been given voluntarily. (Kokoraleis, 149 Ill. App. 3d at 1007.) Such circumstances include defendant’s mental ability, familiarity with the English language, age, education, and experience. (Bernasco, 138 Ill. 2d at 365; People v. Berry (1984), 123 Ill. App. 3d 1042, 1044.) Courts should also consider the duration of questioning and determine whether defendant received his constitutional rights or was subjected to any physical punishment. (In re T.S. (1986), 151 Ill. App. 3d 344, 350.) The trial court’s decision on whether a defendant’s confession is voluntary will not be overturned on appeal unless it is against the manifest weight of the evidence. Kokoraleis, 149 Ill. App. 3d at 1007.

Defendant contends his borderline intellectual functioning allowed the officers to induce him to confess to the offense by promising to help defendant find counseling to overcome the sexual abuse he had suffered as a child. Subnormal mentality does not ipso facto make a confession involuntary where the subnormality has not deprived the defendant of the ability to understand the meaning and ramifications of his confession. (People v. Abernathy (1989), 189 Ill. App. 3d 292, 307.) Evidence of limited mental capacity alone does not indicate that a defendant is incapable of waiving his constitutional rights and making a voluntary confession (People v. Ellison (1984), 126 Ill. App. 3d 985, 992; Kokoraleis, 149 Ill. App. 3d at 1013); rather, it is only one of the issues to be considered in reviewing the totality of the circumstances under which a confession is made. The trial court is in a better position than a reviewing court to evaluate a defendant’s ability to understand his rights. Abernathy, 189 Ill. App. 3d at 307.

Here, the officers informed defendant from the beginning that they wished to speak about the sexual abuse allegations regarding C.M. Defendant read and indicated he understood the waiver form which he signed before any questioning commenced at the police station. The record shows that defendant read over and corrected the contents of his statements before signing them. He admitted at trial that he knew what the statements said. Pleasant testified that he gave defendant the name of a clinic which might be able to assist defendant with counseling but did not do so until defendant indicated he needed help. Neither Pleasant nor Brezinski threatened or promised defendant anything in order to procure his statements. A review of the totality of the circumstances surrounding defendant’s statements demonstrates that defendant voluntarily confessed to the instant offense. We do not find that the officers’ attempt to find counseling for defendant added a deceptive atmosphere to the interview.

The record supports the trial court’s finding that defendant’s borderline intellectual functioning did not interfere with his ability to comprehend the meaning of a voluntarily made statement and, therefore, his statements were admissible. We find it significant that the trial court here reached its conclusion after hearing official police and psychological testimony and that the court made its own observations of defendant while he was testifying. (See Bernasco, 138 Ill. 2d at 368.) We conclude that the State has proven by a preponderance of the evidence that defendant voluntarily provided a statement of confession to the instant offense.

The cases cited as support by defendant can be distinguished. In Berry, the police conduct toward the defendant bordered on deception. The police interrogated defendant about an unrelated offense and fabricated evidence of defendant’s latent fingerprints found at the scene in order to obtain a confession. (See Berry, 123 Ill. App. 3d at 1045.) In T.S., respondent was falsely informed that witnesses would testify against him and that certain pieces of evidence would link him to the crime. Respondent was also falsely informed that the police had a videotape of respondent entering and exiting the crime scene and that if respondent “cooperated” he would not be arrested. (See T.S., 151 Ill. App. 3d at 351.) Here, there is no indication defendant was deceived into making a confession. The testimony at trial indicated the officers merely responded to defendant’s request for help by giving him the name of a counseling clinic, rather than using the possibility of treatment as an inducement to confess. Therefore, we find that the trial court did not err in denying defendant’s motion to suppress.

For the foregoing reasons, we affirm the decision of the circuit court of Lake County.

Affirmed.

INGLIS, P.J., and DOYLE, J., concur.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
      In re MARRIAGE OF YONG SUN LEE, Petitioner-Appellee, and JOHN C. LEE, Respondent-Appellant.
    Fourth District
    No. 4 — 92—0859
    Argued May 11, 1993.
    Opinion filed June 29, 1993.
    Rehearing denied July 29, 1993.

      Darrell E. Statzer, Jr. (argued), of Wilson, Dyar, Moss & Statzer, and Michael I. Campbell, of Hull, Campbell & Robinson, both of Decatur, for appellant.

      Frederick P. Erickson (argued), of Erickson, Davis, Murphy, Griffith & Walsh, Ltd., of Decatur, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Respondent, Dr. John Lee, appeals the provisions of the circuit court of Macon County’s order of dissolution regarding custody, child support, maintenance, and apportionment of marital assets. We affirm.

I. Facts

John and Yong Sun Lee were married in Korea on December 24, 1973. Both parties completed their formal education prior to the marriage. John is a medical doctor, and Yong Sun has a master’s degree in commercial art. After the marriage, the parties lived together for one week in Korea, were separated for five months, and then lived together for three months in Los Angeles. The parties then moved to Iowa City, Iowa, where John completed a four-year residency in ophthalmology. John’s salary during his residency was approximately $15,000 to $21,000 per year; John earned about the same amount by “moonlighting.” Yong Sun was employed as a commercial artist during most of this time. Her earnings were small, and she gave them to John, who managed the couple’s finances. The Lees’ first child, Anna, was born in 1978. After the birth of Anna, the Lees moved to Washington, D.C., where John had a fellowship for further specialization in the ophthalmology field. John earned $25,000 to $30,000 per year during his fellowship. Yong Sun did not work while the parties lived in Washington, D.C, but stayed home to care for Anna.

In 1979 the Lees moved to Decatur, where John began his medical practice. Erick was born in 1981. Yong Sun found employment three months after they arrived in Decatur. From that time until 1985, Yong Sun was employed as a commercial artist and in a clothing store. In 1985, Yong Sun opened her own business, a clothing store. At first Yong Sun gave her earnings to John, but after a while she retained them.

Beginning in 1985, John refused to file a joint income tax return with Yong Sun, and did not discuss the details of his income and financial affairs with her. John gave Yong Sun money for the purchase of items for the house. There were additionally infrequent extravagant expenditures; for example, John gave Yong Sun a diamond sapphire ring worth $9,000, a diamond watch worth $4,000, a diamond and pearl ring worth $5,000, and a replacement wedding ring worth $20,000. The exhibits introduced at trial indicate John’s gross income was $341,637 in 1991, $355,568 in 1990, $458,805 in 1989, and $401,811 in 1988, for an average of $389,455.25 per year. Yong Sun’s gross income for the same time period averaged $19,000 per year.

In 1986, John began transferring marital funds to his children for college savings. Yong Sun was not advised of the transfers to the children. In 1986, 1987, and 1988 John transferred $10,000 to Totten trusts, one for the benefit of each child. Thus, in 1986 through 1988, John transferred a total of $20,000 per year to his children. In late 1989, the Lees were undergoing marital difficulties and were discussing separation and divorce. On October 11, 1989, John used $81,404 of marital funds to purchase college bonds for Anna. On December 11, 1989, John used $45,315 of marital funds to purchase college bonds for Erick. On December 22, 1989, two weeks before the Lees separated, John transferred $20,000 of marital funds to each child’s Totten trust, for a total of $40,000. On January 4, 1990, the day of separation, John transferred $100,000 to an irrevocable trust for the benefit of Erick and Anna, naming John’s relatives as contingent beneficiaries.

Yong Sun filed for divorce in 1979 and 1987. However, she indicated she did not follow through with these actions due to her upbringing, her failure to realize their situation would not improve, and John’s indications things would improve. John and Yong Sun obtained counseling at the Mayo Clinic in Minnesota in 1988, a counseling center in Florida in 1990, and locally. John testified he did not believe he had a problem, but believed Yong Sun is emotionally unstable. Yong Sun has been prescribed psychiatric drugs, but does not take them.

The parties separated in January 1990. Yong Sun filed this action in February 1990. During the pendency of this action numerous petitions have been filed regarding visitation, support, orders of protection, and the like. Anna, the eldest child, died during this time.

At trial the contested issues regarded custody of Erick, support, and the valuation and apportionment of marital assets. The parties testified they had marital difficulties since the inception of the marriage. Yong Sun testified John began beating her within a week of her arrival in the United States, and the beatings continued on a daily basis for 15 years. Yong Sun testified she kicked John in self-defense. John denied beating Yong Sun, but testified he believed her to be a great actress. According to John, Yong Sun would fall down when in close proximity to him, to convey the illusion to others that he had struck or pushed her. Erick testified he had witnessed John hitting Yong Sun. Erick additionally testified the only times he saw Yong Sun hit John were when John was shoving or hitting her.

Evidence of erratic behavior on the part of both parties was presented. Several witnesses, including the parties, testified to public confrontations between John and Yong Sun regarding visitation. Testimony was introduced regarding John forcing the children into his van and driving the van back and forth rapidly; John testified Yong Sun had ripped a telephone from the wall and knocked over furniture.

The trial court awarded custody of Erick to Yong Sun, subject to John’s right to visitation, and ordered John to pay $3,000-per-month child support, and $2,000-per-month maintenance. The trial court found John dissipated marital assets and had a greater earning potential than Yong Sun. Accordingly, the trial court awarded Yong Sun a greater share of the marital assets. Yong Sun was awarded the marital home ($130,000 less a $60,000 mortgage), her business ($40,000), jewelry ($38,000), her car ($7,500 to $10,000), the Merrill Lynch account ($130,000 less a fee award of $20,000 to her attorney), the Fidelity money market account ($133,000), the Shearson-Lehman account ($50,000), Anna’s Shearson-Lehman account ($82,000), half of the pension and profit-sharing plans ($200,000), and half of the individual retirement accounts (IRAs) ($12,500). John was awarded his medical practice ($400,000), half of his pension and profit-sharing plans ($200,000), and half of the IRAs ($12,500). Yong Sun was awarded the contents of the marital residence and John was awarded the contents of his apartment. John appeals.

II. Division Of Marital Property

John alleges the trial court erred in apportioning the marital property, because (1) its finding he had dissipated assets was against the manifest weight of the evidence, (2) its findings regarding the valuation of his medical practice were against the manifest weight of the evidence, and (3) the award of more marital assets to Yong Sun than to him was not equitable.

A. Dissipation

John argues the trial court erred in finding he dissipated marital assets by transferring $166,719 of marital assets to the children during the three months of the marriage prior to separation, and $100,000 to an irrevocable trust for the benefit of the children, with his niece and nephew named as contingent beneficiaries, on or about the day of separation. John argues these transfers, totaling $266,719, did not constitute a dissipation of marital assets because they were not for his sole benefit and for a purpose unrelated to the marriage. A trial court’s allocation of marital property, including making allowances for dissipation, will not be reversed absent an abuse of discretion. Such discretion will be considered abused only when no reasonable person would agree with the decision reached by the trial court. In re Marriage of Hagshenas (1992), 234 Ill. App. 3d 178, 194, 600 N.E.2d 437, 448.

One of the factors considered by the trial court in determining the allocation of marital property is the dissipation by each party of the marital or nonmarita! property. (Ill. Rev. Stat. 1991, ch. 40, par. 503(d)(1).) The statute does not define “dissipation”; however, the Illinois Supreme Court has held dissipation refers to the “ ‘use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time that the marriage is undergoing an irreconcilable breakdown.’ ” (In re Marriage of O’Neill (1990), 138 Ill. 2d 487, 497, 563 N.E.2d 494, 498-99, quoting In re Marriage of Petrovich (1987), 154 Ill. App. 3d 881, 886, 507 N.E.2d 207, 210.) Whether a given course of conduct constitutes dissipation within the meaning of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 101 et seq.) depends on the facts of the particular case. In re Marriage of Drummond (1987), 156 Ill. App. 3d 672, 683, 509 N.E.2d 707, 715.

A transfer of marital assets does not escape classification as dissipation merely because it is to, or for, the benefit of children of the marriage. Expenditures for the children’s immediate reasonable needs is a permissible use of marital funds. However, excessive expenditures, even if for a permissible purpose, may constitute a dissipation of marital assets. (See Hagshenas, 234 Ill. App. 3d at 197, 600 N.E.2d at 451.) In Hagshenas, the court indicated one spouse’s expenditures for his or her living expenses during the breakdown of the marriage would be a proper use of marital funds. However, the court stated:

“It is entirely within the realm of possibility that one spouse’s use of marital funds for his or her own living expenses at a time when the marriage is undergoing an irreconcilable breakdown could be shown to be so selfish and excessive and improper as to constitute an outright waste of marital funds.” (Hagshenas, 234 Ill. App. 3d at 197, 600 N.E.2d at 451.)

In a similar vein, a transfer of $266,719 to two children, aged 8 and 11, may be considered so in excess of their reasonable needs that its primary purpose was for John’s desire to remove marital assets from the reach of Yong Sun. Accordingly, such a transfer may be regarded as a dissipation of marital assets.

John argues where one spouse has a pattern of conveying marital assets to another which was established prior to the breakdown of the marriage, conveyances which are part of that pattern, made during the breakdown of the marriage, should not be considered to be dissipation of marital assets. While this argument may be acceptable in the appropriate case, we find John’s pattern of conveying $10,000 per year, per child for savings and educational purposes does not support the transfer of $266,719 to the children in the three months before the separation of the parties. In re Marriage of Aud (1986), 142 Ill. App. 3d 320, 491 N.E.2d 894, cited by John does not convince us otherwise.

In Aud, the trial court found the husband’s expenditure of nearly $70,000 of marital funds for the support of his mother was not a dissipation of marital assets. Two of the reasons advanced by the trial court for this holding were (1) the husband spent approximately the same amount for his mother’s support for years prior to the breakdown of the marriage, and (2) the wife did not object to the expenditures at the time they were made. (Aud, 142 Ill. App. 3d at 331, 491 N.E.2d at 901.) Neither of these factors is present in this case. First, the amount conveyed by John in the months prior to the separation was not comparable to the yearly amounts previously transferred. Rather, respondent’s conveyances to the children in the three months prior to the separation exceeded his normal annual conveyance by $246,719. At trial respondent testified the reason for a larger than normal conveyance was that in October and December 1989, he was offered a rare opportunity to purchase college bonds. He determined he should take advantage of this opportunity and purchased bonds at a cost of $126,719. However, respondent’s testimony regarding this “rare opportunity” was not corroborated. Moreover, even if accepted as true, it does not explain the sudden cash transfer of $40,000 to the children, or $100,000 to a trust for the benefit of the children.

Second, unlike the situation in Aud, where the other spouse was aware of the conveyances but did not object, Yong Sun did not acquiesce to the conveyance of marital assets to the children. Nor did Yong Sun have an opportunity to object, because she was not apprised of the conveyances. Aud is not applicable to the facts of this case. We conclude John’s practice of transferring $20,000 per year to the children does not establish the conveyance of $266,719 to the children in the three months prior to separation was part of an established pattern, rather than a dissipation of marital assets.

Finally, we note the expenditure did not benefit the joint marital enterprise, but, rather, was of primary benefit to John. As Yong Sun correctly notes, although the funds were transferred for use by the children for their education, this is an expense which would most likely have been borne by John. Thus, by funding the children’s education with marital funds, John has effectively shifted a portion of the children’s educational expense from himself to Yong Sun.

Simply put, were there no accounts, bonds, or trusts established for the education of the children, it is probable that John, who had an average gross income of $389,455 in the four years prior to the dissolution, as opposed to Yong Sun’s less than $20,000, would bear the bulk of the higher educational expenses of the children. Assuming an equal distribution of marital assets, $133,359.50 of the $266,719 conveyed by John would have been awarded to Yong Sun. Thus, if the transfer is not regarded as a dissipation, John has effectively shifted $133,359.50 of the children’s educational expenses from himself to Yong Sun.

Moreover, as Yong Sun also correctly notes in her brief, to allow spouses to make transfers of marital assets which automatically escape dissipation treatment if made to the parties’ children invites vindictive spouses to make such transfers for the primary purpose of depriving the other spouse of the use of his or her fair share of the marital estate. The result is particularly unequitable, where, as in the present case, the spouse making the unilateral decision to transfer marital funds earns in excess of $300,000 per year and may replenish his share of the marital assets transferred, while the other spouse, earning a substantially lower income, may never be able to replenish her share of the marital assets transferred.

For the foregoing reasons, we affirm the trial court’s finding John’s transfer of $266,719 to the children, in the three months prior to the separation of the parties, was a dissipation of assets, and was properly considered by the trial court in determining the amount, of the remaining marital assets, to apportion to Yong Sun.

B. Valuation of the Medical Practice

John contends the trial court’s valuation of the medical practice at $400,000 was against the manifest weight of the evidence. The valuation of assets in an action for dissolution of marriage is a question of fact for the trial court to determine. Any conflicts in testimony concerning the valuation of such assets are matters to be resolved by the trier of fact. (In re Marriage of Tietz (1992), 238 Ill. App. 3d 965, 975, 605 N.E.2d 670, 677.) A valuation within the range testified to by the parties’ experts will not be disturbed on review. In re Marriage of Stone (1987), 155 Ill. App. 3d 62, 71, 507 N.E.2d 900, 905.

Both parties presented expert testimony regarding the valuation of John’s medical practice, by certified public accountants. Yong Sun’s expert valued the medical practice between $451,972 and $546,425. John’s expert valued the medical practice between $367,000 and $467,000, if accounts receivable were included, and $100,000 and $249,000 if accounts receivable were not included. Thus, since the trial court’s valuation of the medical practice at $400,000 is below the range testified to by Yong Sun’s expert and within the range testified to by John’s own expert if accounts receivable are included, John will, only be heard to complain if accounts receivable are not properly included in the valuation of a medical practice in a dissolution action.

Accounts receivable should be included in the valuation of a business. (See generally Stone, 155 Ill. App. 3d at 72, 507 N.E.2d at 906-07.) In In re Marriage of Zells (1991), 143 Ill. 2d 251, 252, 572 N.E.2d 944, 945, our supreme court held contingent-fee contracts are not to be included in the valuation of a business for dissolution purposes. In Tietz, we determined Zells leaves the practice of including accounts receivable in the valuation of a business unchanged. We concluded:

“Clearly, future earned fees, like contingent fees, are not marital assets because their value is too speculative and because they are fees earned in the future. Accounts receivable, however, are distinguishable because they are assets already earned with a known value but have not yet been collected.” (Tietz, 238 Ill. App. 3d at 977, 605 N.E.2d at 679.)

Although acknowledging our decision in Tietz, John contends accounts receivable should be regarded as similar to contingent-fee contracts, and invites us to reconsider our decision in Tietz. We decline the invitation.

C. Equitable Allocation of Marital Assets

John alleges the trial court abused its discretion in distributing the marital assets generally and, specifically, alleges he should have been awarded a $20,000 ring.

The distribution of marital property rests within the sound discretion of the trial court. (Tietz, 238 Ill. App. 3d at 979, 605 N.E.2d at 681.) The trial court’s distribution of assets will only be disturbed on review when no reasonable person would agree with the decision reached by the trial court. (In re Marriage of Pittman (1991), 212 Ill. App. 3d 99, 101, 569 N.E.2d 1278, 1280.) John argues the trial court erred because it operated under the erroneous assumption Yong Sun would be required to pay taxes on $243,000 awarded to her, it considered his accounts receivable both in apportioning assets and making a valuation of the business, and because it failed to consider his greater contribution to the acquisition of assets.

With respect to the taxes, John argues the language “and shall pay any taxes due thereon” in the following provisions indicates the trial court erroneously considered Yong Sun’s tax liability for this money, in making its award of assets:

“7. From the Merrill Lynch account of approximately $130,000, the petitioner’s attorney shall be paid partial attorneys’ fees of $20,000. The petitioner is awarded the balance of the Merrill Lynch account and shall pay any taxes due thereon.
8. The petitioner is awarded the Fidelity Money Market account in the approximate amount of $133,000 and shall pay any taxes due thereon.”

This language does not indicate the trial court operated under the belief Yong Sun would have to pay taxes on this money in determining the portion of the marital assets to award to Yong Sun. Rather, it merely indicates an intention by the trial court that if, for any reason, taxes happened to be due on the monies in these accounts, Yong Sun was to be responsible for the taxes.

John next alleges the trial court considered his accounts receivable in valuing his business, which was awarded to him, and based the award of a larger percentage of the assets to Yong Sun, in part, on his greater earning potential. John argues the trial court considered his “future income” twice, once in valuing the accounts receivable and again when determining the proportion of the marital assets to award to each party. With respect to the award of slightly more than half of the marital assets to Yong Sun, the trial court stated:

“The court realizes that the petitioner is receiving a larger portion of the marital assets than the respondent, however, a portion of that which the court is awarding is to reimburse her for the funds the respondent dissipated, and the respondent’s ability to accumulate funds in the future based upon his income is so much greater than that of the petitioner.”

John argues the trial court’s reasoning was similar to that criticized by the appellate court in Head v. Head (1988), 168 Ill. App. 3d 697, 523 N.E.2d 17. In Head, the trial court added $117,000 to the value of the husband’s medical practice, otherwise valued at $58,000. The court stated the $117,000 was the value of the “stream of future income and the greater than average revenues earned by the corporation.” (Head, 168 Ill. App. 3d at 700, 523 N.E.2d at 19.) The trial court then considered the husband’s future earnings in awarding maintenance. The appellate court reversed, holding future earnings could not be counted once in valuing the asset and again when apportioning marital assets and awarding maintenance. (Head, 168 Ill. App. 3d at 701, 523 N.E.2d at 20.) The present case is distinguishable from Head in that the trial court did not consider future income when valuing John’s business. Rather, the trial court considered accounts receivable which are past, but not yet collected, income. (See Tietz, 238 Ill. App. 3d at 977, 605 N.E.2d at 679.) Thus, in valuing the business, the trial court considered its past-but-not-yet-eollected income; in apportioning the assets, the trial court considered John’s potential for future earnings. Accordingly, John’s future earnings were considered only once.

John next alleges the trial court erred in apportioning the marital assets because it failed to consider his greater contribution to the acquisition of marital assets. John, through his earnings in excess of $300,000 per year, has made a greater financial contribution to the acquisition of marital assets than Yong Sun, who earns less than $20,000 per year. However, the financial contribution to the acquisition of marital assets is only one of several factors to be considered by the trial court in determining an equitable distribution of marital assets. (Ill. Rev. Stat. 1991, ch. 40, par. 503(d)(1).) Among the other factors the court may consider are: the dissipation of the marital property; the duration of the marriage; the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children; the age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; the custodial provisions for the children; and the reasonable opportunity of each spouse for future acquisition of capital assets and income. Ill. Rev. Stat. 1991, ch. 40, pars. 503(d)(1) through (d)(4), (d)(7), (d)(8), (d)(10).

John’s greater contribution to the acquisition of marital assets weighs in his favor. However, the other factors weigh in Yong Sun's favor. On balance, the award of more marital assets to Yong Sun was not an abuse of discretion.

Finally, John alleges the trial court erred in awarding Yong Sun the “goodwill” ring because it was a conditional gift. The evidence at trial indicated respondent purchased the ring with marital funds and gave it to Yong Sun along with a note stating she was entitled to keep the ring as long as she remained married to him. John alleges that since the parties are no longer married, Yong Sun has failed to comply with the condition, is not entitled to keep the ring, and the ring should be returned to him. John cites In re Marriage of Severns (1981), 93 Ill. App. 3d 122, 416 N.E.2d 1235, in support of his position.

In Severns we noted there is a presumption all property acquired during the marriage is marital property. (Severns, 93 Ill. App. 3d at 125, 416 N.E.2d at 1238, citing Ill. Rev. Stat. 1979, ch. 40, par. 503(b).) However, the presumption may be rebutted by showing it was a gift. (Severns, 93 Ill. App. 3d at 125, 416 N.E.2d at 1238.) In Severns, Howard Severns alleged a tract of land purchased after the marriage was his nonmarital property because Alice Severns had given her interest in the property to him as a gift. (Severns, 93 Ill. App. 3d at 123-24, 416 N.E.2d at 1236-37.) We recognized an interspousal gift could be nonmarital property, but noted it is the donee’s obligation to establish a gift was intended by clear and convincing evidence. Severns, 93 Ill. App. 3d at 126, 416 N.E.2d at 1238.

Respondent’s reliance on Severns is misplaced. Severns is applicable to cases in which a donee spouse claims property, which would normally be considered marital property, as the donee’s nonmarital property. Severns does not stand for the proposition a spouse may make a unilateral determination regarding ownership of marital assets which is binding upon a trial court making a distribution of assets in a dissolution action.

Property purchased with marital funds is marital property in which both spouses have an interest. Under Severns, an inter-spousal gift would occur when one spouse (the donor spouse) makes a gift of his or her interest in the marital property to the other spouse (the donee spouse). If the interspousal gift occurs, the donee spouse is in possession of his or her own interest as well as the interest of the donor spouse. The property, accordingly, is converted from the marital property of both spouses to the nonmarital property of the donee.

By conditioning the gift upon the continuation of the marriage, the donor spouse effectively precludes the donee spouse from arguing, during dissolution, that the property is his or her nonmarital property. If the condition is not met, the property remains marital property. Thus, the condition of the gift operates to condition the gift of the donor’s interest; it does not determine the ownership of the property if the condition is not met.

One spouse is not empowered to make the unilateral determination regarding ownership of property purchased with marital funds. By conditioning the gift of his interest in the ring to Yong Sun upon the continuation of the marriage, John prevented her from, upon dissolution, claiming the ring as her nonmarital property. However, since the ring was purchased with marital funds, it was a marital asset. The condition did not prevent the trial court from awarding Yong Sun the ring as part of her share of the marital assets.

III. Custody

John alleges the trial court abused its discretion in awarding custody to Yong Sun. The determination of child custody rests largely within the broad discretion of the trial court. (In re Marriage of Apperson (1991), 215 Ill. App. 3d 378, 383, 574 N.E.2d 1257, 1260.) The trial court has a duty to consider all relevant factors, including:

“(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest;
(4) the child’s adjustment to his home, school and community;
(5) the mental and physical health of all individuals involved;
(6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person; and
(7) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.” (Ill. Rev. Stat. 1991, ch. 40, par. 602(a).)

After considering the section 602(a) factors, the trial court has the unenviable task of determining the best interests of the child. Great deference must be accorded to that decision since the trial court is in a superior position to judge the credibility of witnesses and determine the needs of the child, and its decision at trial will not be disturbed on appeal unless it is against the manifest weight of the evidence or unless the trial court abused its discretion. Apperson, 215 Ill. App. 3d at 383, 574 N.E.2d at 1260-61.

John argues Yong Sun’s unwillingness to facilitate a close relationship between him and Erick, Yong Sun’s mental health, and her violence toward John weigh in favor of an award of custody to him. We do not find the trial court erred in weighing the factors and determining the custody arrangement which would be in Erick’s best interests.

The first factor is not helpful in determining custody because each parent wished to be awarded custody of Erick. The second factor weighs in favor of an award of custody to Yong Sun because Erick indicated a preference in favor of her.

The third factor also weighs in favor of an award of custody to Yong Sun. Yong Sun’s witnesses testified she had a good relationship with Erick, and John’s witnesses testified he had a good relationship with Erick. Erick’s testimony indicated he had a good relationship with his mother but he did not get along with his father. Erick testified his father has “two people inside of him,” i.e., when others are around, John is nice, but when John is alone with Erick, he is mean. Erick additionally testified he does not speak his mind when he is around his father because he is afraid of what might happen if he did so. The trial court believed Erick’s testimony.

The fourth factor also weighs in favor of an award of custody to Yong Sun. Yong Sun testified if awarded custody, she would not send Erick to boarding school in the near future. John, however, testified if awarded custody he would send Erick to boarding school. The trial court found “that since ERICK has recently lost his sister, and since he has seen his parents fight through a hotly-contested dissolution, he needs some love and attention at this time and does not need to be sent away from both his mother and father to a private boarding school.”

The fifth and sixth factors, the mental health of the parties and threats of physical violence, do not strongly weigh in favor of an award of custody to either party. As we stated in Apperson, in custody cases, seldom is either parent shown to be perfect. (Apperson, 215 Ill. App. 3d at 383, 574 N.E.2d at 1261.) In the present case the court received testimony of violent and erratic behavior on the part of both of the parties. Each of the parties has received psychiatric care or counseling, albeit at the urging of Yong Sun. However, the trial court found “petitioner has been the primary caretaker of ERICK and has a more loving, caring personality than the respondent. Additionally, the respondent has a fairly volatile temper and has struck the petitioner and also struck the children improperly in his reprimanding of the children.” The trial court was in the best position to resolve these issues regarding conflicting testimony and credibility.

Finally, the seventh factor also does not strongly weigh in favor of an award of custody to either party. Yong Sun’s denial of visitation to John is a consideration in determining her willingness to foster a close relationship between Erick and John. However, John’s practice of putting pressure on Erick regarding Erick’s preferences in custody matters, complaining about the amount of money he pays to Yong Sun, and threatening Erick that Erick and his mother will go to jail if they do not comply with visitation, also do not reflect a willingness on the part of John to foster a close relationship between Erick and Yong Sun.

In light of the proper application of the section 602(a) factors to the facts of this case, and the trial court’s discretion in resolving conflicts in testimony and determining the best interests of the child, the trial court’s award of custody to Yong Sun was not an abuse of discretion.

IV. Child Support

John alleges the trial court erred in ordering him to pay $3,000 per month in child support. The statutory guidelines provide, in the case of one child, the minimum amount of child support which should be ordered is 20% of the noncustodial parent’s net income. (Ill. Rev. Stat. 1991, ch. 40, par. 505(a)(1).) The trial court may award less child support if, after considering all relevant factors, it finds a reason for deviating from the guidelines. (Ill. Rev. Stat. 1991, ch. 40, par. 505(a)(2).) In the years 1988 through 1991, John’s net income per year has ranged from $235,222 to $326,387. Thus, based upon John’s historical earnings, 20% of his net income is $3,920.36 to $5,439.78 per month. Accordingly, the $3,000-per-month child support ordered by the trial court is actually below the statutory guidelines. In ordering this amount of child support, the trial court stated:

“The court realizes this figure is somewhat under the statutory guidelines; however, considering the child’s needs and the petitioner’s financial status, it is more than adequate to support the child in the same standard that the child would have enjoyed had there been no dissolution.”

John alleges the trial court correctly deviated from the statutory guidelines by ordering him to pay less than 20% of his net income; however, he alleges the amount of child support should have been even less. John additionally alleges the trial court’s statement that $3,000 per month is “more than adequate to support the child” indicates the trial court knowingly ordered John to pay more than was actually needed.

Determining the amount of child support to be paid by a high-income parent is a difficult exercise for the trial court. Where the individual incomes of both parents are more than sufficient to provide for the reasonable needs for the parties’ children, taking into account the life-style the children would have absent the dissolution, the court is justified in setting a figure below the guideline amount. (In re Marriage of Bush (1989), 191 Ill. App. 3d 249, 260, 547 N.E.2d 590, 596.) In Bush, we reversed an award of 20% of the noncustodial parent’s income where such an award was approximately $30,000 per year and both parents were doctors and earned significant incomes. We noted a reasonable basis for high support payments may be warranted in the case of high medical expenses or expensive private education; however, we found Bush was not such a case. Bush, 191 Ill. App. 3d at 260-61, 547 N.E.2d at 596.

In fixing the child support obligation of a high-income parent, the trial court must balance competing concerns. On one hand, the trial court should not limit the amount of child support to the child’s “shown needs,” because a child is not expected to live at a minimal level of comfort while the noncustodial parent is living a life of luxury. (People ex rel. Graham v. Adams (1993), 239 Ill. App. 3d 643, 645, 608 N.E.2d 614, 616.) The trial court must consider the standard of living the child would have enjoyed absent parental separation and dissolution. (Bush, 191 Ill. App. 3d at 261, 547 N.E.2d at 596.) On the other hand, child support payments are not intended to be windfalls, but rather adequate support payments for the upbringing of the children. Bush, 191 Ill. App. 3d at 261, 547 N.E.2d at 596-97.

In Bush, we disapproved an award of $30,000 per year for the support of a four-year-old child. The child’s custodial parent earned $86,400 gross income per year and had remarried another doctor who also earned $86,400 per year. The present case is distinguishable from Bush. In contrast to the four-year-old child in Bush, Erick was 10 years old at the time of the dissolution. The testimony indicated, during the marriage, Erick had been afforded frequent opportunities for national and international travel. Nothing in the record indicates such opportunities would not have continued to arise had the parties remained married. Moreover, the record indicates Erick’s standard of living has included electronic gadgets, including a facsimile machine in his room, as well as computer equipment used for educational purposes. Clearly, the cost of supporting a 10-year-old child at the standard of living Erick has enjoyed, and would presumably have continued to enjoy, is greater than the cost of supporting the four-year-old child in Bush. The evidence additionally indicates Erick requires medical treatment for a respiratory disorder and must have a “breathing machine.”

Moreover, in Bush, we noted that either parent in Bush was financially able to provide for all of the child’s needs. (Bush, 191 Ill. App. 3d at 260-61, 547 N.E.2d at 596.) In the present case Yong Sun’s earnings from her business are less than $20,000 per year. Yong Sun has been awarded significant liquid marital assets, which if invested, will generate an income which will supplement her earnings. However, considering both her earnings and potential investment income, we do not believe she is financially able to make a contribution to the support of Erick equaling that of the custodial parent in Bush. It is appropriate in these circumstances for the noncustodial parent to pay a higher amount of child support.

Finally, we do not find the trial court’s statement that the child support award was “more than adequate to support the child” was an indication the trial court ordered John to pay child support in excess of Erick’s requirements. Rather, the statement is consistent with an appreciation of the above-average standard of living Erick has been provided. Accordingly, we affirm the portion of the order requiring John to pay $3,000-per-month child support.

V. Visitation

John argues the trial court erred in restricting his visitation with Erick. As John correctly notes, a court is required to grant reasonable visitation rights unless it finds visitation would seriously endanger the child’s physical, mental, moral, or emotional health. (Ill. Rev. Stat. 1991, ch. 40, par. 607(a).) No finding of serious endangerment was made in the present case, and a restriction on John’s visitation would, accordingly, be inappropriate. However, we do not find the trial court restricted John’s visitation. A restriction of visitation is an action which limits, restrains, or confines visitation within bounds. A termination of visitation is a restriction, as is a prohibition on overnight visitation. Likewise, a requirement that visitation be supervised, occur in the home of the custodial parent, or outside the home of the noncustodial parent is a restriction. However, eliminating one day from a weekend visitation or shortening a summer visitation due to the activities of the child is not a restriction. In re Marriage of LaTour (1993), 241 Ill. App. 3d 500, 504, 608 N.E.2d 1339, 1343.

In the present case, John tendered a recommendation regarding visitation to the trial court. In awarding visitation to John, the only variations between the recommendation and the visitation awarded were as follows: (1) John requested, but was not awarded, an overnight visitation during the week; (2) John requested an overnight visitation on major holidays, but was granted daytime visitation on these holidays and half of Erick’s Christmas vacation; (3) John- requested an eight-week summer visitation, but was granted a two-week summer visitation; (4) John requested, but was not granted, visitation for travel to national and international ophthalmology meetings. We do not believe the “denial” of these requests — the court’s failure to adopt John’s recommendations — amounted to a restriction on visitation. John was granted visitation with Erick, such visitation included weekend overnight stays, and two weeks in the summer, as well as provision for holidays and other special events.

The visitation provisions of the dissolution order do not rise to the level of a restriction on visitation. The trial court did not err with respect to its order regarding visitation.

VI. Maintenance

John alleges the trial court erred in ordering him to pay maintenance to Yong Sun, in the amount of $2,000 per month. Section 504(a) of the Act provides maintenance may only be awarded where the spouse seeking maintenance:

“(1) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, and
(2) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home, or
(3) is otherwise without sufficient income.” (Ill. Rev. Stat. 1991, ch. 40, par. 504(a).)

The goal of the Act is to terminate financial interdependence of former spouses wherever possible and to award maintenance only where one spouse is not adequately provided for through other means. Thus, where the earning powers of the former spouses are disproportionate, there is a preference for providing for the former spouse through a greater award of the marital assets, rather than an award of maintenance. In the present case, the Lees had significant marital assets and slightly more than half were awarded to Yong Sun. However, the earning powers of the parties remain significantly disparate. Although the liquid marital assets awarded to Yong Sun, if invested, will supplement her earnings, she still will be unable to enjoy a standard of living equal to that experienced during the marriage. Although we might have awarded less maintenance than that awarded by the trial court, we do not find the trial court’s award was against the manifest weight of the evidence.

VII. Conclusion

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

Affirmed.

COOK and LUND, JJ., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES SMITH, Defendant-Appellant.
    Fifth District
    No. 5 — 92—0409
    Opinion filed July 20, 1993.

      Daniel M. Kirwan and Edwin J. Anderson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Charles Grace, State’s Attorney, of Murphysboro (Norbert J. Goetten, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Charles Smith, was found guilty after a jury trial of home invasion, residential burglary, theft under $300, and two counts of aggravated criminal sexual assault. He was sentenced by the circuit court of Jackson County to 30 years’ imprisonment for home invasion to be served concurrently with a sentence he was already serving, two 30-year prison terms for the aggravated criminal sexual assaults to be served concurrently with each other but consecutively to the home invasion, and 15 years’ imprisonment for residential burglary and 364 days’ imprisonment for theft under $300, both to be served concurrently with his other sentences. Defendant appeals his convictions and sentences. We affirm.

Once again we are confronted with the short-lived, but highly damaging, criminal spree of defendant which took place in August and September of 1988 in Carbondale, Illinois. This time we are concerned with defendant’s first and most vicious attack. In the early morning hours of August 25, 1988, the victim, a junior at Southern Illinois University living alone in a mobile home park, was awakened by someone jumping onto her bed. The assailant straddled her and, holding a knife to her throat, told her not to scream. The assailant, who sounded like a black male, asked her if she had any money. When she replied she did not, the assailant hit her across her face. He then got off the bed, took off his pants and the victim’s underwear, and had vaginal intercourse with her. The assailant told her he liked “breaking in” new SIU students. He then made the victim roll over and keep her face in a pillow while he turned on a light and proceeded to rummage through the victim’s belongings. The victim specifically heard the assailant go through her cassette tapes. He then turned off the light and sexually assaulted the victim again, both vaginally and anally. Once again the assailant made the victim hide her face while he turned on a light and searched through her belongings. This time the assailant found the victim’s car keys. He informed her where he would leave the car and ordered the victim not to call the police or he would return and shoot her. The assailant then left the trailer taking the victim’s car.

Forensic investigation revealed that fingerprints on the inside of the kitchen window through which the assailant had entered matched those of defendant. Analysis of seminal material found at the scene established that defendant could not be excluded as a possible donor. Approximately 17% of the black population has the same type of blood characteristics as does defendant. Additionally, both the victim and defendant tested positive for the same strain of gonorrhea. The victim had not been diagnosed or treated for gonorrhea prior to the assault. The police also found the victim’s car where the assailant had informed her he would leave it, a location approximately .7 of a mile away from the place defendant was then staying. Numerous cassette tapes owned by the victim were found among defendant’s possessions. Defendant presented no evidence or testimony. The jury found defendant guilty on all charges tendered.

On appeal, defendant raises five issues: (1) the trial court erred in denying his motion for continuance to allow DNA testing; (2) the State failed to prove beyond a reasonable doubt defendant’s guilt of aggravated criminal sexual assault with the aggravating factor being transmission of a sexual disease; (3) the aggravated criminal sexual assault statute with the aggravating factor being transmission of a sexual disease is unconstitutional; (4) one of defendant’s convictions for aggravated criminal sexual assault must be reversed; and (5) defendant’s sentence of 60 years’ imprisonment is excessive and represents an abuse of discretion. We already have addressed the constitutionality of the aggravated criminal sexual assault statute in People v. Smith (1993), 245 Ill. App. 3d 712, 719-20, and need not discuss it further here. Suffice it to say, we find the statute to be constitutional. We further find no merit to any of defendant’s other contentions.

Defendant first argues the trial court erred in denying his motion for continuance to allow DNA testing when the question of the identification of the assailant was at the heart of the trial. Defendant asserts the only way he could prove conclusively that he was not guilty was to have DNA tests conducted. The State counters that defendant waived any possible error by failing to file a post-trial motion. The State also asserts the trial court properly exercised its discretion in denying the motion because it was untimely, and any error resulting from such a denial was harmless in light of the overwhelming evidence establishing defendant’s guilt. We agree with the State.

First, defendant failed to file a post-trial motion thereby waiving any error. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) Second, defendant’s motion for a continuance to seek DNA testing was untimely. Defendant filed the motion three days before trial was to begin. Granting of his motion would require a delay of four to six months in a case already SVz years old. As the trial court pointed out, defendant already had filed other motions, including one for continuance, and obtained rulings on them some three months earlier. If defendant truly believed DNA testing would exonerate him, he should have made the proper motion much earlier. In fact, defendant already had raised the same issue some eight months earlier in one of his other sexual assault cases and easily could have made a similar motion in this case at that time. We also note defense counsel’s revelation that he and defendant had discussed the matter several months before trial and decided DNA testing would not be in defendant’s best interest. Besides the facts that defendant did not even allege he had attempted to locate an expert to perform the testing (see People v. Smith, 245 Ill. App. 3d at 716-17; People v. Hebel (1988), 174 Ill. App. 3d 1, 34, 527 N.E.2d 1367, 1388) and that the granting or denial of a motion for continuance is a matter within the trial court’s discretion (see People v. Dean (1981), 99 Ill. App. 3d 999, 1004, 426 N.E.2d 279, 283), defendant refuses to recognize that the evidence implicating him in the crime is overwhelming. Allowance of DNA testing would not have changed the outcome of the trial; consequently, defendant suffered no prejudice from the denial of his motion. (See People v. Johnson (1991), 220 Ill. App. 3d 550, 559, 581 N.E.2d 118, 125; People v. Hanson (1983), 120 Ill. App. 3d 84, 88, 457 N.E.2d 1048, 1051.) The victim did not know defendant, yet his fingerprints were found on the inside of the window through which the assailant entered her trailer. The window had been closed prior to the victim retiring for the night and was found open after the assault. Obviously, the fingerprints were impressed at the time the offense was committed. (See People v. Rhodes (1981), 85 Ill. 2d 241, 249-51, 422 N.E.2d 605, 608-09.) Other evidence revealed the victim’s missing cassette tapes were retrieved from defendant’s possessions. Both defendant and the victim were infected with the same strain of gonorrhea after the assault, and defendant could not be excluded as a possible donor of the tested seminal material found at the scene of the assault. Evidence of a similar sexual assault against another woman two weeks later also served to identify defendant as the victim’s assailant. Under such circumstances, we find no error in the denial of defendant’s motion. Absence of DNA testing did not deprive defendant of a fair trial under these circumstances.

Defendant next argues he was not proved guilty beyond a reasonable doubt of aggravated criminal sexual assault by causing bodily harm to the victim in transmitting a sexual disease when there was no proof the victim did not have the disease prior to the assault. We disagree.

A criminal conviction will not be set aside on review unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276; People v. Meador (1991), 210 Ill. App. 3d 829, 830, 568 N.E.2d 1386, 1387.) The relevant inquiry is whether, after viewing the evidence, whether it be direct or circumstantial, in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Campbell (1992), 146 Ill. 2d- 363, 374, 586 N.E.2d 1261, 1266; People v. Geneva (1990), 196 Ill. App. 3d 1017, 1025, 554 N.E.2d 556, 562.) It is not our function to substitute our judgment or retry defendant; resolution of factual disputes and the assessment of the credibility of witnesses are for the trier of fact. (People v. Bigham (1992), 226 Ill. App. 3d 1041, 1047, 590 N.E.2d 115, 119-20; Geneva, 196 Ill. App. 3d at 1026, 554 N.E.2d at 562.) The jury here resolved the matter against defendant; we cannot say such a resolution was in error.

Aggravated criminal sexual assault occurs when an individual commits criminal sexual assault and causes bodily harm to the victim. (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 14(a)(2).) “Bodily harm” includes sexually transmitted diseases. (Ill. Rev. Stat. 1991, ch. 38, par. 12— 12(b); see also People v. Rodarte (1989), 190 Ill. App. 3d 992, 999, 547 N.E.2d 1256, 1260.) Here the victim testified unequivocally and without contradiction that she did not have gonorrhea before the assault but was infected with the disease afterward. Tests conducted on defendant after the assault revealed he was infected with the same strain of gonorrhea. Although the medical expert could not determine who had the disease first, the jury logically could infer that defendant transmitted the disease to the victim during the criminal sexual assault. The doctor who examined the victim at the hospital immediately after the assault testified the victim denied having a venereal disease prior to the assault. And, the victim testified that during the assault, her assailant asked her if it was her first time to which she replied that it was. The evidence as a whole is not so unsatisfactory as to justify a reasonable doubt of defendant’s guilt in this instance.

Defendant next asserts one of his aggravated criminal sexual assault convictions must be reversed because there was only one sexual assault. The State counters defendant has waived any error by failing to object at trial or raise the issue in a post-trial motion. We reject the State’s position (see People v. Smith, 245 Ill. App. 3d at 720-21) and therefore address the merits of the issue.

Multiple convictions and concurrent sentences are permitted when a defendant has committed several acts, despite the interrelationship of those acts. (People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844.) Factors to be considered in determining whether a defendant’s conduct constitutes separate acts are the time interval occurring between successive parts of the defendant’s conduct, the existence of an intervening event, the similarity of the acts performed, the identity of the victim, and the location of the conduct. (See Rodarte, 190 Ill. App. 3d at 1001, 547 N.E.2d at 1261-62.) Here, defendant committed at least two offenses based upon separate acts of sexual penetration of the victim’s vagina and anus. The victim testified the assailant first had vaginal intercourse with her for approximately five minutes. He then arose and rummaged through the victim’s belongings. The assailant then returned and assaulted her anally twice and vaginally once. Clearly, defendant committed multiple acts. As stated in People v. Segara (1988), 126 Ill. 2d 70, 533 N.E.2d 802: “To permit a defendant to rape an individual several times over a period of time in the same place with little or no break between each act deprecates the heinous and violent nature of each act and the effect each act has upon the victim.” (Segara, 126 Ill. 2d at 77, 533 N.E.2d at 805.) For defendant to claim only one assault occurred “ ‘demeans the dignity of the human personality and individuality.’ ” (Segara, 126 Ill. 2d at 77, 533 N.E.2d at 805, quoting Pruitt v. State (1978), 269 Ind. 559, 565, 382 N.E.2d 150, 154.) The evidence in this instance clearly supports two convictions for aggravated criminal sexual assault.

For his final point on appeal, defendant contends the total of his sentences is excessive in light of his rehabilitative potential. We believe the trial court properly exercised its discretion in sentencing defendant in this instance.

As has been recognized countless times, the imposition of punishment is one of the most important and sensitive of judicial responsibilities and we, as a reviewing court, must give great weight to the judgment of the trial court. (People v. Generally (1988), 170 Ill. App. 3d 668, 677, 525 N.E.2d 106, 111.) While youth and potential for rehabilitation are proper factors to be considered in setting sentence length, they are not the only elements to be considered. The nature of the crime, protection of the public, deterrence, and punishment all have equal status in the determination. (Generally, 170 Ill. App. 3d at 677, 525 N.E.2d at 111.) The ideal sentence is one which adequately punishes the offender for his misconduct, safeguards the public from further offenses, and reforms and rehabilitates the offender into a useful member of society. (People v. Carroll (1966), 76 Ill. App. 2d 9, 12-13, 221 N.E.2d 528, 530.) More importantly, it is not the province of this court to reduce a sentence merely as an act of judicial clemency. (People v. Barber (1983), 116 Ill. App. 3d 767, 779, 452 N.E.2d 725, 733.) We are to modify a sentence only when “the punishment clearly departs from the spirit and purpose of fundamental law.” Generally, 170 Ill. App. 3d at 677, 525 N.E.2d at 111.

Defendant’s actions at the time of the instant offenses and afterward reveal little rehabilitative potential. Defendant repeatedly assaulted the victim sexually. He slapped her, held a knife to her throat, and threatened her numerous times. Defendant also assaulted two other victims within a matter of weeks after committing the offenses here. And, just before the jury entered the courtroom to return its verdicts in this case, defendant escaped from custody. Moreover, despite overwhelming evidence against him, defendant still proclaimed his innocence, even after being convicted for the second time. Defendant clearly has demonstrated little rehabilitative potential; in fact, he has demonstrated he is still a threat to society. We therefore conclude the trial court properly exercised its discretion in sentencing defendant. People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.

For the aforementioned reasons, we affirm the judgment of the circuit court of Jackson County.

Affirmed.

GOLDENHERSH and MAAG, JJ., concur.


author: PRESIDING JUSTICE CHAPMAN

text:
      In re M.W., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. M.W., Respondent-Appellant).
    Fifth District
    No. 5 — 92—0188
    Opinion filed July 19, 1993.
    Daniel M. Kirwan and Edwin J. Anderson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Charles Grace, State’s Attorney, of Murphysboro (Norbert J. Goetten, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

“For it’s one, two, three strikes you’re out ***.”

Harry Garay’s mellifluous reminder to thousands of Cub fans of one of the basic rules of baseball is echoed by the minor’s claim that the trial court acted improperly at all three phases of the proceedings below: (1) by denying him counsel at the detention phase, (2) by not advising him properly and by using testimony from the detention phase at the adjudication phase, and (3) by succumbing to the influence of earlier contacts with other members of the minor’s family at the dispositional phase. We conclude that the combination of errors requires us to reverse and remand.

On December 26, 1991, the 15-year-old minor, M.W., and his 14-year-old brother were arrested for the burglary of an apartment. On December 27, 1991, they appeared for a detention hearing and were advised:

“[M.W.] and [younger brother], if you were adults this would be a Class I Felony. What that means is that it’s punishable by four to 15 years in the penitentiary and there is no probation that’s involved, meaning that you would go to the penitentiary if the charges were proved beyond a reasonable doubt for a minimum of four years. You’re not being charged as adults, you’re being charged as minors. You have a general understanding of what that’s all about because you’ve been before this Court before. You have the right to remain silent. You are presumed not to have committed this offense until the State proves it beyond a reasonable doubt. You have a right to subpoena witnesses. You have a right to confront your accuser. You have a right to be represented by counsel. I’m going to appoint the Public Defender of Jackson County to represent both of you. You have a right to review any reports that are received by this Court, you are to receive notice of the hearings in this Court and a right to participate in those hearings. We are here this morning to determine whether your detention is going to continue until such time as we have an adjudicatory hearing with regard to this case.
Are you ready to proceed with the detention hearing, Mr. Grace?
MR. GRACE: Yes, Your Honor.
THE COURT: Call your first witness.”

The quoted portion of the transcript forms the basis of defendant’s first strike at the trial court’s conduct of this case. Quite obviously, the trial court properly appointed counsel to represent the minor on what would be a nonprobationable Class I felony if the minor had been an adult, and equally obviously, the court then called for the State’s Attorney to proceed although no counsel for the minor was present.

Section 5 — 10 of the Juvenile Court Act of 1987 (Act) provides:

“Detention or shelter care hearing. At the appearance of the minor before the court at the detention or shelter care hearing, all witnesses present shall be examined before the court in relation to any matter connected with the allegations made in the petition. No hearing may be held unless the minor is repre sented by counsel.” (Emphasis added.) 705 ILCS 405/5 — 10 (West 1992).

The minor relies upon In re Giminez (1974), 23 Ill. App. 3d 583, 319 N.E.2d 570, which held that a trial court’s failure to appoint counsel at the detention hearing required reversal. The State does not contend that the failure to provide counsel in contravention of the statute was proper; instead, it argues that the minor waived his position or that the failure was harmless error. The State’s waiver argument is based upon the minor’s failure to include an allegation of lack of counsel in his motion to withdraw his admission. 134 Ill. 2d R. 604(d).

The State’s harmless-error argument has as one basis the minor’s failure to request another detention hearing under the provisions of section 5-10(3) of the Act (705 ILCS 405/5-10(3) (West 1992)) and In re M.L.K. (1985), 136 Ill. App. 3d 376, 483 N.E.2d 662. M.L.K. found a strong indication of no prejudice because of lack of counsel when the minor’s counsel elected not to seek a new detention hearing under section 5 — 10(3). The State’s second basis for its harmless-error argument is the amount of clearly admissible evidence available to establish the minor’s culpable conduct. Although it would obviously have been preferable for the trial court to have delayed the detention hearing until counsel for the minor appeared, and it was in fact error to proceed in counsel’s absence, we need not resolve the issue of waiver and/or harmless error in view of our resolution of the next claimed error.

The minor’s second strike at the trial court, premised upon adjudication-hearing errors, has two bases. The first basis is the court’s failure to advise the minor of the effect of an admission at the adjudication hearing. Again, the transcript reveals the following admonitions:

“Other than the dismissal of 90 — J—20, has anybody promised you or threatened you in any way to get you to make this admission, [M.W.]?
MINOR M.W.: No.
THE COURT: Has anybody threatened you or promised you anything to make this admission, [younger brother]?
[YOUNGER BROTHER]: No, sir.
THE COURT: Do you admit that you were involved in the residential burglary of your next door neighbor’s residence *** on the 26th of December, [M.W.]?
MINOR M.W.: Yes.
THE COURT: [Younger brother]?
[YOUNGER BROTHER]: Yes, sir.
THE COURT: I’m going to find that the admission is knowingly and voluntarily made. I have heard evidence at the detention hearing with regard to this. I find that a factual basis exists for the admissions.”

The supreme court has stated that an admission is the juvenile equivalent of a guilty plea by an adult offender (In re Beasley (1977), 66 Ill. 2d 385, 362 N.E.2d 1024), but Beasley also held that the full range of admonitions required by Supreme Court Rule 402 (134 Ill. 2d R. 402) in criminal proceedings need not be given to juveniles in adjudicatory hearings:

“It is sufficient to satisfy due process requirements that it be apparent from the record that the minors were aware of the consequences of their admissions; that is, that they understood their rights against self-incrimination, their rights to confront their accusers and their rights to a trial; that by the admissions they waived these rights and that the waiver conferred upon the court the authority to treat them in a manner authorized by the Juvenile Court Act.” (Beasley, 66 Ill. 2d at 392, 362 N.E.2d at 1027.)

In Beasley, however, the record at the adjudicatory hearing made it clear that the minors were advised of the rights they were relinquishing. The supreme court quoted two printed pages of admonitions for the three minors before concluding:

“In the three cases now before us, in addition to each minor being represented by counsel, the court addressed each one and ascertained that he knew that he had a right to deny allegations of the petition and require the State to prove the charges against him; to have a trial by the court and to confront the State’s witnesses. Each was also informed that as a result of the admission the court could commit the minor to a State institution. In addition to these admonishments common to all three proceedings each judge further interrogated the minor concerning his understanding of his rights. We believe that the record in each of these cases discloses that the minors understood the consequences of their admissions. These warnings and interrogations, together with the fact that each minor was represented by counsel who stated he had informed his client of his constitutional rights which could be waived by an admission, lead us to conclude that the admissions made in these cases were voluntary and intelligent in nature and comported in all respects with the requirements of due process.” Beasley, 66 Ill. 2d at 397, 362 N.E.2d at 1030.

While Beasley clearly reflects the trial court’s admonitions, the record in this case clearly reflects their absence. The court merely asked about threats or promises and then concluded that the admission was knowingly and voluntarily made. It is not “apparent from the record that the minors were aware of the consequences of their admissions; that is, that they understood their rights against self-incrimination, their rights to confront their accusers and their rights to a trial.” (Beasley, 66 Ill. 2d at 392, 362 N.E.2d at 1027.) Even if we were to consider the admonitions furnished at the detention phase and treat them as if they were made at the adjudication hearing, a somewhat controversial procedure, it would still not be apparent from this record that the minor had the basic awareness of his rights that Beasley requires to satisfy due process requirements. (See People v. Stewart (1984), 101 Ill. 2d 470, 463 N.E.2d 677, cert. denied (1984), 469 U.S. 920, 83 L. Ed. 2d 237, 105 S. Ct. 303, reh’g denied (1984), 469 U.S. 1077, 83 L. Ed. 2d 517, 105 S. Ct. 579, habeas corpus granted (N.D. Ill. 1991), 770 F. Supp. 416, rev’d (7th Cir. 1992), 958 F.2d 1379; People v. Johns (1992), 229 Ill. App. 3d 740, 593 N.E.2d 594; In re Starks (1978), 60 Ill. App. 3d 934, 377 N.E.2d 590.) While the trial court mentioned the right to remain silent and the rights to counsel, confrontation, and cross-examination at the detention hearing, it did not advise him of his right to a trial to determine his status. Thus, even if we were to consider the detention-hearing admonitions as if they were given at the adjudicatory hearing, they would be lacking under Beasley. We must, therefore, reverse for a new adjudicatory hearing. In re D.L.B. (1986), 140 Ill. App. 3d 52, 488 N.E.2d 313.

Finally, we note that it takes but a few minutes to completely admonish a minor and that those few minutes could obviate any future questions. We realize that such admonitions are not required under Beasley, and we consequently do not require them in this case. We agree, however, with Judge Scott:

“Although the decisions permit relative informality in the taking of admissions, the better practice is for the judge to discuss at length with the minor his rights, and the possible consequences of waiving his rights within the format of Rule 402.” Scott, Delinquency and Due Process: A Review of Illinois Law, 59 Chi.-Kent L. Rev. 123, 142-43 (1982).

The third strike against the trial judge’s conduct involves his concern about the other members of the minor’s family:

“THE COURT: This Court has had a long history with regard to the [W] family, with regard to this particular case, 91— J — 83. The father can’t even bother to attend a single, solitary hearing with regard to these minors. He has appeared in the past, so I know he is able to appear here. Mrs. [W.] has appeared[;] however, we have got a family with three kids that are absolutely, totally and completely out of control here. I’ll grant you [the older brother of the minor] has not yet come to the attention of this Court since this Court sent him to the Department of Corrections and he has returned, but his activities prior to that point were exactly the same as these two young men. I would have hoped that the parents would have exerted parental control and even if they hadn’t done that, that the two minors would have recognized what happens to someone who engages in the activities which [the older brother] has engaged in in the past and which they continue to engage in.
There’s a subtle little difference between [M.W.] and [younger brother] and it’s probably due to their age. I hope it’s something more than that. First of all, I think any social resources that would be engaged in in this family are totally wasted. We have got a limited amount of resources, the father can’t even be bothered to come here. We have got an older son that was sent off, they could care less. I’m not about to waste our very limited resources on a family which is so undesired [sic] to changing their activities or exerting their own parental control that I now wind up having the other two young men before me. I think it’s a total waste. I think it’s a total failure and I don’t expect anything more on the part of the parents in terms of what they are going to do with regard to these two young men.”

While the minor had a series of contacts with law-enforcement officials over the preceding two years, and while these prior incidents, when coupled with the burglary involved in this case, might justify the disposition imposed, a juvenile is entitled to be judged on his own conduct and not on that of his family. There is a definite indication, based on the trial court’s comments, that the disposition in this case was based, at least in part, upon the court’s prior bad experiences with members of the minor’s family. While we are aware of trial judges’ frustration with unfeeling and/or uncaring parents who make little or no attempt to control their children, we cannot approve punishing a child for the sins of the parents.

The juvenile court system’s practice of providing a reduced level of protection for individual rights is based on the concept that children would be treated not as criminals, but as children, and that the judge would act as a “wise and kind father.” (People ex rel. Houghland v. Leonard (1953), 415 Ill. 135, 139, 112 N.E.2d 697, 699.) Unfortunately, “Too often the juvenile court judge falls far short of that stalwart, protective, and communicating figure the system envisaged.” McKeiver v. Pennsylvania (1971), 403 U.S. 528, 544, 29 L. Ed. 2d 647, 660, 91 S. Ct. 1976, 1985.

This cause is reversed and remanded for an adjudicatory hearing before a different judge. On remand, counsel may file an affidavit under section 5 — 10(3) (705 ILCS 405/5 — 10(3) (West 1992)) for a new detention hearing.

Reversed and remanded with directions.

WELCH and MAAG, JJ., concur.

        J. Norworth, Take Me Out to the Ball Game (1908), as quoted in J. Barlett’s Familiar Quotations 765 (15th ed. 1980).