text:
    FARM CREDIT BANK OF ST. LOUIS, as successor to the Federal Land Bank of St. Louis, Plaintiff-Appellee, v. FLOYD ISRINGHAUSEN, Defendant-Appellant (Roger D. Isringhausen et al., Defendants).
    Fourth District
    No. 4 — 90—0613
    Opinion filed March 14, 1991.

      Steven N. Mottaz, of Thomas, Mottaz, Eastman & Sherwood, of Alton, for appellant.
    Law Offices of Gusine & Theivagt, Ltd., of Carrollton (Charles E. Theivagt, of counsel), for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendant, Floyd Isringhausen, appeals an order granting summary judgment against him and in favor of plaintiff, the Farm Credit Bank of St. Louis, as successor to the Federal Land Bank of St. Louis. (See Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005.) On appeal, defendant claims that genuine issues of material fact exist, requiring that the summary judgment be reversed and remanded. We disagree and affirm.

I. Background

In September 1979, Roger and Linda Isringhausen applied to the Federal Land Bank of St. Louis (which was subsequently succeeded by the Farm Credit Bank of St. Louis) for a loan to purchase 247 acres of farmland in Jersey County, Illinois. The loan application named Floyd and Virginia Isringhausen, Roger’s parents, as “other applicants” for the loan. (Virginia Isringhausen died in 1981.) While Floyd agreed to provide 160 acres of his own farmland as additional collateral to secure the loan, the parties dispute whether Floyd provided this additional collateral on his own or whether this additional security was requested by the bank as a condition for approving the loan. The loan application was signed by all four Isringhausens. Both Roger and Floyd provided the bank with financial statements.

The loan application was processed by Steven Schweizer, then president of the Federal Land Bank of Carrollton-Carlinville, and assigned to the Jerseyville office. Schweizer prepared a credit report that listed Roger as the applicant and contained the statement, “Roger is buying 247 acre farm.” The credit report included financial data on both Roger and Floyd. A mortgage dated February 13, 1980, was signed by Roger, Linda, Floyd, and Virginia, creating a lien against the property to be purchased (parcel I) and the 160 acres owned by Floyd (parcel II). A note dated February 13, 1980, in the amount of $640,000, secured the mortgage and was also signed by all four Isringhausens.

The memorandum of settlement and photocopies of the checks indicated that the net loan proceeds were distributed to Roger and Kenneth Breitwiser (representing the seller) for the purchase of the 247 acres, with the remaining balance of $1,150 distributed to Roger. The memorandum of settlement also indicated that the bank issued 6,400 shares of stock in the association to “Floyd and Virginia,” and “Roger and Virginia [sic Linda]” as tenants in common.

On May 3, 1988, plaintiff filed a complaint for foreclosure of mortgage against the Isringhausens. Floyd’s answer, filed on June 29, 1988, admitted the essential allegations of the complaint to foreclose, but specifically denied that Floyd had executed the note as a comaker. On December 27, 1988, Floyd filed an amended first affirmative defense alleging that Schweizer represented to him that his sole liability on the loan would be the 160 acres of parcel II, but not any personal obligation beyond the value of that collateral.

On February 9, 1989, judgment of foreclosure was entered against Roger and Linda, and parcel I was ordered to be sold by public auction. An order confirming the sale and seeking a deficiency judgment against Roger and Linda in the amount of $297,378.42 was filed on May 25, 1989. (That order was amended on June 14, 1989, to include the payment of real estate transfer stamps.)

On February 9, 1990, plaintiff filed a motion for summary judgment which included depositions of Floyd, Roger, and Linda, an affidavit of Schweizer, and copies of the note and mortgage signed by Floyd. The circuit court granted plaintiff’s motion for summary judgment against Floyd on July 23, 1990, and stated the following:

“While there may have been misunderstanding on the part of the Defendants as to the extent of Defendant, Floyd Isringhausen’s, liability on the Promissory Note, there is not a scintilla of evidence in the pleadings under consideration to support the allegation of fraud. While this appears to be a case where none of the parties, including the Plaintiff, may have imagined that this Defendant’s liability would ever extend, as a practical matter, beyond the 160 acres pledged as security, the record is devoid of any indication that the Defendants were deceived or defrauded by any representation of Plaintiff. The loan documents speak for themselves and are unambiguous. They clearly evidence an undertaking by Defendant, Floyd Isringhausen, to assume full responsibility on the entire note. The fact that that eventuality seemed improbable at the time does not absolve Defendant of liability thereon in whole or in part.”

On August 17, 1990, a deficiency judgment was entered against Floyd in the amount of $330,369.29.

II. Analysis

The sole issue on appeal is whether the trial court erred in granting summary judgment in favor of plaintiff and against defendant.

“Summary judgment is a procedure available only where there is no genuine, triable issue of material fact; if the pleadings, affidavits, depositions or admissions show that such an issue exists, or reasonable persons may disagree upon inferences fairly drawn from uncontroverted facts, the motion must be denied and the resolution of such facts and inferences is to be made by the fact finder at trial, not by the court considering the motion.” (In re Estate of Olenick (1990), 204 Ill. App. 3d 291, 297, 562 N.E.2d 293, 297.)

Even though a pleading may purport to raise an issue of material fact, if such issue is not further supported by evidentiary facts, summary judgment is appropriate. In determining the genuineness of a fact, the court should ignore personal conclusions, opinions, and self-serving statements and consider only facts admissible under the rules of evidence. Seefeldt v. Millikin National Bank (1987), 154 Ill. App. 3d 715, 718, 506 N.E.2d 1052, 1055.

In this case, defendant asserts fraud as his affirmative defense. Fraud encompasses any act, omission, or concealment calculated to deceive, including silence, if accompanied by deceptive conduct or suppression of material facts constituting an act of concealment. (Rybak v. Provenzale (1989), 181 Ill. App. 3d 884, 899, 537 N.E.2d 1321, 1331.) While both fraud in the inducement and fraud in the execution are valid defenses to an action on a note (Melvin State Bank v. Crowe (1968), 97 Ill. App. 2d 82, 96, 239 N.E.2d 483, 490; see also Colonial Bank & Trust Co. v. Kozlowski (1982), 106 Ill. App. 3d 639, 642, 435 N.E.2d 1251, 1253; Shanahan v. Schindler (1978), 63 Ill. App. 3d 82, 93-94, 379 N.E.2d 1307, 1316), at oral arguments, defendant’s counsel expressly limited his claim to fraud in the inducement.

In its motion for summary judgment, plaintiff relied on the mortgage and note containing Floyd’s signature as evidence of Floyd’s agreement to be personally obligated for the entire debt. While competent adults are presumed to know the nature of contracts to which they sign their names, this presumption is rebuttable. (Union National Bank & Trust Co. v. Carlstrom (1985), 134 Ill. App. 3d 985, 991, 481 N.E.2d 300, 303.) In addition, although the parol evidence rule precludes any evidence of prior understandings when parties put their agreement in writing, this rule does not apply to preclude an allegation of fraud or mutual mistake. See Dellcar & Co. v. Hicks (N.D. Ill. 1988), 685 F. Supp. 679 (applying Illinois law); Shanahan, 63 Ill. App. 3d at 94-95, 379 N.E.2d at 1316-17.

In his discovery deposition, Floyd admitted that he had signed the note in question, and had signed notes in the past, for loans that he had taken out personally. However, his testimony also indicated that he intended not to enter this transaction as a maker, but only as a limited guarantor or surety for his son, and that he was relying on Schweizer to effectuate that relationship. In his deposition, Floyd stated his understanding of what he agreed to as follows:

“Q. [Defendant’s attorney]: When you signed the documents for Federal Land Bank, was it your understanding that you would be liable for the entire debt?
A. No, sir. My only understanding was that, if he couldn’t make his payments, I would lose this 160 acres of land. That’s all I knew that I was obligated for.
Q. You were relying on Mr. Schweizer for preparing the necessary documents to effect that type of transaction?
A. Yes, sir.”

To sustain his claim of fraud, Floyd would have had to prove the following elements: (1) a false statement of a material fact; (2) that the party making the statement knew the statement was false or believed it to be untrue; (3) that the party to whom the statement was made had a right to rely on that statement and did, in fact, rely on it; (4) that the statement was made for the purpose of inducing the other party to act; and (5) that reliance by the person to whom the statement was made led to his injury. Seefeldt, 154 Ill. App. 3d at 719, 506 N.E.2d at 1055; Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 185-86, 441 N.E.2d 324, 331.

Floyd testified that he had spoken with Schweizer “a few times before there was [sic] any papers signed.” Floyd described those conversations as follows:

“Q. [Plaintiff’s attorney]: [A]re you telling me that Steve Schweizer didn’t represent that to you when you made this application, that you would only be liable for 160 acres? ***

A. I don’t think he specified that I would not be liable for other than, anything else. The only thing I was aware of was the 160 acres, and that I was never told that you are going to have to sign a note for any balance or any additional security or anything of this nature.

Q. [Defendant’s attorney]: In your conversation with Mr. Schweizer your sole obligation was to give 160 acres as security for this loan?

A. Yes, sir.

Q. You did not agree to be liable on any, liable for the entire loan?

A. No. I didn’t know anything about any, you know. Like I said, I thought the 160, and this is all I had been told, that the 160 would secure this loan.

Q. And Mr. Schweizer told you that the 160 at that point was all he required for you?

A. This is all that he ever mentioned.

Q. Did Mr. Schweizer indicate to you that the sole collateral or liability that you would have would be the 160 acres?

A. This is the indication that I had. There was never anything said about any additional security.

Q. By additional security, you mean liability on the note?

A. Yes. There was never anything mentioned about any additional security other than the 160 acres of land.

Q. All of this discussion took place prior to the date you signed these documents?

A. Yes. This was all discussed before it got down on paper. And I can’t remember specific dates. Again we are going back ten years, and I don’t remember specific. I have signed several notes in the mean time [sic].

* * *

Q. [Plaintiff’s attorney]: Are you telling me that what Steve Schweizer told you was that he had to have the additional 160 acres as collateral? Was that your understanding with Steve?

A. Yeah. My 160, I was to put up my 160 as additional collateral for Roger’s loan. This was the only thing that was discussed.”

Floyd argues that the eventual agreement was inconsistent with the representations made to him by Schweizer. The basis of Floyd’s fraud claim is that he relied- on these statements, purportedly made by Schweizer, to his detriment. In his deposition, Floyd stated the following:

“Q. Had Mr. Schweizer told you at the time that you signed the note that you were obligating yourself for the entire loan and not just putting up the 160 acres as collateral, would you have signed it?

A. No, I wouldn’t have signed it and put up 160 acres of land. What would I want to put up the 160 for if I was going to sign the original note?”

Schweizer’s affidavit on this point states the following:

“That Affiant did not at any time during this loan transaction, from the time of submission of the loan application to the time of the loan closing, ever communicate to Roger Isringhausen, Linda Isringhausen, Floyd Isringhausen, or Virginia Isringhausen, that Floyd and Virginia Isringhausen would not be fully liable with Roger and Linda Isringhausen on the promissory note, nor, that Floyd and Virginia Isringhausen’s liability under the note would be limited to the extent of the 160 acre farm mortgaged by them.”

Schweizer also stated in his affidavit that it was his

“custom and practice at such real estate loan closings to review with each of the loan applicants the loan application, promissory note, real estate mortgage, and settlement memorandum, highlighting the provisions of each document to the loan applicants and allowing the loan applicants an opportunity to read each such document in detail, to ask any questions that arose during the course of such document review and to obtain necessary signatures.”

Floyd’s recollection of the closing was much different; however, he was not precluded from reviewing the documents put before him.

“Q. When you signed those papers, Mr. Isringhausen, did you have an opportunity to examine them before you signed them?

A. Oh, yea, I am sure that we did, the papers were just put out to us and, ‘Sign here,’ and then turned over some more papers ‘Sign here.’

Q. I mean nobody at the Land Bank forced you to sign anything or anything like that, did they, sir?

A. No, sir. None of them had a gun.

* * *

Q. Mr. Isringhausen, you have testified this morning, of course, that you signed this note and this mortgage. When you signed that note as a farmer that has been in business and, as you say, signed more than one note, just based upon your background, what does that mean to you when you sign that note?

A. It means that I didn’t understand that this was what I was signing when I signed it.

Q. Well, you have indicated that you read over the documents, read them. Did you relate to Steve Schweizer any objection to signing that note?

A. I don’t believe I indicated that I looked over and read these. I believe I told you that they pushed the papers out and said, ‘Sign here, sign here, and sign here.’ And these were all, as I recall, in order. Just flip this over, sign here; flip this over and sign here.

* * *

Q. Okay, sir. Steve Schweizer didn’t prevent you from reading those documents, did he?

A. No, sir.

Q. Nobody else in the Federal Land Bank prevented you from reading them, did they?

A. No, sir.

Q. So you certainly had a chance to examine the documents before you ever signed your name; am I correct?

A. I did not have an attorney with me, if this is what you are saying. I think I told this gentleman one time, all the people I have dealt with before has [sic] been honest. I assumed they were. Apparently I was wrong.

. Q. All right, sir.

Did Steve Schweizer ever prevent you from bringing an attorney or having an attorney examine papers?

A. No, sir. I didn’t think it was necessary.

Q. So it was your own decision to appear and sign documents without an attorney? It wasn’t somebody at the Land Bank that actually prevented you from doing that; am I correct, Mr. Isringhausen?

A. They did not prevent me from having an attorney there, no. Like I said, I didn’t think it was necessary to have an attorney there. I thought Federal Land Bank was an old established business, and I didn’t, I was never told, I didn’t dream there was anything other than this 160 acres put up as security.”

“To establish a prima facie case of fraud, one must allege a knowing misstatement of material fact, which is reasonably relied upon by plaintiffs.” (Lenzi v. Morkin (1983), 116 Ill. App. 3d 1014, 1017, 452 N.E.2d 667, 670; see also Soules v. General Motors Corp, (1980), 79 III. 2d 282, 286, 402 N.E.2d 599, 601.) To constitute fraud, “[t]he concealment may not be a mere passive omission of facts during a business transaction but must have been done with the intent to deceive under circumstances creating an opportunity and duty to speak.” (Allensworth v. Ben Franklin Savings & Loan Association (1979), 71 Ill. App. 3d 1041, 1044, 389 N.E.2d 684, 687.) Floyd has asserted that he relied on Schweizer to effectuate his (Floyd’s) understanding of the transactional relationship. Obviously, there was a misunderstanding; the question is, was Floyd’s misunderstanding self-induced or the product of plaintiff’s representations?

On this record, we cannot find any act of Schweizer or the bank, either overt or covert, that supports Floyd’s claim that his misunderstanding was due to plaintiff’s representations. While there may have been a misunderstanding on Floyd’s part, this misunderstanding is not attributable to the plaintiff.

Accordingly, because we find no genuine issue of material fact to be present, the order granting summary judgment is affirmed.

Affirmed.

LUND, P.J., and GREEN, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARLINA CANAL, a/k/a Marlena Lundgren, a/k/a Marlena Heggy, Defendant-Appellant.
    Fourth District
    Nos. 4 — 90—0496 through 4 — 90—0498 cons.
    Opinion filed March 14, 1991.
    Daniel D. Yuhas and John Anthony Palombi, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Donna Dagnall, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

On May 21, 1990, defendant Marlina Canal, following a trial in absentia, was found guilty by a jury sitting in the circuit court of Macon County of committing three counts of forgery. (Ill. Rev. Stat. 1989, ch. 38, par. 17 — 3(a).) She was subsequently sentenced to three years’ imprisonment. Defendant now appeals.

The record reveals that on March 8, 1990, defendant appeared in court and pleaded not guilty. She was advised at that time that the trial was set for May 21, 1990, and a pretrial conference was to be held on May 7, 1990. She was also admonished, pursuant to section 113 — 4(e) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 113 — 4(e)), that if she failed to appear, the trial could proceed without her presence.

On May 7, 1990, she appeared, and the trial allotment was confirmed. On the day of trial, May 21, 1990, she was not present when the trial was to commence. The defense counsel had no idea as to her whereabouts. Upon the motion of the State, the trial proceeded without defendant. After the noon recess, counsel indicated his office had received a telephone call from defendant at approximately 12:50 p.m. She indicated she overslept and was now coming to court. It was counsel’s belief that defendant was living in Springfield, even though her bond slip did not reflect this. Accordingly, the case was continued until 2 p.m. for her appearance, which never occurred. The trial proceeded, and defendant was found guilty.

On June 22, 1990, defendant filed a motion seeking a new trial. At the hearing she testified that upon posting bond in this case, she lived in a hotel in Springfield. She had been taken there by friends and dropped off, and she had no transportation from Springfield to Decatur. To get to court for the pretrial, she had to get money for a bus ticket from the Salvation Army. She believed her trial had been set for the sanie date as a codefendant sometime in June. Once she found out about the trial, she tried to get money from the Salvation Army for a bus ticket, but was told she could only get funds once every 30 days. Since she could not get the funds, she could not appear.

On cross-examination, she stated she moved to the hotel in Springfield the day after she bonded out. She could not live in Decatur because she had no place to go. She did not remember being told the trial was set for May 21, 1990. She stated she called defense counsel a couple of days after the trial and he told her there was a warrant for her arrest due to her failure to appear. However, later she admitted telling counsel on the day of the trial that she was coming over. She maintained she did make it over later in the evening and went to counsel’s office, but he was not present. She then went back to Springfield with the girl who gave her the ride.

The court denied the motion. Following the sentencing hearing, it imposed a three-year prison sentence on defendant. Defendant now appeals, asserting the court erred in failing to grant her motion for a new trial.

Section 115 — 4.1(e) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 4.1(e)) sets forth the requirements for the granting of a new trial after a defendant has been convicted in absentia. (People v. Houston (1988), 174 Ill. App. 3d 584, 590, 529 N.E.2d 292, 296.) It provides that a new trial will be granted if defendant can establish that her failure to appear was both without her fault and due to circumstances beyond her control. (Ill. Rev. Stat. 1989, ch. 38, par. 115— 4.1(e).) The court concluded that defendant could not meet her burden.

The present case is factually similar to our earlier case of Houston. There, the defendant was allowed to go out of State pending trial, but was admonished he must be back on the date of trial. Defendant did not appear. He later testified that the rides he had arranged for had fallen through and that he could not afford a bus ticket. This court observed that it was incumbent upon defendant to appear for trial, and held that his motion for a new trial was properly denied. (Houston, 174 Ill. App. 3d at 591, 529 N.E.2d at 297.) We reach a similar conclusion here.

It is defendant’s position that she was confused about the trial date and that she could not afford transportation to get to trial. However, defendant’s testimony suffers from severe credibility problems. She first explained that she forgot the date, and did not find out she missed the trial until later, by happenstance, when she spoke with counsel and he advised her a warrant was outstanding. When asked to explain the midtrial phone call to counsel’s office, she then admitted calling the day of the trial, stating she was coming to the trial. She stated she made efforts to do so, only to arrive too late. Obviously, these statements cannot be reconciled. On one hand she was confused and only found out later and, on the other hand, she attempted heroic efforts to arrive on time but could not. Thus, we find that defendant, by the obvious internal inconsistencies in her own testimony, has failed to meet her burden.

However, even if we accept her testimony, it is still insufficient. Once a defendant has been advised of a court date, she must appear. It is her responsibility to undertake all steps to do so. Here, there is no explainable reason why she would live in Springfield rather than in Decatur. This is true especially since she had no transportation. If she was staying in a hotel in Springfield, she could just as easily have done so in Decatur. While she has a right to live where she wishes, it is her responsibility to ensure her arrival at the time and place of trial. The inability to arrange for transportation to the trial, when defendant sought to do so on the day of trial, is not a compelling justification for missing the trial. Nor is the forgetfulness of, or the confusion over, the date. If these two excuses were acceptable, then virtually every trial in absentia would be subject to being set aside. The beneficial purposes of these provisions (see Houston, 174 Ill. App. 3d at 591, 529 N.E.2d at 297) would be defeated. In short, it is difficult to conclude that reasons for her failure to appear in this case, being due to her confusion, forgetfulness, or her inability to arrange for transportation, which effort was just undertaken on the day of trial, are such as could be concluded to be without defendant’s fault and due to circumstances beyond her control. Just the opposite conclusion is called for.

Affirmed.

McCULLOUGH and KNECHT, JJ., concur.


text:
    JUDY L. MOORE et al., Plaintiffs-Appellants, v. KICKAPOO FIRE PROTECTION DISTRICT et al., Defendants-Appellees.
    Fourth District
    No. 4 — 90—0476
    Opinion filed March 14, 1991.

      Michael D. Clary, of Danville, for appellants.
    John B. Jenkins, of Gunn & Hickman, P.C., of Danville, for appellee Kiekapoo Fire Protection District.
    Vincent C. Cipolla, of Kurnik, Cipolla, Stephenson & Barasha, Ltd., of Arlington Heights, for appellee Vermilion County Clerk.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Plaintiff Judy L. Moore (Judy) voted on November 4, 1986, at a Vermilion County polling place located in the fire station of defendant Kickapoo Fire Protection District (District). After voting, she stepped into an area behind the election judges’ table, for purposes of communicating with one of the judges, who had gone into an adjoining kitchen. The path behind the judges’ table and chairs was the entryway to the kitchen area, and was not generally available to the public. Folding chairs had been stacked against the wall behind where the election judges were sitting, and they were readily visible and observed by Judy. Judy’s foot made contact with the stacked chairs as she walked in the path between the judges’ chairs and the folding chairs. She fell, sustaining a knee injury.

Judy and her husband, plaintiff Robert Moore, brought this action against the District and the Vermilion County Clerk Robert Fox. Based upon defendants’ motion, the trial judge granted summary judgment in favor of defendants on all counts, stating the stacks of folding chairs “did not constitute a dangerous condition and were known and obvious to [Judy].” Plaintiffs appeal from the judgment of the circuit court of Vermilion County, and their counsel argues that our supreme court has abolished the obvious-risk rule by its decision in Ward v. Kmart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223.

Section 2 — 1005(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c)) provides that a party may be granted summary judgment “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law.” In ruling upon such a motion, the trial court must consider the pleadings and evidentiary matters in the record in the light most favorable to the nonmoving party and accept as true the reasonable inferences from such facts which favor the nonmovant. (National Bank v. City of Lexington (1985), 138 Ill. App. 3d 805, 808, 486 N.E.2d 967, 969.) On review, this court must determine whether the case contains a genuine issue of fact sufficiently material to require the reversal of the trial court’s order granting summary judgment. Casteel v. Smith (1982), 109 Ill. App. 3d 1094, 1098-99, 441 N.E.2d 860, 863.

In the present case, the record indicates that the path behind the election judges’ chairs was used without incident by the election judges. The chairs stacked against the wall did not fall of their own accord and, as we have said, were readily visible and obvious to those who would be walking in the path.

We need not repeat the careful explanation set forth in the Ward opinion. That opinion specifically rejects an obvious-risk rule which would find an owner or occupier free of a duty of reasonable care under all circumstances if the conditions are known or obvious to the entrants. (Ward, 136 Ill. 2d at 145, 554 N.E.2d at 229.) Conditions, though seemingly innocuous enough in themselves, may present an unreasonable danger under certain circumstances. (Ward, 136 Ill. 2d at 152, 554 N.E.2d at 232.) The possibility that an entrant, even in the general exercise of reasonable care, will be distracted or momentarily forgetful must be considered. (Ward, 136 Ill. 2d at 155, 554 N.E.2d at 233-34.) However, in determining whether a duty exists, focus must be on the defendant. A major concern is whether the defendant could reasonably have foreseen injury to plaintiff. (Ward, 136 Ill. 2d at 148, 554 N.E.2d at 230.) This is not to say that the defendant must anticipate negligence on the part of the plaintiff. Ward, 136 Ill. 2d at 152, 554 N.E.2d at 232.

In sum, we hold Ward did not sound the death knell for the rule of known or obvious risk, which also is referred to as the “open and obvious rule.” The opinion adopts Restatement (Second) of Torts §343A (1965). (Ward, 136 Ill. 2d at 155, 554 N.E.2d at 234.) Ward makes clear that the known-and-obvious-risk rule continues to be viable, but is subject to the conditions discussed heretofore in this opinion and more thoroughly detailed in the Ward opinion. Ward, 136 Ill. 2d at 149, 554 N.E.2d at 231.

We return now to the present case. Stacks of a few chairs are not in themselves dangerous. The path between the chairs and the election judges was principally for the election judges, and was not for use by the general public. Both the stacks of chairs and the seated election officials were obvious to anyone nearing the pathway. The facts establishing distraction or forgetfulness present in the Ward case are not indicated in the present case. The test is whether a defendant could reasonably foresee that a person would enter the pathway, knowing of the chairs and other obstacles, kick the chairs with his or her foot, and fall over the chairs. We consider a finding that Judy’s injury was foreseeable to be too great a burden, and suggest that it would open the door to claims from too many careless accidents that take place in regular business and household environments. Those who enter into an area free of foreseeable distractions with knowledge of existing obstructions must be responsible for their own conduct, and must proceed at their own risk. The trial court’s judgment must be affirmed.

Affirmed.

GREEN and STEIGMANN, JJ., concur.


author: JUSTICE SPITZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD R. CORDLE, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0690
    Opinion filed March 14, 1991.
    Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

Following a bench trial conducted in the circuit court of Macon County, the defendant Edward R. Cordle was found guilty of the unlawful production of 41 Cannabis sativa plants and the unlawful possession of over 500 grams of cannabis with intent to deliver. (Ill. Rev. Stat. 1989, ch. 56^2, pars. 708, 705(e).) Defendant was sentenced to serve concurrent terms of imprisonment of one year for production of Cannabis sativa plants and three years for unlawful possession with intent to deliver.

On appeal, the only issue raised is whether defendant was proved guilty beyond a reasonable doubt of possession with intent to deliver. We affirm.

Under the decision of Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781, in determining whether the elements of the charged offense have been proved beyond a reasonable doubt, the reviewing court need only examine the record, viewing the evidence in the light most favorable to the prosecution, with the objective of deciding whether any rational trier of fact could have found the essential elements of the offense to have been proved beyond a reasonable doubt. Every reasonable hypothesis of innocence need not be excluded to sustain conviction. It is the function of the trier of fact to weigh the credibility of witnesses and to resolve conflicts or inconsistencies in the testimony, and the reviewing court will not retry the defendant. See People v. Eyler (1989), 133 Ill. 2d 173, 549 N.E.2d 268.

Defendant told police, and admitted at trial, that the cannabis found in his residence was his. However, he stated he had no intent to sell it. There was testimony that the unprocessed cannabis plants confiscated from defendant’s basement weighed 938.8 grams.

Defendant concedes that a reasonable inference of the intent to deliver may arise from possession of a quantity of drugs in excess of that needed for personal use. (People v. Romero (1989), 189 Ill. App. 3d 749, 546 N.E.2d 7; People v. Schaefer (1985), 133 Ill. App. 3d 697, 479 N.E.2d 428.) Nevertheless, defendant argues the State did not prove beyond a reasonable doubt that the cannabis seized exceeded the amount necessary for personal use because the plants had not been dried or processed and there is no testimony of how much usable cannabis would be produced from the seized plants. Defendant also argues that there is no evidence of a corroborating nature which would support a finding of possession with intent to deliver such as scales, baggies, baggie corners, weapons, beepers, cannabis packaged for delivery, a large sum of money, or prior deliveries. Furthermore, defendant had a full-time job. Defendant recognizes he had a “fairly elaborate” hydroponic method of growing cannabis, but complains that, although the State put in evidence the cost of new equipment for this purpose, the State failed to present evidence of the cost of used equipment. Certainly, if defendant wanted to challenge the inference that he was intending to deliver cannabis as shown by the expensive nature of the equipment he used to grow it, then defendant could have presented evidence of the cost of used equipment. In any event, this court now holds that the amount of the cannabis alone, without any additional evidence, is sufficient to support a finding of possession with intent to deliver. It is true that in a number of cases the courts have referred to the presence of additional evidence which supports the finding of possession with intent to deliver. (Romero, 189 Ill. App. 3d 749, 546 N.E.2d 7; People v. Friend (1988), 177 Ill. App. 3d 1002, 533 N.E.2d 409; People v. Tovar (1988), 169 Ill. App. 3d 986, 523 N.E.2d 1178; People v. Whitfield (1986), 140 Ill. App. 3d 433, 488 N.E.2d 1087; People v. Birge (1985), 137 Ill. App. 3d 781, 485 N.E.2d 37; Schaefer, 133 Ill. App. 3d 697, 479 N.E.2d 428.) However, as People v. Kline (1976), 41 Ill. App. 3d 261, 354 N.E.2d 46, points out, the presence of paraphernalia merely strengthens the inference. There is no need for evidence of paraphernalia to give rise to that inference. Nevertheless, defendant does seem to ignore the evidence of a package of cannabis seeds and two additional tables being under construction to apparently expand defendant’s capacity to grow cannabis.

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

Affirmed.

GREEN and McCULLOUGH, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES R. HOOD, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0534
    Opinion filed March 14, 1991.

      S. John Muller, of Charleston, for appellant.
    Nancy Owen, State’s Attorney, of Charleston (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On September 15, 1989, defendant James R. Hood was arrested for driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501(a)(2)) and driving with a blood-alcohol concentration (BAC) of 0.10 or more. (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501(a)(1).) Following a jury trial, defendant was found guilty of driving with a BAC of 0.10 or more but not guilty of DUI. Defendant appeals his conviction of driving with a BAC of 0.10 or more contending that (1) the jury verdicts are “obviously inconsistent in law, fact and reason” and (2) the jury instructions given on the BAC charge and section 11 — 501(a)(1) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501(a)(1)) “are at variance, vague, and confusing and very likely deprive defendant of a fair trial.” We disagree with defendant and affirm his conviction for driving with a BAC of 0.10 or more.

On September 14, 1989, at approximately midnight, defendant was stopped by two Coles County police officers on Route 16 just outside Charleston, Illinois. The police officers observed defendant swerving in his lane and also observed defendant cross the center line six times. Both officers believed defendant was driving while under the influence of alcohol.

After defendant was stopped, he was given three field-sobriety tests, two of which he failed. The police officers detected the odor of alcohol on defendant’s breath and noticed defendant could not maintain his balance. The police officers testified defendant had trouble locating his driver’s license in his wallet and passed it over several times before offering it to the officers.

Defendant was placed under arrest for DUI and transported to the Coles County jail. A breathalyzer test was given to defendant, and it showed defendant’s BAC to be 0.18. After the results of this test were known, defendant was also charged with driving with a BAC of 0.10 or more.

At the trial, the jury viewed a videotape of defendant’s “booking.” This tape showed defendant’s actions and appearance on the night he was arrested. Specifically, this tape revealed defendant acted hostile and belligerent when he refused to return a ticket mistakenly issued by the police officer. One of the officers had written the wrong name on the ticket and had set it aside to be thrown away. Defendant took this ticket off the police officer’s desk and refused to give it back when asked to do so. Only after the police threatened to physically retrieve the ticket from defendant did he return it. The jury also heard testimony from four police officers who all stated they believed defendant to be under the influence of alcohol that night. The police officers also testified defendant refused to use the telephone at the police station to get a ride home, but rather walked five blocks to a pay telephone.

Defendant produced several witnesses who were with him prior to his arrest. Defendant had attended a meeting at the VFW Post in Charleston that night. The meeting lasted from 7 p.m. to 10 p.m. Defendant testified he had one beer before the meeting and four beers between 10 p.m. and midnight. Defendant’s witnesses testified defendant was not drunk that night. The most any one witness saw defendant drink was two beers; however, none of the witnesses were with defendant the whole evening and none of the witnesses saw defendant between 11:30 p.m. and midnight.

The jury acquitted defendant of DUI but convicted him of driving with a BAC of 0.10 or more. Defendant appeals that conviction contending the jury verdicts are inconsistent, thus requiring reversal of the conviction. The State responds, first, that defendant has waived this issue and, second, that if the issue is not deemed waived, the verdicts are not inconsistent so that reversal of defendant’s conviction is required.

Supreme Court Rule 341(e)(7) provides that an appellant’s brief must contain “the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on.” Furthermore, if a point is not argued, it is waived and cannot be raised in a reply brief, oral argument or petition for rehearing. (134 Ill. 2d R. 341(e)(7).) The well-established rule is that mere contentions, without argument or citation of authority, do not merit consideration on appeal. (Fuller v. Justice (1983), 117 Ill. App. 3d 933, 453 N.E.2d 1133.) Contentions supported by some argument but by absolutely no authority do not meet the requirements of' Supreme Court Rule 341(e)(7). (In re Marriage of Drummond, (1987), 156 Ill. App. 3d 672, 509 N.E.2d 707.) A reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository into which the appealing party may dump the burden of argument and research. Holliday v. Civil Service Comm’n (1984), 121 Ill. App. 3d 763, 460 N.E.2d 358.

The only authority cited in defendant’s brief consists of the DUI statute, a general reference to the American Law Reports (ALR), and a reference to a Georgia case within the cited annotation of the ALR. We are not given the name of the Georgia case. Defendant’s argument for reversal of his conviction appears to be that the jury verdicts are logically inconsistent although (as will be discussed below) the law in Illinois allows verdicts to be logically inconsistent as long as they are legally consistent. This argument is based on defendant’s interpretation of the Illinois DUI statutes. However, inasmuch as defendant fails to cite any interpretation of the statutes by Illinois courts, although there are several cases on point, and offers minimal argument in support of his position, we would be justified in considering this point waived.

Nevertheless, we will address defendant’s argument because we conclude these verdicts are not legally inconsistent. Where verdicts inconsistently acquit and convict of separate crimes arising from the same act, logical consistency in verdicts is not necessary, so long as the verdicts are not legally inconsistent. (People v. Hairston (1970), 46 Ill. 2d 348, 362, 263 N.E.2d 840, 849.) Legally inconsistent verdicts are verdicts where the same essential element of each crime is found to exist and not to exist and both crimes arise out of the same set of facts. Legally inconsistent verdicts are invalid and the conviction must be reversed. (People v. Sandy (1989), 188 Ill. App. 3d 833, 845, 544 N. E.2d 1248, 1255.) Where the two legally inconsistent verdicts are guilty and not guilty, a retrial of the offense from which the defendant was convicted is barred by the principle of collateral estoppel. People v. Munday (1985), 134 Ill. App. 3d 971, 975, 481 N.E.2d 338, 341.

Defendant argues the jury found the same element of both offenses to exist and not to exist, thus producing inconsistent verdicts. The necessary elements for a conviction for driving with a BAC of O. 10 or more are (1) the driving of a motor vehicle and (2) a BAC of 0.10 or more. The necessary elements for a conviction of DUI are (1) the driving of a motor vehicle and (2) the defendant being under the influence of alcohol. (People v. Graven (1984), 124 Ill. App. 3d 990, 995, 464 N.E.2d 1132, 1135-36; Ill. Rev. Stat. 1987, ch. 951/2, pars. 11 — 501(a)(1), (a)(2).) Section 11 — 501.2(b)(3) of the Code provides:

“If *** at [the] time [a person drove a motor vehicle that person had] an alcohol concentration of 0.10 or more, it shall be presumed that the person was under the influence of alcohol.” (111. Rev. Stat. 1987, ch. 95V2, par. 11-501.2(b)(3).)

Defendant argues that since the jury found him guilty of the BAC charge, his BAC was greater than 0.10 and thus he was presumed to be under the influence of alcohol. However, because the jury acquitted him of the DUI charge, it found him not to be under the influence of alcohol. Thus, according to defendant, the jury found the same element both to exist and not to exist.

This argument was rejected in People v. Caruso (1990), 201 Ill. App. 3d 930, 559 N.E.2d 545. There, as in the instant case, defendant was convicted of driving with a BAC of 0.1Ó or more but acquitted of DUI. Similar to this case, defendant in Caruso contended on appeal that these verdicts were legally inconsistent. The court rejected this argument, relying primarily on People v. Ziltz (1983), 98 Ill. 2d 38, 455 N.E.2d 70.

In Ziltz, the court stated the offense of driving with a BAC of 0.10 or more is a separate, statutory offense from DUI. (Ziltz, 98 Ill. 2d at 43, 455 N.E.2d at 72.) When the State establishes that a defendant operated a motor vehicle while his BAC was 0.10 or more, the statutory violations have been proved. (Ziltz, 98 Ill. 2d at 43, 455 N.E.2d at 72.) Further, the court stated the presumption of section 11 — 501.2(b)(3) of the Code only applies to the statutory offense of DUI and not to the offense of driving with a BAC of 0.10 or more. Ziltz, 98 Ill. 2d at 43, 455 N.E.2d at 72.

Relying on these principles, as well as the fact that the State does not have to prove a defendant drove with a BAC of 0.10 or more to prove a defendant drove while under the influence of alcohol (People v. Foley (1987), 152 Ill. App. 3d 354, 504 N.E.2d 254), the court in Caruso found the verdicts of guilty of driving with a BAC of 0.10 or more but not guilty of DUI were not legally inconsistent. That court found the guilty verdict was not premised on the nonexistence of an element in the not guilty verdict. Caruso, 201 Ill. App. 3d at 937, 559 N. E.2d at 550.

We agree with the reasoning of the court in Caruso. Once the State proved defendant operated a motor vehicle and his BAC was O. 10 or more, the State met its burden of proof to convict defendant under section 11 — 501(a)(1) of the Code. The presumption of section 11 — 501.2(b)(3) did not apply to the BAC charge. Moreover, the presumption set forth in that section is a permissive presumption. (People v. Hester (1989), 131 Ill. 2d 91, 544 N.E.2d 797; Graven, 124 Ill. App. 3d 990, 464 N.E.2d 1132; People v. Malik (1983), 113 Ill. App. 3d 206, 446 N.E.2d 931.) The jury was properly instructed that it could infer that defendant was under the influence of alcohol because his BAC was 0.10 or more but it was not required to draw that inference. (People v. Elliott (1986), 143 Ill. App. 3d 72, 492 N.E.2d 946.) Indeed, as this court noted, the evidence could be such that a trier of fact could find defendant had a BAC of 0.10 or more but not be under the influence of alcohol. In that situation, the trier of fact would then be rejecting the permissive presumption and finding defendant guilty of the BAC charge. Malik, 113 Ill. App. 3d at 213, 446 N.E.2d at 936.

Defendant’s second argument is that the jury instructions given at the trial are inconsistent with the statute regarding the presumptions a trier of fact may employ when given the results of chemical tests relating to the level of alcohol in a person. (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.2(b).) Defendant argues these erroneous instructions confused the jury and deprived him of a fair trial.

The general rule is that the failure to object at trial to an asserted error in jury instructions waives the question, and that no party may raise on appeal the failure to give an instruction unless he tendered it at trial. (People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248; People v. Tannenbaum (1980), 82 Ill. 2d 177, 415 N.E.2d 1027.) Issues not raised in a post-trial motion following a jury trial are effectively waived for appellate review. Furthermore, both a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The waiver rule is not absolute, and a limited exception for plain error exists in Supreme Court Rule 615(a). (134 Ill. 2d R. 615(a).) Supreme Court Rule 451(c) (134 Ill. 2d R. 451(c)) also allows an exception to the waiver rule for “substantial defects” or “if the interests of justice require.” This exception applies only to correct serious or grave errors, cases that are factually close, or cases in which the error threatens the fundamental fairness of the defendant’s trial. People v. Burns (1986), 144 Ill. App. 3d 345, 355-56, 494 N.E.2d 872, 880.

Defendant did not object to any of the jury instructions submitted at the trial, nor did he proffer any of his own instructions. Furthermore, defendant did not raise this issue in his post-trial motion to set aside the verdict. Illinois Pattern Jury Instruction, Criminal, No. 23.06 (2d ed. Supp. 1989) has been determined to not fairly state the law and, thus, a trial court is authorized to modify that instruction. (Hester, 131 Ill. 2d at 103, 544 N.E.2d at 803.) The trial judge in the instant case did precisely that to insure the instruction did fairly state the law. The trial judge informed the jury of the presumptions as set forth by section 11 — 501.2(b) of the Code, but further instructed the jury that they were not required to make any of these presumptions. In fact, the jury instruction given in the present case has been used in several other cases. (See Hester, 131 Ill. 2d 91, 544 N.E.2d 797; Elliott, 143 Ill. App. 3d 72, 492 N.E.2d 946; Malik, 113 Ill. App. 3d 206, 446 N.E.2d 931.) Thus, the jury instruction tendered at the trial was not at variance with the statute as the trial judge properly modified the instruction to conform to the law. In any event, because defendant failed to object to the instruction at trial and failed to raise the issue in his post-trial motion, and since no exception to the waiver rule applies, defendant has waived the issue.

For the foregoing reasons, we affirm defendant’s conviction of driving with a BAC of 0.10 or more.

Affirmed.

SPITZ and KNECHT, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN HOLLINGSEAD, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0537
    Opinion filed March 14, 1991.

      Fuller, Hopp, McCarthy & Quigg, of Decatur (Glenn O. Fuller, of counsel), for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

Defendant appeals his convictions for official misconduct and obstructing justice. We affirm.

On April 6, 1990, a grand jury indicted defendant on three counts of official misconduct and one count of obstructing justice. Count I charged defendant with official misconduct in that as a police officer on duty for the City of Decatur, Illinois, defendant knowingly performed an act which he knew was forbidden by law to perform. (Ill. Rev. Stat. 1989, ch. 38, par. 33 — 3(b).) The act defendant knew he was forbidden by law to perform provided the basis for count II, obstructing justice. (Ill. Rev. Stat. 1989, ch. 38, par. 31 — 4(a).) Counts I and II alleged that defendant, with the intent to obstruct the defense of Andre Peck, knowingly disguised physical evidence, planted false evidence, and furnished false information, by placing a quantity of white powder on Peck. Counts I and II also alleged that defendant represented to those present, including police officers, that the substance he placed on Peck was taken from Peck, and was cocaine or a controlled substance, while knowing that the substance was not on Peck and was not cocaine or a controlled substance. Counts III and IV of the indictment charged defendant with official misconduct based upon the commission of an act of disorderly conduct. Defendant waived his right to a jury, and the trial court found him guilty of counts I and II. The court found defendant not guilty of counts III and IV, and they are not involved in this appeal.

At defendant’s trial, Andre Peck was the first to testify. Peck testified that on March 2, 1990, he was walking with his brother and a friend shortly after midnight in the vicinity of Marietta and Warrent Streets in Decatur, Illinois. At the time, Peck was on parole for theft and burglary and was out past his curfew. Peck noticed a white Cadillac parked on Marietta, and as he walked by, a person in the car asked him for a cigarette. As Peck looked to see if he knew anyone in the car, a police car pulled up and turned its spotlight on. Peck became scared because he was out after his curfew, and he began to run. The police apprehended Peck and found a bag of cocaine near him. The police then took Peck to a squad car and searched him on the hood of the car. About 10 or 12 people gathered around and watched. As Peck was being searched, he saw an officer, defendant, go to the trunk of the car and come out with a bag containing a white substance. Peck had seen cocaine before and believed what the officer pulled out of the trunk was cocaine.

After the officer took the bag of white substance from the trunk, he walked around to the back of Peck, tugged Peck’s back pocket, and said “look what we got here.” At this time, the other officers had just completed their search. Peck became hysterical and shouted to the officers that the substance was not his. Defendant never told Peck the bag of white powder was a joke, and the incident did not seem to be done in a joking manner. Moreover, nobody laughed, including the police officers. Peck was subsequently arrested and charged with the offense of being a pedestrian in the roadway.

Don Brooks, a sergeant with the Decatur police department, also testified. Brooks spoke to defendant on March 8, 1990, and defendant told him that the incident was a joke, was intended to be a joke, and that “they had done it before.” Defendant did not describe who “they” were. When Brooks later asked defendant if “they” do this all the time, defendant replied: “[N]o, this was just a joke, ***. You get in a car, hold up a plastic bag and say, look what I found ***.” Brooks testified that he had not heard of this happening before and could only surmise as to what defendant meant by stating such things have happened. While Brooks thought defendant believed such actions were common practice, it was not the practice of the Decatur police force at all to do this. Brooks also testified that an officer cannot purport to find evidence on a person if he did not actually find it on the person.

On cross-examination, Brooks testified that when officers discover controlled substances on suspects, they often hold the substance up and say “look what I have found.” Brooks also stated that defendant had been given permission to carry the bag of white powder, “pseudo-cocaine,” to train his dog. Brooks did not recall ever telling a suspect that his fingerprints were found at the scene when they in fact were not, but he has falsely told a defendant that a codefendant had confessed to induce the defendant to confess. Brooks was never disciplined for such conduct or charged with official misconduct.

Next to testify was Mike Mowen, a police officer with the City of Decatur. Mowen testified that to train dogs with the pseudo-cocaine, it is not necessary to place the substance in bags to resemble the manner in which cocaine is packaged on the street. Dogs identify the substance by smell, not sight. On cross-examination, Mowen testified that the way the defendant’s pseudo-cocaine was wrapped was approved by Officer Stephen Jostes, who trains the dogs and has the authority to try different techniques. Mowen also testified that it was not department policy for dog handlers to use pseudo-cocaine in an attempt to induce a confession from a suspect.

David Slade, a police officer with the City of Decatur, testified next. Slade conducts narcotic investigations and tests items which appear to be controlled substances. Slade conducted preliminary testing on the substance in the bags used by defendant on the night in question and found no trace of cocaine. Slade also testified that the manner in which defendant’s pseudo-cocaine was packaged was similar to the way cocaine is packaged on the street. The pseudo-cocaine also has the appearance of cocaine itself. Slade further testified that the department’s policy or law did not allow an officer to exhibit a bag appearing to contain cocaine to a person being searched, in an attempt to elicit a confession, if that bag had not been found on that person.

Also testifying was Ed Smith, an officer with the City of Decatur police department. Smith arrived on the scene after hearing over the radio that an officer was chasing a suspect. Smith helped lead Peck to a squad car where Peck was searched. At this time there were many officers and people standing around. Smith and Officer Todd Walker searched Peck, who did not resist in any way. As Smith finished searching Peck, he heard someone say “look what I found.” Smith looked up over his shoulder and saw defendant holding a bag, which appeared to hold several smaller bags of white powder. The substance in the bags appeared to be cocaine. Smith thought the bag had come from Peck’s waist band. At this time Peck became agitated and yelled that the bag was not his and that the officers were framing him. Smith was surprised at what happened.

Smith further testified that he did not think the incident was funny, did not laugh, and the officers present did not laugh. Moreover, defendant never told Smith that he was only joking. Smith stated that, from his experience as a police officer, defendant’s conduct is neither condoned nor promoted.

On cross-examination, Smith stated that after defendant held the bag in the air to show what he found, Smith did not immediately know he was joking. However, Smith did write in a police report that defendant’s action was a joke and that defendant never implied that Peck was to be charged with an offense involving the substance. Smith clarified his police report at trial by stating that he came to this conclusion only after the fact, sometime after he got back to headquarters and “sorted things out.” Smith also testified that at the time he turned to look at defendant holding the bag, defendant was laughing and snickering, but Smith still did not believe at the time that defendant was joking. Defendant never attempted to interrogate Peck in Smith’s presence, and never asked that Peck be charged with the possession of a controlled substance.

Next to testify was Officer Michael Beck of the Decatur police department. Beck was working with Officer Smith on the night in question. Beck saw Officer Ziros chase and capture Peck. Other officers arrived, including defendant. Peck was taken to a car and placed on the hood for a search. During the search, Peck did not resist in any noticeable way. As the officers searched Peck, defendant went to the trunk of his car and opened it. Defendant then approached Beck with a “tackle box type container,” opened it, and pulled out clear plastic bags containing several smaller plastic bags. The smaller bags held a white powder. Defendant asked Beck, “[W]hy don’t you tell him you found this on him?” Although defendant was laughing at this time, Beck did not know he was joking. Beck did not remember smiling when defendant made the suggestion to him, and did not believe he did. Beck thought the powder was cocaine and was surprised defendant asked him to do this. Beck told defendant he would not do it, and defendant turned around and walked back to his car.

Defendant then approached Peck from the rear while Smith was searching him and placed the bag near Peck’s pocket. Defendant reached out and pulled out a bag similar to the one he had just shown Beck. Standing next to Peck, defendant held up the bag and said something like “look what I have found.” Defendant was laughing as he did this. Peck became agitated and shouted that the bag was not his. Smith appeared shocked and Beck was surprised.

Later, as Beck and Smith headed for their car, Beck heard defendant say that he had taken the bag out for comparison purposes. When defendant said this, he was not smiling and Beck believed he was serious. Defendant never told Beck on the night the incident occurred that he was joking, and only told him this about a month later.

Nothing in Beck’s training suggested that defendant’s behavior was acceptable conduct under police department policy. Beck also testified that he had never handed a substance appearing to be cocaine to a suspect, while telling the suspect he found it on him, if the substance had not actually been found on the suspect.

On cross-examination, Beck admitted writing in his report that defendant had performed the act in a “joking manner” and was laughing when he showed Beck the bag. Beck testified that using the word “joking” in his report was a poor choice of words. Beck also admitted that after the incident, he concluded that defendant was joking at the time and had no intention of trying to arrest Peck on drug charges. Defendant never indicated by word that he was serious in finding the pseudo-cocaine on Peck and never asked Beck to arrest Peck.

Next to testify was Officer Todd Walker of the Decatur police force. During the search of Peck, Walker stood next to Peck and placed his left hand over Peck’s right hand on the hood of the car. Peck did not resist or try to get away, and Walker did not feel threatened. After defendant held up the bag and said “look what I have found,” Walker asked Smith, who had conducted the search, if Smith had found the cocaine on Peck. Smith appeared shocked and replied that he did not find the bag on Peck. Walker then asked defendant if he had taken the cocaine off of Peck. Defendant replied that he had not taken the bag off of Peck and that the bag was pseudo-cocaine. Later at the scene, defendant called Walker and Beck to his car and told them that the substance was only pseudo-cocaine, that it was a joke, and was only meant to be a joke. Defendant also said at this time that he had used the pseudo-cocaine in an attempt to induce Peck to admit, or make a statement about, where cocaine was or had been dropped, if there was any.

On cross-examination, Walker testified that defendant never told him or any other officer that Peck should be arrested or charged. Walker did not know at the time defendant held up the bag that he was joking, and denied that he told other officers after the incident that he knew all along that defendant was joking.

Also testifying was Lieutenant Gordon Hannon of the Decatur police department. Sometime after the incident, defendant informed Hannon that he had gone up to Peck and told Peck that the bag was found on him. Defendant also told Hannon that the incident was a joke and that he had no intention of writing a report stating he had found cocaine on Peck.

The State rested, and the defense called Officer Prokopios Ziros of the Decatur city police to the stand. Ziros testified that he saw Peck get out of the car and put something white in his mouth. When Ziros caught Peck, he told him to get down on the ground and asked him to open his mouth. Ziros pulled a plastic bag out of Peck’s mouth and placed it in his pocket. Ziros, however, did not tell any of the other officers about the plastic bag and later threw it away because he did not intend to charge Peck with anything more than a curfew violation and walking on the roadway.

The defense next called Stephen Jostes, a patrolman with the City of Decatur and the trainer for the canine unit. Jostes testified that it was proper for defendant to keep the pseudo-cocaine in his vehicle. Jostes also testified that while the dogs identify the pseudo-cocaine by smell, not sight, he had also used the substance wrapped in little bags, similar to the way defendant wrapped his, for about a month prior to the incident. However, Jostes testified that he never used the pseudo-cocaine wrapped in little bags to make someone confess by arresting him and telling him the substance was found on him. Defendant never asked Jostes for permission to package the pseudo-cocaine in such a manner in order to place it on a suspect, who would not know the substance was not real cocaine.

Next to testify was Jonathan Thomas, a police officer for the City of Decatur. Thomas testified that he spoke to Walker on three different occasions about the incident and Walker said each time that he knew it was a joke. Thomas also testified that Walker told him he was surprised at what defendant had found because Peck had just been searched, but that Walker knew defendant was joking as soon as the incident occurred.

Next to testify was Officer David Stewart of the City of Decatur. Stewart discussed the incident with Walker after it occurred and Walker told him that he knew it was a joke, that it was performed in a ridiculous and outlandish manner, and that anyone there would have known it was a joke.

Finally, defendant testified. Defendant had been a law enforcement officer for over 10 years, 6 years as a deputy sheriff and correctional officer and 4% years with the City of Decatur as a patrolman. On the night in question, defendant heard over the radio that Officer Ziros was pursuing a suspect who appeared to have placed a white powdery substance in his mouth. Defendant arrived on the scene after Peck was initially apprehended. Defendant knew the officers were looking for controlled substances and presumed they had not found any. When Officers Smith, Ziros, and Beck brought Peck to the hood of his car, the officers were excited. Defendant asked Ziros if they found the substance Peck was supposed to have and Ziros replied that they had not. Defendant further testified that Peck was very excited during the search, continued to come off the car, and was constantly told by Walker to keep his hands on the car and to calm down. Defendant realized that with people gathering around, the situation was getting worse, and did not believe the police really had any charges against Peck.

Defendant then went to the car and pulled out the package containing the pseudo-cocaine. Defendant asked Officer Beck to go up to Peck and show him the substance. Beck laughed “to the extent where he didn’t want to do it” and said he would not do it. Defendant then said “watch this,” walked over behind the suspect, held the bag up in his hand, and said “Oh, my gosh, look what I have ***.” At this time, Smith and Walker looked stunned. After Peck became agitated and Walker and Smith looked at him, defendant realized they were not taking it as a joke. Because of this, and the thought that things could get worse, defendant put the bag back in his own pocket and stepped back. Walker asked defendant how he found the substance on Peck, and defendant told him it was pseudo-cocaine and a joke.

Defendant testified that his entire plan was to go up to the officers and relieve the tension, believing that his joke would get the officers laughing. The joke had nothing to do with Peck or the crowd, but was only for the officers. Defendant realized right away, however, that the officers “weren’t getting it,” so he tried to tell them it was a joke. Defendant had nothing to do with Peck after this and did not ask the officers to arrest Peck for controlled substances.

Defendant denied telling Walker that the incident was an attempt to induce Peck to tell where the real cocaine was. However, defendant did admit telling Beck and Walker he took the pseudo-cocaine out of his car for comparison purposes. Defendant did not know what he would have compared the pseudo-cocaine to. Defendant also testified that he told Walker, Beck, and Smith that the entire incident was a joke. Defendant did not tell Peck the incident was a joke because he had informed the officers of such and had no reason to go back and upset Peck. Defendant also denied telling Sergeant Brooks that similar incidents happen. What defendant told Brooks was that officers at times show an empty bag to a suspect and say “look what I have here.”

Defendant next testified that he did not tell Lieutenant Hannon that he informed Peck he found the bag on him. Defendant stood by his statement even though Hannon wrote defendant’s alleged statement in his report shortly after their meeting.

The trial court found defendant guilty of counts I and II and stated:

“[Bjased upon my consideration of all the evidence and particularly certain portions of the testimony of Officer Brooks, Smith, Beck and Walker ***. I find that you planted the false evidence on the young man with the intent to obtain a confession and that this did obstruct his defense.”

The court entered judgment only as to count I, official misconduct, regarding count II, obstructing justice, as an included offense, and sentenced defendant to 18 months of probation and 50 hours of community service as a condition of probation. Defendant did not file a post-trial motion and filed this notice of appeal.

On appeal, defendant contends that the evidence was insufficient to prove him guilty beyond a reasonable doubt. Specifically, defendant argues that his conviction should be reversed for two reasons: (1) the State failed to prove that he acted with the intent to obstruct the defense of Peck; and (2) the State failed to prove that he knowingly performed an act which he knew he was forbidden by law to perform. We disagree and affirm the trial court.

Initially, we note that defendant did not file a post-trial motion. When a defendant fails to comply with the statutory requirement to file a post-trial motion, an appellate court’s review is limited to constitutional issues which have properly been raised at trial and which can be raised later in a post-conviction hearing petition (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1), sufficiency of the evidence, and plain error. (People v. Enoch (1988), 122 Ill. 2d 176, 186-91, 522 N.E.2d 1124, 1129-32, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) This rule applies in bench and jury trials. (Enoch, 122 Ill. 2d at 187-88, 522 N.E.2d at 1130.) Plain error is “ ‘a narrow and limited exception to the general waiver rule’ (People v. Pastorino (1982), 91 Ill. 2d 178, 188), to be invoked only when the error alleged is ‘so substantial as to deprive defendant of a fair trial’ (People v. Pastorino (1982), 91 Ill. 2d 178, 189).” People v. Szabo (1986), 113 Ill. 2d 83, 94, 497 N.E.2d 995, 999.

Defendant first argues that the State failed to prove he acted with the intent to obstruct Peck’s defense. An essential element in proving defendant obstructed justice is the intent to obstruct an individual’s defense. (Ill. Rev. Stat. 1989, ch. 38, par. 31 — 4.) In arguing such, defendant notes the following: (1) defendant had his superior officers’ consent to keep the bags of pseudo-cocaine in his car; (2) Beck and defendant both testified that defendant was laughing when he suggested that Beck tell Peck he found the bag on him; (3) all defendant’s actions were done in the open, with no attempt to conceal, where the crowd and the officers could see what he was doing; (4) defendant told Walker immediately after the incident that he did not find the bag on Peck and that the substance was pseudo-cocaine; (5) defendant never told anyone to arrest Peck and never attempted to interrogate Peck; (6) Smith concluded after the incident that it was a joke; (7) Thomas testified that Walker told him he knew it was a joke; and (8) Beck knew that the incident was a joke and that defendant did not intend to charge Peck.

Defendant relies on two cases, People v. Shaw (1978), 63 Ill. App. 3d 227, 379 N.E.2d 949, and People v. Powell (1977), 48 Ill. App. 3d 723, 362 N.E.2d 1329, to support his argument. In Shaw, the defendant was awakened by police officers in her house sometime after midnight and was informed that the officers had arrest warrants for her brothers. Defendant had been drinking heavily that night and told the officers that her brothers were not at her house. After a quick look through her house, defendant again told the officers that her brothers were not there. Defendant then gave the officers consent to search her house, and the officers found the two brothers hiding in the basement. Defendant was convicted of obstructing justice, but the appellate court reversed and stated:

“The defendant did give false information to the officers, but the statute requires more. It requires that when the false information is given, it must be given with the intent to prevent the apprehension and with knowledge that the information was untrue. (Ill. Rev. Stat. 1975, ch. 38, par. 31- — 4(a).) The defendant’s state of mind or intent can be inferred from proof of the surrounding circumstances. People v. Baddeley (1969), 106 Ill. App. 2d 154, 245 N.E.2d 593.” (Shaw, 63 Ill. App. 3d at 228, 379 N.E.2d at 950.)

The only evidence tending to prove an intent to prevent defendant’s brothers’ apprehension was the fact that the brothers were subsequently found in the basement of defendant’s residence. The court concluded that any inferences reasonably drawn from this fact were in conflict with the State’s assertion that the defendant voluntarily allowed the police to search her home.

In Powell, the defendant was charged with bribery, solicitation, and attempt. It was agreed that the defendant gave a police officer $250, but there was a conflict concerning whether this money was delivered for the purpose of bribing the officer to dismiss a complaint against the defendant’s client or whether the money was delivered because of demands and threats by the police officer. The court in Powell held that because the defendant was charged with solicitation to commit obstruction of justice, it had to be established that he intended that justice be obstructed, and that he intended to prevent the prosecution of a specific person. Powell, 48 Ill. App. 3d at 730, 362 N.E.2d at 1334.

Defendant believes Shaw is similar to the instant case and that the rationale and conclusion in that case control here. Defendant concludes this point by arguing that the concept of intending to obstruct someone's defense assumes there is something to defend. Peck was not charged with possession of a controlled substance and defendant believes there was thus no defense to obstruct.

Once a defendant has been found guilty by the trial court, a presumption of validity accompanies the finding. {People v. Morgan (1988), 169 Ill. App. 3d 368, 523 N.E.2d 560.) “Resolution of factual disputes and the assessment of the credibility of witnesses is for the trier of fact, and a reviewing court will not reverse a conviction unless evidence is so unsatisfactory or improbable that a reasonable doubt as to the defendant’s guilt remains.” (People v. Gray (1986), 146 Ill. App. 3d 714, 716, 496 N.E.2d 1269, 1270.) The intent of a defendant to obstruct justice is established at the time of the incident (Gray, 146 Ill. App. 3d at 717, 496 N.E.2d at 1271), can be inferred from proof of the surrounding circumstances, and need not be proved by direct evidence. People v. Shields (1955), 6 Ill. 2d 200, 205, 127 N.E.2d 440, 443.

Unlike Shaw and Powell, the evidence here supports the trial court’s finding that at the time of the incident, defendant had the requisite intent for obstructing justice. In holding this, we note the following: (1) defendant was aware from the radio report that Peck had been stopped after placing a white powdery substance in his mouth; (2) defendant did not think any illegal drugs had been found on Peck; (3) defendant asked Beck to act as if he found the bag of pseudo-cocaine on Peck; (4) Beck rebuffed this suggestion and defendant went ahead and did it himself, stating something like “look what I found,” and holding the bag in the air; (5) Officer Smith looked shocked at defendant’s “discovery”; and (6) defendant gave several different explanations for his actions, telling Beck and Walker that he had taken the bag out for comparison purposes, even though he knew there was nothing to compare it to, telling the officers after the incident that it was a joke, and telling Walker that he used the pseudo-cocaine “in hopes that the suspect would admit or make a statement to where cocaine was.” From the proof of the surrounding circumstances, and comments defendant made to the officers, it can be inferred that defendant had the intent to obstruct Peck’s defense.

While defendant argues that Peck was never charged for possession of a controlled substance, we note that section 31 — 4(a) only requires the defendant to act with the intent to obstruct an individual’s defense, not to actually obstruct a defense to a pending charge. The evidence at trial suggested the possibility that Peck could have been charged for possession of a controlled substance. If defendant’s plan worked, and defendant confessed to a drug charge, there would have been a defense, which would have been obstructed by defendant’s act. The intent to obstruct an individual’s defense is not negated by the fact that the suspect is subsequently not charged with a corresponding crime.

Defendant also argues that the evidence does not support the trial court’s finding that he planted false evidence on Peck with the intent to obtain a confession. Defendant believes the only evidence in the record to support the court’s conclusion is Officer Walker’s testimony that defendant told him he used the pseudo-cocaine in an attempt to induce a confession. Defendant denied making this statement and testified that he only told Walker he took the pseudo-cocaine out for comparison purposes. Defendant also claims his version is supported by Beck, who testified that defendant made only one statement during that conversation, that defendant intended to use the substance for comparison purposes.

Defendant further argues that his actions after the incident support his belief that the incident was done only as a joke. After defendant acted as if he found the bag on Peck, he stepped away, did not talk to or interrogate Peck, and did not threaten to charge Peck with anything unless Peck made a statement. Defendant also notes that he never told Hannon or Brooks that he did this to obtain a confession. Defendant concludes here that the verdicts of guilty hang on the thin thread of a single witness, Walker, whose testimony about what the defendant said is “completely contradicted” by other witnesses and “all the other facts and circumstances in the case.”

The trial court’s finding that defendant planted false evidence on the suspect with the intent to obtain a confession is supported by the evidence. Determining the credibility of witnesses and the weight to be given their testimony is a function reserved primarily for the trier of fact, which in this case was the trial judge. A court of review will not normally substitute its own judgment for the trial court’s. (People v. Locascio (1985), 106 Ill. 2d 529, 478 N.E.2d 1358.) The trial court determined Walker’s testimony, as well as several of the other officers, to be more credible than defendant’s testimony. Moreover, the court’s conclusion does not rest only upon Walker’s testimony, and Walker’s testimony is not completely contradicted by other witnesses and the facts and circumstances in the case.

Defendant’s statement to Beck just prior to the incident, asking Beck to act as if he found the bag on Peck, in addition to defendant’s statement to Walker, just after the incident, that he did it in the hope of obtaining a confession, shows defendant’s intent to plant false evidence on Peck in an attempt to induce a confession. While defendant testified that he never made this statement to Walker, the trial court found Walker to be more credible than defendant. Moreover, Beck did not testify that defendant never said he used the bag of pseudo-cocaine to induce a confession. Beck only testified that he heard defendant state that he took out the bag for comparison purposes.

We further note that defendant’s testimony is inconsistent with other testimony at trial. Officer Brooks testified that defendant told him “they” had done this before. Defendant denied making this statement to Brooks. Officers Beck, Smith, and Walker all testified that Peck was calm as he was searched, and did not resist in any noticeable way. Defendant, however, testified that Peck was excited during the search, continuously came off the car, and that Walker had to con-

stantly tell Peck to calm down. Moreover, Smith and Beck both testified that defendant never told them on the night the incident occurred that the entire thing was a joke. Defendant asserted at trial that he had. Finally, while Hannon testified that defendant told him he informed Peck that the bag was found on him, defendant denied making the statement.

The evidence thus shows that defendant walked up to Peck as he was being searched and acted as if he found a bag of cocaine on him. Defendant apparently realized from the other officers’ reactions, however, that he had made a mistake. He then attempted to explain his action with three different explanations. While defendant claims the incident was only a joke, testimony by the officers present reveals that defendant did not immediately explain this to them. And, while defendant argues that his actions after the incident demonstrate it was only intended to be a joke, they more likely reveal that defendant suddenly realized the other officers would not go along with his plan and that he had made a serious miscalculation. The trial court found, and the evidence supports, that defendant’s intent at the time of the act was to attempt to induce a confession from Peck.

Defendant next argues that even if he used the bag of pseudo-cocaine in an attempt to induce a confession, such an act would not constitute obstructing justice under the statute. Defendant did not file a post-trial motion and has waived this issue for appeal. Moreover, we do not find plain error to be present here. We do note, however, that defendant’s argument is without merit.

Defendant argues that the act of misrepresenting facts by a law enforcement officer to an accused is usually dealt with in the Miranda context. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) The Illinois Supreme Court has held that such activity by itself does not ordinarily invalidate a waiver of rights or a resulting confession if it was voluntarily given. (People v. Martin (1984), 102 Ill. 2d 412, 466 N.E.2d 228; People v. Kashney (1986), 111 Ill. 2d 454, 490 N.E.2d 688, 693-94; People v. Holland (1987), 121 Ill. 2d 136, 520 N.E.2d 270.) Kashney and Martin each involved misrepresentations by law enforcement personnel to suspects that their fingerprints had been found at the scene of the crime. Holland involved a misrepresentation by a police officer that he had received a report from another police department that the accused’s vehicle had been seen in the same alley where the crime occurred and that he would have to explain why his vehicle was there. In another case, Lynumn v. Illinois (1963), 372 U.S. 528, 9 L. Ed. 2d 922, 83 S. Ct. 917, the police told the accused that if she did not cooperate, her children would be taken away and she would lose her public aid. The accused eventually confessed. The misrepresentations in Lynumn amounted to threats and the court found the accused’s confession coerced.

Defendant believes these cases are relevant to the instant case because, if officers are allowed to misrepresent facts to an accused to induce a confession, there can be nothing wrong with pretending to find a bag of cocaine on Peck during the search in an attempt to induce a confession. Defendant argues that if he is guilty of obstructing justice and official misconduct, the officers in the cases cited would also be guilty, even though their actions were found not to have violated the accused’s Miranda rights. Defendant notes that research reveals no cases involving the prosecution of a police officer as a result of such conduct. Defendant suggests no such cases exist because it is within the broad range of police powers to perform such acts in an attempt to obtain the truth. If defendant used the pseudo-cocaine in an attempt to induce a confession, he argues he too was only searching for the truth, not deceit.

Defendant further notes that research reveals no cases under Federal civil rights actions alleging a violation of an accused’s civil rights by a law enforcement officer’s use of subterfuge or misrepresentations of fact to induce a confession. Moreover, the only cases similar to this, where a police officer failed to give a defendant Miranda warnings, have held there is no action pursuant to section 1983 of the Civil Rights Act of 1968 (42 U.S.C. §1983 (1988)) against an officer who failed to give such warnings. See O’Hagan v. Soto (S.D.N.Y. 1981), 523 F.Supp. 625, 629.

Defendant concludes here by noting that Brooks has falsely told a defendant that a codefendant confessed in an attempt to get the defendant to confess. (See People v. Kokoraleis (1986), 149 Ill. App. 3d 1000, 501 N.E.2d 207 (where such activity was held not to invalidate a confession).) Brooks was never disciplined or charged with official misconduct for this. Moreover, defendant notes that he was not disciplined by Hannon for his actions, other than receiving a warning. Defendant believes this supports his view that noncoercive misrepresentation of facts to obtain a confession is not obstructing justice under the Illinois statute or any other crime.

We do not agree with defendant’s argument. Section 31— 4(a) of the Criminal Code of 1961 (Code) provides that “[a] person obstructs justice when, with intent to*** obstruct the *** defense of any person, he knowingly commits any of the following acts: (a) Destroys, alters, conceals or disguises physical evidence, plants false evidence, furnishes false information ***.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 31 — 4(a).) We believe that this incident is covered by the specific language of the statute. While defendant also argues that if he acted with the intent to induce a confession, he was simply trying to obtain the truth, not deceit, section 31 — 4(a) does not make an exception for acts performed with the intent to obtain the truth.

The cases discussing misrepresentations by police officers in the Miranda context do not address whether such behavior constitutes obstructing justice within the meaning of the Code. This was not at issue in those cases. The same cases also do not condone such behavior and only address whether a confession was coerced. In some instances, such as Lynumn, the misrepresentations are severe enough to require suppression of the confession. While research does not reveal published opinion involving any instance in which an officer has been criminally charged for such behavior, there may be several reasons for this. An officer may have been charged for such misrepresentations, but plea bargained with the State. Or the State may have decided not to prosecute some misrepresentations because they were not severe enough. The police department or employing authority may handle the matter administratively. While there may be no published decisions supporting the view that defendant’s act was criminal obstruction of justice, there are also no cases supporting the view that it is not. Under section 31 — 4(a) of the Code, defendant’s action constitutes obstructing justice, for in attempting to induce a confession, defendant planted false evidence with the intent to obstruct Peck’s defense.

Defendant’s next argument is that if this court reverses his conviction for obstructing justice, it must also reverse his conviction for official misconduct. We do not reverse defendant’s conviction for obstructing justice, but note that defendant’s conviction for official misconduct does not rest upon his conviction for obstructing justice.

The indictments charged defendant with obstructing justice and official misconduct. Defendant believes that if he is not guilty of obstructing justice, there is no underlying statutory offense to provide the basis for the charge of the official misconduct. Defendant cites as authority People v. Samel (1983), 115 Ill. App. 3d 905, 451 N.E.2d 892, where the defendant was charged with official misconduct under section 33 — 3(b) of the Code. (Ill. Rev. Stat. 1981, ch. 38, par. 33— 3(b).) Specifically, it was alleged in Samel that the defendant knew he was forbidden by law to perform the procurement of the name and address of a person through a computer system for purposes other than that of law enforcement. The indictment was dismissed in the trial court, but was reinstated on appeal. In discussing the law applicable to charges of official misconduct under section 33 — 3(b), the court stated that the section “standing by itself, does not delineate specific criminal conduct but rather derives its meaning by referring to acts which are known to the defendant to be ‘forbidden by law.’ ([People v. Adams (1978),] 64 Ill. App. 3d 547, 549[, 381 N.E.2d 738, 740].)” Samel, 115 Ill. App. 3d at 909, 451 N.E.2d at 895.

The Samel opinion, however, also held that the underlying offense need not be one prohibited by Illinois statute, but may also be one prohibited by a “properly promulgated administrative rule or regulation.” (Samel, 115 Ill. App. 3d at 910, 451 N.E.2d at 896.) Other cases have noted that an act providing the basis for a charge of official misconduct may be one prohibited by “identifiable statute, rule, regulation or tenet.” (People v. Bassett (1988), 169 Ill. App. 3d 232, 235, 523 N.E.2d 684, 686.) In People v. Thoms (1977), 50 Ill. App. 3d 398, 365 N.E.2d 717, the defendant police chief was convicted of official misconduct in that he failed to forward traffic citations to the circuit court and collect bond from an offender before releasing him. The defendant in Thoms argued on appeal that he could not be convicted of official misconduct because there was no law which specifically indicated that the duty to impose and forward a bond or to institute court proceedings fell on the chief of police. Moreover, Supreme Court Rule 552 (43 Ill. 2d R. 552) specifically provided that the arresting officer was required to forward the traffic citations to the clerk of the circuit court. The appellate court in Thoms upheld the conviction, however, because regardless of where the statutory duty was initially placed, the testimony of the arresting officer indicated that defendant’s use of his supervisory authority to terminate the statutory proceedings was improper. Testimony in the instant case revealed that defendant’s act was not the policy of the department and was not condoned or promoted. Such testimony is sufficient to provide the basis for the charge of official misconduct.

Defendant’s final argument is that the State failed to prove he knowingly performed an act which he knew he was forbidden by law to perform. This argument is in reference to the conviction for official misconduct. Defendant argues that under section 33 — 3(b), a party is not presumed to know the law. (Samel, 115 Ill. App. 3d at 909, 451 N.E.2d at 895.) Defendant believes the evidence is insufficient to prove beyond a reasonable doubt that he knew his acts were unauthorized by law.

Defendant first notes that while Smith and Brooks testified from their experience that the department did not accept, condone, or promote placing evidence on a person in an attempt to induce a confession, they never testified that defendant’s action was against department policy. And, while Slade testified that he and others in his drug unit were aware of the performance and rules and regulations concerning the conduct of officers conducting these investigations, and that nothing in either departmental policy or the law allowed an officer to act as defendant did to induce a confession, Slade did not allege that defendant was a member of his drug unit or that defendant knew the rules and regulations regarding the conduct of persons within that unit.

Defendant further argues that evidence was admitted showing that other officers had misrepresented facts to accused persons to elicit confessions. Thus, defendant concludes that this court cannot presume he knew his acts were unauthorized by law and believes that what some people in the department believe to be wrong can hardly be said to prove knowledge on defendant’s part.

The evidence here was sufficient to prove defendant had the knowledge that his act was wrong. Defendant testified that he had been a law enforcement officer for IOV2 years. Smith testified that such acts were neither accepted, promoted, nor condoned. Slade testified that nothing in department policy, nor unit policy, allowed an officer to act as defendant did. Moreoever, Brooks testified that the policy of the Decatur police department is that an officer cannot purport to find evidence on a person if he in fact did not find the evidence on that person. Mowen testified that it is not police department policy to attempt to get suspects to admit they possessed real cocaine.

In People v. Locascio (1985), 137 Ill. App. 3d 201, 484 N.E.2d 451, defendants, Cook County forest preserve officers, were charged with official misconduct. Because the officers’ duties were to enforce rules made to protect the forest preserve and the animals therein, the court found that they necessarily had to know that their acts were unauthorized conduct. The same is true here.

Accordingly, the trial court is affirmed.

Affirmed.

GREEN and KNECHT, JJ., concur.